Agenda packet, first session — Berkeley City Council, September 13, 2022 (part 3 of 5)

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provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment.

1. For rent accrued through January 31, 2021, Tenants shall have until March 31, 2022, or the date adopted by state law, as applicable, to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").

2. For rent accrued beginning February 1, 2021, Tenants shall have until twenty-four (24) months after the conclusion of the Covered Period to pay rent that was delayed by a Covered Reason for Delayed Payment, or the period of time adopted by state law, as applicable, unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").

C. A Tenant is not required to provide documentation to the Landlord in advance to qualify for the delayed repayment of rent over the 12 months. However, upon the request of a Landlord, a Tenant shall provide such documentation to the Landlord within forty-five (45) days after the request or within thirty (30) days after the local State of Emergency is endedCovered Period, whichever is later. In the case of nonpayment of rent, the failure of a Tenant to notify the landlord in advance of being delinquent in the payment of rent prior to being served with a notice pursuant to Code of Civil Procedure sections 1161(2) et seq. does not waive the Tenant’s right to claim this Chapter as a complete defense to nonpayment of rent in an unlawful detainer action.

D. Any medical or financial information provided to the landlord shall be held in confidence, and shall not be disclosed to other entities unless such disclosure is permitted or required by the law, or unless the tenant authorizes the disclosure of the information in writing.

This requirement shall be applied into any Delayed Rent Payment Agreement, regardless of the terms of that agreement.

13.110.050 Application
A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served, filed, or which expire on or after the effective date of this Chapter through the end of the local State of Emergencyduring the Covered Period. It does not apply to withdrawal of accommodations from the rental market pursuant to Government Code 7060 et seq. (“Ellis Act”), commercial leases where the term has expired and the City has issued a permit for the demolition or substantial alteration of the commercial unit, or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.

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B. Except where expressly required by state law (such as Assembly Bill 3088 or any subsequent statewide COVID-19 relief legislation)With respect to delayed payment covered by this Ordinance, a landlord may seek such rent after the expiration of the local State of Emergency, pursuant to Section 13.110.040, but may not file an action pursuant to Code of Civil Procedure sections 1161(2) et seq. or otherwise seek to recover possession of a rental unit based on the failure to pay rent that accrued due to a Covered Reason for Delayed Payment during the term of the local State of Emergencyduring the Covered Period. In any action to evict based on alleged nonpayment of rent, it shall be a complete defense to such action if any part of the rent in dispute accrued at any time during the Covered Period, or if the action otherwise demands any fees or amounts contrary to the provisions of this Chapter. A landlord shall not apply any rent payment towards rent that is delayed by a Covered Reason for Delayed Payment before applying it towards any other Rent owed without the explicit written permission of the Tenant.from the effective date of this Chapter to the expiration of the local State of Emergency and there exists a Covered Reason for Delayed Payment.

C. A Landlord or Lender shall not retaliate against a Tenant for exercising their rights under this Ordinance, including but not limited to shutting off any utilities reducing services or amenities, refusing to make or delaying repairs to which the Tenant would otherwise be entitled., or taking actions which hurt the Resident’s credit rating based on non- payment of rent during the Covered Period as allowed under this ordinance.

D. In addition to the affirmative defenses set forth above, in any action to recover possession of a rental unit filed under Berkeley Municipal Code section 13.76.130(A)(1), it shall be a complete defense that the landlord impeded the tenant’s effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party.

13.110.060 Implementing Regulations
The City Manager may promulgate implementing regulations and develop forms to effectuate this Ordinance. This includes the option of requiring Landlords and Lenders to give a notice to Residents informing them of this Chapter and the right to seek the benefits of this Chapter.

13.110.070 Waiver.

A. By entering into a Delayed Rent Payment Agreement, Tenants do not waive any rights under this Chapter.

B. Any agreement by a Tenant to waive any rights under this ordinance shall be void and contrary to public policy.

13.110.080 Remedies

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A. In the event of a violation of this Ordinance, any person or entity aggrieved by the violation tenant may institute a civil proceeding for injunctive relief, and money actual damages as specified below, and whatever other relief the court deems appropriate.

Money damages shall only be awarded if the trier of facts finds that the landlord acted in knowing violation of or in reckless disregard of this Ordinance. The prevailing party shall be entitled to reasonable attorney and costs pursuant to order of the court. The remedy available under this section shall be in addition to any other existing remedies which may be available to the tenant under local, state, or federal law.

1. An award of actual damages may include an award for mental and/or emotional distress and/or suffering. The amount of actual damages awarded to a prevailing plaintiff shall be trebled by the Court outside of the presence, and without the knowledge of, the jury, if any, if a defendant acted in knowing violation of, or in reckless disregard for, the provisions of this Chapter.

2. A defendant shall be liable for additional civil penalties of up to five thousand dollars for each violation of this Chapter committed against a person who is disabled within the meaning of California Government Code section 12926, et seq., or aged sixty-five or over.

3. In addition to the above awards of damages in a civil action under this Chapter, a prevailing plaintiff shall be entitled to an award of reasonable attorney’s fees. A prevailing defendant in a civil action under this Chapter shall only be entitled to an award of attorney’s fees if it is determined by the Court the action was wholly without merit or frivolous.

