Agenda packet — Berkeley City Council, June 28, 2022 (part 3 of 8)

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c. Sewer service charges will be billed for the first day of the applicable billing period and for each day thereafter during the entire billing period.

d. The District will cease billing sewer service charges for any or all classifications within ninety (90) days of receipt of the Agency's written request to do so.

e. The parties agree that, in the event that the District does not bill an account that is identified as an account to be billed in the Agency's Request To Bill Sewer Service Charges, or in any change thereto, the District shall have no liability therefor and no obligation to collect said unbilled revenue or to pay any costs that may be incurred by the Agency, or by any other person or entity, to collect said unbilled revenue.

2.7. Notification to the Public. The Agency agrees to provide public outreach, in a form and manner jointly determined by the District and the Agency, to affected customers advising them of any change in the Agency's sewer service charge prior to the effective date of said change. In all cases, the Agency shall provide its customers through its public outreach program with an Agency telephone number for customer inquiries regarding said change. It is understood and agreed that the District will not explain or respond to customer inquiries about the Agency's policy in levying sewer service charges, or changes thereto, and will only inform customers that the charges correctly reflect the expressed request of the Agency. Customers shall be directed to the Agency for further clarification of the rationale behind setting said charges.

2.8. Identification of Services to be Included for the Agency’s Charge. Upon execution of this Agreement the Agency shall submit to the District a detailed map of its service territory. A revised map shall be submitted not later than fifteen (15) days after any subsequent modification of the Agency's territory. Said maps shall clearly show, by individual address, which services are to be included for sewer service charges.

2.9. Services Excluded from the Agency’s Charge. The Agency shall designate promptly to the District by name and account number such services as are to be excluded from all billing and collection by the District, and those that are to be billed directly by the Agency. Services may be added to, or deleted from, said list of excluded premises by the Agency at any time. Such additions or exclusions shall be for future billings only and shall not be retroactive to prior billed periods.

2.10. Payments to the Agency. Except as otherwise provided in this Agreement, the District shall remit monthly to the Agency the amount of its sewer service charges collected by the District. The District will also provide to the Agency a monthly summary of the total amount billed, collected, credited and written-off by the District pursuant to this Agreement.

2.11. District Right to Terminate Water Service. It is understood and agreed that this Agreement shall in no way restrict or limit the District right to terminate water service for nonpayment of billed charges or other permissible reason. The parties expressly agree that the District shall have no liability whatsoever for any reduction in sewer service charge revenue due to a termination of water service.

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2.12. Yearly Consumption Data. Upon request, the District will provide to the Agency yearly consumption data in the format described in Exhibit C which format may be revised by the District from time to time. The medium for the data shall be electronic file transfer.

Charges for said data shall be in addition to other charges set forth in this Agreement and shall be based upon the actual cost to produce the data. The District is not obligated under the terms of this Agreement to provide any other special reports, data, mailing labels or mailing lists. In the event this Agreement is terminated, the District will continue to provide yearly consumption data upon the Agency's request and the Agency will pay the District's cost to produce said data. The District is not obligated to make available to the Agency any other form of data requested for individual customer records or groups of such records except as part of the annual consumption data. The Agency should review the annual consumption data for accuracy and advise the District as soon as practicable of any omissions, errors or discrepancies in the billing of its sewer service charges.

3. Obligations of the Agency

3.1. Payments to be Made by the Agency

a. Billing and Collection Expense. The District will annually calculate the estimated monthly cost to bill and collect the Agency's sewer service charge. The calculation of said estimated cost as shown in Exhibit A, shall be based upon (a) the District's knowledge of the cost to collect on behalf of its own accounts and (b) the amount of revenue collected, number of accounts to be billed, and number of meters read for the Agency compared to the total revenue collected, number of accounts billed, and meters read by the District. Said estimated costs shall be reduced by an allocation of late payment penalty fees billed by the District, based upon the Agency's portion of total revenue billed. During the fiscal year in which the billing and collection of the Agency's sewer service charge is commenced, the Agency shall pay to the District, on a monthly basis, said estimated cost plus the amortized payment amount towards the Agency’s prorated share of the fixed asset or Customer Information System (CIS) replacement as shown in Exhibit A . At the close of the initial fiscal year, and at the close of each subsequent fiscal year, the District will calculate the actual costs incurred to bill and collect the Agency's sewer service charge. If the District's actual costs are greater than the estimated costs paid by the Agency, the Agency shall pay the difference to the District within thirty (30) days of the District's invoice therefor.

If the District's actual costs are less than the estimated costs paid by the Agency, the District will apply a credit to the Agency's account. The actual cost calculation by the District at the close of each fiscal year shall be the estimated monthly charge which shall be paid by the Agency during the next fiscal year. The District will provide to the Agency an annual reconciliation of billing and collection actual costs to estimated costs for the preceding year and provide projected estimated costs for the following year. Calculation by the District of its actual costs to bill and collect the Agency's sewer service charge shall be conducted according to standard accounting practices on a shared cost basis. The District agrees that the charge to the Agency shall not exceed the reasonable costs of providing the services rendered hereunder. Subject to the limitations expressed herein, the parties agree that the District's determination of its actual costs shall be final.
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b. Manner of Payment. The Agency and the District agree that the District shall debit sewer service charges collected by the District , which have not yet been remitted to the Agency pursuant to paragraph 2.10 herein for aforesaid charges for billing and collection costs, and other charges set forth in this Agreement. Any unpaid and overdue sum owing to the District by the Agency shall be paid by the Agency to the District within thirty (30) days following billing by the District. Checks should be made payable to East Bay Municipal Utility District, P.O. Box 24055, Oakland, CA 94623.

3.2. Liaison by the Agency with District. The Agency shall designate a representative for liaison with the District to cooperate in the handling of disputed accounts and other matters arising under the administration of this Agreement. The District will make available to the Agency upon request District records pertinent to the billing and collection of the Agency's sewer service charges.

3.3. Confidentiality of Records. The Agency acknowledges that District records pertaining to individual customers may be protected by a constitutional right of privacy or may contain proprietary information. The Agency agrees to limit access to data furnished to the Agency pursuant to this Agreement and not to make such data available for public inspection unless required by law to make disclosure. The Agency shall inform the District prior to making such disclosure. Subject to these limitations, the District agrees to furnish customer account data to the Agency solely for the intended purpose of this Agreement. The Agency agrees that the only use it shall make of such data shall be for development and substantiation of sewer service charges.

3.4. Liability of the Agency. The Agency agrees to indemnify, defend and hold harmless the District, its board, officers, employees and agents from and against any and all loss, liability, expense, claims, costs, suits, damages, including attorney's fees or demands of whatever character, direct or consequential, arising from the billing or collection of the Agency's sewer service charge or from the furnishing of customer account data to the Agency, except to the extent attorney's fees or demands of whatever character, direct or consequential, arising from the billing or collection of the Agency's sewer service charge or from the furnishing of customer account data to the Agency, except to the extent caused by the sole negligence or willful misconduct of the District, its officers, agents and employees. The Agency agrees that the District may itself defend, at its own election, any such actions brought against the District arising out of the billing or collection of such sewer service charge, and the Agency agrees to indemnify the District against any judgments or damages for which the District may be found to be liable in such action or actions and to reimburse the District for any costs incurred, including attorney's fees, arising from the defense of such actions. In the event action is brought against the Agency, or it is joined therein, the Agency shall provide its own defense at the sole cost and expense of the Agency.

3.5. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. 7

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3.6. Severability. Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the parties.

3.7. Amendments. This Agreement is not subject to modification or amendment, except by a writing executed by both the Agency and the District, which writing shall expressly state that it is intended by the parties to amend the terms and conditions of this Agreement.

3.8. Whole Agreement. This Agreement has 8 pages excluding any exhibits described herein. This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.

IN WITNESS WHEREOF, Agency, by and through its officers, duly authorized by Resolution No.______ and the District, by and through its General Manager or designee, duly authorized to act, have executed this Agreement in triplicate on the day and year first written above.

CITY OF BERKELEY: EAST BAY MUNICIPAL UTILITY DISTRICT:

Approved as to Form: ________ Approved as to Form: ________ (
Counsel’s Initials) ( Counsel’s Initials)

_______________________________ _______________________________________ Signature Signature

__________________________________ __________________________________________ Name Name

_______________________________ _______________________________________ Title Title

__________________________________ __________________________________________ Date Date

SEAL: SEAL:

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EXHIBIT A

Agency Shared-Cost Calculations for Billing and Collection of Sewer Service Charges

The following outline is a numerical and narrative description of the shared-cost calculations for Billing and Collection of sewer service charges for any agency. It is for illustrative purposes only and does not represent any particular agency charges. The schedule summarizing the share of Billing and Collection expenses for the "Agency" follows the narrative. The Billing and Collection expenses come from Collection, Customer Service and Meter Reading Activities, and they are allocated based on each agency's share of revenues collected, share of bills issued, and share of meters read by the District.

CALCULATION

DEFINITION
Share of Fixed Asset Replacement

Customer Information System (CIS) Replacement
Cost per District account of $39.24

multiplied by

Agency's participatory share of account services, of

33.33 percent if 1 of 3 types on each account, or 50.00 percent if 1 of 2 types on each account

multiplied by

Total Number of Agency accounts in new CIS to equal
Agency’s share of District’s CIS Replacement Cost.

The CIS Replacement Cost per District account
represents the portion of District’s full cost to
implement the Collections, Customer Services, and
Meter Reading functions in the new CIS installed in
September 2011 divided by 404,348 total District
accounts converted into the new system.

An account may receive District Water, District
Wastewater, and Agency services. The resulting Cost
per Agency account is $13.08 if the Agency service is
1 of 3 types, or $19.62 if 1 of 2 types of services per account.

Total Number of Agency accounts within District’s
service area that are set-up for Agency sewer service.

Share of Collections

Annual Agency Revenue collected for "Agency" of
$600,000 is

divided by the

Annual District Revenue collected of$200,000,000 to
equal .003.

This factor is multiplied by

Annual District Collection expenses of$3,000,000 to
equal "Agency's" share of Collection expenses totaling
$9,000.

Annual Agency Revenue collected is the yearly
amount of sewage revenue invoiced on each bill
relating to the agency.

Annual District Revenue collected is the yearly
amount of District water and District sewage treatment
and agency revenue invoiced on each District water
bill.

Annual District Collection expenses are defined as
Salaries and Employee Benefits, Services and
Supplies, and Fixed Assets directly charged to
Collections during the Year. In addition to the direct
charges, an overhead amount is charged based on
Total Collection Salary and Employee Benefit
dollars
.
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CALCULATION

DEFINITION
Share of Customer Services

Sixty percent of Annual District Customer Service
expenses of$5,000,000, or $3,000,000, is

divided by the

Annual number of District bills rendered to customers
of 2,200,000 to equal the Cost per Bill of $1.3636.

The Cost per Bill is multiplied by

"Agency's" participatory share of billing entities, 1 of 3 on each bill, or 33.33 percent. The Cost per Bill for the agency charge is $.4545.

This amount is multiplied by

the Annual number of "Agency" bills issued by the
District of 30,000 to equal "Agency's" share of
Customer Service expenses of $13,635.

Annual District Customer Service expenses are
defined as Salaries and Employee Benefits, Services
and Supplies, and Fixed Assets directly charged to
Business Office Administration, Repair Business
Office Bldgs., and Equipment, Grounds keeping
Customer Records and Billings, Customer Information
Systems, and Administrative and General during the
Year. In addition to the direct charges, an overhead
amount is charged based on Total Customer Services
Salary and Employee Benefit dollars. At the present
time, forty percent of the total Customer Services
expenses relate only to Water System business and are
not shared by agencies, and sixty percent relates to
total combined District water, District sewage
treatment, and agency business.

Annual number of District bills used o collect
revenues for the District.

The portion of each bill relating to the Agency refers
to the number of entities who share the benefit of
billing. District Water, District Wastewater, and
Agency are the three current entities who may share
billing and collection. However, all three may not be
present on all bills. Agencies that share the benefit of billing with only District Water have a participatory
share of billing of 1 of 2 entities or 50 percent.

The Annual number of Agency bills issued by the
District may include charges for District Water,
District Wastewater, and Agency. One, two or three
entities may be listed on each bill depending on the
location of the service.

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CALCULATION

DEFINITION
Share of Meter Reading

Total annual District Meter Reading expenses are
defined as Salaries and Annual District Meter Reading
expenses Employee Benefits, Services and of
$2,000,000 is Supplies, and Fixed Assets (minor)
directly charged to - Read Meters during the Year. In
addition to the direct charges, an overhead amount is
charged based on Total Meter Reading Salary and
Employee Benefit dollars.

divided by the

Annual number of District bills rendered to customers
of 2,200,000 to equal the Cost per Bill of $.9091.

The Cost per Bill is multiplied by

"Agency's" participatory share of each billing, entities 1 of 3 on each bill, or 33.33 percent. The Cost per Bill for the agency charge is $.303. This amount is

multiplied by

the annual number of "Agency" bills requiring flow
data from meter readings of 3,000 to equal "Agency's"
share of Meter Reading Costs of $909.

Total annual District Meter Reading expenses are
defined as Salaries and Employee Benefits, Services
and Supplies, and Fixed Assets directly charged to
Read Meters during the Year. In addition to the direct
charges, an overhead amount is charged based on
Total Meter Reading Salary and Employee Benefit
dollars.

Annual number of District bills used to collect
revenues for the District.

The portion of each bill relating to the Agency refers
to the number of entities who use meter reading data in the calculation of charges that appear on each bill.

District Water, District Wastewater, and Agency may
all base charges on flow data derived from meter
readings. Agencies that share the benefit of billing
with only District Water have a participatory share of
billing of 1 of 2 entities or 50 percent.

The Annual number of Agency bills issued requiring
flow data from meter readings issued by the District.

The Agency’s share of the fixed asset or CIS replacement can be amortized over a specific period based on the total amount: 1) $50,000 or below can be paid without interest in 12 monthly installments beginning January 1, 2014; 2) greater than $50,000 to $200,000 with 2.5 percent interest in 48 monthly installments beginning January 1, 2014 ; or 3) over $200,000 will be paid with 2.5 percent interest in 114 monthly installments beginning January 1, 2014 and as described in paragraph 3.1.a.

In summary, by adding together the share of Collection expense of $9,000, the share of Customer Service expense of $13,635 and the share of Meter Reading expense of $909, the actual annual Billing and Collection share for "Agency" will be $23,544 .This figure represents the "Agency's" shared cost of the District's billing and collection operation. Actual cost varies by the nature of events during a year, and it may not necessarily reflect the above algorithm. This figure is paid in addition to the total amortized monthly payments towards the Agency’s share of the fixed asset or CIS replacement described in paragraph 3.1.a.

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EXHIBIT B

SEWER SERVICE CHARGES AND RATES REQUEST FORM
Updated 12/31/12

AGENCY NAME:

DATE SENT:

EFFECTIVE DATE:

DATE RECEIVED BY EBMUD:

SERVICE CHARGES
(amount by rate code, applicable by BCC code)

RATE CODE MONTHLY BI-MONTHLY
(monthly x2)
DAILY
(monthly/30)

0- Not Billed
1 - Single Family Residence
(1 dwelling, 1 meter)
2 - Duplex (2 dwellings, 1 meter)
3 - Triplex (3 dwellings, 1 meter)
4 – Fourplex (4 dwellings, 1 meter)
5 - Metered Rates (per ccuft.)
$nnn.nn

n.nnnn
n.nnnn
n.nnnn
n.nnnn
n.nnnn

$nnn.nn

n.nnnn
n.nnnn
n.nnnn
n.nnnn
n.nnnn

$nnn.nn

n.nnnn
n.nnnn
n.nnnn
n.nnnn
n.nnnn

7 - Not connected to side sewer, not billed (fire services, etc ) 9 - Billed by agency directly

MINIMUMS
(applicable by BCC Code)

MONTHLY BI-MONTHLY DAILY
(monthly x 2) (monthly/30)

$n.nnnn $n.nnnn $n.nnnn

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BCC CODE TABLE

BCC CODE DESCRIPTION SERVICE
CHARGE?
Y/N

MINIMUM
CHARGE?
Y/N

METERED
RATE

PER CCUFT
0100 Agriculture $nnn.nn
0700 Veterinarian Services $nnn.nn
2010 Meat Products $nnn.nn
2011 Slaughterhouses $nnn.nn
2020 Dairy Product Processing $nnn.nn
2030 Fruit and Vegetable Processing $nnn.nn
2040 Grain Mills $nnn.nn
2050 Bakeries (including pastries) $nnn.nn
2060 Sugar Processing $nnn.nn
2077 Rendering Tallow $nnn.nn
2080 Beverage Manufacturing and Bottling $nnn.nn
2090 Specialty Foods Manufacturing $nnn.nn
2600 Pulp and Paper Products $nnn.nn
2810 Inorganic Chemicals Manufacturing $nnn.nn
2820 Synthetic Material Manufacturing $nnn.nn
2830 Drug Manufacturing $nnn.nn
2840 Cleaning and Sanitation Products $nnn.nn
2850 Paint Manufacturing $nnn.nn
2893 Ink and Pigment Manufacturing $nnn.nn
3110 Leather Tanning and Finishing $nnn.nn
3200 Earthenware Manufacturing $nnn.nn
3300 Primary Metals Manufacturing $nnn.nn
3400 Metal Products Fabricating $nnn.nn
3410 Drum and Barrel Manufacturing $nnn.nn
3470 Metal Coating $nnn.nn
4500 Air Transportation $nnn.nn
5812 Food Service Establishments $nnn.nn
6513 Apartment Buildings (5 or more units) $nnn.nn
7000 Hotels, Motels with Food Service $nnn.nn
7210 Commercial Laundries $nnn.nn
7215 Coin-Operated Laundromats $nnn.nn
7218 Industrial Laundries $nnn.nn
7300 Laboratories $nnn.nn
7542 Automobile Washing and Polishing $nnn.nn
8060 Hospitals $nnn.nn
All Other BCCs Schools $nnn.nn

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EXHIBIT C

SEWER SERVICE/SEWAGE TREATMENT CONSUMPTION DATA

FILE FORMAT
Updated 12/30/12

Field Name

Format Length
EBMUD Account No. Alpha 11
Customer Name Alpha 26
Service Address Alpha 40
BCC Code Alpha 4
Meter Size Alpha 2
Billing Frequency Alpha 1 M – monthly, B – bimonthly
January Consumption Numeric 8 Ccuft, unpacked
February Consumption Numeric 8 Ccuft, unpacked
March Consumption Numeric 8 Ccuft, unpacked
April Consumption Numeric 8 Ccuft, unpacked
May Consumption Numeric 8 Ccuft, unpacked
June Consumption Numeric 8 Ccuft, unpacked
July Consumption Numeric 8 Ccuft, unpacked
August Consumption Numeric 8 Ccuft, unpacked
September Consumption Numeric 8 Ccuft, unpacked
October Consumption Numeric 8 Ccuft, unpacked
November Consumption Numeric 8 Ccuft, unpacked
December Consumption Numeric 8 Ccuft, unpacked
Agency Rate Code Numeric 2
Total Annual Agency Charges Numeric 10

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Disaster and Fire Safety Commission
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Disaster and Fire Safety Commission
Submitted by: Jose Luis Bedolla, Chairperson, Disaster and Fire Safety Commission Subject: Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 9-1-1 Communications Services, Hazard Mitigation, and Wildfire Prevention and Preparedness; to Not Reduce General Fund Allocations Towards Fire Services; and to Support Effective Commission Oversight

RECOMMENDATION
The Disaster and Fire Safety Commission (DFSC) supports revenue generated by the voter-approved Fire, Emergency Services and Wildfire Prevention Tax (Measure FF) going towards services described in the Fire Department’s 5-year implementation plan, including:
 Wildfire Prevention and Response
 Training and Development
 EMS Operations
 Dispatch
The Commission has reviewed and provided input on expenditure plans described by the Fire Department and is engaged in the process of providing input and oversight prior to the budget being finalized. As these projects advance and line-item budgets continue to be developed in more detail, the Commission expects to follow up with more specific recommendations on funding allocations.

In order to provide effective oversight of Measure FF spending as resolved by City Council, the Commission needs to have the tools and information necessary to do so.

This includes:

1. Thorough and detailed information about spending plans, including detailed line items and staffing numbers, before budgets are finalized and locked in place (as of December 2021, the commission has not been provided a measure FF budget).

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022

2. An accounting system that will clearly designate spending from the fund, including job codes that are specific to Measure FF, so that the Commission can easily determine staff time spent on Measure FF-funded activities.

Additionally, in allocating funds towards these critical safety improvements, it is imperative that the City ensures that Measure FF funds are used to supplement, rather than replace, general funding of Berkeley Fire Department costs.

When the City’s current fiscal emergency ends, the General Funds allocation to the Fire Department must be increased back to pre-COVID levels, rather than relying on Measure FF funds to fill the gap permanently. Post-crisis, the City must not decrease General Fund spending on Fire Department services while covering the difference using Measure FF funds.

Lastly, several areas of proposed Measure FF expenditures relate closely to the City’s Re-Imagining Public Safety effort, including 911 dispatch and related emergency services and the Safe Passages initiative. Council should ensure that all of these related efforts are coordinated to ensure that our public safety dollars are being spent as efficiently and effectively as possible to facilitate maximum progress on all of the City’s goals. To this end, the Commission recommends that the DFSC have the opportunity to provide input into the Re-Imagining Public Safety project where it relates to Measure FF-funded programs.

As the body that is charged with oversight of Measure FF spending, the DFSC will continue to work collaboratively with City staff to review and provide input on Measure FF spending plans, to monitor both budget planning and actual spending, and to object to any allocation or spending we believe is improper.

FISCAL IMPACTS OF RECOMMENDATION
Following this recommendation will allow Measure FF funds to be fully used to accomplish the safety goals described in the voter guide, while having no impact on General Funds.

If the City had an expectation that a temporary fiscal-emergency reduction in General Fund allocation to the Fire Department could be made permanent once Measure FF funding is available, then the fiscal impact of this recommendation is to eliminate that expectation.

By honoring the voters’ intent that this special funding be fully used towards the services described in the 2020 Voter Guide, following this recommendation can maintain or increase the public trust in future similar tax measures, ultimately leading to more voter support for future tax measures.

CURRENT SITUATION AND ITS EFFECTS

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
Measure FF is expected to generate approximately $8.5 Million in yearly revenue. The City is currently in the process of planning how to spend this money.

The DFSC has reviewed and provided input into the Fire Department’s 5-year Measure FF expenditures plan, and the Commission believes that the Fire Department’s planned Measure FF spending is broadly consistent with the intentions of Berkeley’s voters. The Commission looks forward to continued engagement with staff on funding plans.

If funds are allocated and spent according to the ballot measure, it will accomplish improvements in several DFSC priorities, including but not limited to the following:
 More inspectors to provide increased inspections in the Fire Zones, reducing fire fuel such as dry, overgrown brush and dead timber. This will reduce fire ignitions, slow the spread of any fires that do ignite, and help keep pathways clear for emergency access and egress.
 Increased vegetation management activities, including funding an innovative program for youth jobs that is also a recruitment tool so that more of Berkeley’s firefighters can be recruited from among Berkeley’s youth.  Installation and management of a citywide outdoor warning system that will provide reliable, universal emergency warnings and will reach all members of the community without relying on inconsistent and inequitable alerting systems.  Improved public education related to wildfire evacuations, including evacuation drills that provide an opportunity for both community members and staff to practice and improve the evacuation process.
 Improved evacuation routes, with dedicated staff time to manage the Safe Passages program, to evaluate and document the problem of emergency access and egress in the City’s Fire Zones and lead an interdepartmental program in addressing this problem through parking restrictions, increased enforcement, signage, and public education.
 Better planning and decision-making, with staff who can give focused attention to analysis, planning, policy, and protocols; can give the necessary time to researching options to make informed and data-driven decisions; and can interface more effectively with the public – including the Disaster and Fire Safety Commission - in both communications and collaborative planning.

Additional items not listed above include improvements to the 9-1-1 dispatch system, training facility improvements, and funding of new ambulances and technicians. The Fire Department’s current five-year funding plan as described to the Disaster and Fire Safety Commission shows the following estimated allocations in each area:

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
Chart: Measure FF Expenditure, Estimated 5-Year Totals Based on Berkeley Fire Department Presentation to DFSC 1/27/2021

BACKGROUND
On September 25, 2019 and October 23, 2019, The DFSC discussed a possible special assessment for wildfire prevention. Discussions focused on determining what the 1990s-era special assessment in the Berkeley Hills had been, what it had funded, and what funding would be needed today for improved vegetation management inspections in the City’s Fire Zones. The topic was also on the DFSC agenda on February 26, 2020, but was tabled.

On June 16, 2020, City Council adopted an ordinance declaring a Fiscal Emergency due to the significant loss of revenue attributable to the COVID-19 pandemic.

On July 6, 2020 The DFSC discussed the Measure FF ballot measure at a Special Session and members of the Commission provided input to Fire Department staff.

On July 14, 2020 City Council adopted an Omnibus Package including several items in the Re-Imagining Public Safety effort that may overlap with the scope of Measure FF budget items and programs. The Measure FF ballot measure language was drafted prior to this package’s adoption.

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
On September 22, 2020 Berkeley City Council passed a resolution Designating the DFSC as the Citizens’ Oversight Committee for Expenditure of the Proceeds of the Fire, Emergency Services and Wildfire Prevention Tax (Measure FF) In the 9/22/20 resolution, Council stated: “Citizen input and oversight are crucial for transparency and accountability” and “For this purpose, in addition to its other powers, the Commission may: 1) request detailed expenditure plans for tax proceeds annually, which shall be provided to it as early in the budget process as feasible; 2) make recommendations to the City Manager and the City Council as to the rate at which the tax should be set and how any tax proceeds should be spent; and 3) obtain a report on actual expenditures.”
On November 3, 2020, Berkeley voters approved Measure FF, by a vote of 74.2% “Yes” vs. 25.8% “No.”
The measure authorized a special parcel tax of $0.1047 per square foot of improvements (i.e., buildings or structures erected or affixed to the land) for each parcel of real property in the City of Berkeley. This tax is estimated to generate $8.5 million per year.

An impartial analysis by the City Attorney at that time read in part:
“The tax is estimated to generate $8.5 million annually. The proceeds shall be placed in a special fund to be used only for the following:
• Local firefighter and emergency medical response including hiring and training personnel and upgrading safety equipment and facilities. • Upgrading and modernizing the 9-1-1 dispatch system to implement and maintain a system to provide emergency medical dispatching. • Wildfire prevention and preparedness activities including, but not limited to, vegetation management, hazard mitigation, public education, evacuation planning, and an emergency alert system.

On January 27, 2021 The DFSC received a presentation, “Department Redesign – Measure FF Implementation Plan,” from Fire Department staff on a five-year plan for Measure FF expenditures. Individual members of the Commission provided follow up questions and input to Fire Department staff in the weeks following.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There is no direct environmental impact of this recommendation.