4. In addition, this Ordinance Chapter grants a defense to eviction in the event that an eviction notice or unlawful detainer action is commenced, filed, or served in violation of this OrdinanceChapter.

B. The protections provided by this ordinance shall be available to all tenants, regardless of any agreement wherein a tenant waives or purports to waive their rights under this Ordinance, with any such agreement deemed void as contrary to public policy.

CA. Violations of Section 13.110.020(C) - (Commercial rent restrictions).

1. Violations of Section 13.110.020(C) may be enforced by an administrative fine of up to $1,000 pursuant to Chapter 1.28. Each day a commercial property landlord demands rent in excess of the amount permitted pursuant to Section 13.110.020(C) is a separate violation. The City may also charge the costs of investigating and issuing any notices of violations, and any hearings or appeals of such notices.

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2.The City Attorney may refer those violators of Section 13.110.020(C) to the Alameda County District Attorney for redress as a violation of Business and Professions Code section 17200, et seq. or, if granted permission by the District Attorney, may bring an action pursuant to Business and Professions Code section 17200, et seq.

D. Nonexclusive Remedies and Penalties. The remedies provided in this subdivision are not exclusive, and nothing in this Chapter shall preclude any person from seeking any other remedies, penalties or procedures provided by law.

13.110.090 Severability.

13.110.100 Liberal Construction
The provisions of this Chapter shall be liberally construed so as to fully achieve its purpose and provide the greatest possible protections to tenants.

Section 2. Effective Date
This ordinance shall go into effect thirty days from the time of its final passage.

Vote Required, Immediately Effective
Based upon the findings in Section 13.110.010 of this Ordinance, the Council determines that this Ordinance is necessary for the immediate preservation of the public health, peace and safety in accordance with Article XIV Section 93 of the Charter of the City of Berkeley and must therefore go into effect immediately. This Ordinance shall go into effect immediately upon a seven-ninths vote of the City Council, in satisfaction o the Charter of the City of Berkeley.

This ordinance shall go into effect thirty days from the time of its final passage.

Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

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CONSENT CALENDAR
May 11, 2021
TO: Members of the City Council
FROM: Mayor Jesse Arreguín
SUBJECT: Amending COVID-19 Emergency Response Ordinance Relating to Commercial Leases

RECOMMENDATION
Adopt an urgency ordinance amending Berkeley Municipal Code Section 13.110.050 (COVID-19 Emergency Response Ordinance) to exempt from the provisions of the ordinance commercial leases where the lease term has expired and the City has issued a permit for the demolition or substantial alternation of the commercial unit. The proposed ordinance change reads as follows:

13.110.050 Application
A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served or filed or which expire on or after the effective date of this Chapter through the end of the local State of Emergency. It does not apply to withdrawal of accommodations from the rental market pursuant to Government Code 7060 et seq. ("Ellis Act"), commercial leases where the term has expired and the City has issued a permit for the demolition or substantial alteration of the commercial unit, or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.

BACKGROUND
The City of Berkeley declared a local State of Emergency on March 3, 2020 in response to the COVID-19 pandemic, first detected globally in late December 2019. Shortly thereafter, Council passed BMC 13.110 - the COVID-19 Emergency Response Ordinance - prohibiting most evictions in Berkeley, which has been subsequently updated over the past year. Despite recent data showing a decline in new cases in the Bay Area and progress in the distribution and administration of vaccines, the threat of another wave of infections remains, and cases in other regions continue to rise. There is currently no timeline as to when the local State of Emergency will end, and even when the health crisis is no longer a significant threat to the community, the economic ramifications of COVID-19 will be felt for some time in the future.

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2 The current COVID-19 Emergency Response Ordinance provides a critical lifeline to residential and commercial tenants who have faced financial difficulties as a result of the pandemic. This item makes a very narrow amendment to the ordinance exempting from its provisions a lease termination for a commercial tenant whose lease term has expired and where the City has already approved a permit for demolition or substantial alteration of the unit.

While the City does not want to create an incentive to evict existing commercial tenants.

However in limited cases where the lease has already expired and there has been an approved project, the City should enable those housing and mixed-use projects to proceed. Berkeley faces a critical shortage of housing, particularly for low, very-low and extremely-low income households. It was never the intent of the Council to prohibit already entitled projects, where the lease has expired to be stalled due to the commercial eviction moratorium.

This is necessary to move forward with existing approved developments that are needed to address the housing affordability crisis and meet the quota of new units as prescribed in the Regional Housing Needs Allocation (RHNA). Without an end date for when the local State of Emergency will be lifted, clarity in the ordinance language is needed to allow property owners who have already entitled projects to proceed with building needed housing.

CONTACT
Mayor Jesse Arreguín
[email protected] | 510-981-7100
Attachments:

1. Urgency Ordinance

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ORDINANCE NO. -N.S.

URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BERKELEY AMENDING THE COVID-19 EMERGENCY RESPONSE ORDINANCE; DECLARING THE URGENCY THEREOF; AND DECLARING THAT THIS ORDINANCE SHALL TAKE EFFECT IMMEDIATELY.