RATIONALE FOR RECOMMENDATION
The DFSC is enthusiastic about the potential for Measure FF funding to accomplish important and urgent improvements to public safety, as intended by voters. The funding

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
can pay for numerous actions that have been recommended and supported by the DFSC over the years.

However, if the City’s General Funding to the Fire Department is reduced in the coming years, this may have the effect of draining away funding and dedicated staff time from these important safety improvements.

Measure GG was a similar but smaller tax, approved by Berkeley voters in 2008. On August 1, 2018, the DFSC sent a memo to City Council objecting to the City using Measure GG funds to replace, rather than augment, general funding of Berkeley Fire Department overtime costs. See Attachment 1. It is because of this issue with Measure GG expenditures that the DFSC now makes this recommendation to avoid the same problem with Measure FF.

Additionally, effective Commission input and oversight throughout the budget planning process are necessary to ensure that Measure FF funds are put towards safety improvements as intended by voters. The Commission values the opportunity to provide input into budget decisions prior to the budget being finalized each year, as is required by Council’s 9/22/20 resolution.

Because a large portion of the Fire Department’s planned Measure FF expenditures are for staff time to advance crucial safety efforts, the Commission is also seeking the ability to track what staff time and activities are being charged to Measure FF.

Lastly, the City’s Re-Imagining Public Safety effort is closely tied to several projects within the scope of Measure FF spending; it is important that the City coordinate the planning for these related activities, as well as other related activities in various City various departments. The omnibus package adopted by City Council includes the following items that should be coordinated with Measure FF budget items and programs as indicated:
 Analyzing and developing a pilot program to re-assign non-criminal police service calls to a Specialized Care Unit. The Specialized Care Unit may relate to new basic ambulance services being proposed within Measure FF expenditures.  Creating plans and protocols for calls for service to be routed and assigned to alternative preferred responding entities and consider placing dispatch in the Fire Department or elsewhere outside the Police Department. The proposed Measure FF expenditure plan includes improvements to the Fire Department’s 9-1-1 dispatch system and dispatch training facility improvements.  Pursuing the creation of a Berkeley Department of Transportation (“BerkDoT”) to ensure a racial justice lens in traffic enforcement and the development of transportation policy, programs and infrastructure, and identify and implement approaches to reduce and/or eliminate the practice of pretextual stops based on minor traffic violations. The proposed Measure FF expenditure plan may not

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
include budget for increased parking enforcement needed to realize the City’s goals for emergency evacuation under the Safe Passages program. The City should consider whether BerkDoT should address this need.

The Commission would like to have the opportunity to give input to Re-Imagining Public Safety plans where they relate to Measure FF-funded programs; we expect that a member of the DFSC will participate and follow the progress of the Re-Imagining Public Safety effort and the Commission will develop future recommendations on this topic.

ALTERNATIVE ACTIONS CONSIDERED
None.

CITY MANAGER
The City Manager and the Fire Department Administration will continue to work with the DFSC and share information on services described in the Fire Department’s 5-year implementation plan.

The Fire Department will continue to provide quarterly/biennial reports on Measure FF as outlined by Adopted Council Resolution No. 69,575–N.S.. “BE IT FURTHER RESOLVED, in addition to its other powers, the Disaster and Fire Safety Commission may: 1) request detailed expenditure plans for tax proceeds annually, which shall be provided to it as early in the budget process as feasible; 2) make recommendations to the City Manager and the City Council on the expenditure of tax proceeds to enhance public safety consistent the approved purposes in Measure FF, BMC Section 7.83.010.D; and 3) obtain a report on actual expenditures. The City Manager shall cooperate with the Disaster and Fire Safety Commission in providing the information it requests.” We note that the accounting system in place has limitations with regards to reporting, though each Measure FF programs are fully accountable and represented in the reporting system.

As the process for the City’s Re-Imagining Public Safety effort continues to be developed, it is the intent of the City Manager and Fire Department Administration to ensure that all of these related efforts are coordinated to facilitate maximum progress on all of the City’s goals.

The City Manager and Fire Department Administration agrees with the Disaster and Fire Safety Commission report to the level that is possible and in accordance to the Adopted Council Resolution No. 69,575–N.S.:
“BE IT FURTHER RESOLVED, in addition to its other powers, the Disaster and Fire Safety Commission may: 1) request detailed expenditure plans for tax proceeds annually, which shall be provided to it as early in the budget process as

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Recommendation to Use Measure FF Funds as Intended by Voters for Firefighting, Emergency Medical Response, 911 Communications Services CONSENT CALENDAR June 28, 2022
feasible; 2) make recommendations to the City Manager and the City Council on the expenditure of tax proceeds to enhance public safety consistent with the approved purposes in Measure FF, BMC Section 7.83.010.D; and 3) obtain a report on actual expenditures. The City Manager shall cooperate with the Disaster and Fire Safety Commission in providing the information it requests.” The Fire Department will continue to share direction, development, and information on the various programs funded through Measure FF. All Measure FF programs and expenditures will be tracked through the current City of Berkeley’s Financial Management System called ERMA.

CONTACT PERSON
Keith May, Secretary, Disaster and Fire Safety Commission, 510-981-5508 Attachments:
1: Disaster and Fire Safety Commission Recommendation, 8/1/2018: Objection to Use of Measure GG Funds to Replace, Rather Than Augment, General Funding of Berkeley Fire Department
2: Full text of Fire, Emergency Services and Wildfire Prevention Tax (Measure FF)

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Disaster and Fire Safety Commission
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager Date: August
1, 2018
To: Honorable Mayor and Members of the City Council
From: Disaster and Fire Safety Commission
Submitted by: Paul Degenkolb, Chairperson, Disaster and Fire Safety Commission Subject: Objection to Use of Measure GG Funds to Replace, Rather Than Augment, General Funding of Berkeley Fire Department
The Disaster and Fire Safety Commission objects to the City using Measure GG funds to replace, rather than augment, general funding of Berkeley Fire Department overtime costs.

At the 8/
1 regular meeting of the Disaster and Fire Safety Commission, the commission approved a motion to submit this memo, Objection to the Use of Measure GG Funds to Replace, Rather Than Augment, General Funding of Berkeley Fire Department: Couzin Second: Stein Vote: 7 Ayes: Grimes, Flasher, Degenkolb, Couzin, Bailey, Stein; 1 No:

Legg; 1 Absent: Golomb; 0 Abstain.

Measure GG
authorizes a special tax for the purpose of funding fire protection and emergency response and preparedness. Each year, Berkeley taxpayers pay roughly $5 million into this tax.

In the years s
ince Measure GG was passed, the City has chosen to decrease General Fund spending on Fire Department overtime, and to cover the difference using Measure GG funds. As a result, some Measure GG funds are replacing General Fund spending on fire and emergency purposes, rather than augmenting it.

The Commi
ssion estimates that, in effect, this practice siphons $500,000 to $1 million per year in Measure GG funds away from fire protection and emergency preparedness uses, with a corresponding increase in General Fund monies available for other uses.

A legal rev
iew by City Attorney Farimah Brown dated 4/6/2018 found that Measure GG gives the City broad discretion, and that is it not illegal for the City to reduce General Funds that go toward fire protection and emergency preparedness purposes while making up for the lost funds with Measure GG funding.

Nevertheless,
the Commission believes this practice is a disingenuous use of the special tax dollars authorized by Measure GG and does not follow the spirit of the law that was approved by Berkeley voters.

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Page 2 ends

As the body that is charged with oversight of Measure GG spending, the Commission will continue to monitor this spending and object to allocation we believe is improper. We anticipate that improved accounting software will allow the Commission to revisit this question with a more rigorous audit in the next 1-2 years.

The following charts show the decrease in General Funding for Fire Department overtime since the enaction of Measure GG:

Figure 1: Berkeley Fire Department Overtime – Adjusted Budget Data from City of Berkeley’s FUND$ system

$0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
$3,000,000
FY07 FY08 FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 (9 Mos)
ADJUSTED BUDGET Overtime
General Funds Measure GG Funds
Measure GG
Enacted

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Page 3 ends

Figure 2: Berkeley Fire Department Overtime – Actual Overtime Data from City of Berkeley’s FUND$ system

The following figure shows an illustration of how the current funding allocation has the same effect as moving Measure GG funding away from its designated Fire Department use and into the General Fund:

Figure 3: Visual Illustration of Measure GG and General Funding $0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
$3,000,000
FY07 FY08 FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 (9 Mos)
ACTUAL Overtime
General Funds Measure GG Funds
Measure GG
Enacted

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1 Shall an ordinance enacting a tax at a rate of $0.1047 per square foot of improvements, which is estimated to generate $8.5 million annually for firefighting, emergency medical response, 9-1-1 communications services, hazard mitigation, and
wildfire prevention and preparedness, until repealed by the voters, be adopted?

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2 ORDINANCE NO. #,###-N.S.

IMPOSING A SPECIAL TAX AT A RATE OF $0.1047 PER SQUARE FOOT OF

IMPROVEMENTS TO PAY FOR FIREFIGHTING, EMERGENCY MEDICAL RESPONSE, 9-1-1 COMMUNICATIONS SERVICES, HAZARD MITIGATION, AND

WILDFIRE PREVENTION AND PREPAREDNESS

BE IT ORDAINED by the people of the City of Berkeley as follows:

Section 1. Findings and declarations.

The People of the City of Berkeley find and declare as follows:

A. On June 16, 2020, the City Council adopted an ordinance declaring a Fiscal Emergency due to the significant loss of revenue attributable to the COVID-19 pandemic and does not have adequate resources to maintain existing staffing levels, fill vacant positions, adequately train firefighters and paramedics, maintain and replace equipment and facilities, prepare and plan for wildfires, and upgrade and modernize its 9-1- 1 dispatch system.

B. Over the years, the Fire Department has experienced a significant increase in calls- for-service, rising from approximately 6,300 in 1995 to approximately 16,000 in 2017 without adequate increases in staffing levels. Over the years, this has resulted in increasing response times.

C. An increasing number of calls in the Fire Department are dedicated to addressing the needs of vulnerable populations including individuals experiencing homelessness and
mental health crises and the Fire Department does not have resources dedicated to addressing these vital community needs.

D. The City’s 9-1- 1 dispatch center does not have the resources to ensure adequate staffing levels
, upgrade its systems, and modernize to include emergency medical dispatching to ensure that the appropriate emergency response services are deployed to 9-1-1 calls-for-service.

E. The City is vulnerable to wildfires that could impact significant portions of the City and without a consistent source of funding, the City does not have the resources to address wildfire prevention activities such as vegetation management, hazard mitigation, evacuation planning, public education, and an emergency alert system.

Section 2. Code Amendment. A new Chapter 7. 83 is hereby added to the Berkeley Municipal Code to read as follows:

Exhibit A

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3 Chapter 7.83
Fire, Emergency Medical Response, 9-1-1 Communications Services, Hazard Mitigation, and Wildfire Prevention and Preparedness Tax

7.83.010 Special Tax.

A. A special tax for the purpose of funding firefighter and emergency medical response including, but not limited to, training, hiring, maintaining and upgrading facilities and equipment, upgrades to the 9-1- 1 communication system, and wildfire prevention and preparedness activities is hereby authorized to be imposed on all improvements in the City of Berkeley as more fully set forth in this Chapter.

B. The City Council may impose the tax authorized by this Chapter at the rate and subject to the inflation adjustments, set forth in Section 7.83.020.

C. This special tax is imposed under
Article XIIIA, Section 4, of the California
Constitution and the City’s constitutional authority as a charter city under Article XI, Section 5 of the California Constitution.

D. The proceeds of the tax imposed by this Chapter shall be placed in a special fund to be used only for the purpose of enhancing public safety by funding the following:

1. Local firefighter and emergency medical response including hiring and training personnel and upgrading safety equipment and facilities.

2. Upgrading and modernizing the 9-1-1 dispatch system to implement and maintain a system to provide emergency medical dispatching.

3. Wildfire prevention and preparedness activities including, but not limited to, vegetation management, hazard mitigation, public education, evacuation planning, and an emergency alert system.

7.83.020 Tax Authorized – Tax rate – Adjustments for Inflation A. The City Council is hereby authorized to impose a special tax of $0.1047 per square foot of improvements in the City of Berkeley.

B. Annually in May, the City Council may increase the previous year’s tax by up to the greater of the cost of living in the immediate San Francisco Bay Area or per capita personal income growth in the state, as verified by official United States Bureau of Labor statistics. If either index referred to above is discontinued, the City shall use any successor index specified by the applicable agency, or if there is none, the most similar existing index then in existence.

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4 7.83.030 Definitions.

For purposes of this chapter, the following terms shall be defined as set forth below:

A. “Building” shall mean any structure having a roof supported by columns or by walls and designed for the shelter or housing of any person, chattel or property of any kind.

The word “building” includes the word “structure.”

B. “Improvements” shall mean all buildings or structures erected or affixed to the land.

C. “Square footage” shall mean the total gross horizontal areas of all floors, including usable basement and cellars, below the roof and within the outer surface of the main walls of buildings (or the center lines of party walls separating such buildings or portions thereof) or within lines drawn parallel to and two feet within the roof line of any building or portion thereof without walls (which includes, notwithstanding paragraph 3 below, the square footage of all porches), and including pedestria n access walkways or corridors, but excluding the following:

1. Areas used for off-street parking spaces or loading berths and driveways and maneuvering aisles relating thereto.

2. Areas which are outdoor or semi-outdoor areas included as part of the building to provide a pleasant and healthful environment for the occupants thereof and the neighborhood in which the building is located. This exempted area is limited to stoops, balconies and to natural ground areas, terraces, pools, and patios which are landscaped and developed for active or passive recreational use, and which are accessible for use by occupants of the building.

3. Arcades, porticoes, and similar open areas which are located at or near street level, which are accessible to the general public, and which are not designed or used as sales, display storage, service, or production areas.

D. “Structure” shall mean anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground.

E. “Parcel” shall mean a unit of real estate in one ownership as shown on the most current official assessment roll of the Alameda County Assessor.

7.83.040 Exemptions.

A. The tax imposed by this Chapter shall not apply to parcels and improvements exempt from taxation by the City pursuant to the laws or constitutions of the United States and the State of California.

B. The tax imposed by this Chapter shall not apply to any property owned by any person whose total personal income, from all sources, for the previous calendar year, does not exceed that level which shall constitute "very low-income," as may be established by resolution of the City Council. Any taxpayer claiming the exemption under this section shall be required to demonstrate the ir entitlement thereto annually

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5 by submitting an application and supporting documentation to the City Manager or their designee in the manner and at the time established in regulations and/or guidelines hereafter promulgated by the City Manager subject to review by the City Council in its discretion. Such applications shall be on forms provided by the City Manager, or their designee, and shall provide and/or be accompanied by such information as the City Manager shall require, including but not limited to, federal income tax returns and W-2 forms.

C. Any person or entity claiming an exemption from the tax imposed by this Chapter shall file a verified statement of exemption on a form prescribed by the City Manager prior to June 30th of the first fiscal year for which the exemption is sought

7.83.050 Duties and Authority of the City Manager.

It shall be the duty of the City Manager to collect and receive all taxes imposed by this Chapter and to keep an accurate record thereof. The City Manager is charged with the enforcement of this Chapter, except as otherwise provided herein, and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement of this chapter, including provisions for the re-examination and correction of returns and payments.

7.83.060 Collection with Property T ax – Penalties and Interest.

The s
pecial tax imposed by this Chapter shall be due in the same manner, on the same dates, and subject to the same penalties and interest as established by law for other charges and taxes fixed and collected by the County of Alameda on behalf of the City of Berkeley. The special tax imposed by this Chapter, together with all penalties and interest thereon, shall constitute a lien upon the parcel upon which it is levied until it has been paid, and shall constitute a personal obligation of the owners of the parcel on the date the tax is due.

7.83.070 Collection.

The amount of any tax, penalty, or interest imposed under the provisions of this chapter shall be deemed a debt to the City. Any person owing money under the provisions of this chapter shall be liable to an action brought in the name of the City for the recovery of such amount. The City shall be entitled to reasonable attorneys’ fees and its costs of suit in any such action.

7.83.080 Refunds.

Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in Chapter 7.20 of the Berkeley Municipal Code or any such successor chapter.

7.83.090 Savings clause – Severability.

The provisions of this chapter shall not apply to any person, association, corporation, entity, or property as to whom or which it is beyond the power of the City of Berkeley to impose the tax herein provided. If any sentence, clause, section, or part of this chapter, or any tax against any individual or any of the several groups specified herein

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350
6 is found to be unconstitutional, illegal, or invalid, such sentence, clause, section or part shall be severable and such unconstitutionality, illegality, or invalidity shall affect only such clause, sentence, section, or part of this chapter and shall not affect or impair any of the remaining provisions, sentences, clauses, sections, or other parts of this chapter. It is hereby declared to be the intention of the City Council and the People of the City of Berkeley that this chapter would have been adopted had such unconstitutional, illegal, or invalid sentence, clause, section, or part thereof not been included herein.

7.83.100 Violation – Penalty.

Any person who fails to perform any duty or obligation imposed by this chapter shall be guilty of an infraction as set forth in Chapter 1.20 of the Berkeley Municipal Code.

The penalties provided in this section are in addition to the several remedies provided in this chapter.

Section 3. Increase appropriations limit. Pursuant to California Constitution Article XIIIB, the appropriation limit for the City of Berkeley is hereby increased by the aggregate sum authorized to be levied by this special tax for each of the four fiscal years from 2021 through 2024.

Section 4. Effective date. The tax imposed by this Chapter shall be operative on January 1, 2021.

Section 5. Amendment, repeal, and reenactment. The City Council may repeal this ordinance, or amend it in a ny manner that does not result in an increase in the tax imposed herein, or add or modify exemptions, without further voter approval. If the City Council repeals this ordinance, it may subsequently reenact it without voter approval, as long as the reenacted ordinance does not result in an increase in the tax imposed herein.

Section 6. California Environmental Quality Act Requirements. This Ordinance is exempt from the California Environmental Quality Act, Public Resources Code section 21000 et seq., under, including without limitation, Public Resources Code section 21065 and CEQA Guidelines sections 15378(b)(4) and 15061(b)(3), as it can be seen with certainty that there is no possibility that the activity authorized herein may have a significant effect on the environment and pursuant to Public Resources Code section 21080, subdivision (b)(8), and CEQA Guidelines section 15273 as the approval of government revenues to fund existing services.

Section 7. Special Tax; Two Thirds Vote Requirement. This Ordinance imposes a special tax for restricted general revenue purposes and shall be effective only if approved by two-thirds of the voters voting thereon.

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1 ORDINANCE NO. #,###-N.S.

IMPOSING A SPECIAL TAX AT A RATE OF $0.1047 PER SQUARE FOOT OF

IMPROVEMENTS TO PAY FOR FIREFIGHTING, EMERGENCY MEDICAL RESPONSE, 9-1-1 COMMUNICATIONS SERVICES, HAZARD MITIGATION, AND

WILDFIRE PREVENTION AND PREPAREDNESS

BE IT ORDAINED by the people of the City of Berkeley as follows:

Section 1. Findings and declarations.

The People of the City of Berkeley find and declare as follows:

C. An increasing number of calls in the Fire Department are dedicated to addressing the needs of vulnerable populations including individuals experiencing homelessness and mental health crises and the Fire Department does not have resources dedicated to addressing these vital community needs.

Section 2. Code Amendment. A new Chapter 7. 83 is hereby added to the Berkeley Municipal Code to read as follows:

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2 Chapter 7.83
Fire, Emergency Medical Response, 9-1-1 Communications Services, Hazard Mitigation, and Wildfire Prevention and Preparedness Tax

7.83.010 Special Tax.

A. A special tax for the purpose of funding firefighter and emergency medical response including, but not limited to, training, hiring, maintaining and upgrading facilities and equipment, upgrades to the 9-1- 1 communication system, hazard mitigation, and wildfire prevention and preparedness activities is hereby authorized to be imposed on all improvements in the City of Berkeley as more fully set forth in this Chapter.

B. The City Council may impose the tax authorized by this Chapter at the rate and subject to the inflation adjustments, set forth in Section 7.83.020.

D. The proceeds of the tax imposed by this Chapter shall be placed in a special fund to be used only for the purpose of enhancing public safety by funding the following:

1. Local firefighter and emergency medical response including hiring and training personnel and upgrading safety equipment and facilities.

2. Upgrading and modernizing the 9-1-1 dispatch system to implement and maintain a system to provide emergency medical dispatching.

3. Wildfire prevention and preparedness activities including, but not limited to, vegetation management, hazard mitigation, public education, evacuation planning, and an emergency alert system.

7.83.020 Tax Authorized – Tax rate – Adjustments for Inflation A. The City Council is hereby authorized to impose a special tax of $0.1047 per square foot of improvements in the City of Berkeley.

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3 7.83.030 Definitions.

For purposes of this chapter, the following terms shall be defined as set forth below:

A. “Building” shall mean any structure having a roof supported by columns or by walls and designed for the shelter or housing of any person, chattel or property of any kind.

The word “building” includes the word “structure.”

B. “Improvements” shall mean all buildings or structures erected or affixed to the land.

C. “Square footage” shall mean the total gross horizontal areas of all floors, including usable basement and cellars, below the roof and within the outer surface of the main walls of buildings (or the center lines of party walls separating such buildings or portions thereof) or within lines drawn parallel to and two feet within the roof line of any building or portion thereof without walls (which includes, notwithstanding paragraph 3 below, the square footage of all porches), and including pedestrian access walkways or corridors, but excluding the following:

1. Areas used for off-street parking spaces or loading berths and driveways and maneuvering aisles relating thereto.

D. “Structure” shall mean anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground.

E. “Parcel” shall mean a unit of real estate in one ownership as shown on the most current official assessment roll of the Alameda County Assessor.

7.83.040 Exemptions.

A. The tax imposed by this Chapter shall not apply to parcels and improvements exempt from taxation by the City pursuant to the laws or constitutions of the United States and the State of California.

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4 by submitting an application and supporting documentation to the City Manager or their designee in the manner and at the time established in regulations and/or guidelines hereafter promulgated by the City Manager subject to review by the City Council in its discretion. Such applications shall be on forms provided by the City Manager, or their designee, and shall provide and/or be accompanied by such information as the City Manager shall require, including but not limited to, federal income tax returns and W-2 forms.

7.83.050 Duties and Authority of the City Manager.

7.83.060 Collection with Property T ax – Penalties and Interest.

7.83.070 Collection.

7.83.080 Refunds.

7.83.090 Savings clause – Severability.

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355
5 is found to be unconstitutional, illegal, or invalid, such sentence, clause, section or part shall be severable and such unconstitutionality, illegality, or invalidity shall affect only such clause, sentence, section, or part of this chapter and shall not affect or impair any of the remaining provisions, sentences, clauses, sections, or other parts of this chapter. It is hereby declared to be the intention of the City Council and the People of the City of Berkeley that this chapter would have been adopted had such unconstitutional, illegal, or invalid sentence, clause, section, or part thereof not been included herein.

7.83.100 Violation – Penalty.

Any person who fails to perform any duty or obligation imposed by this chapter shall be guilty of an infraction as set forth in Chapter 1.20 of the Berkeley Municipal Code.

The penalties provided in this section are in addition to the several remedies provided in this chapter.

Section 4. Effective date. The tax imposed by this Chapter shall be operative on January 1, 2021.

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Mental Health Commission
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Mental Health Commission
Submitted by: Dr. Margaret Fine, Mental Health Commission Chair Subject: Appointment of Mary-Lee Smith and Glenn Turner to Mental Health Commission for the City of Berkeley

RECOMMENDATION
Adopt a Resolution appointing: Mary-Lee Smith as a representative of the Special Public Interest Category (consumer), to complete her first 3- year term beginning June 29, 2022 and ending June 28, 2025; and Glenn Turner as a representative of the Special Public Interest Category (family member), to complete her first 3-year term beginning June 29, 2022 and ending June 28, 2025.

FISCAL IMPACTS OF RECOMMENDATION
None.

CURRENT SITUATION AND ITS EFFECTS
The Mental Health Commission is authorized to be composed of thirteen members.

However, there are presently seven vacancies on the Commission. The Mental Health Commission is actively seeking candidates with the ability to fulfill the state law duties for Commissioners, including reviewing and evaluating the community’s needs, services, facilities and special problems. Approval of the recommended action will fill two vacancies and allow the Commission to move one step closer to having a full and diverse complement of commissioners.

BACKGROUND
California State law requires that appointments to the Mental Health Commission meet specific categories, who may serve up to nine years consecutively. The general public interest category may include anyone who has an interest in and some knowledge of mental health services. The special public interest category includes direct consumers of public mental health services and family members of consumers, which together must constitute at least fifty percent or nine of the commission seats. Direct consumers and family members shall each constitute at least 20% of the commission membership.

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Appointment of Mary-Lee Smith and Glenn Turner to the MHC CONSENT CALENDAR June 28, 2022

Page 2 ends

The Mental Health Commission nominated Mary-Lee Smith as a special public interest consumer applicant for appointment to the Mental Health Commission for the City of Berkeley for a three-year term. Mary-Lee Smith has been a resident of Berkeley since 2001. She is a full-time mom, organizer, activist for racial justice, and has previously worked an attorney for Disability Rights Advocates. She began as a staff attorney, then progressed to managing attorney, and finally became Director of Litigation over more than 10 years. She is interested in community response to mental health issues based on her lived and advocacy experience.

Mary-Lee Smith is involved with Showing Up for Racial Justice (SURJ) Bay Area. She volunteers for Community Ready Corps Allies and Accomplices as well as the Anti- Police Terror Project that operates the M.H. FIRST community first response programs located in Oakland and Sacramento. Three important mental health issues to her are the lack of a non-police response, people with mental health who are unhoused, and the criminalization of these individuals with mental illness.

Glenn Turner has been a life-long resident of Berkeley since 1977. The Mental Health Commissioners nominated Glenn Turner for appointment to the Commission as a special interest family member for a three-year term. Her daughter, Hazel, struggled with schizoaffective disorder and substance use. In 2019, her daughter tragically died at age 49 from untreated heart disease resulting from refusal of medical care. Glenn also works with FASMI (Families Advocating for the Seriously Mentally Ill) at the county and state levels.

She is currently retired after serving the spiritual needs of Black, Brown, new age, and Queer people at her Berkeley retail business for more than 30 years. She brings legal, financial, operational, and other important skills to the Mental Health Commission. She is also a member of Berkeley Copwatch, Care Not Cops, Creative Action Theater, and has done planning and logistics for the Climate Emergency Task Force.

Glenn supports an alternative non-police response team like the SCU, additional crisis centers for people with SMI and SUD, additional psychiatric hospital beds and sub- acute facility beds for follow-up care, and a continuum of ongoing care for people.

The Mental Health Commission passed the following motions at the April 28, 2022 meeting:

M/S/C (Fine, Jones) Make a motion to nominate Mary-Lee Smith for the Mental Health Commission and send the nomination to the Berkeley City Council for approval as a Mental Health Commissioner. Ayes: Escarcega, Fine, Jones, Opton, Prichett; Noes:

None; Abstentions: None; Absent: Taplin.

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Appointment of Mary-Lee Smith and Glenn Turner to the MHC CONSENT CALENDAR June 28, 2022

Page 3 ends

M/S/C (Fine, Prichett) Make a motion to nominate Glenn Turner for appointment to the Mental Health Commission and send the nomination to the Berkeley City Council for appointment. Ayes: Fine, Jones, Opton, Prichett; Noes: None; Abstentions: Escarcega;

Absent: Taplin.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
Approval of the recommended action will allow the Mental Health Commission to move one step closer to having a full and diverse complement of commissioners to review and evaluate the community’s mental health needs, resources, and programs.

ALTERNATIVE ACTIONS CONSIDERED
None.

CITY MANAGER
The City Manager takes no position

CONTACT PERSON
Jamie Works-Wright, Commission Secretary, HHCS, 510-981-7721 Attachments:
1: Resolution

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RESOLUTION NO. ##,###-N.S.

APPOINTMENT OF MARY-LEE SMITH AND GLENN TURNER TO THE MENTAL

HEALTH COMMISSION
WHEREAS, membership of the Mental Health Commission is composed of thirteen appointments by the City Council as a whole, including one appointment by the Mayor (or designee), six special public interest appointments, and four general public interest appointments; and
WHEREAS, with the ongoing implementation of the Mental Health Services Act, the City of Berkeley will need to have a full complement of diverse appointees to the Commission to review and evaluate the community's mental health needs, resources, and programs and to fulfill its mandate; and
WHEREAS, Ms. Mary-Lee Smith has an investment in the mental health community and has personal lived experience,
WHEREAS, Ms. Glenn Turner has volunteered within the community and is a family member of a person with lived experience,
WHEREAS, the Mental Health Commission at its April 28, 2022 meeting recommended appointments of Mary-Lee Smith and Glenn Turner.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council appoints Mary-Lee Smith as a representative of the Special Public Interest consumer category, to complete her first term ending June 28, 2025; and Glenn Turner as a representative of the Special Public Interest family category, to complete her first term ending June 28, 2025.

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Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]

CONSENT CALENDAR
June 28, 2022
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín (Author), Councilmember Susan Wengraf (Co- Sponsor), Councilmember Sophie Hahn (Co-Sponsor)
Subject: Suspension of Sister City Relations with Dmitrov, Russia and Ulan-Ude, Russia

RECOMMENDATION
Adopt a Resolution to suspend Sister City relations with the cities of Dmitrov, Russia and Ulan-Ude until Russian hostilities against Ukraine come to an end.

BACKGROUND
The City of Berkeley currently has 17 Sister City relationships, including two in Russia.

Dmitrov, located just north of Moscow, was established in 1991, and Ulan-Ude, located in Siberia near Lake Baikal, was established in 1992. Despite an initial warm response to the establishment of these Sister Cities, there has been no known formal communication between Berkeley and Dmitrov and Ulan-Ude since the early 1990s.

On February 24, 2022, Russian President Vladimir Putin initiated a full-scale invasion of Ukraine, sparking international outrage. At least 15 million civilians, out of a population of around 40 million, have been displaced so far. Entire cities have been flattened from indiscriminate bombing. The United Nations has verified at least 4,183 civilian deaths as of June 3, but concedes that the actual number is significantly higher. According to Ukraine’s top prosecutor, 15,000 war crimes have allegedly been committed with 200- 300 war crimes being reported daily. The International Criminal Court is currently investigating such allegations, and war crime trials are already taking place within Ukraine by their national government. As of early June, 2022, Russia is estimated to occupy about 20% of Ukrainian territory, mostly in the southeastern Black Sea area and the eastern Donbas region, which has been in a state of war with Russian-backed separatists since 2014. Also in 2014, Russia forcefully annexed the southern region of Crimea from Ukraine.

On June 4, 2022, Ukrainian President Volodymyr Zelensky spoke at the 90th annual US Conference of Mayors meeting, calling upon US cities to sever ties with Russian sister cities. As of April 21, an estimated 10% of US-Russian sister city relations have been suspended or ended.

Since the War in Ukraine started, Berkeley has taken multiple actions to support the people of Ukraine and oppose Russia’s aggression. Just two days before the invasion

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began, the Council passed an urgency item in support of Ukraine and its territorial integrity. The Ukrainian flag was authorized to fly at the Civic Center flagpole during the first month of the war, with two rallies taking place that brought together the local Ukrainian diaspora. On June 14, the Council adopted a Resolution urging an immediate ceasefire in the War in Ukraine and to convene peaceful negotiations to bring an end to hostilities.

FINANCIAL IMPLICATIONS
None

ENVIRONMENTAL SUSTAINABILITY
There are no environmental impacts associated with the recommendations in this report.

CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1: Resolution

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RESOLUTION NO. ##,###-N.S.

SUSPENSION OF SISTER CITY STATUS WITH DMITROV AND ULAN-UDE WHEREAS, the City of Berkeley currently has 17 Sister Cities, which are designed to promote human rights, culture, and education through peaceful exchanges; and WHEREAS, the City of Berkeley has two Sister Cities that are located in Russia – Dmitrov which was established through Resolution No. 55,889-N.S. on May 21, 1991, and Ulan- Ude which was established through Resolution N0. 56,236-N.S on January 7, 1992; and WHEREAS, on February 24, 2022, Russia initiated a full-scale invasion of Ukraine, which to date has displaced over 15 million people, killed thousands of civilians, and allegedly has resulted in thousands of war crimes which are currently being investigated; and WHEREAS, the City of Berkeley has taken multiple steps since February to support Ukraine and oppose Russian aggression, including an urgency resolution that supports the country’s territorial integrity, rallies and Ukrainian flag raisings, and calls for an immediate ceasefire; and
WHEREAS, on June 3, Ukrainian President President Volodymyr Zelensky spoke at the 90th annual US Conference of Mayors meeting, calling upon US cities to sever ties with Russian sister cities; and
WHEREAS, having active Sister Cities with cities in countries whose governments have committed unprovoked acts of war and are allegedly committing active acts of war crimes is antithetical to Berkeley values.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that it hereby suspends its Sister City status with the cities of Dmitrov, Russia, and Ulan-Ude, Russia until Russian hostilities against Ukraine come to an end.

BE IT FURTHER RESOLVED that this action is not to be considered a referendum against the citizens of Dmitrov and Ulan-Ude, but serves as a statement of opposition to the Russian government’s invasion of Ukraine.

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981- ● TDD: (510) 981-6903 ● Fax: (510) 981- E-Mail:

CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin (Author), Councilmember Wengraf (Co-Sponsor), Councilmember Hahn (Co-Sponsor),
Subject: Support for AB 2156 – Firearms: manufacturers

RECOMMENDATION
Send a letter to Assemblymember Buffy Wicks and the state legislature in support of Assembly Bill 2156, which would prohibit the manufacture of unlicensed firearms and precursor parts, commonly known as “ghost guns.”

FINANCIAL IMPLICATIONS
None.

BACKGROUND
Under existing law, federally licensed firearms manufacturers are prohibited from manufacturing or selling firearms in California without a state license if they manufacture more than 50 firearms in a calendar year. Assembly Bill 2156 would lower the state’s manufacturing threshold for requiring state licensure from 50 firearms per year to 4.

This law went into full effect on May 28, 2022, after a six-month grace period to enable sufficient notification of the policy change.

Ghost guns are an increasingly dangerous threat to public safety. According to the Berkeley Police Department’s 2021 Year-End Crime and Collision Data Report, 33 of the firearms that BPD seized in 2021 were ghost guns, compared to 6 in 2020 and 8 in 2019.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

CONTACT PERSON
Councilmember Taplin Council District 2 510-981-7120

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The Honorable Buffy Wicks
State Capitol
Sacramento, CA 95814
CC:

Senator Nancy Skinner
Assembly Speaker Anthony Rendon
RE: Support: AB-2156: Firearms: manufacturers
Dear Assemblymember Wicks:

The City Council of the City of Berkeley is proud to write in support of your bill, AB-2156, which would lower the annual manufacturing threshold requiring state licensure for firearms manufacturers from 50 to 4. As gun violence and homicides have tragically increased across the country, increasing state oversight over gun manufacturers is an imperative for safeguarding public safety in California.

According to the Berkeley Police Department’s 2021 Year-End Crime and Collision Data Report, our police officers recovered a total of 118 firearms in 2021, a 39% increase from the previous year. 33 of those firearms were unserialized “ghost guns,” often manufactured from precursor parts that can be easily purchased without any of the responsible licensure that law-abiding gun owners observe. Tragically, gun violence has also increased in Berkeley over the past two years, with shootings already robbing two Berkeleyans of their lives this year.

On October 12, 2021, the Berkeley City Council unanimously passed Ordinance 7789- N.S., adding Chapter 13.73 to the Berkeley Municipal Code to prohibit the sale, distribution and possession of ghost guns. This law went into full effect on May 28, 2022, after a six-month grace period to enable sufficient notification of the policy change. The City of Berkeley has gone to great lengths to use all available powers under its jurisdiction to reduce the proliferation of firearms in our community. The state legislature of California must use its greater powers to enable even greater harm reduction. We are confident that your bill would provide stronger safeguards against the distribution of illegal firearms across California, and we welcome this much-needed change.

Thank you for your time and attention to this urgent matter.

Sincerely,
The Berkeley City Council
2180 Milvia St
Berkeley, CA 94709

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7120 ● E-Mail: [email protected]

CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin (Author), Councilmember Wengraf (Co-Sponsor), Councilmember Robinson (Co-Sponsor), Councilmember Hahn (Co-Sponsor) Subject: Support for AB-256 (Racial Justice Act for All)

RECOMMENDATION
Send a letter to Assemblymember Ash Kalra (D-San Jose) and the state legislature in support of Assembly Bill 256, the Racial Justice Act for All, which would apply Kalra’s previous bill, AB 2542 (2020) retroactively to enable appeals of past convictions and sentences made with racial bias.

FINANCIAL IMPLICATIONS
None.

BACKGROUND
In 2020, Governor Newsom signed Assembly Bill 2542 (Kalra, 2020) which allowed for people with convictions and sentences based on racial biases to challenge their case.

However, the bill only applied to judgments made after January 1, 2021.

Assembly Bill 256 would apply the law retroactively to enable appeals for cases prior to that date. In 2021, the bill was held in the Senate Appropriations Committee and became a two-year bill.

The bill is sponsored by the American Civil Liberties Union (ACLU), American Friends Service Committee, California Coalition for Women Prisoners, Californians United for a Responsible Budget, Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), Initiate Justice, Ella Baker Center for Human Rights, the League of Women Voters of California, NextGen, and Silicon Valley De-Bug.

AB-2542 (2020) was introduced to address judicial precedent which greatly inhibited defendants’ ability to appeal against racial discrimination in criminal cases. In 1987, the US Supreme Court ruled in McCleskey v. Kemp that statistical evidence of racial bias was insufficient to show a constitutional violation—in this case, a death penalty sentence for a Black defendant—requiring instead that a defendant show "exceptionally clear proof" of discrimination under the facts of his or her own case. This set up a virtually impossible evidentiary standard which is higher than the “disparate impact”

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June 28, 2022

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standard applicable in fair housing and employment laws. After his retirement, Justice Lewis Powell expressed regret for his vote for the majority in McCleskey.1 Nevertheless, the majority opinion in McClesky held that state legislatures could address racial bias in state law. Prior to the passage of AB-2542, convictions and sentences were routinely upheld in California in the face of blatant racial bias, ranging from unrepresentative jury trials, racist statements by judges and prosecutors, or statistical evidence of systematic bias in sentencing.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

CONTACT PERSON
Councilmember Taplin Council District 2 510-981-7120
1 Liptak, A. (2008). New Look at Death Sentences and Race. New York Times. Retrieved from https://www.nytimes.com/2008/04/29/us/29bar.html

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The Honorable Ash Kalra
State Capitol
Sacramento, CA 95814
CC:

Assemblymember Buffy Wicks
Senator Nancy Skinner
Assembly Speaker Anthony Rendon
RE: Support: AB-256 (Racial Justice for All Act)
Dear Assemblymember Kalra:

The City Council of the City of Berkeley is proud to support of your bill, AB-256, which would enable appeals of convictions and sentences made with racial bias prior to January 1, 2021.

As you know, former US Supreme Court Justice Lewis Powell expressed regret after his retirement for his vote for the majority in McCleskey v. Kemp (1987). The McCleskey ruling placed an impossible evidentiary standard for defendants to appeal convictions or sentences with clear racial bias by requiring “exceptionally clear proof” of discrimination in their specific case. Other civil rights laws enable the evidentiary standard of “disparate impact” for finding racial bias, since racial biases are often unconsciously applied as a result of deeper systemic inequalities. Californians should be able to appeal their convictions and sentences without having to prove, somehow, that their case was decided with a specific bias in one instance rather than the result of systemic biases.

Your previous bill, AB-2543, was a step in the right direction. We urge the state legislature to pass AB-256 so that this important reform can be applied retroactively.

Thank you for your courageous leadership on restorative justice.

Sincerely,
The Berkeley City Council
2180 Milvia St
Berkeley, CA 94709

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370
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7120 ● E-Mail: [email protected]

CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin
Subject: Parking Minima for Mixed-Use Projects and Manufacturing Districts

RECOMMENDATION
Refer to the City Manager and Planning Commission to develop amendments to Berkeley Municipal Code Chapter 23 Section 322 and return an Ordinance to Council with such amendments to include the following:
● In BMC 23.322.030(B)(1), Table 23.322-2:
o remove “(residential use only)” from Mixed-Use Residential category; o reduce “Live/Work” off-street parking requirements to, at most, 1 space per unit;
o reduce “Manufacturing” off-street parking requirements to, at most, 1 space per 1,500 gross square feet;
o reduce off-street parking requirements for “All non-residential uses except uses listed below” to, at most, 1 space per 1,000 square feet. ● In BMC 23.322.020(C)(2)(i): reduce district minimum parking requirements to 1 space per 1,000 square feet at most in Manufacturing Districts.

FINANCIAL IMPLICATIONS
Staff time.

CURRENT SITUATION AND ITS EFFECTS
Reducing minimum parking requirements is a Strategic Plan Priority Project, advancing our goals to create affordable housing and housing support service for our most vulnerable community members, and to be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

On March 19, 2021, a parking reform ordinance (Ordinance 7,751-N.S.) became effective after being adopted by the City Council, eliminating minimum residential parking requirements across all zoning districts (except in the ES-R district, and except in the Hillside Overlay district on roads less than 26 feet in width) and requiring Transportation Demand Management (TDM) measures for projects with ten or more

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units. However, this policy change only applied to residential uses, and to the residential portions of mixed-use projects.

Several mixed-use projects have been permitted in Berkeley with off-street parking spaces required for non-residential uses that could have otherwise provided more housing near transit. For example, 1717 University Ave. (Use Permit #2016-0101) has 28 dwelling units (including 4 Below Market-Rate) and 14 parking spaces. Four of those spaces on the ground floor could have been additional housing units.

BACKGROUND
Minimum parking requirements have been shown to increase the cost of housing by discouraging the construction of smaller, lower-cost units that can be offered at lower prices1 and reducing the overall supply of housing.2 Cities that have removed minimum parking requirements for non-residential uses have also seen improved outcomes. In Arkansas, the City of Fayetteville removed commercial parking requirements entirely in 2015, and as a result, saw many long-term vacant commercial buildings revived with new businesses3 and rising wages.4 In New York, the City of Buffalo removed parking minimums citywide in 2017. Following this change, researchers found that “47% of major developments included fewer parking spaces than previously permissible, suggesting earlier minimum parking requirements may have been excessive.” In particular, mixed-use projects provided 53% fewer parking spaces.5 While originally adopted in 1993 as Resolution No. 57,301-N.S., the West Berkeley Plan anticipated increased parking demand resulting from development in West Berkeley, including in Manufacturing Zones. These were addressed in Section 4 of the Environmental Impact Report for Transportation impacts, including a Transportation Demand Management (TDM) program, increased transit service, and employer- provided shuttle service.6 However, the EIR’s measure of transportation impact was “Level of Service,” a now-outdated metric for automobile convenience that has been replaced by Vehicle Miles Traveled (VMT) or the aggregate demand for automobile travel, pursuant to Senate Bill 743 (2013).7
1 Lehe, L. (2018). Minimum parking requirements and housing affordability. Journal of Transport and Land Use, 11(1), 1309-1321.
2 Gabbe, C. J., Pierce, G., & Clowers, G. (2020). Parking policy: The effects of residential minimum parking requirements in Seattle. Land Use Policy, 91, 104053. 3 Gould, C. (2022). No Minimum Parking Requirements? No Problem For Fayetteville, Arkansas. Sightline Institute. Retrieved from https://www.sightline.org/2022/02/22/no-minimum-parking-requirements-no- problem-for-fayetteville-arkansas/
4 Jebaraj, M., & Sorto, D. (2021). Northwest Arkansas State of the Region Report 2021. State of the Northwest Arkansas Region Report. Retrieved from https://scholarworks.uark.edu/nwaregion/12 5 Hess, D. B., & Rehler, J. (2021). Minus Minimums: Development Response to the Removal of Minimum Parking Requirements in Buffalo (NY). Journal of the American Planning Association, 87(3), 396-408. 6 https://berkeleyca.gov/sites/default/files/2022-
03/12_14_1993%3B%20CLK%20-%20Resolution%3B%20City%20Council%3B%2057301%3B%20West %20Berkeley%20Area%20Plan%3B.pdf
7 https://mtc.ca.gov/planning/transportation/driving-congestion-environment/sb-743-los-vmt-transition

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ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Data from Seattle8 and Buffalo9 suggests that developers provide more parking than needed when required to do so, but will otherwise provide a lower, though often non- zero amount of parking spaces. Minimum parking requirements thus effectively subsidize automobile travel at the expense of other land uses by reserving more land for automobile storage. Research has found that a greater supply of free or underpriced parking increases Vehicle Miles Traveled (VMT) per capita and increases emissions from the transportation sector by reducing parking availability and increasing time spent searching for parking.10 Transportation comprised 59% of the City of Berkeley’s greenhouse gas emissions in 2018.

However, because of Berkeley’s lower average per capita emissions relative to the region and the state at large, Wheeler et al (2018) concluded that cities like Berkeley have the most potential to reduce carbon emissions through local policy by enabling more urban infill housing. Even in wealthier neighborhoods with higher than average carbon footprints per capita, the authors observed that cities in the urban core still “have lower than average carbon footprints for their income level,” and thus: “Low carbon footprint cities that make housing available at all income levels help share the burden of meeting housing demand, while lessening the impact on the climate across the population.”11

CONTACT PERSON
Councilmember Taplin Council District 2 510-981-7120
8 See footnote 2.
9 See footnote 5.
10 Shoup, D. C. (2006). Cruising for parking. Transport policy, 13(6), 479-486. 11 Wheeler, S. M., Jones, C. M., & Kammen, D. M. (2018). Carbon footprint planning: quantifying local and state mitigation opportunities for 700 California cities. Urban Planning, 3(2), 35-51.

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Councilmember Sophie Hahn
City of Berkeley, District 5
1 CONSENT CALENDAR
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Sophie Hahn (Author), Councilmember Susan Wengraf (Co-Sponsor)
Subject: Holding Social Media Companies Accountable for Impacts on Children:

Supporting AB 2408 and AB 2273 (Wicks/Cunningham)

RECOMMENDATION
Send a letter in support of AB 2408 “Child users: addiction” and AB 2273 “The California Age- Appropriate Design Code Act” (Wicks/Cunningham) to forward to appropriate colleagues, expressing the City of Berkeley’s support for these bills, which would allow parents to sue social media platforms if their children become addicted and require tech firms to create child-safe producing by creating age-appropriate design code for websites and apps likely to be accessed by children.

FISCAL IMPACTS OF RECOMMENDATION
N/A

CURRENT SITUATION AND ITS EFFECTS
If passed, AB 2408 and AB 2273 (Wicks/Cunningham) would create new rules for tech firms designing products used by children to ensure greater data protections and safety protocols, such as having the strictest privacy settings enabled by default, to ensure apps minimize dangers to children and risk of harm or addiction. These bills also create a private right of action to allow parents to sue social media companies if their children become addicted and experience harm as a result.

BACKGROUND
Efforts to create child safe spaces on the internet have largely failed at the federal level. As home to all of the major social media and technology companies, California has a special responsibility to lead on protecting our children from harm caused by social media.

Last fall, a study leaked by a former employee of Facebook, which owns Instagram, documented a significant percentage of teen social media users experience negative

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2 psycological impacts: 17% of girls said using social media makes eating disorders worse, and

13.5% of girls said it makes suicidal thoughts worse.1
Academic research continues to identify the impacts of social media usage on young people. A four year study of Montreal teens published in the Canadian Journal of Psychiatry in 2019 found that social media was "very robustly" related to increases in depressive symptoms.2 According to National Public Radio, “Researchers found similar patterns in teens after watching television, but the difference, they explained, is that in TV, viewers often see idealized versions of life that are different from their own. But with platforms like Instagram, they are consuming idealized versions of their peers and that can trigger a comparison loop that can blur the lines of reality for adolescents whose brains are still developing.”3 In May, both bills passed the Assembly with bi-partisan support and they are now being considered in the State Senate. The Legislative Findings for both of these bills more fully outline the many known, measurable harms the bills seek to address, copies of which are attached hereto.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE CHANGE
N/A

RATIONALE FOR RECOMMENDATION
Protecting the mental health and wellbeing of students and children is a top priority for the City of Berkeley.

ALTERNATIVE ACTIONS CONSIDERED
N/A

CONTACT PERSON
Councilmember Sophie Hahn, (510) 981-7150
Attachments:
1: Letter of Support
2: Bill Text AB 2408 (Wicks/Cunningham):
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2408 3: Bill Text AB 2273 (Wicks/Cunningham):
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2273The 1 https://www.sfchronicle.com/politics/article/California-could-be-first-state-to-hold-social-17215641.php 2 https://journals.sagepub.com/doi/full/10.1177/0706743719885486 3 https://www.npr.org/2021/10/05/1043194385/whistleblowers-testimony-facebook-instagram

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3 Honorable Buffy Wicks and Honorable Jordan Cunningham Members of the Assembly
Capitol Office
1021 O Street
Sacramento, CA 95814
Re: AB 2408 and AB 2273 – SUPPORT
The City of Berkeley strongly supports the passage of AB 2408 and AB 2273, which would enact crucially needed protections for our children as they use social media.

Academic studies document the negative impacts of social media on young people, including increased depression. The need for increased mental health services is evident in our community, in particular for young adults. In the wake of more than two difficult years sheltering in place to manage the COVID pandemic, students at Berkeley High School are lobbying the City Council for additional funds for mental health services. Recent tragedies have included the suicide of a High School Student, a shooting between High School students, and the arrest of a student who is alleged to have recruited friends and amassed weapons to perpetrate a mass shooting.

Big tech companies must be held accountable for the negative impacts of their products on youth; we cannot allow them to profit from creating and exacerbating mental health challenges.

Berkeley strongly supports these measures to protect the mental health and well being of all children and teens.

The Berkeley City Council
Cc: Senator Nancy Skinner

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4 CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

ASSEMBLY BILL
NO. 2408
Introduced by Assembly Members Cunningham and
Wicks
February 17, 2022
An act to add Section 1714.48 to the Civil Code, relating to social media platforms.

LEGISLATIVE COUNSEL'S DIGEST
AB 2408, as amended, Cunningham. Child users: addiction.

Existing law, the California Consumer Privacy Act of 2018, prohibits a business from selling the personal information of a consumer if the business has actual knowledge that the consumer is less than 16 years of age, unless the consumer, in the case of a consumer at least 13 years of age and less than 16 years of age, or the consumer’s parent or guardian, in the case of a consumer who is less than 13 years of age, has affirmatively authorized the sale of the consumer’s personal information.

This bill, the Social Media Platform Duty to Children Act, would impose on an operator of a social media platform a duty not to addict, as defined, child users and would, among other things, prohibit a social media platform from addicting a child user by any either of certain means, including the use or sale of a child user’s personal data.

The act would authorize a person authorized to assert the legal rights of a child user who suffers injury as a result of a violation of the act to bring an action against a violator to recover or obtain certain relief, including a civil penalty of up to $25,000 per violation per calendar year. violation.

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5 DIGEST KEY
Vote: majority Appropriation: no Fiscal Committee: no Local Program: no

BILL TEXT

THE PEOPLE OF THE STATE OF
CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. This act shall be known as the Social Media Platform Duty to Children Act.

SEC. 2. The Legislature finds and declares all of the following:
(a) California should take reasonable, proportional, and effective steps to ensure that its children are not harmed by addictions of any kind.
(b) A broad diversity of psychologists and psychiatrists in the field of addiction, as well as scientists, doctors, and other researchers, acknowledge the existence of social media addiction.
(1) Research using the Bergen Social Media Addiction Scale, a widely used measure of social media platform addiction, has found that social media platform addiction has a prevalence across the general population of about 5 percent. (2) In people who become addicted, the brain’s reward system is more active when using social media than it is in the brains of people who are not addicted. The result, according to health experts and researchers, is compulsive and excessive social media use.
(c) There is growing evidence that social media platform addiction is a particular problem, particularly among adolescent children.
(1) The largest social media platform company in the world’s own secret internal research validates both the existence of social media addiction in children and that social media addiction hurts children. As an example, in September 2021, The Wall Street Journal published a series of articles referred to as “The Facebook Files.” Those articles, citing a trove of internal documents obtained from Frances Haugen, a whistleblower, demonstrated the extent to which Facebook knew that its platforms cause significant harm to users, especially children.

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6 (2) More specifically, as revealed by Haugen’s sworn testimony before Congress and the accompanying secret research she revealed to The Wall Street Journal, “Facebook has studied a pattern that they call problematic use, what we might more commonly call addiction. It has a very high bar for what it believes [problematic use] is. It [means] you self-identify that you don’t have control over your usage and that it is materially harming your health, your schoolwork or your physical health.” … “Facebook’s internal research is aware that there are a variety of problems facing children on Instagram, they know that severe harm is happening to children.” (3) During whistleblower Haugen’s sworn testimony to Congress, she revealed that, when it comes to meeting the platform’s addiction-like definition of “problematic use”: “Five to six percent of 14 year olds have the self-awareness to admit both those questions” that qualify a child as having problematic use. (4) Five to six percent of Instagram’s child users is millions of children, certainly many thousands of which reside in California.
(d) Social media platform addiction is more acute in girls than boys. (1) Girls experience a higher prevalence of social media addiction than boys. (2) Girls who admit to excessive social media platform use are two to three times more likely to report being depressed than girls who use social media platforms lightly.
(3) A March 2020 presentation posted by Facebook researchers to Facebook’s internal message board reported that “66% of teen girls on IG experience negative social comparison (compared to 40% of teen boys)” and that “[a]spects of Instagram exacerbate each other to create a perfect storm.”
(e) The business models of some social media platform companies financially motivate them to deploy design features that increase the likelihood of addiction among all users, including children.
(1) Instead of charging to sign up, social media platforms earn “substantially all” of their revenue through advertising.
(2) The more time users engage with the platform, the more ads users see, and the more valuable the advertising becomes.
(3) In this regard, addicted consumers are particularly profitable because their consumption behavior goes beyond normal engagement levels. (4) User engagement does not distinguish between engagement that increases because it is enjoyable and enhances health and well-being and engagement that

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7 increases because of addiction. In fact, many users spend even more time on social media when engaging with content that makes them subjectively unhappy or objectively unhealthier.
(5) For these profit-driven reasons, social media platform companies intentionally invent, design, and deploy features that are intended to make it hard for users to stop using the platform, including deploying techniques used in gambling and techniques that mask or avoid cues that might prompt a user to stop using. (f) Companies that market high-volume addictive products, including tobacco, have a special incentive to addict young, potentially life-long, lifelong, consumers. (g) Adolescent children are at far greater risk than adults to becoming addicted to social media platforms.
(1) Adolescent children exhibit higher levels of stress and an increased proclivity toward taking risks.
(2) During adolescence, children’s reward systems develop much faster, while their self-control systems, which are not fully developed until 21 years of age, lag behind.