BE IT ORDAINED By the Council of the City of Berkeley as follows:

Section 1. That Chapter 13.110 of the Berkeley Municipal Code is hereby amended to read as follows:

Chapter 13.110
COVID-19 EMERGENCY RESPONSE ORDINANCE
Sections:

13.110.010 Findings and Purpose.

13.110.020 Prohibited Conduct.

13.110.030 Definitions.

13.110.040 Collection of Back Rent and Late Fees.

13.110.050 Application.

13.110.060 Implementing Regulations.

13.110.070 Waiver.

13.110.080 Remedies.

13.110.090 Severability.

13.110.010 Findings and Purpose.

International, national, state and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named "SARS-CoV-2." And the disease it causes has been named "coronavirus disease 2019," abbreviated COVID-19, ("COVID-19"). In response to this emergency, on March 3, 2020, the City Manager acting as the Director of Emergency Services declared a local State of Emergency based on COVID-19 (hereinafter referred to as "the State of Emergency"), which the City Council subsequently ratified on March 10, 2020. On April 21, 2020, the council ratified an extension of the local state of emergency through June 21, 2020. In addition, on March 4, 2020, the Governor declared a state of emergency in California and the President of the United States declared a national state of emergency on March 13, 2020 regarding the novel coronavirus and COVID-19.

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On March 16, 2020, the City of Berkeley Public Health Officer, along with several other neighboring jurisdictions issued a Shelter in Place Order directing all individuals living in the City of Berkeley to shelter at their place of residence except that they may leave to provide or receive certain essential services or engage in certain essential activities, and prohibiting non-essential gatherings and ordering cessation of non-essential travel.

On March 31, this Shelter in Place Order was extended to May 3, 2020, and restricted activities further.

Furthermore, on March 16, 2020, the Governor issued Executive Order N-28-20, specifically authorizing local governments to halt evictions for commercial tenants, residential tenants, and homeowners who have been affected by COVID-19, emphasizing that the economic impacts of COVID-19 have been significant and could threaten to undermine housing security as many people are experiencing material income loss as a result of business closures, the loss of hours or wages or layoffs related to COVID-19, hindering their ability to keep up with rents, mortgages and utility bills.

The Order also stated that because homelessness can exacerbate vulnerability to COVID-19, Californians must take measures to preserve and increase housing security for Californians to protect public health and specifically stated that local jurisdictions may take measures to promote housing security beyond what the state law would otherwise allow.

On April 6, 2020, the Judicial Council of California issued emergency rules suspending court proceedings for unlawful detainer and judicial foreclosures until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.

On April 21, 2020, Alameda County enacted an urgency ordinance prohibiting eviction for any reason other than withdrawal of rental property under the Ellis Act or court- ordered eviction for public safety. Although the Alameda County ordinance does not have effect within the incorporated area of Berkeley, it is desirable to ensure that Berkeley residents have the same level of protection as the residents of unincorporated Alameda County.

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During this State of Emergency, and in the interests of protecting the public health and preventing transmission of the COVID-19, it is essential to avoid unnecessary displacement and homelessness. It is the intent of this Ordinance to fully implement the suspension of the statutory bases for eviction for nonpayment of rent and for default in the payment of a mortgage as authorized by Executive Order N-28-20.

At the same time, the Governor, as well as, the Berkeley Health Officer, and those of other jurisdictions ordered the closure of businesses, except those deemed essential.

Many businesses, such as restaurants, are open only for take-out or pick up services and face a critical loss of business.

The City Council is aware that some landlords of commercial properties are seeking significant rent increases during the period when many commercial tenants are closed or are experiencing substantial and catastrophic reductions in their business and income. Such rent increases force tenants who are closed or have substantially reduced revenues face the choice of accepting a significant rent increase, moving at a time when it is virtually impossible, or closing altogether. Accepting a rent increase while closed or in a reduced state of operations means that the commercial tenants face even more debt to the landlord when the emergency is over, and may face a substantially increased rent when the tenant returns to normal operations, if ever.

Landlords of commercial property that unreasonably increases rents on tenants of commercial property during the COVID-19 emergency significantly impacts vulnerable small businesses, nonprofits, and artists who form a large part of the backbone of Berkeley’s economy, revenue sources, and employment opportunities. These rent increases are coming at a time when the commercial rents are likely falling due to business closures and potential loss of businesses at the end of the emergency. Thus, these rent increases appear as a way of evading the Governor’s and Berkeley’s commercial tenant eviction moratorium by forcing tenants to agree to rent increases or leave. Such conduct constitutes constructive evictions in contravention of the eviction moratorium. Furthermore, such rent increases may affect businesses providing goods and essential services, resulting in increases in those costs of essential goods and services contravening the intent of anti-price gouging laws.