For this reason, rates of behavioral addictions are elevated in adolescence as compared to adulthood.
(3) Social media platform companies can use the data they collect on children to determine which children are most likely to be vulnerable to a given ad, thereby exacerbating the risks of addiction.
(4) As compared to adults, children are more susceptible to the pressures and influence of advertisements, less likely to recognize paid-for content, and less likely to understand how data is used for these purposes.
(h) Because their brains are still developing, children are at far greater risk of being harmed by social media platform addiction than adults. Addiction adversely influences the development of judgment, attention, and memory in the brain. (1) Higher daily rates of checking social media platforms have been linked to a reduction in the volume of brain tissue that controls memory, emotions, speech, decisionmaking, and self-control.
(2) For this reason, reduction in this kind of brain tissue is in turn correlated with higher impulsivity, something with which children and adolescents are already susceptible by dint of their youth.
(3) Several studies have found links between spending time on social media platforms and rates of suicide and depression among teens.

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8 (4) Numerous studies show that reducing social media platform use results in mental health benefits.
(5) Social media platform addiction can create a vicious cycle for shy and lonely youth. Discomfort with real-life interactions leads to internet interactions, isolation from real-world interaction causes loneliness, loneliness combined with social phobia motivate additional engagement online.
(i) When social media platform companies create, design, implement, or maintain features for users, including child users, on their social media platforms that the company knows or should know are addictive to children, they should be held liable for the harms that result.
(j) Other addictions, including gambling addictions, have had a demonstrable negative effect on state economies.
(k) California has a compelling interest in protecting the mental health of its children from social media platform addiction for, at a minimum, all of the following reasons:
(1) To prevent needless suffering to California children and their families. (2) To ensure the capacity of all its children to fulfill their potential and to reach normal goals for social and educational achievement to the benefit of all Californians. (3) To prevent the costs of treating mental health harms to children from being incurred by and shifted to California families, businesses, insurers, schools, and mental health professionals.

SEC. 3. Section 1714.48 is added to the Civil Code, to read:
1714.48. (a) For purposes of this section:
(1) “Addict” means to knowingly or negligently cause or contribute to addiction through any act or omission or any combination of acts or omissions. (2) “Addiction” means use of one or more social media platforms that does both of the following:
(A) Indicates preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use of, a social media platform despite the user’s desire to cease or reduce that use.
(B) Causes or contributes to physical, mental, emotional, developmental, or material harms to the user.

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9 (3) “Child user” means a person who uses a social media platform and is not older younger than 17 18 years of age.
(4) “Personal data” means information that identifies a natural person or is linked or linkable to an identifiable natural person.
(5) (A) “Social media platform” means an internet service that meets both of the following criteria:
(i) (I) The internet service is a means by which content is generated by a user of the service, or uploaded to or shared on the service by a user of the service, that may be encountered by another user, or other users, of the service. (II) For purposes of this subparagraph:
(ia) “Content” means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, or visual images.
(ib) “Content that may be encountered by another user, or other users, of a service” includes content that is capable of being shared with a user by operation of a functionality of the service that allows the sharing of content. (ic) “Encounter” means to read, view, hear, or otherwise experience content. (ii) The internet service is controlled by a business entity that generated at least one hundred million dollars ($100,000,000) in gross revenue during the preceding calendar year.
(B) “Social media platform” does not include any of the following:
(i) An email service, if emails are the only user-generated content enabled by the service.
(ii) An SMS and MMS service, if SMS or MMS messages are the only user-generated content enabled by the service.
(iii) A service offering only one-to-one live aural communications. (iv) An internal business service that is an internal resource or tool for a business or nonprofit organization in which the services is not available to children in the general public.
(v) A service, including a comment section on a digital news internet website or a consumer review of a product and service on an online commerce internet website, with functionalities that allow users to communicate only in any of the following ways:

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10 (I) Posting comments or reviews relating to content produced and published by the provider of the service or by a person acting on behalf of the provider of the service. (II) Sharing comments or reviews described in subclause (I) on a different internet service.
(III) Expressing a view on comments or reviews described in subclause (I), or on content mentioned in subparagraph (A), by means of any of the following:
(ia) Applying a “like” or “dislike” button or other button of that nature. (ib) Applying an emoji or symbol of any kind.
(ic) Engaging in yes or no voting.
(id) Rating or scoring the content, or the comments or reviews, in any way. (vi) An internet-based subscription streaming service offered to consumers for the exclusive purpose of transmitting licensed media, including audio or video files, in a continuous flow from the internet-based service to the end user. (vii) A service that operates for the sole purpose of cloud storage or shared document or file collaboration.
(viii) A service that operates for the sole purpose of providing general or tailored internet search services.
(b) An In accordance with Section 1714, an operator of a social media platform has a duty not to addict child users. A An operator of a social media platform’s duty not to addict child users includes a duty not to addict child users by any platform shall be found to have violated their duty if the social media platform is found to have addicted a child user by either of the following means:
(1) The use or sale of a child user’s personal data.
(2)The child user’s engagement in the platform’s products or services, including through the use of notifications soliciting child users to access those products or services, or permissions or advertising related to those products or services. (3)
(2) The development, design, implementation, or maintenance of a design, feature, or affordance.
(c) (1) A person authorized to assert the legal rights of a child user who suffers injury as a result of a violation of this section may bring an action against a violator to recover or obtain any of the following relief:

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11 (A) (i) Actual damages.
(ii) In a class action, the amount of damages awarded pursuant to this subparagraph shall not be less than one thousand dollars ($1,000) per member of the class. (B) A civil penalty of up to twenty-five thousand dollars ($25,000) per violation per calendar year. violation.
(C) Injunctive relief.
(D) Punitive damages.
(E) An award of litigation costs and no more than twice the amount of reasonable attorney’s fees to a prevailing plaintiff.
(F) Any other relief that the court deems proper.
(2)In an action pursuant to this subdivision in which the plaintiff has shown, by a preponderance of the evidence, that the defendant addicted a child in violation of subdivision (b), the defendant shall have the burden of proving, by a preponderance of the evidence, that the extent of the injury or injuries alleged in the action were not, in whole or in part, caused or exacerbated by the defendant’s violation. (3)
(2) (A) A knowing or willful violation of this section shall subject the violator to an additional civil penalty not to exceed two hundred fifty thousand dollars ($250,000) per violation per calendar year. violation.
(B) A civil penalty pursuant to this paragraph shall not be treated as an offset against an award of damages caused by the same knowing or willful violation in an action pursuant to this subdivision.
(4)
(3) (A) A social media platform that, before January 1, 2023, developed, designed, implemented, or maintained features that were known, or should have been known, by the platform to be addictive to child users shall be liable for all damages to child users that are, in whole or in part, caused by the platform’s features, including, but not limited to, suicide, mental illness, eating disorders, emotional distress, and costs for medical care, including care provided by licensed mental health professionals. (B) A social media platform shall not be held liable for a violation under this paragraph if, by April 1, 2023, the platform ceases development, design, implementation, or maintenance of features that were known, or should have been known, by the platform to be addictive to child users.

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12 (d) An operator of a social media platform shall not be subject to a civil penalty pursuant to subdivision (c) if, before engaging in a practice that led to that violation, if the operator did both of the following:
(1) Instituted and maintained a program of at least quarterly audits of its practices, designs, features, and affordances to detect practices or features that have the potential to cause or contribute to the addiction of child users. (2) Corrected, within 30 days of the completion of an audit described in paragraph (1), any practice, design, feature, or affordance discovered by the audit to present more than a de minimis risk of violating this section.
(e) The provisions of this section are cumulative to any other duties or obligations imposed under other law.
(f) This section shall not be construed to impose liability for a social media platform for content that is generated by a user of the service, or uploaded to or shared on the service by a user of the service, that may be encountered by another user, or other users, of the service.
(g) This section shall not be construed to negate or limit a cause of action that may have existed against an operator of a social media platform under the law as it existed before the effective date of this section.
(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. (i) A waiver of this section is unenforceable as void against public policy.

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13 CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

ASSEMBLY BILL
NO. 2273
Introduced by Assembly Members Wicks and Cunningham
Wicks, Cunningham, and Petrie-Norris
(Coauthors: Senators Allen and Newman)
February 16, 2022
An act to add Title 1.81.46 (commencing with Section 1798.99.28) to Part 4 of Division 3 of the Civil Code, relating to consumer privacy.

LEGISLATIVE COUNSEL'S DIGEST
AB 2273, as amended, Wicks. The California Age-Appropriate Design Code Act. (1) Existing law, the California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, establishes the California Privacy Protection Agency. Existing law vests the agency with full administrative power, authority, and jurisdiction to implement and enforce the California Consumer Privacy Act of 2018, and requires the agency to be governed by a board. Existing law requires businesses to protect consumer privacy and information, make certain disclosures to consumers regarding a consumer’s rights under the act in a specified manner, and disclose to consumers that a consumer has the right to request specific pieces of information, including the categories of information those businesses have collected about that consumer.

Existing law, the Parent’s Accountability and Child Protection Act, requires a person or business that conducts business in California and that seeks to sell specified products or services to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including verifying the age of the purchaser.

Existing law prohibits a person or business that is required to comply with these

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14 provisions from retaining, using, or disclosing any information it receives in an effort to verify age from a purchaser or recipient for any other purpose, except as specified, and subjects a business or person that violates these provisions to a civil penalty.

Commencing
This bill would enact the California Age-Appropriate Design Code Act, which, commencing July 1, 2024, this bill would require a business that creates goods, services, or product features provides an online service, product, or feature likely to be accessed by children a child to comply with specified standards, including considering the best interests of children likely to access that good, service, or product feature when designing, developing, and providing that good, service, or product feature, requirements, including configuring all default privacy settings offered by the online service, product, or feature to the settings that offer a high level of privacy protection offered by the business, and providing privacy information, terms of service, policies, and community standards concisely, prominently, and using clear language suited to the age of children likely to access that good, service, or product that online service, product, or feature. The bill would prohibit a business that provides a good, service, or product an online service, product, or feature likely to be accessed by children a child from taking proscribed action, such as collecting or using data it collects on consumers who are children. including using the personal information of a child for any reason other than the reason or reasons for which the personal information was collected.

This bill would require the agency California Privacy Protection Agency to establish and convene the California Children’s Data Protection Taskforce to evaluate best practices for the implementation of these provisions, and to provide support to businesses, as specified. The bill would require the agency’s board to appoint the members of the taskforce by April 1, 2023, and would require those members to have certain expertise, including in the areas of privacy and children’s rights. The bill would require the taskforce to make prescribed recommendations on best practices, including identifying goods, services, and product online services, products, or features likely to be accessed by children. By April 1, 2024, the bill would require the agency, in consultation with the taskforce, to adopt regulations and publish guidelines, regulations, as necessary.

This bill would state the intent of the Legislature to subsequently create legislation to enforce this title.
(2) The California Privacy Rights Act of 2020 authorizes the Legislature to amend the act to further the purposes and intent of the act by a majority vote of both houses of the Legislature, as specified.

This bill would declare that its provisions further the purposes and intent of the California Privacy Rights Act of 2020.

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15 DIGEST KEY
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no

BILL TEXT

THE PEOPLE OF THE STATE OF
CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. (a) The Legislature hereby finds and declares all of the following:
(1) The United Nations Convention on the Rights of the Child recognizes that children need special safeguards and care in all aspects of their lives. (2) As children spend more of their time interacting with the digital online world, the impact of the design of digital online products and services on children’s well-being has become a focus of significant concern.
(3) There is bipartisan agreement at the international level, in both the United States and in the State of California, that more needs to be done to create a safer online space for children to learn, explore, and play.
(4) Lawmakers around the globe have taken steps to enhance privacy protections for children on the understanding that, in relation to data protection, greater privacy necessarily means greater security and well-being.
(5) Children should be afforded protections not only by digital online products and services specifically directed at them, but by all digital online products and services they are likely to access.
(6) In 2019, 81 percent of voters said they wanted to prohibit companies from collecting personal information about children without parental consent, and a 2018 poll of Californian parents and teens found that only 36 percent of teenagers and 32 percent of parents say that social networking internet websites do a good job explaining what they do with users’ data.
(7) While it is clear that the same data protection regime may not be appropriate for children of all ages, children of all ages should nonetheless be afforded privacy and protection, and digital online products and services should adopt data protection

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16 regimes appropriate for children of the ages likely to access those products and services.
(8) Products and services that are likely to be accessed by children should offer high strong privacy protections by design and by default. default, including by disabling features that profile children using their previous behavior, browsing history, or assumptions of their similarity to other children, to offer detrimental material. (9) Ensuring robust privacy protections for children by design is consistent with the intent of the Legislature in passing the California Consumer Privacy Act of 2018, and with the intent of the people of the State of California in passing the California Privacy Rights Act of 2020, which finds and declares that children are particularly vulnerable from a negotiating perspective with respect to their privacy rights. (b) Therefore, it is the intent of the Legislature to promote privacy protections for children pursuant to the California Age-Appropriate Design Code Act.

SEC. 2.Title 1.81.46 (commencing with Section 1798.99.30) is added to Part 4 of Division 3 of the Civil Code, immediately following Title 1.81.45, to read:

SEC. 2. Title 1.81.46 (commencing with Section 1798.99.28) is added to Part 4 of Division 3 of the Civil Code, to read:

TITLE 1.81.46. The California Age-Appropriate Design Code Act 1798.99.28. This chapter shall be known, and may be cited, as the California Age- Appropriate Design Code Act.
1798.99.29. The Legislature declares that children should be afforded protections not only by online products and services specifically directed at them, but by all online products and services they are likely to access and makes the following findings:
(a) Companies that develop and provide online services, products, or features that children are likely to access should consider the best interests of children when designing, developing, and providing that service, product, or feature. (b) If a conflict arises between commercial interests and the best interests of children, companies should prioritizes the privacy, safety, and well-being of children over commercial interests.
1798.99.30. For (a) For purposes of this title, the definitions in Section 1798.140 shall apply unless otherwise specified in this title.
(b) For the purposes of this title, the following terms apply:
(a)

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17 (1) “Agency” means the California Privacy Protection Agency, as established by the California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election.
(b)
(2) “Board” means the agency’s board, as established in Section 1798.199.10. (c)
(3) “Child” or “children,” unless otherwise specified, mean a consumer or consumers who is under 18 years of age.
(d)“Dark pattern” has the same meaning as defined in subdivision (l) of Section 1798.140.
(e)
(4) “Data Protection Impact Assessment” means a systematic survey to assess and mitigate risks to children who are reasonably likely to access the good, service, or product service, product, or feature at issue that arises from the provision of that good, service, or product service, product, or feature in accordance with specifications promulgated by the California Children’s Data Protection Taskforce established pursuant to Section 1798.99.32.
(5) “Default” means a preselected option adopted by the business for the online service, product, or feature.
(f)
(6) “Likely to be accessed by a child” means it is reasonable to expect, based on the known audience, the nature of the content, the associated marketing, or the online context, or academic or internal research, that the good, service, or product feature is more likely than not to service, product, or feature would be accessed by children. (g)“Personal information” has the same meaning as defined in subdivision (v) of Section 1798.140.
(h)“Sensitive personal information” has the same meaning as defined in subdivision (ae) of Section 1798.140.
(i)
(7) “Taskforce” means the California Children’s Data Protection Taskforce as established by Section 1798.99.32.
1798.99.31. (a) A business that provides a good, service, or product an online service, product, or feature likely to be accessed by a child shall comply with all of the following:
(1)Consider the best interests of children likely to access that good, service, or product feature when designing, developing, and providing that good, service, or

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18 product feature, and, when in conflict with commercial interests, design, develop, and provide that good, service, or product feature in the manner that prioritizes the privacy, safety, and well-being of children.
(2)
(1) Undertake a Data Protection Impact Assessment for any good, service, or product online service, product, or feature likely to be accessed by a child and maintain documentation of this assessment as long as the good, service, or product online service, product, or feature is likely to be accessed by a child. A report of the assessment must be provided to the agency within 12 months of the implementation of this act and reviewed every 24 months or before any new features are offered to the public.
(3)
(2) Establish the age of consumers with a reasonable level of certainty appropriate to the risks that arise from the data management practices of the business, or apply the privacy and data protections afforded to children to all consumers. (4)Maintain the highest level of privacy possible for children by default, including, but not limited to, disabling profiling, unless the business can demonstrate a compelling reason that a different default setting is in the best interests of children likely to access that good, service, or product feature.
(3) Configure all default privacy settings offered by the online service, product, or feature to the settings that offer a high level of privacy protection offered by the business.
(5)
(4) Provide any privacy information, terms of service, policies, and community standards concisely, prominently, and using clear language suited to the age of children likely to access that good, service, or product online service, product, or feature.
(6)
(5) If the good, service, or product online service, product, or feature allows the child’s parent, guardian, or any other consumer to monitor the child’s online activity or track their location, provide an obvious signal to the child when they are being monitored or tracked.
(7)Universally uphold
(6) Enforce published terms, policies, and community standards established by the business, including, but not limited to, privacy policies and those concerning children. (8)

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19 (7) Provide prominent, accessible, and responsive tools to help children children, or where applicable their parent or guardian, exercise their privacy rights and report concerns.
(b) A business that provides a good, service, or product an online service, product, or feature likely to be accessed by a child shall not take any of the following actions:
(1) Use the personal information of any child in a way that is demonstrably harmful the business knows or has reason to know the online service, product, or feature more likely than not causes or contributes to a more than de minimis risk of harm to the physical health, mental health, or well-being of a child. (2) Profile a child by default.
(2)Collect and
(3) Collect, sell, share, or retain any personal information that is not necessary to provide a good, service, or product a service, product, or feature with which a child is actively and knowingly engaged.
(3)
(4) If a business does not have actual knowledge of the age of a consumer, it shall neither collect nor not collect, share, sell, or retain any personal information that is not necessary to provide a good, service, or product service, product, or feature with which a consumer is actively and knowingly engaged.
(4)
(5) Use the personal information of a child for any reason other than the reason or reasons for which that personal information was collected. If the business does not have actual knowledge of the age of the consumer, the business shall not use any personal information for any reason other than the reason or reasons for which that personal information was collected.
(5)
(6) Notwithstanding Section 1798.120, disclose share or sell the personal information of any child unless the business can demonstrate a compelling reason that disclosure of that personal information is in the best interests of the child. the sharing or selling of that personal information is necessary to provide the online service, product, or feature as permitted by paragraphs (1) to (4), inclusive, of subdivision (a) of Section 1798.145.
(6)Collect any precise geolocation information by default, unless the business can demonstrate a compelling reason that doing so would be in the best interests of the child.

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20 (7) Collect, sell, or share any precise geolocation information of children by default unless the collection of that precise geolocation information is necessary to provide the service, product, or feature requested and then only for the limited time that the collection of precise geolocation information is necessary to provide the service, product, or feature.
(7)Collect
(8) Collect, sell, or share any precise geolocation information without providing an obvious sign to the consumer child for the duration of that collection that precise geolocation information is being collected.
(8)Collect any sensitive personal information by default, unless the business can demonstrate a compelling reason that the collection of sensitive personal information by default is in the best interests of a child.
(9) Use dark patterns or other techniques to lead or encourage consumers to provide personal information beyond what is reasonably expected for the service the child is accessing and necessary to provide that good, service, or product feature, service or product to forego privacy protections, or to otherwise take any action that is demonstrably harmful to the consumer’s the business knows or has reason to know the online service or product more likely than not causes or contributes to a more than de minimis risk of harm to the child’s physical health, mental health, or well- being.
(10) Use any personal information collected or processed to establish age or age range for any other purpose, or retain that personal information longer than necessary to establish age. Age assurance shall be proportionate to the risks and data practice of a service, product, or feature.
(c) This section shall become operative on July 1, 2024. 1798.99.32. (a) The agency shall establish and convene a taskforce, the California Children’s Data Protection Taskforce, to evaluate best practices for the implementation of this title, and to provide support to businesses, with an emphasis on small and medium businesses, to comply with this title. (b) By April 1, 2023, the board shall appoint members of the taskforce. Taskforce members shall consist of Californians with expertise in the areas of privacy, physical health, mental health, and well-being, technology, and children’s rights. (c) The taskforce shall make recommendations on best practices regarding, but not limited to, all of the following:
(1) Identifying goods, services, and product online services, products, or features likely to be accessed by children.

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21 (2) Evaluating and prioritizing the best interests of children with respect to their privacy, health, and well-being, and issuing guidance to businesses on how to incorporate those interests into those interests may be furthered by the design, development, and implementation of a good, service, or product an online service, product, or feature.
(3)Determining the level of certainty with which it is necessary to establish the age of a consumer appropriate to the risks that arise from the data management practices of a business.
(4)Determining whether a reason is sufficiently compelling to warrant practices that are not consistent with the default setting, data collection, and data disclosure practices prescribed by this title.
(3) Ensuring that age verification methods used by businesses that provide online services, products, or features likely to be accessed by children are proportionate to the risks that arise from the data management practices of the business, privacy protective, and minimally invasive.
(5)
(4) Assessing and mitigating risks to children that arise from the use of a good, service, or product an online service, product, or feature, including specific items for the systematic survey necessary issues businesses must address to perform a Data Protection Impact Assessment.
(6)
(5) Publishing privacy information, policies, and standards in concise, clear language suited for the age of children likely to access that good, service, or product feature. service or product.
(d) By April 1, 2024, the agency, in consultation with the taskforce, shall adopt regulations and publish guidelines, regulations, as necessary, to effectuate the purposes of this title in a manner consistent, and to the extent possible, with international frameworks for the protection of the privacy and well-being of children. title.
1798.99.33.It is the intent of the Legislature to create subsequent legislation to enforce this title.

SEC. 3. The Legislature finds and declares that this act furthers the purposes and intent of the California Privacy Rights Act of 2020.

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Office of the City Manager
1 PUBLIC HEARING
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Department of Public Works Subject: Approval and Levy of 2018 Clean Stormwater Fee in FY 2023

RECOMMENDATION
Conduct a public hearing and upon conclusion adopt a Resolution approving the proposed adjusted fees for the 2018 Clean Stormwater Fee and ordering the levy of the fees in Fiscal Year 2023.

FISCAL IMPACTS OF RECOMMENDATION
The Resolution would approve and order the levy of the 2018 Clean Stormwater Fee in Fiscal Year (FY) 2023. The fees are to be filed with the Alameda County Auditor and included in the County’s assessment roll. After collection by the County the total amount of the assessment minus a collection fee is paid to the City of Berkeley. The revenue is posted in the Clean Storm Water Fund (Fund 616). Approximately $2.88 million are expected to be collected from the 2018 Clean Stormwater Fee in FY 2023. A summary of forecasted FY 2023 revenue and expenditures for Fund 616 is shown in the table below.

Table 1 - FY 2022 Fund 616 Forecast
Estimated Beginning Balance (Fund 616) $ 8,765,037
Clean Stormwater Program Expenditures $ 5,915,494
Revenue
Clean Stormwater Fee (1991) $ 1,918,360
2018 Clean Stormwater Fee $ 2,874,328
Total Revenue $ 4,792,687
Deficit/Surplus $ (1,122,807)
Estimated End Balance (Fund 616) $ 7,642,230

CURRENT SITUATION AND ITS EFFECTS
The 2018 Clean Stormwater Fee (“2018 Fee”) is subject to an annual adjustment tied to the Consumer Price Index - U for the San Francisco Bay Area as of December of each succeeding year (the “CPI”). Per the voter approved measure, any increase in the CPI in excess of 3% shall be cumulatively reserved as “Unused CPI” and shall be used to increase the maximum authorized rate in years in which the CPI is less than 3%. To

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2018 Clean Stormwater Fee – FY 2023 PUBLIC HEARING
June 28, 2022
2 date there is a current “Unused CPI” balance of 0.0%. For the period beginning in December 2020 and ending in December 2021, the CPI increased by 4.24%; therefore the annual adjustment for FY 2023 will be limited to the prescribed maximum of 3.00% and the excess CPI increase of 1.24% will be reserved as “Unused CPI” balance to be used in future years.

As approved by voters, the annual adjustment may be calculated by taking the sum of the 1991 Clean Stormwater Fee (“1991 Fee”) and the 2018 Clean Stormwater Fee, and multiplying the sum by the allowable CPI increase. Calculating the adjustment in this manner allows for the inclusion of a 1991 Fee adjustment as part of the annual 2018 Fee increase. The cumulative adjustment of the 1991 Fee and the 2018 Fee, result in 2018 Fee increases of approximately 4.9%.

The table below details prior year and proposed FY 2023 rates for the property-related fee.

Table 2 - 2018 Clean Stormwater Fee Rate Summary
Rate Category FY 2022
Fee
Proposed
FY 2023 Fee Unit
Single-Family Residential
Small $ 40.06 $ 42.01 parcel
Medium $ 50.08 $ 52.51 parcel
Large $ 60.56 $ 63.51 parcel
Condominium $ 40.06 $ 42.01 parcel
Single-Family Residential parcels with multiple single-family residences pay 22% higher rate Non-Single-Family Residential**
Multi-Family Residential $ 873.48 $ 916.01 acre
Comm / Industrial / Parking $ 975.06 $ 1,022.53 acre
Office $ 914.12 $ 958.62 acre
Institutional / Church $ 832.86 $ 873.41 acre
School / Hospital $ 761.76 $ 798.85 acre
Recreational $ 589.10 $ 617.78 acre
Park $ 53.26 acre
Vacant (developed) $ 50.78 $ 53.25 acre
Open Space / Agricultural exempt
* Single-Family Residential category also includes duplex, triplex and four-plex units. ** Non-Single-Family Residential parcel size is calculated to the tenth of an acre or portion thereof
Detailed calculations of the annual adjustment and the corresponding rate increases are included in the 2018 Clean Stormwater Fee - Fiscal Year 2023 Adjustment Report (Attachment 2). Adoption of the Resolution would approve and order the levy of the 2018 Fee in FY 2023 at the rates described in this report. Following adoption, the fees will be filed with the Alameda County Auditor and included on the County’s assessment roll for collection. Revenue from the Fee will provide needed funding for the Stormwater Program which includes flood management, compliance with clean water requirements, operations and maintenance, and major capital improvements, all of which advance the strategic goals of: 1.) Providing state-of-the-art, well-maintained infrastructure, amenities, and facilities; and 2.) Being a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

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2018 Clean Stormwater Fee – FY 2023 PUBLIC HEARING
June 28, 2022
3 BACKGROUND
In 1991, the City was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit from the San Francisco Bay Regional Water Quality Control Board to improve the water quality of urban runoff and discharge storm water runoff to the City’s waterways. The permit requires that the City implement a stormwater control program and best management practices.