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On expiration of leases when the emergency order is in place, unreasonable rent increases have already forced the closure of businesses and will result in closing of additional business causing loss of income for the business owners, loss of employment for the employees and of revenue to the city, and an increase in homelessness. To reduce the spread of COVID-19, it is essential to avoid unnecessary displacement and homelessness. Because of the emergency restrictions, businesses forced out due to increased rents will be unable to move to new locations and new businesses will be unable to open during this emergency period. During a state of emergency cities have extraordinary powers and jurisdiction to create legislation in order to counteract the effects of the emergency situation on its people and businesses. Protecting tenants from excessive rent increases will prevent additional loss of employment and essential services for Berkeley residents. In order to effectively implement an eviction moratorium, the City Council finds it imperative to prevent constructive eviction through unreasonable rent increases.

Accordingly, the City of Berkeley adopts the following amendments to Berkeley Municipal Code Chapter 13.110. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

13.110.020 Prohibited Conduct.

A. During the local State of Emergency, no landlord or other entity shall evict or attempt to evict an occupant of real property unless necessary for the health and safety of residents. For purposes of this Ordinance, the basis for an exception to this Ordinance cannot be the Resident’s COVID-19 illness or exposure to COVID-19, whether actual or suspected.

B. Residential Eviction Moratorium. It shall be a complete defense to any action for unlawful detainer that the notice upon which the action is based was served or expired, or that the complaint was filed or served during the local State of Emergency.

C. No landlord of an Impacted Business or Nonprofit may upon expiration of a lease increase rent for an Impacted Business or Nonprofit in an amount greater than ten (10) percent over the rent in effect at the commencement of the local state of emergency declared by the Director of Emergency Services. For purposes of this section, rent

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means all consideration for the use and enjoyment of the rented premises, including base rent and any additional rent or other charges for costs such as utilities, maintenance, cleaning, trash removal, repairs and any other charges to the tenant required under the rental agreement. This section 13.110.020 C. shall expire on May 31, 2020, concurrent with Executive Order N-28-20; provided, however, that this section shall be automatically extended if Executive Order N-28-20 is extended or the tenant protections therein are extended pursuant to another Governor’s Executive Order.

D. For the duration of the local State of Emergency, if a tenant has a Covered reason for delayed payment the tenant may terminate a lease or rental agreement with 30 days’ notice without penalty. A tenant may also exercise rights under this subsection if the tenants or roommates of the tenants are or were registered at an educational institution that cancelled or limited in-person classes due to the COVID-19 pandemic. (Ord. 7720- NS § 1, 2020: Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693- NS § 1 (part), 2020)

13.110.030 Definitions.

A. "Covered Reason for Delayed Payment" means:
(1) the basis for the eviction is nonpayment of rent, arising out of a material decrease in household, business, or other rental unit occupants’ income (including, but not limited to, a material decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or to caregiving responsibilities, or a material decrease in business income caused by a reduction in opening hours or consumer demand), or material out-of-pocket medical expenses, or, in a group living arrangement wherein all tenants are collectively responsible for payment of the rent to the landlord, a reduction in the number of tenants living in the unit which reduces the ability of the remaining tenants to pay the rent, or a rent increase that exceeds the Annual General Adjustment for the current year; and
(2) the decrease in household, business, or other rental unit occupant’s income or the expenses or reduction in number of tenants described in subparagraph (1) was caused by the impacts of COVID-19 pandemic, or by any local, state, or federal government response to COVID-19.

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B. "Delayed Rent Payment Agreement" means a mutual agreement between a landlord and tenant regarding the timing and amount of payments for rent that is delayed by a Covered Reason for Delayed Payment.

C. "Impacted Business or Nonprofit" means a business or nonprofit organization that had a business license in 2019 or 2020 in the City of Berkeley or is a registered non- profit in either or both of those years and:

1. whose operation has been shut down due to the COVID-19 emergency, or

2. that is unable to accept customers at its location and is open for limited virtual, take-out or pickup services only, or

3. who suffered a material loss of income.

D. "Landlord" includes owners, lessors, or sublessors of either residential or commercial rental property, and the agent, representative, or successor of any of the foregoing.

E "Tenant" includes a tenant, subtenant, lessee, sublessee, or any other person entitled by written or oral rental agreement to use or occupancy of either residential or commercial property. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020:

Ord. 7693-NS § 1 (part), 2020)

13.110.040 Collection of Back Rent and Late Fees.

A. Nothing in this Chapter shall relieve the tenant of liability for unpaid rent, which the landlord may seek after expiration of the local State of Emergency. The City will develop standards or guidelines for tenants to repay unpaid rent accrued during the course of the local State of Emergency. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.

B. Tenants shall have up to twelve (12) months to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement "Delayed Rent Payment Agreement"). Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment.

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C. A Tenant is not required to provide documentation to the Landlord in advance to qualify for the repayment of rent over the 12 months. However, upon the request of a Landlord, a Tenant shall provide such documentation to the Landlord within forty-five (45) days after the request or within thirty (30) days after the local State of Emergency is ended, whichever is later. In the case of nonpayment of rent, the failure of a Tenant to notify the landlord in advance of being delinquent in the payment of rent prior to being served with a notice pursuant to Code of Civil Procedure section 1161(2) does not waive the Tenant’s right to claim this Chapter as a complete defense to nonpayment of rent in an unlawful detainer action.

E. Any relief from the City of Berkeley either directly to a property owner on their own application or as a pass through for City relief payments to the tenant shall directly reduce the amount of any rent that was delayed by a Covered Reason for Delayed Payment. This requirement shall be applied into any Delayed Rent Payment Agreement, regardless of the terms of that agreement. (Ord. 7704-NS § 1 (part), 2020:

Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

13.110.050 Application.

A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served or filed or which expire on or after the effective date of this Chapter through the end of the local State of Emergency. It does not apply to withdrawal of accommodations from the rental market pursuant to Government Code 7060 et seq. ("Ellis Act"), commercial leases where the term has expired and the City has issued a permit for the demolition or substantial alteration of the commercial unit, or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.

B. With respect to delayed payment covered by this Ordinance, a landlord may seek such rent after the expiration of the local State of Emergency, pursuant to Section

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13.110.040, but may not file an action pursuant to Code of Civil Procedure sections 1161(2) et seq. or otherwise seek to recover possession of a rental unit based on the failure to pay rent that accrued due to a Covered Reason for Delayed Payment during the term of the local State of Emergency. In any action to evict based on alleged non- payment of rent, it shall be a complete defense to such action if any part of the rent in dispute accrued at any time from the effective date of this Chapter to the expiration of the local State of Emergency and there exists a Covered Reason for Delayed Payment.

C. A Landlord shall not retaliate against a Tenant for exercising their rights under this Ordinance, including but not limited to shutting off any utilities or reducing services or amenities to which the Tenant would otherwise be entitled.

D In addition to the affirmative defenses set forth above, in any action to recover possession of a rental unit filed under Berkeley Municipal Code section 13.76.130(A)(1), it shall be a complete defense that the landlord impeded the tenant’s effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party.

Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

13.110.060 Implementing Regulations.

The City Manager may promulgate implementing regulations and develop forms to effectuate this Ordinance. This includes the option of requiring landlords to give a notice to Tenants informing them of this Chapter and the right to seek the benefits of this Chapter. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

13.110.070 Waiver.

A. By entering into a Delayed Rent Payment Agreement, Tenants do not waive any rights under this Chapter.

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B. Any agreement by a Tenant to waive any rights under this ordinance shall be void and contrary to public policy. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

13.110.080 Remedies.

In the event of a violation of this Ordinance, an aggrieved tenant may institute a civil proceeding for injunctive relief, and money actual damages as specified below, and whatever other relief the court deems appropriate. Money damages shall only be awarded if the trier of fact finds that the landlord acted in knowing violation of or in reckless disregard of this Ordinance. The prevailing party shall be entitled to reasonable attorney’and costs pursuant to order of the court. The remedy available under this section shall be in addition to any other existing remedies which may be available to the tenant under local, state or federal law. In addition, this Ordinance grants a defense to eviction in the event that an unlawful detainer action is commenced in violation of this Ordinance.

The protections provided by this ordinance shall be available to all tenants, regardless of any agreement wherein a tenant waives or purports to waive their rights under this Ordinance, with any such agreement deemed void as contrary to public policy.

A. Violations of Section 13.110.020(C) - (Commercial rent restrictions:).

2. The City Attorney may refer those in violators of Section 13.110.020(C) to the Alameda County District Attorney for redress as a violation of Business and Professions Code section 17200, et seq. or, if granted permission by the District Attorney, may bring an action pursuant to Business and Professions Code section 17200, et seq. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)

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13.110.090 Severability.

If any section, subsection, sentence, clause, phrase, or word of this Chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter. The Council of the City of Berkeley hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional. (Ord. 7704-NS § 1 (part), 2020: Ord. 7698-NS § 1 (part), 2020: Ord. 7693-NS § 1 (part), 2020)
Section 2. Vote Required, Immediately Effective
Based upon the findings in Section 13.110.010 of this Ordinance, the Council determines that this Ordinance is necessary for the immediate preservation of the public health, peace and safety in accordance with Article XIV Section 93 of the Charter of the City of Berkeley and must therefore go into effect immediately. This Ordinance shall go into effect immediately upon a seven-ninths vote of the City Council, in satisfaction of the Charter of the City of Berkeley.

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ORDINANCE NO. -N.S.

ORDINANCE AMENDING CHAPTER 13.110 OF THE BERKELEY MUNICIPAL CODE, THE COVID-19 EMERGENCY RESPONSE ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. The Berkeley Municipal Code Chapter 13.110 is amended to read as follows:

Chapter 13.110
COVID-19 EMERGENCY RESPONSE ORDINANCE
Sections:

13.110.010 Findings and Purpose

13.110.020 Prohibited Conduct

13.110.030 Definitions

13.110.040 Collection of Back Rent and Late Fees

13.110.050 Application

13. 110.060 Implementing Regulations

13.110.070 Waiver

13.110.080 Remedies

13.110.090 Severability

13.110.100 Liberal Construction

13.110.010 Findings and Purposes
International, national, state and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named "SARS-CoV-2." And the disease it causes has been named "coronavirus disease 2019," abbreviated COVID-19,

("COVID-19"). In response to this emergency, on March 3, 2020, the City Manager acting as the Director of Emergency Services declared a local State of Emergency based on COVID-19 (hereinafter referred to as "the State of Local Emergency"), which the City Council subsequently ratified on March 10, 2020. On April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, and November 17, 2020, the council ratified an extension of the local state of emergency.