To meet the NDPES permit requirements, the City implemented a Clean Storm Water Fee in 1991 for all residences and businesses in the City. The City has been collecting approximately $2 million annually for this fee and rates had not increased since the fee was established in 1991. Initially, collected revenues were sufficient to fund ongoing maintenance, operations, and capital improvements. However, beginning in Fiscal Year 2014, the program began operating at a deficit. In 2018, in an effort to increase revenues for the program, the City introduced the 2018 Clean Stormwater Initiative to establish a new property-related fee to be assessed separately and in addition to the existing 1991 Fee. Following a Proposition 218 process the initiative was approved by voters and the City Council adopted Resolution No. 68,483-N.S., ordering the levy. The assessment has been levied for the 2019 through 2022 fiscal years.

Provisions of the California Health and Safety Code Section 5473.1 require that a public hearing be held each year that the fees are to be collected on the property tax roll and that a notice be published in a local newspaper. A public notice has been published designating June 28, 2022 as the date for the public hearing.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The 2018 Clean Stormwater Fee provides a secure funding source for environmental protection related to the impacts of stormwater on creeks and the San Francisco Bay.

The fee maintains operations and maintenance activities and reduces environmental impacts of flooding, sink holes, trash, and debris.

RATIONALE FOR RECOMMENDATION
The additional funding will allow the City to fund the operating deficit, continue maintenance service levels, meet clean water regulatory requirements, and develop a long-term financial plan for capital projects, to continue improving water quality and minimizing the impacts of flooding in local areas.

CONTACT PERSON
Farid Javandel, Deputy Director, Department of Public Works, (5100 981-7061 Joe Enke, Manager of Engineering, Department of Public Works, (510) 981-6411 Ricardo Salcedo, Associate Civil Engineer, Department of Public Works, (510) 981- 6407

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2018 Clean Stormwater Fee – FY 2023 PUBLIC HEARING
June 28, 2022
4 Attachments:
1: Resolution – Ordering the Levy of 2018 Clean Stormwater Fee in Fiscal Year 2023 2: 2018 Clean Stormwater Fee – Fiscal Year 2023 Adjustment Report

3. Public Hearing Notice

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RESOLUTION NO. ##,###-N.S.

APPROVING THE LEVY AND COLLECTION OF THE CITY OF BERKELEY 2018 CLEAN STORMWATER FEE IN FISCAL YEAR 2023
WHEREAS, on February 13, 2018, the Council adopted Resolutions No. 68,334-N.S. and No. 68,335-N.S., to initiate the property related fee process and establish the balloting procedures for the 2018 Clean Stormwater Initiative consistent with California Constitution Article XIII D; and
WHEREAS, on April 3, 2018, the Council conducted a public hearing at which a majority protest was not achieved, and subsequently adopted Resolution No. 68,831-N.S. directing the mailing of fee ballots to all property owners of properties within the City subject to the fee; and
WHEREAS, on May 29, 2018, following tabulation of fee ballots and confirming voter approval of the 2018 Clean Stormwater Initiative, Council adopted Resolution No. 68,483- N.S. accepting the ballot tabulation and ordering the levy of the 2018 Clean Stormwater Fee; and
WHEREAS, pursuant to the authority granted by voters, the 2018 Clean Stormwater Fee is subject to an annual increase based on the San Francisco - U Consumer Price Index (CPI), not to exceed 3% per year; and any increase in excess of 3% shall be cumulatively reserved as “Unused CPI” and shall be used to increase the maximum authorized rate in years in which the CPI is less than 3%. The maximum annual CPI adjustment for each property shall be calculated based upon the sum of the 1991 Clean Stormwater Fee and the 2018 Clean Stormwater Fee, and multiplying the sum by the CPI or 3% whichever is lower; and
WHEREAS, for the annual period ending in December 2021 the CPI increased by 4.24%, therefore the proposed annual adjustment can be applied at the maximum of 3.00%; and WHEREAS, the proposed fee rate for FY 2023 of FIFTY-TWO DOLLARS AND FIFTY-ONE CENTS ($52.51) per single-family equivalent unit is in accordance with a City staff authored report dated May 2022 and titled “2018 Clean Stormwater Fee – Fiscal Year 2023 Fee Adjustment Report” (“Report”); and
WHEREAS, the rate increases and the methodology used in the calculation of the rates are described in the Report and are in accordance with the voter approved measure; and.

WHEREAS, provisions of California Health and Safety Code Section 5473.1, require a public hearing to be held each year that the fees are to be collected on the property tax roll and a notice to be published in a local newspaper; and

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WHEREAS, the notice was published designating June 28, 2022 as the date for public hearing;
WHEREAS, a public hearing was held on June 28, 2022 at regular council meeting.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Berkeley authorizes the levy and collection of fees for FY 2023 at the rates specified in the Report.

BE IT FURTHER RESOLVED that shortly after the adoption of this Resolution, but in no event later than August 10th following such adoption, the City Clerk shall file a certified copy of this Resolution and a fee levy roll with the Auditor of Alameda County (“County Auditor”). Upon such filing, the County Auditor shall enter on the County’s assessment roll opposite each lot or parcel of land the amount of fee thereupon as shown in the levy roll.

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ATTACHMENT 2

CITY OF BERKELEY
2018 CLEAN STORMWATER FEE
Fiscal Year 2023
Fee Adjustment Report
May 2022
Prepared by

JOSEPH ENKE, PE

CITY OF BERKELEY

DEPARTMENT OF PUBLIC WORKS

ENGINEERING DIVISION

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ATTACHMENT 2

TABLE OF CONTENTS
INTRODUCTION ....................................................................................................................................................1 OVERVIEW.................................................................................................................................................................1 CITY’S FACILITIES .......................................................................................................................................................2 STORM DRAINAGE FUNDING ....................................................................................................................................2 FINANCIAL NEEDS SUMMARY...............................................................................................................................3 2018 CLEAN STORMWATER FEE RATE STRUCTURE ANALYSIS ................................................................................4 SINGLE-FAMILY RESIDENTIAL PARCELS .....................................................................................................................4 NON-SINGLE-FAMILY RESIDENTIAL PARCELS ............................................................................................................5 EFFECTS OF LOW IMPACT DEVELOPMENT................................................................................................................7 STORM DRAINAGE FEE CALCULATION ......................................................................................................................7

LIST OF TABLES
Table 1- FY 2023 Fund Forecast.............................................................................................................................3 Table 2- Summary of Single-Family Residential Parcels .........................................................................................5 Table 3 – Summary of Non-SFR Parcels .................................................................................................................6 Table 4 - Storm Drainage Fee Schedule .................................................................................................................8

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ATTACHMENT 2
1 INTRODUCTION

OVERVIEW
In 1991, the City of Berkeley was required to obtain a national Pollutant Discharge Elimination System (NPDES) permit from the San Francisco Bay Regional Water Quality Control Board to improve the water quality of urban runoff and discharge storm water runoff to the City’s waterways. The permit requires that the City of Berkeley implement a stormwater control program and best management practices. The City adopted the Clean Stormwater Fee in 1991 to comply with clean water regulations and provide a secure funding source for stormwater operations, maintenance, and capital improvements. The program includes flood management, compliance with clean water requirements, operations and maintenance, and major capital improvements.

Stormwater fees are paid by property owners and the fees have not been increased since the program’s inception in 1991. The program has been running a deficit since 2014 attributable to basic operations, maintenance, and compliance with clean water regulations. The Stormwater program also faces a backlog in capital improvements, with more than $208 million in project costs identified in the 2011 Watershed Management Plan1.

In order to increase revenues for the Stormwater program, the City adopted Resolutions No. 68,334-N.S. and Resolution No. 68,335-N.S., to initiate the property related fee process and establish balloting procedures for the 2018 Clean Stormwater Initiative consistent with California Constitution Article XIII D. A public hearing was conducted on April 3, 2018 at which a majority protest was not achieved, subsequently Resolution No. 68,381-N.S. was adopted ordering the mailing of fee ballots to all property owners of properties within the City subject to the fee. Following the tabulation of votes, and confirming approval of the measure, Council adopted Resolution No. 68,483-N.S., accepting the ballot tabulations and ordering the levy of the City of Berkeley’s 2018 Clean Stormwater Fee.

As approved by voters, the 2018 Clean Stormwater Fee is subject to an annual adjustment tied to the Consumer Price Index-U for the San Francisco Bay Area as of December of each succeeding year (the “CPI”), with a maximum annual adjustment not to exceed 3%. Per the voter approved measure any increase in the CPI in excess of 3% shall be cumulatively reserved as the “Unused CPI” and shall be used to increase the maximum authorized rate in years in which the CPI is less than 3%. The maximum authorized rate is equal to the maximum rate in the first fiscal year the Fee was approved adjusted annually by the lower of either 3% or the increase in the CPI plus any Unused CPI as described above. In order for the City’s dedicated storm drainage revenue sources to satisfy costs requirement into the future, the annual 1 Watershed Management Plan: https://www.cityofberkeley.info/Public_Works/Sewers_- _Storm/Watershed_Management_Plan.aspx

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ATTACHMENT 2
2 adjustment for property may be calculated based upon the sum of the storm drainage fee and the existing Clean Storm Water Fee.

This abbreviated fee adjustment report, has been prepared by City staff to document the annual adjustment of the 2018 Clean Stormwater Fee for Fiscal Year 2023. The report also includes an abbreviated description of the storm drainage system, the program’s funding sources, and a five-year fund forecast.

CITY’S FACILITIES
The City operates and maintains a storm drainage system, as it is empowered to do so per Government Code Sections §38900 and §38901. It is comprised of an integrated system of storm drain pipes, culverts and ditches. Local creeks are not considered part of the City’s storm drain system, although they receive most of the urban runoff and are impacted by how the City’s storm drainage system functions.

The Berkeley area began experiencing residential development over one hundred years ago. As the community grew, the storm drainage system was developed along with the neighborhoods and commercial areas while still maintaining many native creek segments. Although the City is highly urbanized, there are a large number of open creek segments that cross streets, private properties and roadways through numerous culvert sections.

In the early 1990s, in response to the federal Clean Water Act amendment of 1987, municipalities were, for the first time, required to obtain an NPDES 2 permit from the California Regional Water Quality Control Board to address urban storm drainage runoff pollution. Under this permit, the City works to reduce stormwater pollution, protect and enhance its watersheds, preserve beneficial uses of local waterways, and implement State and federal water quality regulations within the limits of its jurisdiction.

Over the years, the range of actions taken by the City has greatly increased in response to evolving regulatory requirements and community needs.

STORM DRAINAGE FUNDING
In response to the NPDES permit requirements, the City implemented a Clean Storm Water Fee in 1991 for all residences and businesses in the City. The City collects approximately $2 million annually from this fee which has not been increased since its 1991 inception. Initially revenues were sufficient to fund ongoing maintenance, operations and capital improvement projects. However, beginning in Fiscal Year 2014, 2 NPDES stands for the National Pollutant Discharge Elimination System as specified in the Federal Clean Water Act. The City is one of the co-permittees named on the Alameda County NPDES permit issued by the Regional Water Board. The most recent MRP was issued in November 2015, however, these permits typically are renewed every five years, with each new iteration containing additional requirements.

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ATTACHMENT 2
3 the program began operating at a deficit. In response to this deficit, the City implemented the 2018 Clean Stormwater Fee.

FINANCIAL NEEDS SUMMARY
A Clean Stormwater Fund forecast for FY 2023 is provided below as Table 1.

Table 1- FY 2023 Fund Forecast
Beginning Available Fund Balance
Clean Stormwater Fund (616) $ 8,765,037
Costs
Personnel Costs $ 1,602,199
Non-Personnel Costs
Capital Improvement Program $ 2,525,000
Non-Personnel $ 1,788,295
Subtotal Non-Personnel Costs $ 4,313,295
Total Costs $ 5,915,494
Revenue
Clean Stormwater Fee (1991) $ 1,918,360
2018 Clean Stormwater Fee $ 2,874,328
Total Revenue $ 4,792,688
Annual Surplus/Shortfall $ (1,122,806)
Estimated End Balance
Clean Stormwater Fund (616) $ 7,642,231

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ATTACHMENT 2
4 2018 CLEAN STORMWATER FEE RATE STRUCTURE ANALYSIS
All properties which generate storm and urban runoff which flow into the City’s MS4 are served by the system. The amount of use attributed to each parcel is proportional to the amount of storm and urban runoff flow contributed by the parcel, which is proportional to the amount of impervious surface area (e.g. building roofs, pavement, etc.) on a parcel.

In this Report, the median single-family residential parcel is used as the basic unit of measure, called the single-family equivalent, or “SFE.” Accordingly, since the primary quantifiable attribute for this fee structure is impervious surface area, the amount of impervious surface area on the median SFR parcel serves as the basic unit of impervious area.

The basic unit of impervious area can be expressed by the following formula:

Median SFR Parcel Area
x Average SFR Impervious Percentage
= SFE Impervious Area
The median SFR parcel is 0.11 acres (4,792 square feet). Careful analysis revealed that the average percentage of impervious area (“%IA”) of the medium class of SFR parcels is 44.82%. Therefore, the amount of impervious area for the SFE is 2,148 square feet. This becomes the basis for calculating the SFEs for all other types of land uses. In order to accomplish this, a representative sample of each land use category was studied through aerial photographs to measure the actual impervious area, which was, in turn, used to calculate the %IA for each land use category.

SINGLE-FAMILY RESIDENTIAL PARCELS
Berkeley has a wide range of sizes of SFR parcels, which have varying levels of %IA.

Generally, smaller parcels tend to have a higher proportion of impervious area than larger parcels, which tend to have a lower percentage of impervious area. (This can be best visualized by the fact that larger residential properties tend to have a larger proportion of pervious landscaping, and therefore less impervious area.) Therefore, the range of SFRs were broken into three size categories as shown in Table 4 below.

Since the size of a parcel is considered in finite groups, the resultant SFEs were calculated on a per-parcel basis for each size category using the formula above.

It should be noted that the SFR category also includes multiplex parcels of two, three or four units, since their lot development characteristics do not vary significantly from the SFR parcels of similar size. In all, this includes the approximately 3,400 multiplex parcels in the City. Any residential structure with five or more units is categorized as multi-family residential (“MFR”), which is calculated separately. For parcels with multiple SFRs, analysis showed that those parcels contained 22% more impervious area than single-home SFRs within the same size category. Therefore, multiple-SFR parcels are computed separately.

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ATTACHMENT 2
5 Special Notes On Condominiums
Condominium units are particularly difficult to categorize as they are often on very small individual parcels, yet share larger common areas that are made up of landscaped (pervious) areas; parking lots and shared roofs (impervious); and other recreational uses (either pervious or impervious). The data for these variables are not readily available, so it is assumed that overall their characteristics were most similar to the small lot make up. Overall, condominium units are smaller than the average SFR, and may include two or more stories of residences in some cases. When combined with the various common areas (which were exempted from the SFE process), the overall effect would be less runoff impact than the median size SFR.

Thus, the Small SFR rate was used.

Table 2- Summary of Single-Family Residential Parcels
SFE per Parcel
Lot
Type
Parcel
Size
Range
(sf)
Total
Parcels
% Imperv
Area
Single
Home
Multiple
Homes
Small Under
3,200 2,394 65.73% 0.80 0.98
Medium 3,200 to
7,200 16,378 44.82% 1.00 1.22
Large 7,200
and over 2,689 29.81% 1.21 1.48
Condos n/a 2,472 n/a 0.80 n/a
TOTAL 23,933

NON-SINGLE-FAMILY RESIDENTIAL PARCELS
Unlike the SFR parcels, the non-SFR parcels can vary widely in size as well as characteristics. For this reason, the parcels have been grouped into land use categories according their %IA characteristics (as shown in Appendix B) so that SFE per acre can be computed for each category using the following formula:
(43,560 𝑠𝑓 𝑎𝑐𝑟𝑒) 𝑥 %𝐼𝐴
2,148 𝑠𝑓/𝑆𝐹𝐸 = 𝑆𝐹𝐸 𝑝𝑒𝑟 𝐴𝑐𝑟𝑒
Where 2,148 square feet is the amount of the impermeable area in one SFE.

Table 3 below shows a summary of the non-single-family parcel SFEs for each non- SFR land use category.

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ATTACHMENT 2
6 Table 3 – Summary of Non-SFR Parcels
Land Use Category
Total
Parcels
%
Imperv
Area
SFE per
Acre
Multi-Family (Apartments) 1,460 86% 17.44
Commercial / Retail / Industrial 1,636 96% 19.47
Office 246 90% 18.25
Institutional / Church 287 82% 16.63
School / Hospital 27 75% 15.21
Recreational 28 58% 11.76
Vacant (developed) 596 5% 1.01
Open Space / Agricultural 93 Exempt
4,373
Each individual parcel’s SFE is then calculated by multiplying the parcel size (in acres3) times the SFE per acre for that land use category, as shown in the following formula:

Developed Vacant Parcels
Developed vacant parcels are distinguished from undeveloped vacant land by one of several characteristics. Typically, a developed vacant parcel has been graded to be ready for building construction (possibly as part of the original subdivision or adjacent street grading). In some cases, the parcel was previously improved, but the improvement has been removed. Although developed vacant parcels may have significant vegetative cover, the underlying soil conditions resulting from grading work can usually cause some rainfall to run off into the storm drainage system. The %IA for developed vacant parcels is conservatively assumed to be 5%. Vacant parcels that have significant impervious paving remaining from prior improvements may be classified as Commercial or some other classification best representing the %IA of the parcel.
3 Parcel size for non-single-family residential parcels is calculated to the tenth of an acre or portion thereof.

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ATTACHMENT 2
7 Open Space and Agricultural Parcels are Exempt
The City’s MS4 was developed in response to land development over the past several decades. Tracts of land that have not yet been developed, or have been used primarily for agricultural purposes, have not created an impact on the drainage system beyond the natural condition, and are therefore considered to receive no service from the MS4.

In practical terms, these parcels generate no additional storm runoff beyond the natural condition. For these reasons, open space and agricultural parcels are exempt from the storm drainage fee.

Berkeley is a City with some open space land, which can be situated on portions of developed parcels. For parcels that have a significant portion that is considered open space (or agricultural), those portions have been taken into consideration in the calculations of the %IA and SFEs. For SFR parcels, these open space lands have been included in the sampled lots size when calculating the average %IA, which produced a lower %IA for the large parcel category, and, thus, a lower SFE and Fee to accommodate the open space areas. For non- SFR parcels the fees are calculated on individual acreage. However, the open space portion has been deducted from the acreage prior to all analyses including %IA as well as SFE and fee calculation.

EFFECTS OF LOW IMPACT DEVELOPMENT
The current NPDES Permit requires certain properties to construct storm drainage treatment and attenuation facilities, also known as low impact development (“LID”).

These facilities often are designed to capture a portion of the storm flows, retain them, and enable them to infiltrate into the ground. While this is intended to help filter pollutants from the water, it also can reduce the parcel’s storm drainage runoff quantity to some extent. However, LID is designed to capture, retain and treat frequent, but low intensity storms. Conversely, the MS4 is designed around the infrequent, high intensity storms, those storms which will typically overflow most LID facilities. For this reason, no discount in the storm drainage fees is made available for parcels with LID facilities.

STORM DRAINAGE FEE CALCULATION
The primary metric in this analysis is the SFE as illustrated above. To arrive at the fee amount for the various land use categories, the total SFEs must be divided into the total revenue requirement to arrive at the rate per SFE. That calculation is represented by the following formula:

𝑇𝑜𝑡𝑎𝑙 𝐴𝑠𝑠𝑒𝑠𝑠𝑚𝑒𝑛𝑡𝑠 𝑡𝑜 𝑏𝑒 𝐶𝑜𝑙𝑙𝑒𝑐𝑡𝑒𝑑
𝑇𝑜𝑡𝑎𝑙 𝑆𝐹𝐸𝑠 = 𝑆𝐹𝐸 𝑅𝑎𝑡𝑒
The total assessment to be collected in FY 2023, includes an allowable adjustment.

As described in the Overview section of this report, the fee is subject to an annual adjustment calculated by taking the sum of the 1991 Clean Stormwater Fee and the 2018 Clean Stormwater Fee and multiplying the sum by the allowable CPI increase not to exceed 3%. For the period beginning in December 2020 and ending in December 2021, the CPI increased by 4.24%. As discussed in the Overview section

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ATTACHMENT 2
8 of this report, “Unused CPI” balance from previous years can be used to increase the annual adjustment in years with CPI increases less than 3%. The annual adjustment for FY 2023 is limited to the prescribed maximum of 3% and the excess CPI increase of 1.24% will be reserved as “Unused CPI” balance to be used in future years.

The SFE calculation can be rewritten as follows:
2018 𝐹𝑒𝑒 𝑖𝑛 𝐹𝑌 22 + (2018 𝐹𝑒𝑒 𝑖𝑛 𝐹𝑌 22 + 1991 𝐹𝑒𝑒) × % 𝐼𝑛𝑐𝑟𝑒𝑎𝑠𝑒 𝑇𝑜𝑡𝑎𝑙 𝑆𝐹𝐸𝑠
= 𝑆𝐹𝐸 𝑅𝑎𝑡𝑒 𝑖𝑛 𝐹𝑌 23
Or, using numbers from the analysis, the SFE Rate is:
$2,734,735 + ($2,734,735 + $1,918,360) × 0.03
54,735.625 𝑆𝐹𝐸𝑠 = $𝟓𝟐.𝟓𝟏 𝒑𝒆𝒓 𝑺𝑭𝑬
This SFE rate amount is then multiplied by the SFE per parcel or SFE per acre for the various land use categories to arrive at the Storm Drainage Fee Rate Schedule shown in Table 4 below.

Table 4 - Storm Drainage Fee Schedule
Rate Category SFE Rate Proposed Fee Unit
Single-Family Residential
Small 0.79992 $ 42.01 parcel
Medium 1.00000 $ 52.51 parcel
Large 1.20933 $ 63.51 parcel
Condominium 0.79992 $ 42.01 parcel
Multiple SFR on a single parcel pay 22% higher rate
Non-Single-Family Residential**
Multi-Family Residential 17.44360 $ 916.01 acre
Commercial / Industrial / Parking 19.47193 $ 1,022.53 acre Office 18.25493 $ 958.62 acre
Institutional / Church 16.63227 $ 873.41 acre
School / Hospital 15.21244 $ 798.85 acre
Recreational 11.76429 $ 617.78 acre
Park 1.21700 $ 63.91 acre
Vacant (developed) 1.01416 $ 50.78 acre
Open Space / Agricultural exempt
* Single-Family Residential category also includes duplex, triplex and four-plex units. ** Non-Single-Family Residential parcel size is calculated to the tenth of an acre or portion thereof
The proposed $52.51 SFE rate is well within the range of storm drainage rates adopted by other municipalities.

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NOTICE OF PUBLIC HEARING - BERKELEY CITY COUNCIL

PUBLIC PARTICIPATION BY REMOTE VIDEO ONLY
LEVY OF 2018 CLEAN STORMWATER FEE FOR FY 2023
NOTICE IS HEREBY GIVEN that at its meeting on Tuesday, June 28, 2022, the Berkeley City Council will conduct a public hearing to consider:

The levy of the 2018 Clean Stormwater Fee in Fiscal Year 2023.

The fee is collected through the property tax bill and collected revenue would fund operations, maintenance, and capital improvements of the City’s storm drain system.

The table below details prior year and proposed FY 2023 rates for the property-related fee.

Rate Category FY 2022
Fee
Proposed
FY 2023 Fee Unit
Single-Family Residential
Small $ 40.06 $ 42.01 parcel
Medium $ 50.08 $ 52.51 parcel
Large $ 60.56 $ 63.51 parcel
Condominium $ 40.06 $ 42.01 parcel
Single-Family Residential parcels with multiple single-family residences pay 22% higher rate Non-Single-Family Residential**
Multi-Family Residential $ 873.48 $ 916.01 acre
Comm / Industrial / Parking $ 975.06 $ 1,022.53 acre
Office $ 914.12 $ 958.62 acre
Institutional / Church $ 832.86 $ 873.41 acre
School / Hospital $ 761.76 $ 798.85 acre
Recreational $ 589.10 $ 617.78 acre
Park $ 53.26 acre
Vacant (developed) $ 50.78 $ 53.25 acre
Open Space / Agricultural exempt
* Single-Family Residential category also includes duplex, triplex and four-plex units. ** Non-Single-Family Residential parcel size is calculated to the tenth of an acre or portion Thereof
The 2018 Clean Stormwater Fee (“2018 Fee”) is subject to an annual adjustment tied to the Consumer Price Index - U for the San Francisco Bay Area as of December of each succeeding year (the “CPI”). Per the voter approved measure, any increase in the CPI in excess of 3% shall be cumulatively reserved as “Unused CPI” and shall be used to increase the maximum authorized rate in years in which the CPI is less than 3%. To date there is a current “Unused CPI” balance of 0.0%. For the period beginning in December 2020 and ending in December 2021, the CPI increased by 4.24%; therefore the annual adjustment for FY 2023 will be limited to the prescribed maximum of 3.00% and the excess CPI increase of 1.24% will be reserved as “Unused CPI” balance to be used in future years.

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manner allows for the inclusion of a 1991 Fee adjustment as part of the annual 2018 Fee increase. The cumulative adjustment of the 1991 Fee and the 2018 Fee, result in 2018 Fee increases of approximately 4.9%.

Public Hearing Information
The hearing will be held, on June 28, 2022 at 6:00 p.m. The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.

A copy of the agenda material for this hearing will be available on the City’s website at www.cityofberkeley.info as of June 16, 2022. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.

FY 2023 Assessment Rolls will be available at the City Clerk’s Office at 2180 Milvia Street, 1st Floor, and at the main Public Library, 2090 Kittredge Street, Berkeley, CA, when the city offices reopen for public business.

Written comments should be mailed to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704 or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.

Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service.

If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981- 6900 or [email protected] for further information.

For further information, please contact Joe Enke, Manager of Engineering at (510) 981- 6411 or Ricardo Salcedo, Associate Civil Engineer at (510) 981-6407.

Published: June 17 and June 24, 2022 – The Berkeley Voice City Clerk shall publish a notice at least 10 days prior to the date of the public hearing with the date, hour, and place of the public hearing for annual levy and collection of assessments in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Section 6061 of the Government Code. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~
I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted on the display case located near the walkway in front of the Council Chambers at 2134 Martin Luther King Jr. Way, as well as on the City’s website, on June 16, 2022.

Mark Numainville, City Clerk

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Office of the City Manager
1 PUBLIC HEARING
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Department of Public Works Subject: Levy and Collection of Fiscal Year 2023 Street Lighting Assessments

RECOMMENDATION
Conduct a public hearing and upon conclusion adopt Resolutions confirming the assessments for the Berkeley Street Lighting Assessment District No. 1982-1 and the Street Lighting Assessment District 2018, approving the Engineer’s Reports, and authorizing the levying and collection of assessments in the Fiscal Year 2023.

FISCAL IMPACTS OF RECOMMENDATION
On May 31, 2022, Council adopted Resolution No. 70,388–N.S. (District No. 1982-1) and Resolution No. 70,389–N.S. (District 2018) declaring the City’s intent to levy and collect FY 2023 assessments for Berkeley Street Lighting Assessment District No. 1982-1 and Street Lighting Assessment District 2018, collectively referred to herein as the Districts; preliminarily approving the Engineer’s Reports for the Districts; and setting a public hearing for the June 28, 2022 Council Meeting.

The attached Resolutions confirm the assessments, approve the final Engineer’s Reports, and authorize the levy and collection of assessment in Fiscal Year 2023. The assessments are to be filed with the Alameda County Auditor and included on the County’s assessment roll. After collection by the County, the total amount of the assessment minus a county collection fee is paid to the City of Berkeley. The revenue is posted in the Street Light Assessment District Fund (Fund 142).

A summary of forecasted FY 2023 revenue and expenditures for the Districts is shown in Table 1.

Table 1: FY 2023 Street Light Assessment Revenue & Expenditures Forecast Estimated Beginning Balance (Fund 142) $ 1,941,027
Street Lighting Program Expenditures $ 2,974,124
Projected Assessments & Other Revenue
Street Light Assessment District 1982-1 $ 1,416,260

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Levy and Collection - FY 2023 Street Lighting Assessment Districts PUBLIC HEARING June 28, 2022
2 Street Light Assessment District 2018 $ 707,085
County Collection Fee (1.7%) $ (36,097)
Misc. Revenue $ 957
Projected Net Revenue $ 2,088,205
Deficit $ (885,919)
Estimated End Balance (Fund 142) $ 1,055,108
Allowable annual adjustments of the 2018 District assessment rates are expected to raise revenues over the coming years.

CURRENT SITUATION AND ITS EFFECTS
The proposed FY 2023 rates for Assessment District 1982-1 (1982 District) are incorporated into the Engineer’s Report (Attachment 3) and reflect no changes to assessment rates in FY 2023. Accordingly, this action is exempt from the notice, protest, and hearing requirements of State Proposition 218 as set forth in Government Code Section 53753.5 (Article XIII D, Sec. 5). Any increase or change in the formula for the assessments would make the annual assessment subject to the procedures and approval process of Proposition 218 (Government Code Section 53750-53754). Table 2 details the prior year and proposed FY 2023 assessment rates for this district.

Table 2: Street Lighting Assessment District No. 1982-1 Rate Schedule Rate Category
Assessment
FY 2022
Proposed
Assessment
FY 2023 Unit
Residential and Institutional $ 0.0108 $ 0.0108 BSF1
Industrial and Utility $ 0.0216 $ 0.0216 BSF
Commercial $ 0.0432 $ 0.0432 BSF
The assessment for Street Lighting Assessment District 2018 (2018 District) is subject to an annual adjustment tied to the Consumer Price Index-U for the San Francisco Bay Area as of December of each succeeding year (the “CPI”), with a maximum annual adjustment not to exceed 3%. For the period beginning in December 2020 and ending in December 2021, the CPI increased by 4.24%; therefore, the assessment CPI adjustment for the Fiscal Year 2023 may not exceed the prescribed maximum of 3.00%.

As approved by voters, the total annual adjustment may be calculated by taking the sum of the 1982-1 District assessment and the 2018 District assessment and multiplying the sum by the allowable CPI increase. Calculating the adjustment in this manner allows for the inclusion of a 1982-1 District adjustment as part of the 2018 District adjustment. The 1 Building Square Footage (BSF)

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Levy and Collection - FY 2023 Street Lighting Assessment Districts PUBLIC HEARING June 28, 2022
3 cumulative total adjustment results in a 2018 District assessment rate increase of approximately 6.1%.

These rate increases and the methodology used in their calculation are in accordance with the voter approved measure; therefore, the proposed adjustments are exempt from the notice, protest, and hearing requirements of State Proposition 218 as set forth in Government Code Section 53753.5 (Article XII D, Sec. 5). Table 3 details FY 2022 and proposed FY 2023 assessment rates for this district. A detailed calculation of the annual adjustment and the corresponding rate increases are included in the 2018 District Engineer’s Report (Attachment 4).

Table 3: Street Lighting Assessment District 2018 Rate Schedule Rate Category
Assessment
FY 2022
Proposed
Assessment
FY 2023 Unit
Residential
Single Family $ 14.12 $ 15.34 parcel
Multi-Family<5 units $ 11.30 $ 12.27 unit
Multi-Family 5 or more units $ 8.47 $ 9.20 unit
Condominium $ 11.30 $ 12.27 parcel
Mobile Home $ 7.06 $ 7.67 unit
Multiple SFR on parcel $ 14.12 $ 15.34 unit
Non-Residential
General Commercial $ 211.82 $ 230.10 acre
Industrial / Warehouse $ 21.18 $ 23.01 acre
Auto Repair $ 141.22 $ 153.40 acre
Hotel / Motel / Boarding $ 141.22 $ 153.40 acre
Hospital $ 88.26 $ 95.88 acre
Retirement Home $ 17.65 $ 19.18 acre
School / Day Care $ 31.77 $ 34.52 acre
Medical / Dental / Vet $ 176.52 $ 191.75 acre
Church $ 10.59 $ 11.51 acre
Mortuary $ 3.53 $ 3.84 acre
Recreational $ 35.30 $ 38.35 acre
Parking / Transportation $ 70.61 $ 76.70 acre
Mini Storage $ 10.59 $ 11.51 acre
Office $ 52.96 $ 57.53 acre
Bank $ 176.52 $ 191.75 acre
Park / Open Space / Agriculture $ 0.71 $ 0.77 acre
Vacant Not assessed
Revenue from the assessments will provide needed funding for the installation, maintenance, and servicing of public lighting facilities, including but not limited to street lights, traffic signals, and related electrical facilities. The improvements and services support the Strategic Plan goals of creating a resilient, safe, connected, and prepared city and providing state-of-the-art, well-maintained infrastructure, amenities, and facilities.

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4 BACKGROUND
The Berkeley Street Lighting Assessment District No. 1982-1 was established under the Landscaping and Lighting Act of 1972 (Streets and Highway Code Section 22620- 22631) on July 27, 1982 (Resolution No. 51,449-N.S.) 2. The Street Lighting Assessment District 2018 was established under the same Act on June 12, 2018 (Resolution No. 68,482-N.S.). The Act requires the City Council to hold a public hearing each year to consider adoption of an annual budget and approve changes to the Engineer’s Report. At this hearing owners of assessed properties within the district are allowed to make an oral or written protest against the annual levy.

During the course of, or upon conclusion of the public hearing, City Council may order changes in any of the matters provided in the respective Engineer’s Report, including changes in improvements; zones within the assessment district; and the proposed district diagram, or the proposed assessment, as long as any proposed changes are less than the proposed annual levy. With the incorporation of any changes made by Council to the Engineer’s Report, it is then adopted upon supporting vote by Council confirming the diagrams, assessments, and levying assessments for the coming Fiscal Year.

The City’s Engineering Division has filed the FY 2023 Engineer’s Reports for the assessment districts with the City Clerk. Copies of the Engineer’s Reports with FY 2023 assessments will be available for review on the City’s Website3 after this Council Action, at the reference desk of the main branch of the Berkeley Public Library, and at the City Clerk’s Office when the City offices reopen for public business.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City exclusively uses LED (light-emitting diode) street lighting. LED lights provide environmental benefits by reducing the level of greenhouse gases emitted; reducing the level of toxic materials disposed of; maximizing energy and energy cost savings; achieving the City’s illumination standards, and minimizing administration costs and staff time for street light maintenance.

RATIONALE FOR RECOMMENDATION
Failure to conduct a public hearing and adopt the Resolutions would result in non- compliance with the requirements set forth in the Landscaping and Lighting Act of 1972 thus preventing the City from levying assessments in FY 2023. The District 2 State of California legislation (Streets & Highways §22500) allows local governmental agencies to form Landscape & Lighting Maintenance Districts. A 1972 Act Landscaping and Lighting District is a flexible tool used by local government agencies to pay for landscaping, lighting and other improvements and services in public areas. It is based on the concept of assessing only those properties that benefit from improvements financed, either directly, or indirectly through increased property values. http://www.californiataxdata.com/pdf/1972LLact.pdf
3 https://berkeleyca.gov/city-services/report-pay/property-taxes

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5 assessments are needed to establish financial sustainability for the Program and to avoid significant reductions in service.

CONTACT PERSON
Liam Garland, Director, Department of Public Works, (510) 981-6303 Joe Enke, Manager of Engineering/City Engineer, (510) 981-6411 Attachments:
1: Resolution – Levy and Collection of FY 2023 Assessments for Street Lighting Assessment District 1982-1
2: Resolution – Levy and Collection of FY 2023 Assessments for Street Lighting Assessment District 2018
3: Engineer’s Report - Street Lighting Assessment District 1982-1 Fiscal Year 2023 4: Engineer’s Report - Street Lighting Assessment District 2018 Fiscal Year 2023 5: Public Hearing Notice

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RESOLUTION NO. ##,###-N.S.

LEVY AND COLLECTION OF FY 2023 ASSESSMENTS FOR STREET LIGHTING ASSESSMENT DISTRICT 1982-1
WHEREAS, the Council of the City of Berkeley adopted Resolution No. 70,388-N.S. declaring the City’s intent to levy and collect assessments for FY 2023, approving the preliminary Engineer’s Report, dated May 2022, for the Berkeley Lighting Assessment District 1982-1, and setting a public hearing for June 28, 2022; at a regular Council Meeting; and
WHEREAS, the City Clerk published notice of the public hearing 10 days prior to the public hearing in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Government Code Section 6061 in a newspaper with general circulation; and
WHEREAS, a public hearing was held on Tuesday, June 28, 2022, at the regular City Council meeting held via videoconference and teleconference pursuant to Governor’s Executive Order N-29-20; and all interested persons were afforded the opportunity to hear and be heard or file a written protest with the Clerk; and WHEREAS, the Council considered all public comments received against the levy of an annual assessment at the same rate as was levied in FY 2022 and the assessment is in compliance with the Landscape and Lighting Act of 1972.

NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley approves the final Engineer’s Report dated May 2022 and authorizes the levy and collection of assessments within Berkeley Street Lighting Assessment District No. 1982- 1 for FY 2023. The area of land to be assessed is located in the City of Berkeley, Alameda County.

BE IT FURTHER RESOLVED that improvements to be made in this assessment district are generally described as maintenance or servicing of existing and future public lighting facilities, including, but not limited to street lights, traffic signals, and related electrical facilities; and the installation and construction of public lighting including but not limited to grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk, paving, irrigation, and drainage as needed for the installation of public lighting or related electrical facilities.

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RESOLUTION NO. ##,###-N.S.

LEVY AND COLLECTION OF FY 2023 ASSESSMENTS FOR STREET LIGHTING ASSESSMENT DISTRICT 2018
WHEREAS, the Council of the City of Berkeley adopted Resolution No. 70,389-N.S. declaring the City’s intent to levy and collect assessments for FY 2023, approving the preliminary Engineer’s Report, dated May 2022, for the Street Lighting Assessment District 2018, and setting a public hearing for June 28, 2022; at a regular Council Meeting; and
WHEREAS, the City Clerk published notice of the public hearing 10 days prior to the public hearing in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Government Code Section 6061 in a newspaper with general circulation; and
WHEREAS, a public hearing was held on Tuesday, June 28, 2022, at the regular City Council meeting held via videoconference and teleconference pursuant to Governor’s Executive Order N-29-20; and all interested persons were afforded the opportunity to hear and be heard or file a written protest with the Clerk; and WHEREAS, the Council considered all public comments received against the levy of an annual assessment at the proposed assessment rate of FIFTEEN DOLLARS AND THIRTY-FOUR CENTS ($15.34) per single-family equivalent benefit unit; and WHEREAS, the proposed annual assessment adjustment is in accordance with formulas established when the assessment district was formed and the assessment is in compliance with the provisions of Proposition 2018 (Article XIII D of the California Constitution) and the Landscape and Lighting Act of 1972.

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley approves the final Engineer’s Report dated May 2022 and authorizes the levy and collection of assessments within Street Lighting Assessment District 2018 for FY 2023.

The area of land to be assessed is located in the City of Berkeley, Alameda County.

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ATTACHMENT 3

1 CITY OF BERKELEY

STREET LIGHTING
ASSESSMENT DISTRICT No. 1982-1

ENGINEER’S REPORT
on the
Levy of an Assessment
for
Fiscal Year 2023

May 2022

Prepared by

JOSEPH ENKE, PE

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STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3

2 CITY OF BERKELEY

DEPARTMENT OF PUBLIC WORKS

ENGINEERING DIVISION

TABLE OF CONTENTS

BACKGROUND .................................................................................................................................................. 3 PLANS AND SPECIFICATIONS ....................................................................................................................... 3 METHODOLOGY ................................................................................................................................................ 3 ESTIMATE OF COSTS ....................................................................................................................................... 3 DIAGRAM ............................................................................................................................................................ 4 ASSESSMENT .................................................................................................................................................... 5 APPENDIX A: DETAIL OF STREET LIGHTING COSTS IN FY 2023 ........................................................... 6 APPENDIX B: FY 2023 ASSESSMENT ROLL ................................................................................................ 7

LIST OF TABLES

Table 1- FY 2023 Street Light Fund Forecast ............................................................................................... 4

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STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3

3 BACKGROUND
By its Resolution 51,230 N.S., adopted April 6, 1982, the Berkeley City Council initiated proceedings under the provisions of Division 15, Part 2, of the California Streets and Highways Code, entitled “Landscaping and Lighting Act of 1972”. The required public hearing was held on July 20, 1982, at which time the Council ordered the improvements and the formation of the assessment district, and confirmed the diagram and assessment. The district so formed was designated the “City of Berkeley Street Lighting Assessment District 1982 -1”. Assessments have been levied for the 1983 through 2022 fiscal years.

This report was prepared and filed pursuant to Division 15, Part 2, of the California Streets and Highway Code Section 2250, and is exempt from Government Code Section 53753 since the proposed assessment for FY 2023 will not be increased.

PLANS AND SPECIFICATIONS
The plans and specifications for this assessment district were prepared and filed with the Engineer’s Report for the 1983 fiscal year, which plans and specifications are incorporated herein by this reference thereto.

METHODOLOGY
The benefit to individual parcels within the Assessment District was established in 1982 based on the median light intensity a parcel receives. Parcel’s Land Use Code (LUC) is used to categorize the parcels. The assessment is calculated by multiplying the building square footage on the parcel times the rate of its category. The rate structure has three categories: 1) Residential and Institutional, 2) Industrial, 3) Commercial. An industrial area has twice the median light intensity of a residential area and a commercial area has four times the median light intensity; therefore, the rates are two and four times higher, respectively, than the residential rate. The rates are:

Residential and Institutional $0.0108/Building Square Footage Industrial and Utility $0.0216/Building Square Footage
Commercial $0.0432/Building Square Footage

ESTIMATE OF COSTS
The improvements to be made in this assessment district are generally described as the maintenance or servicing of existing and future public lighting facilities, including, but not limited to street lights, traffic signals, and related electrical facilities ; and the installation and construction of public lighting including grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk s, paving, irrigation, and drainage as needed for the installation of public lighting or related electrical facilities.

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STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3

4 An estimate of costs for the maintenance of the improvements is provided in the fiscal year (FY) 2023 Street Light Assessment Fund (Fund 142) forecast provided below. A more detailed breakdown of costs is included as Appendix A.

Table 1- FY 2023 Street Light Fund Forecast

Costs

Personnel Costs $ 1,072,367

Non-Personnel Costs
Supplies, etc. $ 149,673
Debt Service $ 370,451
PG&E Electric Costs $ 423,193
Infrastructure/Streets $ 534,398
Deferred Capital Maintenance $ 171,125
Indirect Costs $ 51,764
Operating Transfer Out $ 12,120
Internal Services $ 189,033
Subtotal Non-Personnel Costs $ 1,901,757

Total Costs $ 2,974,124

Assessments & Other Revenue

Street Light Assessment District 1982-1 $ 1,416,260
Street Light Assessment District 2018 $ 707,085
County Collection Fee (1.7%) $ (36,097)
Misc. Revenue $ 957

Net Revenue $ 2,088,205

Deficit $ (885,919)

DIAGRAM
The diagram for this assessment district was prepared and filed with the Engineer’s Report for the 1983 fiscal year.

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STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3 5 ASSESSMENT
Except as described below, the assessments to be made against the assessable lots and parcels of land within this assessment district are contained in the “ 2022 Assessment Roll” for this district, which roll is filed herewith and incorporated herein by this reference thereto.

Said assessment roll filed herewith is based on data contained in the City’s 2022 Library Tax tape and the County Assessor’s 2022 maps. In the event that data contained in the 2022 Library Tax tape and 2022 maps, when issued, conflict therewith, assessments to be made against the affected parcels for this 2023 Fiscal Year shall be based upon the revised data contained in said 2023 tape and 2023 maps.

Dated:

Joseph Enke, RCE 49027
Engineer of Work
April 19, 2022

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STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3

6 APPENDIX A: DETAIL OF STREET LIGHTING COSTS IN FY 202 3 Personnel Supplies, etc Debt Service PGE Electric
Infrastructure/
Streets
Deferred
Capital/
Maintenance Indirect Costs
Operating
Transfer Out
Internal
Services TOTALS
Customer Servi ce - 311 38,402$ 38,402$
Revenue Col l ecti on 19,063$ 2,188$ 21,251$ Financial Admin
Servi ces 364$ 364$
Corp Yard
A dm inistration 1,091$ 1,091$
General Engi neeri ng 121$ 121$
Communi cati on System
Maintenance 1,000$ 1,000$
Street Li ghti ng
Maintenance 1,053,304$ 135,756$ 370,451$ 415,808$ 534,398$ 171,125$ 49,576$ 10,544$ 134,495$ 2,875,458$ Traffic Signal
Maintenance -$
Corp Yard Maintenance 12,917$ 7,385$ 16,136$ 36,438$ TOTALS 1,072,367$ 149,673$ 370,451$ 423,193$ 534,398$ 171,125$ 51,764$ 12,120$ 189,033$ 2,974,125$ DETAIL OF STREET LIGHTING COSTS IN FY 2023

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STREET LIGHTING ASSESSMENT DISTRICT 2018 ATTACHMENT 3

7 APPENDIX B: FY 202 3 ASSESSMENT ROLL
An Assessment Roll (a listing of all parcels assessed within the City of Berkeley Street Lighting Assessment District 2018 and the amount of the assessment) has been filed with the City Engineer, and is, by reference, made part of this report and will be available for public inspection during normal office hours.

Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference, made part of this report.

These records shall govern all details concerning the description of the lots or parcels.

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FY 2023

City of Berkeley
Street Lighting Assessment District 2018
May 2022

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(This Page Intentionally Left Blank)

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023
Page i

CITY OF BERKELEY
City Council
Jesse Arreguin, Mayor
Rashi Kesarwani, District 1
Terry Taplin, District 2
Ben Bartlett, District 3
Kate Harrison, District 4
Sophie, Hahn, District 5
Susan Wengraf, District 6
Rigel Robinson, District 7
Lori Droste, District 8

City Manager
Dee Williams-Ridley

Public Works Department
Liam Garland, Director
Joseph Enke, Manager of Engineering
Ricardo Salcedo, Associate Civil Engineer

City Attorney
Farimah Brown

Engineer of Work
Jerry Bradshaw, P.E., SCI Consulting Group

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Street Lighting Assessment District 2018
FY 2023
Page ii

TABLE OF CONTENTS

Introduction 1
Overview 1
Assessment Formation Process 2
Legal Requirements 2
Proposition 218 2
Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority 3
Dahms v. Downtown Pomona Property 4
Bonander v. Town of Tiburon 5
Beutz v. County of Riverside 5
Golden Hill Neighborhood Association v. City of San Diego 5 Compliance with Current Law 5
Plans and Specifications 7
Fiscal Year 2023 Budget 9
Method of Assessment 11
Discussion of Benefit 11
Special Benefit 12
Improved Visibility and Safety 12
Improved Access, Navigation and Traffic Safety 12
Improved Community Character and Vitality 12
General Versus Special Benefit 13
Quantification of General Benefit 13
Calculation of General Benefit 14
Calculation of the Current General Benefit Contribution from the City 16 General Benefit is More than Offset by City Contribution 16 Method of Assessment 16
Residential Traffic 17
Non-Residential Traffic 17
Darkness 18
Single-Family Equivalents 18
Annual Assessment Increase 19
Duration of Assessment 20
Appeals and Interpretation 21

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023
Page iii

Assessment Statement 22
Assessment Diagram 24
Appendix B – Assessment Roll 27

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Street Lighting Assessment District 2018
FY 2023
Page iv

List of Tables
Table 1 – FY 2023 Budget Summary ................................................................................... 9 Table 2 – General Benefit for Arterial Streets .................................................................. 15 Table 3 – Calculation of General Benefit .......................................................................... 15 Table 4 – Single-Family Equivalent Rates .......................................................................... 19 Table 5 – Maximum Single-Family Equivalent Rate Calculation ....................................... 20

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023
Page v

List of Figures
Figure 1 – Assessment Diagram ........................................................................................ 24

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Street Lighting Assessment District 2018
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Introduction
Overview
The City of Berkeley (“City”) provides maintenance and servicing of certain publicly- owned street lights throughout the City. In order to fund the installation, maintenance and operation (the “Services”) of these improvements (“Improvements”), the City formed a city-wide street light assessment district in 1982. The rates for the 1982 assessment district have never been increased. Revenues from these assessments are placed into the streetlight fund (Fund 470).

In time, the financial outlook of the Streetlight fund began to cause concern as the costs increased for energy, labor and materials, while the revenue remained relatively static.

Accordingly, the Streetlight fund no longer had enough funds to fund the Street light program. As a result, beginning in Fiscal Year 20061 the Streetlight fund began to receive a subsidy from the City’s General Fund in order to balance revenues with expenditures.

However, because of other demands on the General Fund, that subsidy ended beginning Fiscal Year 2018. The modest fund balance was sufficient for Fiscal Year 2018 to cover that year’s anticipated expenses, but under current conditions it was expected to be depleted during Fiscal Year 2019. To establish financial sustainability for the Streetlight fund and avoid significant reductions in service levels, in 2018 the City conducted a funding measure to increase the assessment revenue for street light services.

With the passage of Proposition 218 in 1996, any increase in assessments must be approved by the affected property owners through a specified ballot proceeding. In addition, Proposition 218 and related subsequent court decisions create strict criteria for how assessments can be apportioned to the various properties, and the existing 1982 assessment structure may not be adequately consistent with these newer criteria.

While the 1982 assessment structure may continue as a “grandfathered” assessment, any increase must be implemented in accordance with Proposition 218 and court decisions. For this reason, a new district, Street Lighting Assessment District 2018 (“District”), was formed separately, leaving the 1982 assessment structure in place, as is.

The District will was formed and the levies are made pursuant to Part 2 of Division 15 of the California Streets and Highways Code, commonly known as the Landscape and Lighting Act of 1972 (“Act”), and Article XIIID of the California Constitution (“Article”).

1 Fiscal years are referenced in this Report by the year that fiscal period ends. For example, Fiscal Year 2006 would cover the period from July 1, 2005 through June 30, 2006.

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Assessment Formation Process
This Engineer’s Report (“Report”) describes the Street Lighting Assessment District 2018 (“District”), along with the boundaries, a description of the facilities and public improvements to be improved , serviced and maintained by the assessments (the "Improvements”), and the proposed assessments for Fiscal Year 2023 (“Assessments”).

At its meeting on April 3, 2018, the City Council passed a resolution directing that a notice of assessment and assessment ballot be mailed to property owners within the District whose property receives special benefit from the Improvements. The notice included a description of the Improvements to be funded by the Assessments, the proposed assessment amount for each parcel owned, and a n explanation of the method of completing and submitting the ballot. Ballots were mailed on or about April 11, 2018.

On May 29, 2018 , a public hearing was be held for the purpose of allowing public testimony regarding the proposed Assessments. At the Public Hearing, the public had the opportunity to speak on the issue, voice any concerns or protests, and obtain further information about the proposed Assessments.

The returned ballots were then tabulated, and the ballot results were announced at the City Council meeting on June 12, 2018 . It was determined that the assessment ballots submitted in opposition to the proposed Assessments d id not exceed the assessment ballots submitted in favor of the Assessments (each ballot was weighted by the proportional financial obligation of the property for which the ballot was submitted), so the Council was able to take action to approve the levying of Assessments for Fiscal Year 2019. The Assessments were so confirmed and approved, and the Assessment information was submitted to the County Auditor/Controller. The County Auditor/Controller included the Assessments on the property tax roll beginning in Fiscal Year 2019. Assessments may now be continued by the City Council from year to year.

Legal Requirements
Proposition 218
This Assessment District was formed consistent with Proposition 218, The Right to Vote on Taxes Act, which was approved by the voters of California on November 6, 1996 and is now codified as Articles XIIIC and XIIID of the California Constitution. Proposition 218 provides for benefit assessments to be levied to fund the cost of providing services, improvements, as well as maintenance and operation expenses to a public improvement which benefits the assessed property.

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Proposition 218 describes a number o f important requirements, including property - owner balloting for the imposition, increase and extension of assessments, and these requirements are satisfied by the process used to establish this Assessment District.

Silicon V alley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority
In July 2008, the California Supreme Court decided Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority (“SVTA”), the most significant court case clarifying the substantive assessment requirements of Proposition 218. Several of the most important elements of the decision included further emphasis that:

▪ Benefit assessments are for special benefits to property, not general benefits. ▪ The services and/or improvements funded by assessments must be clearly defined.
▪ Assessment districts must be drawn to contain all parcels that receive a special benefit from a proposed public improvement.
▪ Assessments paid in each assessment district must be proportional to the special benefit received by each such parcel from the improvements and services funded by the assessment.

This Engineer’s Report and the process used to establish the Assessments are consistent with the SVTA decision and with the requir ements of Article XIIIC and XIIID of the California Constitution based on the following factors:

1. The District is narrowly drawn to include only the properties that receive special benefit from the specific Improvements. Thus, zones of benefit are not required, and the assessment revenue derived from real property in the District is extended only on the Improvements in the District.

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2. The Improvements which will be constructed and maintained with Assessment proceeds in the District are located in close proximity to the real property subject to the Assessment. The Improvements provide illumination to street s and sidewalks enabling improved access to the residents of such assessed property.