In addition, on March 4, 2020, the Governor declared a state of emergency in California and the President of the United States declared a national state of emergency on March 13, 2020 regarding the novel coronavirus and COVID-19.

On March 16, 2020, the City of Berkeley Public Health Officer, along with several other neighboring jurisdictions issued a Shelter in Place Order directing all individuals living in the City of Berkeley to shelter at their place of residence except that they may leave to provide or receive certain essential services or engage in certain essential activities, and prohibiting non- essential gatherings and ordering cessation of non-essential travel. On March 31, 2020 this Shelter in Place Order was extended to May 3, 2020, and restricted activities further.

COVID-19 have been significant and could threaten to undermine housing security as many

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people are experiencing material income loss as a result of business closures, the loss of hours or wages or layoffs related to COVID-19, hindering their ability to keep up with rents, mortgages and utility bills.

The Order also stated that because homelessness can exacerbate vulnerability to COVID-19, Californians must take measures to preserve and increase housing security for Californians to

protect public health and specifically stated that local jurisdictions may take measures to promote housing security beyond what the state law would otherwise allow.

On April 21, 2020, Alameda County enacted an urgency ordinance prohibiting eviction for any reason other than withdrawal of rental property under the Ellis Act or court-ordered eviction for public safety. Although the Alameda County ordinance does not have effect within the incorporated area of Berkeley, it is desirable to ensure that Berkeley residents have at least the same level of protection as the residents of unincorporated Alameda County.

At the same time, the Governor, as well as, the Berkeley Health Officer, and those of other jurisdictions ordered the closure of businesses, except those deemed essential. Many businesses, such as restaurants, are open only for take-out or pick up services and face a critical loss of business.

Accepting a rent increase while closed or in a reduced state of operations means that the commercial tenants face even more debt to the landlord when the emergency is over, and may face a substantially increased rent when the tenant returns to normal operations, if ever.

the end of the emergency. Thus, these rent increases appear as a way of evading the Governor’s and Berkeley’s commercial tenant eviction moratorium by forcing tenants to agree to rent increases or leave. Such conduct constitutes constructive evictions in contravention of the eviction moratorium. Furthermore, such rent increases may affect businesses providing goods and essential services, resulting in increases in those costs of essential goods and services contravening the intent of anti-price gouging laws.

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revenue to the city, and an increase in homelessness. To reduce the spread of COVID-19, it is essential to avoid unnecessary displacement and homelessness. Because of the emergency restrictions, businesses forced out due to increased rents will be unable to move to new locations and new businesses will be unable to open during this emergency period. During a state of emergency cities have extraordinary powers and jurisdiction to create legislation in order to counteract the effects of the emergency situation on its people and businesses.

Protecting tenants from excessive rent increases will prevent additional loss of employment and essential services for Berkeley residents. In order to effectively implement an eviction moratorium, the City Council finds it imperative to prevent constructive eviction through unreasonable rent increases.

Accordingly, the City of Berkeley adopts the following amendments to Berkeley Municipal Code Chapter 13.110.

13.110.020 Prohibited Conduct
A. During the Covered Period local State of Emergency, no Landlord or Lender other entity shall evict or attempt to evict an Residentoccupant of real property, or otherwise require a Tenant to vacate, unless necessary to stop an imminent threat to for the health and safety of other occupants residents. For purposes of this Ordinance, the basis for an exception to this Ordinance cannot be the Resident’s COVID-19 illness or exposure to COVID-19, whether actual or suspected.

Emergency Services. For purposes of this section, rent means all consideration for the use and enjoyment of the rented premises, including base rent and any additional rent or other charges for costs such as utilities, maintenance, cleaning, trash removal, repairs and any other charges to the tenant required under the rental agreement. This section 13.110.020 C. shall expire on May 31, 2020, concurrent with Executive Order N-28-20; provided, however, that this section shall be automatically extended if Executive Order N-28-20 is extended or the tenant protections therein are extended pursuant to another Governor’s Executive Order.

D. For the duration of the Covered Period local State of Emergency, if a tenant has a Covered reason for delayed payment, the tenant may terminate a lease or rental agreement with 30 days ’notice without penalty. A tenant may also exercise rights under this subsection if the tenants or roommates of the tenants are or were registered at an educational institution that cancelled or limited in-person classes due to the COVID-19 pandemic

13.110.030 Definitions

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A.“Covered Period” means the period of time beginning with March 17, 2020 and concluding upon the expiration of the local emergency. However, the City Council may vote by resolution to extend the duration of the Covered Period.

B.A. "Covered Reason for Delayed Payment" means:
(1) The basis for the eviction is nonpayment of rent, arising out of a material decrease in household, business, or other rental unit occupant(s)’s income (including, but not limited to, a material decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or to caregiving responsibilities, or a material decrease in business income caused by a reduction in opening hours or consumer demand), or material out-of-pocket medical expenses, or, in a group living arrangement wherein all tenants are collectively responsible for payment of the rent to the landlord, a reduction in the number of tenants living in the unit (including due to difficulty finding new tenants and/or subtenants willing and able to cover a sufficient share of rent) which reduces the ability of the remaining tenants to pay the rent, or a rent increase that exceeds the Annual General Adjustment for the current year; and (2) The decrease in household, business, or other rental unit occupant ’s income or the expenses or reduction in number of tenants described in subparagraph (1) was caused by the impacts of COVID-19 pandemic, or by any local, state, or federal government response to COVID-19.

C.B. “Delayed Rent Payment Agreement” means a mutual agreement between a landlord and tenant regarding the timing and amount of payments for rent that is delayed by a Covered Reason for Delayed Payment.

D. “Homeowner” means the owner or owners of a Residential Unit subject to a mortgage or similar loan secured by the residential unit. “Homeowner” is limited to owners who reside in the unit and includes the individuals residing in the unit with the homeowner.

E.C. “Impacted Business or Nonprofit” means a business or nonprofit organization that had a business license in 2019 or 2020 in the City of Berkeley or is a registered nonprofit in either or both of those years and:

1. whose operation has been shut down due to the COVID-19 emergency, or

2. that is unable to accept customers at its location and is open for limited virtual, take-out or pickup services only, or

3. who suffered a material loss of income.

F.D. "Landlord" includes owners, lessors, or sublessors of either residential or commercial rental property, and the agent, representative, or successor of any of the foregoing.

G.“Lender” means the mortgagee of a purchase money or similar mortgage, or the holder or beneficiary of a loan secured by one or more units, which person has the right to mortgage or similar payments from the owner as mortgagor, including a loan servicer, and the agent, representative, or successor of any of the foregoing.

H.“Resident” means a Tenant, Homeowner, or their household.

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I.E. "Tenant" includes a tenant, subtenant, lessee, sublessee, lodger or any other person entitled by written or oral rental agreement to use or occupancy of either residential or commercial property.

13.110.040 Collection of Back Rent and Late Fees
A. Nothing in this Chapter shall relieve the tenant of liability for unpaid rent, which the landlord may seek after expiration of the local State of Emergency. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment. The City will develop standards or guidelines for tenants to repay unpaid rent accrued during the Covered Period course of the local State of Emergency. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.

1.For rent accrued through January 31, 2021, Tenants shall have until March 31, 2022 up to

twelve (12) monthsto pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").

2.For rent accrued beginning February 1, 2021, Tenants shall have until twenty-four (24) months after the conclusion of the Covered Period to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").

3.Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment.

C. A Tenant is not required to provide documentation to the Landlord in advance to qualify for the delayed repayment of rent over the 12 months. However, upon the request of a Landlord, a Tenant shall provide such documentation to the Landlord within forty-five (45) days after the request or within thirty (30) days after the Covered Period, whichever is later. A declaration sworn under penalty of perjury shall constitute documentation for the purpose of this requirement. In the case of nonpayment of rent, the failure of a Tenant to notify the landlord in advance of being delinquent in the payment of rent prior to being served with a notice pursuant to Code of Civil Procedure sections 1161(2) et seq. does not waive the Tenant’s right to claim this Chapter as a complete defense to nonpayment of rent in an unlawful detainer action.

D. Any medical or financial information provided to the landlord shall be held in confidence, and shall not be disclosed to other entities unless such disclosure is permitted or required by the law, or unless the tenant explicitly authorizes the disclosure of the information in writing.

agreement.

13.110.050 Application
A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served, filed, or which expire during the Covered Period on or after the effective date of this Chapter through the end of the local State of Emergency. It does not apply to withdrawal of

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accommodations from the rental market pursuant to Government Code 7060 et seq. (“Ellis Act”) or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.

B. Except where expressly required by state law (such as Assembly Bill 3088 or any subsequent statewide COVID-19 relief legislation) with respect to delayed payment covered by this Ordinance, a landlord may seek rent accrued during the Covered Period as set forth in after the expiration of the local State of Emergency, pursuant to Section 13.110.040, but may not file an action pursuant to Code of Civil Procedure sections 1161(2) et seq. or otherwise seek to recover possession of a rental unit based on the failure to pay rent that accrued due to a Covered Reason for Delayed Payment during the Covered Periodlocal State of Emergency. In any action to evict based on alleged nonpayment of rent, it shall be a complete defense to such action if any part of the rent in dispute accrued at any time during the Covered Period, or if the action otherwise demands any fees or amounts contrary to the provisions of this Chapter. A landlord shall not apply any rent payment towards rent that is delayed by a Covered Reason for Delayed Payment before applying it towards any other Rent owed without the explicit written permission of the Tenant.

C. A Landlord or Lender shall not retaliate against a TenantResident for exercising their rights under this Ordinance, including but not limited to shutting off any utilities, or reducing services or amenities, refusing to make or delaying repairs to which the TenantResident would otherwise be entitled
D. In addition to the affirmative defenses set forth above, in any action to recover possession of a rental unit filed under Berkeley Municipal Code section 13.76.130(A)(1), it shall be a complete defense that the landlord impeded the tenant’s effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party.