The proximity of the Improvements to the assessed parcels and the improved access and increased safety provided to the residents of the assessed parcels by the Improvements provides a special benefit to the parcel being assessed pursuant to the factors outlined by the Supreme Court in that decision.

3. Due to their proximity to the assessed parcels, the Improvements financed with Assessment revenues in the District benefit the properties in that District in a manner different in kind from the benefit that other parcels of real property in the area derive from such Improvements, and the benefits conferred on such property in the District are more extensive than a general increase in property values.

4. The assessments paid in the District are proportional to the special benefit that each parcel within the District receives from the Improvements because:
a) The costs of the specific lighting Improvements and maintenance and utility costs in the District are specified in this Report; and

b) Such Improvement and maintenance costs in the District are allocated among different types of property located within the District and equally among those properties which have similar characteristics, such as single- family residential parcels, multi-family residential parcels, commercial parcels, industrial parcels, etc.

Dahms v. D owntown Pomona Property
On June 8, 2009, the Court of Appeal amended its original opinion upholding a benefit assessment for property in the downtown area of the City of Pomon a in Dahms v.

Downtown Pomona Property (“Dahms”). On July 22, 2009, the California Supreme Court denied review. In Dahms the Court upheld an assessment that was 100% special benefit (i.e. 0% general benefit) on the rationale that the services and improveme nts funded by the assessments were directly provided to property in the assessment district. The Court also upheld discounts and exemptions from the assessment for certain properties.

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Bonander v. Town of Tiburon
On December 31, 2009, in Bonander v. Town of Tiburon (“Bonander”), the Court of Appeal overturned a benefit assessment approved by property owners to pay for placing overhead utility lines underground in an area of the Town of Tiburon. The Court invalidated the assessments primarily on the grounds that the assessments had been apportioned to assessed property based in part on relative costs within sub -areas of the assessment district instead of the overall cost of the improvements and the overall proportional special benefits.

Beutz v. County of Ri verside
On May 26, 2010 the Court of Appeals issued a decision in Steven Beutz v. County of Riverside (“ Beutz”). This decision overturned an assessment for park maintenance in Wildomar, California, primarily because the general benefits associated with improvements and services was not explicitly calculated, quantified and separa ted from the special benefits.

Golden Hill Neighborhood Association v. City of San Diego On September 22, 2011, the Court of Appeal issued a decision in Golden Hill Neighborhood As sociation v. City of San Diego appeal. This decision overturned an assessment for street and landscaping maintenance in the Greater Golden Hill neighborhood of San Diego, California. The Court described two primary reasons for its decision. First, like in Beutz, the Court found the general benefits associated with services were not explicitly calculated, quantified and separated from the special benefits. Second, the Court found that the City failed to record the basis for the assessment on its own parcels.

Compliance with Current Law
This Engineer’s Report is consistent with the requirements of Article s XIIIC and XIIID of the California Constitution and with the SVTA decision because the Improvements to be funded are clearly defined; the Improvements are directly available to and will directly benefit property in the District; and the Improvements provide a direct advantage to property in the District that would not be received in absence of the Assessments.

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440
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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This Engineer’s Report is consistent with Beutz, Dahms and Greater Golden Hill because the Improvements will directly benefit property in the District and the general benefits have been explicitly calculated and q uantified and excluded from the Assessments. The Engineer’s Report is consistent with Bonander because the Assessments have been apportioned based on the overall cost of the Improvements and Services and proportional special benefit to each property.

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441
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Plans and Specifications
The work and Improvements to be undertaken by the City and the cost paid from the levy of the annual assessment provide special benefit to assessor parcels within the District defined in the Method of Assessment herein. Consistent with the Act, the Improvements are generally described as follows:

The installation, maintenance, and servicing of local street light s in close proximity to certain lots and parcels which provide a direct special benefit to such lots or parcels.

The installation, maintenance, and servicing of peripheral street light structures which provide a special benefit to all the assessable parcels within the District whether or not such parcels are in close proximity to such lighting.

The installation or constructi on of public lighting facilities, or t he acquisition of any new improvements.

Plans and Specifications for the Improvements for the District are voluminous and are not bound in this Report but by this reference are incorporated and made a part of this Report. The Plans and Specifications are on file in the office of the Public Works Director where they are available for public inspection.

Article XIII D of the California Constitution defines "maintenance and servicing expenses" as, "the cost of rent, repair, replacement, rehabilitation, fuel, power, electrical current, care and supervision necessary to properly operate and maintain a pe rmanent public improvement". The Improvement funding includes, but is not limited to, the removal, repair, replacement or relocation of light standards, poles, bulbs, fixtures and appurtenances, electrical energy, supplies, engineering and incidental costs relating to the maintenance and servicing of the local lighting improvements benefiting t he parcels within the District.

The Improvements to be maintained and serviced within the District are to be part of the local street light system of the City of Berkeley that confers special benefit to the District's parcels. The specific location of local street light Improvements within the City can be found in the Streetlight Condition Assessment by Tanko Lighting, which is on file in the office of the Director of Public Works, where it is available for public inspection.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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The Improvements to be maintained and serviced within the District include City-owned street light s within the right of way of the local public streets located within the boundaries of the District. These lights are all within close proximity to the parcels within the District identified as receiving local lighting benefit in the Method of Assessment, and, as such, provide special benefit to these parcels.

All street light maintenance will be performed by the City of Berkeley or its contractors.

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443
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Fiscal Year 2023 Budget
A summary budget for fiscal year 2023 for the maintenance of the Improvements is provided below. The full Itemized budget for the Assessment District is voluminous and is not bound in this report but by reference is incorporated and made a part of this report.

The Itemized budget is on file in the Department of Public Works where it is available for public inspection.

Table 1 – FY 2023 Budget Summary

FY 2023
Revenue
1982 Assessment Dist 1,416,260$
SLAD 2018 Assessments 1 707,085
Misc. Revenue 957
TOTAL REVENUE 2,124,302$
Expenses
Personnel Expenses
Personnel 1,072,367
Other Operating Expenses
Supplies, etc. 149,673
Indirect Costs 51,764
Gas/Electricity 423,193
Debt Service Payment 370,451
Operating Transfer Out 12,120
Internal Services 189,033
County Collection Fee 36,097
Other Operating Subtotal 1,232,331$
Capital Expenses
Infrastructure/Streets 534,398
Deferred Capital/Maint 171,125
Capital Subtotal 705,523$
TOTAL EXPENSES 3,010,221$
To (from) General Fund and/or Reserves (885,919)$
Budget Allocation to Parcels
Total Street Light 2018 Assessments 1 707,085$
Total Street Light 2018 SFEs 46,097.747
Assessment per SFE 2 15.34$

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Notes on the Budget:

1. The Act requires that proceeds from the Assessments must be deposited into a special fund that has been set up for the revenues and expenditures of the District. Moreover, funds raised by the Assessment shall be used only for the purposes stated within this Report. Any balance remaining at the end of the Fiscal Year, June 30, must be carried over to the next Fiscal Year. The City may also establish a reserve fund for contingencies and special projects, as well as a capital improvement fund for accumulating funds for larger capital improvement projects or capital renovation needs. Any remaining balance would either be placed in the reserve fund, the capital improvement fund, or would be used to reduce future years' assessments.

2. The rate shown here is for a Single-Family Equivalent (“SFE”), which is a single-family home or its equivalent. For the definition of the term SFE and rates for other types of property, see the section titled, “Method of Assessment” and the sections following it in this report.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Method of Assessment
This section of the Engineer’s Report includes an explanation of the benefits derived from the installation, maintenance and servicing of the Improvements throughout the District and the Assessment methodology used to apportion the total Assessment to properties within the District.

The District consist s of all assessor parcels within the boundaries as defined by the Assessment Diagram and the parcels identified by the Assessor Parcel Numbers listed with the levy roll included with this Report. The parcel list includes all assessable privately and publicly owned parcels within the boundaries. The method used for apportioning the Assessment is based on the proportional special benefits to be derived by the properties in the District over and above general benefits conferred on real property or to the public at large. The apportionment of special benefit is a two-step process: the first step is to identify the types of special benefit arising from the Improvements and the second step is to allocate the Assessments to property based on the estimated relative special benefit for each type of property.

Discussion of Benefit
In summary, the Assessments can only be levied based on the special benefit to property.

This benefit is received by property over and above any general benefits. Moreover, such benefit is not based on any one property owner’s use of the Improvements or a property owner’s specific demographic status. With reference to the requirements for Assessments, Section 22573 of the Act states:

The net amount to be assessed u pon lands within an assessment district may be apportioned by any formula or method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements.

Proposition 218, as codified in Article XIIID of the California Constitution, has confirmed that Assessments must be based on the special benefit to property:

No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Special Benefit
Street lighting is an optional improvement, not required by state or federal law, that is an enhancement over and above requisite infrastructure, and thus is a special benefit. The majority of the benefits of the street lights are received by the benefited property, with a small portion of the benefits received by the general public on major streets only. This portion received by the general public is captured and quantified in the following section.

The factors that determine special benefit conferred on parcels are detailed below:

Improved V isibility and Safety
Well maintained, effective street lighting provides special benefit to proximate parcels, within range of the light, because it allows for safer and improved use of the prope rty in the evenings, early morning, and at night. Street lighting provides special benefit because it increases neighborhood safety and, at least indirectly, reduces the likelihood of crime on the proximate parcels . Over time, the Improvements continue to confer a particular and distinct special benefit upon parcels within the District because of the nature of the Improvements. The proper maintenance of the street lights and appurtenant facilities increases visibility and local human presence and , in many situations, helps reduce property-related crimes, especially vandalism, against assessed properties in the District.

Improved Access , Navigation and Traffic Safety
Well maintained, effective street lighting enhances ingress, egress and accessibility of all forms to the assessed parcels in the evening, early morning, and at night by increasing visibility. Improved visibility also helps prevent local automobile, bicycle, and pedestrian traffic accidents related to the assessed parcels. This benefit includes a reduction in accidents during non-daylight hours.

Improved Community Character and Vitality
Well maintained, effective street lighting promotes evening and nighttime social interaction of residents and customers of businesses and industry. This creates a positive atmosphere and enhanced community image in the evening and at night for the assessed parcels.

All of the above -mentioned items also contribute to a specific enhancement to each of the parcels within the District. The proximate street lights make each parcel safer, more visible, more accessible, more useful, more valuable and more desirable; and this further strengthens the basis of these Assessments.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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General Versus Special Benefit
The proceeds from the Assessments are used to fund the described Improvements and increased levels of maintenance to the other City facilities that serve and benefit the properties in the District. In absence of the Street Lighting Assessment District 2018, such Improvements would not be properly maintained. Therefore, the District’s purpose is to ensure that the necessary and beneficial public facilities for property in the District are properly maintained, operated and repaired over time. The Assessments will ensure that street lighting and associated improvements with in and adjacent to the District are functional, well maintained and effective. These public resources directly benefit the property in the District and will confer distinct and special benefits to the p roperties within the District.

The Improvements and Services are specifically designed, located and created to provide additional and improved resources for property inside the District and not the public at large although the Improvements maintained by the Services may be available to the general public . Oth er properties that are outside the District do not enjoy the unique proximity and other special benefit factors described previously. These Improvements and Services are of special benefit to properties located within the District because they provide a direct advantage to properties in the District that would not be provided in the absence of the Assessments. Any general benefits to surrounding properties outside of the Assessment District, if any, are collateral and conferred concomitantly.

Quantificatio n of General Benefit
Although the analysis used to support these assessments concludes that the benefits are solely special, as described above, consideration is made for the suggestion that a portion of the benefits are general. General benefits cannot be funded by these assessments. The funding for general benefits must come from other sources.

The maintenance and servicing of these Improvements is also partially funded, directly and indirectly, from other sources , including the City of Berkeley, Alameda County, and the State of California. This funding comes in the form of grants, development fees, special programs, and general funds, as well as direct maintenance and servicing of facilities (e.g. curbs, gutters, streets, drainage systems, etc.). This fu nding from other sources more than compensates for general benefits, if any, received by the properties within the Assessment District.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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In the 2009 Dahms case, the Court upheld an assessment that was 100% special benefit on the rationale that the services funded by the assessments were directly provided within the assessment district. It is also important to note that the improvements and services funded by the assessments in Pomona are similar to the improvements and services funded by the Assessments desc ribed in this Engineer’s Report and the Court found these improvements and services to be 100% special benefit. Also similar to the assessments in Pomona, the Assessments described in this Engineer’s Report fund Improvements and Services directly provided within the District and every benefiting property in the District enjoys proximity and access to the Improvements. Therefore, Dahms establishes a basis for minimal or zero general benefits from the Assessments.

Nonetheless, possible general benefits have b een liberally calculated below and then shown to be more than offset by resources from non-assessment sources.

Calculat ion of General Benefit
The Illumination Engineering Society of North America provides a widely-used standard for street lighting which h as become the de -facto industry standard . T his standard specifies footcandle requirements as a measurement of illumination at the roadway level, which are different for local, collector, and major streets using three levels (low/medium/high) of pedestrian activity. The three street classifications and pedestrian activity levels are described below with a discussion of their general benefit contribution from the street light system.

Local Streets – a street that is used to gain access to the property bordering it. The street lights on local streets primarily serve the adjacent property owner. Therefore, per industry standard, the street lights on local streets have no general benefit component.

Collector Streets – low to moderate capacity roads which serve to move traffic from local streets to arterial roads. Similar to local streets, collector streets are primarily used by local residents and per industry standard are also deemed to have no general benefit component. This street classification will be used as the baseline for this analysis.

Arterials – high capacity streets that serve as the principal network for through traffic flow. These routes connect areas of principal traffic generation and i mportant regional roadways traversing the City. As such, this traffic includes a significant number of drivers from outside the District and the street light Improvements may confer some general benefit on those drivers.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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On average, arterial streets require a 45% increase in lighting levels from the baseline collector streets.2 This increase in lighting reinforces the special benefits to the abutting properties as defined above: increased visibility and safety; improved access, navigation and traffic safety; and improved community character and vitality. In addition to th ese benefits, the through traffic flow, which includes drivers from outside the District, receives the additional benefit of reduction in nighttime accidents due to enhanced lighting. The degree to which each of these benefits can be considered general benefit is shown in Table 2 below.

Table 2 – General Benefit for Arterial Streets

The general benefit from arterial streets must be combined with the general benefit from all other streets in the District. Each category of street has its unique general benefit weight, prorated by center line miles of streets. This calculation is shown in Table 3 below.

Table 3 – Calculation of General Benefit

2 Based on values from the Illumination Engineering Society of North America, “American National Standard Practice for Roadway Lighting.”
Benefit Factor
Relative
Weight
General
Benefit
Contribution
Relative
General
Benefit
Improved Nighttime Visibility and Safety 25 0% 0.0%
Improved Access, Navigation and Traffic
Safety 25 50% 12.5%
Improved Community Character and Vitality 25 0% 0.0%
Reduction in Nighttime Accidents 25 75% 18.8%
General Benefit on Arterial Streets from Improved Lighting 31.3% Street Classification
General
Benefit
Weight
General
Benefit
Local 158 73.1% 0% 0.0%
Collector 37 17.1% 0% 0.0%
Arterial 21 9.7% 31.3% 3.0%
TOTAL 216 100% 3.0%
Centerline Miles

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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As a result, the City of Berkeley will contribute at least 3.0% of the total budget from sources other than the Assessment. This contribution offsets any general benefits from the Assessment Services.

Calculat ion of the Current General Benefit Contribution from the City This general benefit contribution is the sum of the following components:

The City of Berkeley owns, maintains, rehabilitates and replaces curb and gutter along the border of the Assessment District improvements. This curb and gutter serves to support, contain, retain, manage irrigation flow and growth, and provide a boundary for the Improvements. The contribution from the City of Berkeley toward general benefit from the maintenance, rehabilitation, and replacement of the curb and gutter is conservatively estimated to be 1%.

The City of Berkeley owns and maintains a storm drainage system along the border of the District’s Improvements. This system serves to prevent floodin g and associated damage to the Improvements and to manage urban runoff including local pollutants loading from the Improvements. The contribution from the City of Berkeley toward ge neral benefit from the maintenance and operation of the local storm drainage system is conservatively estimated to be 1%.

The City of Berkeley owns and maintains local public streets throughout the District.

These public streets provide access to the Improvements for its enjoyment as well as efficient maintenance. The contribution from the City of Berkeley toward general benefit from the maintenance of local public streets is conservatively estimated to be 1%.

The value of the construction of the existing street light Improvements can be quantified and monetized as an annuity. Since this construction was performed and paid for by funds other than these Assessments, this “annuity” can be used to o ffset general benefit costs and is conservatively estimated to contribute 25%.

General Benefit is More than Offset by City Contribution Therefore, the total general benefit is liberally quantified at 3.0%, which is more than offset by the total non-assessment contribution toward general benefit of 28%.

Method of Assessment
As previously discussed, the proposed Assessments will provide comprehensive Improvements that will clearly confer special benefits to properties in the proposed District. The allocation of special benefits to property is partially based on the type of property and the size of property.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. To determine the special benefit received by individual parcels, the use of that parcel must be considered. Each category of property can benefit from street light s in a unique way, and those characteristics must be quantified. As noted above, the special benefit factors are as follows:
▪ Improved visibility and safety
▪ Improved access, navigation and traffic safety
▪ Improved community character and vitality
The basis for apportioning Assessments is traffic generated to and from a particular parcel. This is used because the amount of traffic generated by a parcel is directly proportional to, and effectively models, the relative quantity of the three special benefit factors. For instance, the more people that come and go from a site, the more th e site benefits from the improved visibility and safety. The same reasoning applies to the other special benefit factors.

Residential Traffic
The typical single -family residence (“SFR”) generates approximately ten vehicular trips per day. Condominium units ge nerate approximately eight trips per day and apartment units generate approximately six trips per day per unit. The trip generation rates that are used for each land use are based on the trip generation rates published by the San Diego Association of Governments and the Encinitas Ranch Austin Foust Traffic Study. The trip generation rates are included in Appendix A of this report.

Non -Residential Traffic
Trip generation for non -residential parcels vary depending on their designated land use as well as size of parcel. The trip generation data for non -residential land uses are based on trips per acre. For instance, a commercial parcel on two acres typically will have twice the traffic of a commercial parcel on one acre. It follows that the two-acre parcel will then receive twice the benefit from the street lighting as the one-acre parcel. Various land uses were grouped into categories with similar traffic characteristics , resulting in the fee categories shown later in this report.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Darkness
Non-residential parce ls typically do not operate all night long. The average period of darkness is 12 hours, but non-residential uses will only operate for approximately three hours of that time. For that reason, a non -residential darkness factor of (3 ÷ 12 =) 25% is applied t o those parcels. For two non -residential categories, the dar kness factor is different, as shown below:
▪ Offices and banks typically close earlier than other non-residential uses so they are assigned a darkness factor of 12.5%.
▪ Hotels, motels and boarding houses typically have activity further into the night than other non-residential uses, so they are assigned a darkness factor of 50%.

Non-residential trip generation i s then adjusted for the darkness factor for each rate category.

Single -Family Equivalents
The SFR category is used as the baseline for calculating the special benefit for all other land uses and sizes. Each rate category is assigned a single-family equivalent (“SFE”) rate using the following formula:

ADT x Darkness Factor
ADT for SFR
SFE Rate=

Where:
▪ ADT = Average Daily Trips for each category
▪ ADT for SFR = ADT for single-family residential, which is used as a baseline figure for SFE rate
▪ SFE Rate = SFEs per unit shown (parcel, [living] unit, or acre) The results of these calculations for each rate category are shown in Table 4 below.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Table 4 – Single-Family Equivalent Rates
.

Landuse Category ADT
Darkness
Factor
Adj
ADT SFE Rate Unit
Residential
Single Family 10 1 10 1.000 parcel
Multi-Family < 5 units 8 1 8 0.800 unit
Multi-Family 5 or more units 6 1 6 0.600 unit
Condominium 8 1 8 0.800 parcel
Mobile Home 5 1 5 0.500 unit
Multiple SFR on parcel 10 1 10 1.000 unit
Non-Residential
General Commercial 600 0.25 150 15.000 acre
Industrial / Warehouse 60 0.25 15 1.500 acre
Auto Repair 400 0.25 100 10.000 acre
Hotel / Motel / Boarding 200 0.5 100 10.000 acre
Hospital 250 0.25 62.5 6.250 acre
Retirement Home 50 0.25 12.5 1.250 acre
School / Day Care 90 0.25 22.5 2.250 acre
Medical / Dental / Vet 500 0.25 125 12.500 acre
Church 30 0.25 7.5 0.750 acre
Mortuary 10 0.25 2.5 0.250 acre
Recreational 100 0.25 25 2.500 acre
Parking / Transportation 200 0.25 50 5.000 acre
Mini Storage 30 0.25 7.5 0.750 acre
Office 300 0.125 37.5 3.750 acre
Bank 1000 0.125 125 12.500 acre
Park / Open Space / Agriculture 2 0.25 0.5 0.050 acre
Vacant 0 na

Annual Assessment Increase
The Assessment is subject to an annual adjustment tied to the San Francisco-Oakland- Hayward Consumer Price Index-U as of December of each succeeding year (“CPI”), with a maximum annual adjustment not to exceed 3%. I n order for the City’s dedicated Streetlight fund revenue sources to satisfy cost requirements into the future, the maximum rate per SFE is calculated based upon the sum of the 1982 assessment and the Street Light Assessment District 2018 Assessment.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Table 5 – Maximum Single-Family Equivalent Rate Calculation

FY 2022 FY 2023
2018 District Maximum for FY 22 $ 645,239.76 $ 645,239.76 1982 District Maximum for FY 22 $1,416,260.14
Total for FY 22 $2,061,499.90

Maximum Increase of 3% of Total for FY 22 $ 61,845.00 FY 23 Maximum Assessment $ 707,084.76
Total SFEs 46,097.747
FY 23 Maximum Rate per SFE $ 15.34

Duration of Assessment
The Assessments may be continued every year after their formation, so long as the public Improvements need to be maintained and improved and the City requires funding from the Assessments for these Improvements in the District. As noted previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Appeals and Interpretation
Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information being used to apply the foregoing method of assessment, may file a written appeal with the City of Berkeley Public Works department.

Any such appeal is limited to correction of an assessment during the then current or, if before July 1, the upcoming fiscal year. Upon the filing of any such appeal, the City of Berkeley City Engineer or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Engineer or his or her designee finds that the assessment should be modified, the appropriate changes shall be made to the assessment roll. If any such changes are approved after the assessment roll has been filed with the County for collection, the City Engineer or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Engineer or her or his designee shall be referred to the Public Works Director and the decision of the Public Works Director shall be final.

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456
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Assessment Statement
WHEREAS, on March 22, 2022, the City Council of the City of Berkeley, County of Alameda, California, adopted its Resolution No. 70,279-N.S., initiating proceedings for the levy of Assessments for fiscal year 2023 within the Street Light Assessment District 2018, pursuant to the prov isions of the Landscaping and Lighting Act of 1972 and Article XIIID of the California Constitution (collectively “the Act”); WHEREAS, the City of Berkeley directed the undersigned Engineer of Work to prepare and file a report presenting an estimate of costs, a diagram for the Assessment District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the Assessment District, to which the description of the proposed Improvements therein contained, reference is hereby made for further particulars; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act and the order of the City Council of the City of Berkeley, hereby make the following assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the Assessment District.

The amount to be paid for the Improvements and the expense incidental thereto to be paid by the City of Berkeley Street Lighting Assessment District 2018 for the fiscal year 2023 are generally as listed in Table 1.

As required by the Act, an Assessment Diagram is hereto attached and made a part hereof showing the exterior boundaries of the City of Berkeley Street light Assessment District 2018. The distinct ive number of each parcel or lot of land in the City of Berkeley Street light Assessment District 2018 is its Assessor Parcel Number appearing on the Assessment Roll.

And I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the costs and expenses incident thereto, upon the parcels and lots of land within the City of Berkeley Street Lighting Assessment District 2018, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set forth in the c ost estimate and method of assessment hereto attached and by reference made a part hereof.

The Assessments are made upon the parcels or lots of land within the City of Berkeley Street Lighting Assessment District 2018 in proportion to the special benefits to be received by the parcels or lots of land from the Improvements.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor' s Maps of the County of Alameda for the fiscal year 2018. For a more particular description of said property, reference is hereby made to the deeds and maps on file and of record in the office of the County Recorder of the County.

I hereby place opposite t he Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the fiscal year 2019 for each parcel or lot of land within the City of Berkeley Street Lighting Assessment District 2018.

Dated: April 21, 2022

Engineer of Work

By ______________________________
Jerry Bradshaw, License No. C48845

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458
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Assessment Diagram
The boundaries of the City of Berkeley Street light Maintenance Assessment Districts and Annexations are displayed on the Assessment Diagram below.

Figure 1 – Assessment Diagram

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459
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Appendix A – SANDAG Trip Generation Tables

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460
City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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City of Berkeley
Street Lighting Assessment District 2018
FY 2023

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Appendix B – Assessment Roll
An Assessment Roll (a listing of all parcels assessed within the City of Berkeley Street Lighting Assessment District 2018 and the amount of the assessment) has been filed with the City Engineer, and is, by reference, made part of this report and will be available for public inspection during normal office hours.

Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference made part of this report.

These records shall govern all details concerning the description of the lots or parcels.

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462

NOTICE OF PUBLIC HEARING - BERKELEY CITY COUNCIL

PUBLIC PARTICIPATION BY REMOTE VIDEO ONLY

STREET LIGHTING ASSESSMENTS
Berkeley Street Lighting Assessment District 1982-1:

No increase is proposed for Street Lighting Assessment District 1982-1 rates in FY 2023. The assessment rates will remain as follows:

Rate Category
Assessment
Rate Unit
Residential and Institutional $ 0.0108 Bldg. Sf
Industrial $ 0.0216 Bldg. Sf
Commercial $ 0.0432 Bldg. Sf
Assessments under this district are determined by building square footage and rates.

Street Lighting Assessment District 2018:

In accordance with the voter-approved measure, Street Lighting Assessment District 2018 is subject to an annual assessment adjustment equal to the annual change in the Bay Area Consumer Price Index (CPI), up to a maximum of 3%. For the period beginning in December 2020 and ending in December 2021, the CPI increased by 4.24%; therefore the CPI assessment adjustment for Fiscal Year 2023 is limited to the prescribed maximum of 3.00%. As approved by voters, the total annual adjustment may be calculated by taking the sum of the 2018 District assessment and the Berkeley Street Lighting Assessment District 1982-1 assessment, and multiplying the sum by the allowable CPI increase. Calculating the adjustment in this manner allows for the inclusion of a 1982-1 District adjustment as part of the 2018 District adjustment. The cumulative total adjustment results in 2018 District assessment rate increases by approximately 6.1%. Detailed calculations of the annual adjustment and the corresponding rate increases are included in the Street Lighting Assessment District 2018 Engineer’s Report for FY 20231. The proposed assessment rates are summarized below.

Rate Category Assessment
FY 2022
Proposed
Assessment
FY 2023
Unit
Residential
Single Family $ 14.12 $ 15.34 parcel
Multi-Family<5 units $ 11.30 $ 12.27 unit
Multi-Family 5 or more units $ 8.47 $ 9.20 unit
Condominium $ 11.30 $ 12.27 parcel
Mobile Home $ 7.06 $ 7.67 unit
Multiple SFR on parcel $ 14.12 $ 15.34 unit
Non-Residential
General Commercial $ 211.82 $ 230.10 acre
Industrial / Warehouse $ 21.18 $ 23.01 acre
Auto Repair $ 141.22 $ 153.40 acre
Hotel / Motel / Boarding $ 141.22 $ 153.40 acre
Hospital $ 88.26 $ 95.88 acre
Retirement Home $ 17.65 $ 19.18 acre
1 Copies of the Engineer’s Report are on file at the main branch of the Berkeley Public Library and at the City Clerk’s Office.

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463

School / Day Care $ 31.77 $ 34.52 acre
Medical / Dental / Vet $ 176.52 $ 191.75 acre
Church $ 10.59 $ 11.51 acre
Mortuary $ 3.53 $ 3.84 acre
Recreational $ 35.30 $ 38.35 acre
Parking / Transportation $ 70.61 $ 76.70 acre
Mini Storage $ 10.59 $ 11.51 acre
Office $ 52.96 $ 57.53 acre
Bank $ 176.52 $ 191.75 acre
Park / Open Space / Agriculture $ 0.71 $ 0.77 acre
Vacant Not assessed
Assessments under the 2018 District are generally determined by the number of parcels, units or acres, as applicable to each parcel category, and the associated rate category.

Public Hearing Information
The hearing will be held on June 28, 2022 at 6:00 p.m. The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.

A copy of the agenda material for this hearing will be available on the City’s website at https://berkeleyca.gov/ as of June 16, 2022. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.

FY 2023 Assessment Rolls for both street lighting districts will be available at the City Clerk’s Office at 2180 Milvia Street, 1st Floor, and at the main Public Library, 2090 Kittredge Street, Berkeley, CA, when the city offices are open for public business.

If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.

For further information, please contact Joe Enke, Manager of Engineering at (510) 981-6411 or Ricardo Salcedo, Associate Civil Engineer at (510) 981-6407.

Published: June 17, 2022 – The Berkeley Voice
City Clerk shall publish a notice at least 10 days prior to the date of the public hearing with the date, hour, and place of the public hearing for annual levy and collection of assessments in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Section 6061 of the Government Code.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted on the display case located near the walkway in front of the Council Chambers at 2134 Martin Luther King Jr. Way, as well as on the City’s website, on June 16, 2022.

Mark Numainville, City Clerk

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466

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

PUBLIC HEARING
June 28, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Public Works
Subject: Transfer Station Rates for FY 2023

RECOMMENDATION
Conduct a public hearing and upon its conclusion adopt a City Council Resolution to:
1) Approve the proposed Transfer Station rates, environmental compliance fee and special material handling charges effective August 1, 2022; and 2) Authorize the City Manager to review annually the Transfer Station rates, environmental compliance fee, and special material handling charges, and, if needed, increase them by a percentage equal to the percentage change in the Consumer Price Index published by the United States Bureau of Labor; and 3) Rescind the rates and special handling fees approved by City Council Resolution No. 64,575-N.S., adopted July 14, 2009, and as amended by Resolution No. 64,712-N.S., adopted December 6, 2009.

SUMMARY
The City’s Transfer Station rates last increased in 2009, while the Transfer Station’s costs related to inflation, personnel, contract, and environmental compliance have risen.

Staff recommends that City Council conduct a public hearing and adopt the proposed Transfer Station rates, initiate a new environmental compliance fee and special handling charges, and authorize the City Manager to annually review these rates and charges and, if needed, increase them by a percentage equal to the percentage change in the Consumer Price Index (CPI) published by the United States Bureau of Labor.

FISCAL IMPACTS
For FY 2022 and FY 2023, Transfer Station revenues are projected to be $8.4 million annually. The proposed rates, initiation of an environmental compliance fee, an increase of existing special material handling charges, and adoption of new special material handling charges are estimated to generate an additional $1.1 million annually, or a 13.2% increase in revenues compared to the prior year, and should help to offset the Transfer Station’s increased costs.

CURRENT SITUATION AND ITS EFFECTS

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467

City of Berkeley Transfer Station PUBLIC HEARING
Rates effective August 1, 2022 June 28, 2022
2 The Transfer Station’s rates and special material handling charges are generated to cover costs for the handling and transfer of City’s curbside collection or third-party delivered materials of refuse, recyclables, green/food waste disposal, and recyclable materials (propane tanks, electronic equipment, etc.). With rates flat since 2009, these rates have failed to keep up with increased costs. Further, the Transfer Station has experienced a significant increase of refuse delivered by third-parties because the Transfer Station offers lower rates compared to the City’s neighboring transfer stations.

Since 2009, landfill tons of refuse have increased by 39%, and green/food and construction and demolition (C&D) materials have more than doubled. These increases are also attributed to overall economic growth in Berkeley and adjacent cities, the City’s expansion of green/food materials curbside collection services, and free residential drop-off services of mattress and box spring units.

Rate Analysis & Development. Table 1 provides a comparison of Berkeley’s current Transfer Station rates to other transfer stations in the area.

Table 1
Material type Refuse Organics C&D Materials
Rate Per Min.
load Per ton Per Min.
load Per ton Per Min.
load Per ton

DAVIS STREET
San Leandro $71.54 $240.27 $71.96 $117.84 $71.54 $240.27

GOLDEN BEAR
Richmond $44.26 $166.75 $35.40 $166.75 $42.45 $158.35
FREMONT $55.00 $118.62 $55.00 $108.47 $55.00 $116.73
MT. DIABLO
Pittsburg $36.50 $120.25 $36.50 $120.00 $36.50 $120.00
MARTINEZ $25.00 $110.00 $25.00 $100.00 $25.00 $110.00

BERKELEY
Current $29.00 $126.00 $23.00 $67.00 $29.00 $126.00
The proposed rates in Table 2 below were developed with consideration for and review of current rates of neighboring transfer stations; CPI increases as calculated by the US Dept. of Labor since 2009; recent City, StopWaste.org and State legislation that promotes material separation (such as the City’s opt-in ordinance to comply with SB 13831); increased contractual costs for the composting of organics and the sorting, recycling, and marketing of C&D materials; and rates that remain fair and equitable to City residents and businesses.

The proposed rates include a new environmental compliance fee of $3.50 per minimum load transaction and $5.00 per ton, which will help offset the increased cost of 1 https://berkeley.municipal.codes/BMC/12.35

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468

City of Berkeley Transfer Station PUBLIC HEARING
Rates effective August 1, 2022 June 28, 2022
3 compliance with the CalRecycle Permit, California Water Resources Control Board National Pollution Discharge Elimination System General Permit, City and San Francisco BayKeeper Consent Decree, and EBMUD Wastewater Discharge Permit.

The rates charged will include the proposed base rate plus the proposed environmental compliance fee, as detailed in Table 2:

Table 2
Material type Refuse* Organics C&D Materials*
Rate Per Min.
load Per ton Per Min.
load Per ton Per Min.
load Per ton

BERKELEY
current $29.00 $126.00 $23.00 $67.00 $29.00 $126.00
Proposed base
rate $38.50 $149.00 $27.75 $72.05 $33.50 $130.00
Env.

Compliance Fee $ 3.50 $ 5.00 $ 3.50 $ 5.00 $ 3.50 $ 5.00 Total Charged $42.00 $154.00 $31.25 $77.05 $37.00 $135.00 *Please note: The rates of Refuse and C&D materials are currently the same. The proposed rate for C&D is less than the Refuse rate to incentivize more source separation by customers prior to arriving at the Transfer Station.

Other Applicable Fees
The proposed Transfer Station rate schedule includes a surcharge for mixed loads to encourage adequate material separation to comply with SB1383, and a surcharge to reload prohibited materials delivered by third parties. Table 3 compares current special material handling rates to the proposed rates:

Table 3
Material Type Current Proposed
Surcharge for Mixed Loads¹ 50% of Refuse rate 75% of Refuse rate Mattress/Box Spring set
Commercial $ 14.00 $ 18.00
Resident ² no charge no charge
Auto Tire $ 10.00 $ 20.00
Truck Tire $ 15.00 $ 30.00
Appliance $ 43.00 $ 48.00
Propane Tank $ 20.00 $ 35.00
Electronics³ $ 9.00 $ 9.00
Carpets C&D rate C&D rate
Reload Prohibited Material⁴ no charge $ 50.00
Prepaid Bags
Refuse $ 5.73 $ 7.50

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469

City of Berkeley Transfer Station PUBLIC HEARING
Rates effective August 1, 2022 June 28, 2022
4 Organics $ 2.30 $ 3.00
¹ The surcharge incentivizes segregation of refuse, organics and C&D materials, and is in addition to the rate per material type and load.
² There will be no charge to residents for up to two sets because these costs are offset by the Mattress Recycling Program.
³ First two electronic items at no charge, $9.00 per item for three or more. ⁴ If the same customer reloads on two or more occasions, a charge of $150 is proposed.

In 2014, the Transfer Station rates were revised and approved without allowance for annual adjustments to these rates to account for any inflation impacts on operational expenses. Therefore, staff recommends the City Council authorize the City Manager to conduct an annual review as permitted by law of these rates, fees, and special material handling charges and increase them, if needed, by a percentage equal to the percentage change in the CPI published by the United States Bureau of Labor.

The proposed Transfer Station’s rates are a Strategic Plan Priority Project that advances the City’s goals to provide an efficient and financially-health City government, and foster a dynamic, sustainable, and locally-based economy.

BACKGROUND
All Zero Waste Division services are exclusively funded by the Zero Waste Fund (Fund 601), an enterprise fund. The Zero Waste Fund pays for the City’s solid waste programs, collection services, and Transfer Station operations. Fund revenues are generated by two separate revenue streams:
1) Rates charged for residential and commercial curbside collection of refuse, dual stream recycling, green/waste collection customers, and third-party franchise fees; and 2) Rates charged for third-party delivered materials to the Transfer Station, including refuse, organics, C&D, and specially handled materials.

Rates for collections are subject to Proposition 218, while rates for third-party delivered materials require only a public hearing prior to City Council approval. The current refuse, organic, C&D, and special material handling rates were last adopted by City Council Resolution No. 64,575-N.S. on July 14, 2009, and amended by Resolution No. 64,712-N.S. on December 6, 2009.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The current Transfer Station rates cannot fully fund the cost of operating the facility or maintaining compliance with State or local agency permits. These revised rates will provide funding to help support the City’s Zero Waste and Climate Action Plan goals.

RATIONALE FOR RECOMMENDATION
The City’s Transfer Station rates last increased in 2009, while the Transfer Station’s costs related to inflation, personnel, contract, and environmental compliance have

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470

City of Berkeley Transfer Station PUBLIC HEARING
Rates effective August 1, 2022 June 28, 2022
5 increased. The proposed rates are requested to generate sufficient revenues to offset increased costs.

ALTERNATIVE ACTIONS CONSIDERED
City Council could forgo rate setting and continue with existing rates. This would decrease the revenue available for the Zero Waste Fund and, over time, lead to service reductions.

CONTACT PERSON
Greg Apa, Solid Waste & Recycling Manager, PW’s Zero Waste Division, (510) 981- 6359
Attachments:
1: Resolution
2: Public Hearing Notice

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471

1 RESOLUTION NO. ##,###-N.S.

CITY OF BERKELEY TRANSFER STATION REVISED RATES AND RESCINDING RESOLUTIONS NO. 64,575 - N.S. AND 64,712 - N.S.

WHEREAS, the City is required by law, and in the interest of public health and resource reduction, reuse and recycling, to promote and provide integrated zero waste management services to the City community members; and
WHEREAS, the Zero Waste Fund (601) is an enterprise fund for the City’s Integrated Zero Waste Management Programs and services and is required to generate sufficient revenues to offset these programs and services costs; and WHEREAS, on July 14, 2009, the City Council approved Resolution No. 64,575 - N.S. approving Transfer Station rates for refuse, construction and demolition materials, and organics (compostable) by the load and per ton and special material handling charges; and
WHEREAS, on December 6, 2009, the City Council approved Resolution No. 64,712 – N.S. which rescinded Resolution No. 64,575 - N.S., Section 3, rates charged for prepaid refuse and compost bags.

THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley approves the Transfer Station rates, surcharges and fees as follows:

Section 1:

An Environmental Compliance Fee for Refuse, Construction and Demolition, and Organics (compostable) materials shall be charged as follows:
 $3.50 per minimum load (330 pounds or less), or
 $5.00 per ton.

Section 2: The Base Rate for Refuse shall be:
 $38.50 per minimum load (330 pounds or less), or
 $149.00 per ton.

Section 3: For the recycling of items that require special material handling at the Transfer Station, rates shall be charged for each item. In addition, the environmental compliance fee is applicable only for the handling and transfer of refuse, construction and demolition or organic (compostable) materials.

Special Material Handling Charges per item shall be:
a. 75% surcharge of the Refuse Base Rate on all mixed refuse, construction & demolition and organics loads (10% or more of these mixed material types in the load based on visual inspection).

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472

2 b. $18.00 per unit of mattresses or box spring for commercial customers.

Residents are accepted free (up to 2 units per transaction). c. $20.00 per automobile tire.
d. $30.00 per truck tire.
e. $48.00 per appliance, refrigerated and non-refrigerated. f. $35.00 per propane tank.
g. $9.00 per electronic item with three (3) or more, first two (2) items at no change.
h. Carpets are charged per the construction and demolition material base rate.
i. $50.00 for first occurrence to reload of prohibited materials, $150.00 per customers’ second and subsequent occurrences.

Section 4: Organic (compostable) Materials includes: plant debris, prunings, unpainted untreated wood, pallets, waxed cardboard, unpainted sheet rock, food scraps, and compostable fibers. Organic materials do not include: plywood, painted wood, tree stumps, plastic bags, trash, refuse, recyclables, such as, uncontaminated cardboard, metal, etc., or all other material unsuitable for composting.

Section 5:

The Base Rate for clean loads of Organic (compostable) Materials shall be:
 $27.75 per minimum load (330 pounds or less), or
 $72.05 per ton.

Section 6: The Base Rate for Construction and Demolition Materials shall be:
 $33.50 minimum per load (330 pounds or less), or
 $130.00 per ton.

Section 7: Vehicles with unsecured loads will be charged a $15 fee.

Section 8: For the Purchase of Prepaid Bags for residential use only customer for extra materials to be placed at the curb on day of regular scheduled collection up to seven (7) additional bags, the cost shall be:
 Refuse - $7.50 per bag.
 Compostable Organics - $3.00 per bag.

Section 9: If Transfer Station scale is inoperable, the pounds per cubic yard conversion ratio shall be 330 pounds to the cubic yard and any estimate of volume will be made to the nearest half cubic yard.
.

BE IT FURTHER RESOLVED that the City Manager is authorized to annually review the base rates of refuse, construction and demolition, and organics materials; the environmental compliance fee; and special material handling charges; and increase these charges each year by a percentage equal to the percentage change in the

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3 Consumer Price Index (CPI) statistics published by the United States Bureau of Labor, as needed; and
BE IT FURTHER RESOLVED that Resolutions No. 64,575-N.S. and 64,712-N.S. are hereby rescinded; and
BE IT FURTHER RESOLVED that upon the conclusion of the Public Hearing on June 28, 2022, the City Council will amend as directed by public input and that this Resolution and the Transfer Station rates, environmental compliance fee and special material handling charges shall take effect on August 1, 2022.

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474

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
EXISTING RATES:

On December 6, 2009, The City Council held a public hearing, reviewed and approved the current Transfer Station rates per the Council amended approved Resolution No. 64,575-N.S. and approved Resolution No. 64,712-N.S. (revised previously approved charges). These Transfer Station (Station) rates became effective January 1, 2010 and the following: refuse (also called municipal solid waste), compostable organics (both food and plant debris materials), construction and demolition (C&D) and special materials/appliance handling charges. The current rates are:
 $29.00 for refuse - minimum per load (same for C&D),
 $126.00 for refuse - per ton rate (same for C&D),
 $23.00 for compostable organics - minimum per load charge,  $67.00 for compostable organics – per ton,
 Special Handling Charges:
a. $14.00 per mattresses/box springs (commercial only), b. $10.00 per automobile tire,
c. $15.00 per truck tire,
d. $43.00 per appliances,
e. $20.00 per propane tank, and
f. $9.00 for three (3) or more electronic items, first two (2) items at no charge.
 50% surcharge of refuse rate on mixed refuse and organics loads (10% or more of organics upon inspection) with $100.00 maximum charge per transaction.

PROPOSED RATES:

The following table summarizes the Transfer Station’s (Station) current and proposed rates with the public hearing conducted and City Council’s approval for the Transfer Station to be effective August 1, 2022:

Refuse (MSW) Green Waste C&D Materials*
Min. Per Ton Min. Per ton Min. Per ton
Current Rate $29.00 $126.00 $26.45 $72.05 $29.00 $126.00 Proposed base $38.50 $149.00 $27.75 $72.05 $33.50 $130.00 Environmental
Fee** $ 3.50 $ 5.00 $ 3.50 $ 5.00 $ 3.50 $ 5.00 Proposed Rate $42.00 $154.00 $31.25 $77.05 $37.00 $135.00 * Please note: The rates of Refuse and C&D materials are currently charged the same. To divert more C&D materials from incoming refuse and reduce landfilled tons, the new rate for C&D is proposed to be less to incentivize customers to increase their separation efforts prior to arriving at the Transfer Station. ** Environmental Compliance fee to be charge of $3.50 per minimum load and $5.00 per ton.

Proposed Special Handling Rates:
a. $18.00 per set of mattress/box spring (commercial only).

Residents are accepted free and costs are offset by Mattress Recycling Program.

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475

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
b. $20.00 per automobile tire
c. $30.00 per truck tire,
d. $48.00 per appliance,
e. $35.00 per propane tank,
g. $9.00 for three (3) or more electronic items, first two (2) items at no charge,
f. $50.00 for 1 st occurrence to reload of prohibited materials, $150 thereafter, and
g. $75.00 per occurrence for mixed (not separated) loads.

Impact of CPI since 2009:

From December 2009 through December 2021, inclusive, the CPI for All Urban Consumers for San Francisco-Oakland-Hayward CA1 has increase 40.83%.

2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021

0.000

50.000
100.000
150.000
200.000
250.000
300.000
350.000
CPI - Ur
ban Customers
December 2009 through December 2021
Although not proposed but if this CPI increase were applied to the current rates, the rate increases would be reflected as follows:
 $48.25 for refuse and C&D Minimum charge,
 $177.45 for refuse and C&D per ton rate,
 Compostable organics:
a. $32.40 minimum per load charge,
b. $94.35 per ton rate.
1 https://data.bls.gov/pdq/SurveyOutputServlet?data_tool=dropmap&series_id=CUURS49BSA0,CUUSS49 BSA0

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476

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
ANALYSIS OF EXISTING AND ADJACENT RATES:

With both CPI-Urban and offsite processing cost increases in consideration, the Public Works and Zero Waste Division staff also reviewed surrounding area transfer station rates to ensure that the proposed rates are comparable to the Berkeley Transfer Station. The following area transfer stations rates were analyzed:
 Davis Street, located in San Leandro (Alameda Co.) operated by Waste Management, Inc.,
 Gold Bear, located in Richmond (Contra Costa Co.) operated by Republic Services, Inc.,
 Fremont (Alameda Co.), owned by BLT Enterprises, Inc. and operated by Tri- CED,
 Mt. Diablo (Contra Costa Co.), located in Concord and its privately owned, and  Martinez, owned by Contra Costa County and operated under contract with Republic Services, Inc.

Table 1 – Existing and Proposed Rate Comparison
1) Environmental Compliance Fee - $5.00 per load for minimum charge and $5.00 per ton.

Refuse Green Waste C&D Materials
Min. Per ton Min. Per ton Min. Per ton

DAVIS STREET
$71.54

$240.27

$71.96 $117.84 $71.54 $240.27

GOLDEN BEAR $44.26

$166.75

$35.40 $166.75 $42.45 $158.35
Richmond
$55.00 $ 18.62

$55.00 $108.47 $55.00 $116.73 FREMONT

MT. DIABLO $36.50 $120.25 $36.50 $120.00 $36.50 $120.00 Pittsburg
$25.00 $110.00 $25.00 $100.00 $25.00 $110.00 MARTINEZ BERKELEY $29.00

$126.00

$23.00 $67.00 $29.00 $126.00
current
Proposed base $38.50

$149.00

$27.75 $72.05 $33.50 $130.00
Env. Fee (1) $ 3.50 $ 5.00 $ 3.50 $ 5.00 $ 3.50 $ 5.00 Proposed Rate $42.00

$154.00 $31.25 $77.05 $37.00 $135.00

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477

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
The following charts graphically detail the existing rates by material types for those surveyed transfer stations rates and proposed Berkeley rates provided in Chart 1:

DAVIS

STREET GOLD

EN BEAR FRE
MONT MT.

DIABLO MARTIN

EZ BERKELE
Y Pr
oposed Rate
$-
$50.00
$100
.00
$150
.00
$200
.00
$250
.00
$300
.00
Refuse Min
. Refuse P
er Ton Gr
een Waste Min.

Gr
een Waste Per ton C&D
Materials Min. C&D
Materials Per ton
Ch
art 1 - All Transfer Station Charges per Material Type
Comparsion
As highlighted by the above chart, the current Berkeley rates are lower than the rates charged by Bay Area Transfer Stations especially those closest to Berkeley, which include Davis Street and Golden Bear transfer stations. The following charts provide graphic comparisons of those surveyed transfer stations rates and the proposed rates for the City’s Transfer Station:

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478

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
Refuse Minimum Rate Comparison:

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $ 71.54 $ 44.26 $ 55.00 $ 36.50 $25.00 $ 29.00 $ 42.00* *includes $3.50 environmental compliance
fee
‘ DAVIS

STREET GOLD

EN BEAR FRE
MONT MT.

DIABLO MARTIN

EZ BERKELE
Y Pr
oposed Rate
$-
$10.00
$20.00
$30.00
$40.00
$50.00
$60.00
$70.00
$80.00
Ch
art 2 - Refuse Minimum Charge
Refuse Per Ton Comparison:

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $240.27 $166.75 $118.62 $120.25 $110.00 $126.00 $154.00* *includes $5.00 environmental compliance fee
DAVIS

STREET GOLD

EN BEAR FRE
MONT MT.

DIABLO MARTIN

EZ BERKELE
Y Pr
oposed Rate
$-
$50.00
$100
.00
$150
.00
$200
.00
$250
.00
$300
.00
Ch
art 3 - Refuse Per Ton Charge

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479

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
Organics (compostable) Materials Minimum Charge Comparison (clean loads only):

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $ 71.96 $ 35.40 $ 55.00 $ 36.50 $25.00 $ 29.00 $ 31.25* *includes $3.50 environmental compliance
fee
DAVIS

STREET GOLD

EN BEAR FRE
MONT MT.

DIABLO MARTIN

EZ BERKELE
Y Pr
oposed Rate
$-
$10.00
$20.00
$30.00
$40.00
$50.00
$60.00
$70.00
$80.00
Ch
art 4 - Green/Food Materials Minimum Charge
Organics (compostable) Materials Per Ton Charge (clean loads only):

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $117.84 $166.75 $108.47 $120.00 $100.00 $126.00 $77.05* *includes $5.00 environmental compliance fee

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480

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
DAVIS

STREET GOLD

EN BEAR FRE
MONT MT.

DIABLO MARTIN

EZ BERKELE
Y Pr
oposed Rate
$-
$20.00
$40.00
$60.00
$80.00
$100
.00
$120
.00
$140
.00
$160
.00
$180
.00
Ch
art 5 - Green/Food Materials Per Ton Charge
Construction & Demolition (C&D) Materials Minimum Charge Comparison:

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $ 71.96 $42.44 $55.00 $ 36.50 $25.00 $ 29.00 $ 37.00* *includes $3.50 environmental compliance
fee

DAVIS STREET GOLD
EN BEAR FREMONT MT.

DIABLO MARTINEZ BERKELEY Proposed Rate
$-
$10.00
$20.00
$30.00
$40.00
$50.00
$60.00
$70.00
$80.00
Chart 6 - C&D Materials Minimum Charge
Construction & Demolition (C&D) Materials Per Ton Charge Comparison:

Davis St. Golden Bear Fremont Mt. Diablo Martinez Berkeley Current Berkeley Proposed $240.47 $158.35 $116.73 $120.00 $110.00 $126.00 $135.00*

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481

ATTACHMENT 2 – ANALYSIS OF EXISTING & PROPOSED RATES
and Comparison to Bay Area Transfer Station Rates
*includes $5.00 environmental compliance fee

DAVIS STREET

GOLDEN BEAR

FREMONT MT. DIABLO

MARTINEZ BERKELEY

BERKELEYProposed
0 50
100
150
200
250
300
Ch
art 7 - C&D Materials Per Ton Charge

Page 16 of 19 ends

482

ATTACHMENT 3

NOTICE OF PUBLIC HEARING - BERKELEY CITY COUNCIL

PUBLIC PARTICIPATION BY REMOTE VIDEO ONLY

REVISED TRANSFER STATION RATES
Notice is hereby given by the City Council of the City of Berkeley that a public hearing will be conducted by said City Council of the City of Berkeley at which time and place all persons may attend and be heard upon the following.

The Department of Public Works is proposing to increase the rates, fee and charges for the handling, transfer, and/or recycling of: refuse, construction and demolition, and organic (compostable) materials; environmental compliance and special material handling items at the City of Berkeley Transfer Station. These rates, fees, and charges are proposed to be effective August 1, 2022.

The City is required by law, and in the interest of public health and resource reduction, reuse and recycling, to promote and provide integrated and comprehensive zero waste management services to the City community members. These rates, fees and charges, as adopted by Council Resolution, are estimated to increase FY2023 base rate revenues by approximately $833,000 and initiate an environmental compliance fee that will generate approximately $272,000.

Current Rates:
 $29.00 for minimum per load, 330 pounds or less, for Refuse, which is the same for Construction & Demolition (C&D) materials,
 $126.00 per ton for Refuse, which is the same for C&D materials,  $23.00 minimum per load, 330 pounds of less, for Organics (compostable) Materials,
 $67.00 per ton for Organics (compostable) Materials,
 Special Material Handling charges:
a. $14.00 per mattresses/box springs (commercial only), b. $10.00 per automobile tire,
c. $15.00 per truck tire,
d. $43.00 per appliances,
e. $20.00 per propane tank, and
f. $9.00 for three (3) or more electronic items, first two (2) items at no charge.
 50% surcharge of Refuse Rate on mixed refuse and organics loads (10% or more of organics upon inspection) with $100.00 maximum charge per transaction.
 Purchase of Prepaid Bags for residential customer use, the rates shall be:

Refuse - $5.73 per bag.

Page 17 of 19 ends

Berkeley City CouncilJune 28, 2022

Berkeley City Council
June 28, 2022