13.110.060 Implementing Regulations
The City Manager may promulgate implementing regulations and develop forms to effectuate this Ordinance. This includes the option of requiring Landlords and Lenders to give a notice to TenantsResidents informing them of this Chapter and the right to seek the benefits of this Chapter.

13.110.070 Waiver.

A. By entering into a Delayed Rent Payment Agreement, Tenants do not waive any rights under this Chapter.

B. Any agreement by a Tenant to waive any rights under this ordinance shall be void and contrary to public policy.

13.110.080 Remedies
A.In the event of a violation of this Ordinance, any person or entity aggrieved by the violation may institute a civil proceeding for injunctive relief, and money actual damages as specified below, and whatever other relief the court deems appropriate. Money damages shall only be awarded if the trier of fact finds that the landlord acted in knowing violation of or in reckless disregard of this Ordinance. The prevailing party shall be entitled to reasonable attorney’s fees

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and costs pursuant to order of the court. The remedy available under this section shall be in addition to any other existing remedies which may be available to the tenant under local, state or federal law. In addition, this Ordinance grants a defense to eviction in the event that an unlawful detainer action is commenced in violation of this Ordinance.

4. In addition, this Chapter grants a complete defense to eviction in the event that an eviction notice or unlawful detainer action is commenced, filed, or served in violation of this Chapter.

B.The protections provided by this ordinance shall be available to all , regardless of any agreement wherein a waives or purports to waive their rights under this Ordinance, with any such agreement deemed void as contrary to public policy.

C.A. Violations of Section 13.110.020(C) - (Commercial rent restrictions).

2. The City Attorney may refer those violators of Section 13.110.020(C) to the Alameda County District Attorney for redress as a violation of Business and Professions Code section 17200, et
seq. or, if granted permission by the District Attorney, may bring an action pursuant to Business and Professions Code section 17200, et seq.

D.Nonexclusive Remedies and Penalties. The remedies provided in this subdivision are not exclusive, and nothing in this Chapter shall preclude any person from seeking any other remedies, penalties or procedures provided by law.

13.110.090 Severability.

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phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.

13.110.100Liberal Construction
The provisions of this Chapter shall be liberally construed so as to fully achieve its purpose and provide the greatest possible protections to tenants.

Section 2. Effective Date
This ordinance shall go into effect thirty days from the time of its final passage or on February 1, 2021, whichever is later.

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

CONSENT CALENDAR
Sept. 13, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin
Subject: Resolution in Support of High-Quality, Equitable Healthcare Services at UCSF Children’s Hospital Oakland

RECOMMENDATION
Adopt a Resolution in support of patients, nurses, doctors, caregivers and other employees at UCSF Children’s Hospital Oakland; and send resolution to the UC Board of Regents, UC Office of the President, and UCSF Health.

FINANCIAL IMPLICATIONS
None.

BACKGROUND
Since the 2014 Affiliation Agreement established Children’s Hospital Oakland as a partnering organization and subsidiary of UCSF, patients1 and caregivers2 have been raising alarms3 regarding staff burnout and attrition, loss of critical services, and redirecting East Bay patients from lower-income communities of color to facilities in San Francisco.

According to a 2020 letter from the California Nurses Association, “UCSF took over the leadership and control of Children’s Oakland without financial responsibility for the effects of its decisions,” which resulted in significant losses to “complex cardiovascular surgery, loss of adolescent medicine, loss of behavior and development specialists, loss of pulmonologists, loss of pediatric surgeons, lack of MRI capability, loss of neurooncologists, and loss of sickle cell clinicians and researchers.” In the letter, CNA made the following requests:

1. Restore high quality, tertiary care for all children at Children’s Hospital Oakland. 1 Fernandez, L. & Jarosz, B. (2021). Patients, providers say UCSF affiliation with Children's Hospital means worse care for East Bay families. KTVU. Retrieved from https://www.ktvu.com/news/patients- providers-say-ucsf-affiliation-with-childrens-hospital-means-worse-care-for-east-bay-families 2 Krans, B. (2021). Patients, workers maintain Children’s Hospital still suffers under UCSF. Oaklandside.

Retrieved from https://oaklandside.org/2021/12/03/patients-workers-maintain-childrens-hospital-oakland- still-suffers-under-ucsf/
3 Kassabian, S. (2021). Children’s Hospital Oakland joined UCSF in 2014. Was it a good move? Oaklandside. Retrieved from https://oaklandside.org/2021/02/25/childrens-hospital-oakland-joined-ucsf-7- years-ago-was-it-a-good-move/

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Children’s Hospital CONSENT CALENDAR
Sept. 13, 2022

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2. Create a Board and Executive Leadership structure at Oakland independent of UCSF.

3. Create a health care system committed to rooting out structural racism and correcting the inequities between Oakland and San Francisco.

4. Commit to respecting and retaining nurses, physicians and other health care workers who have dedicated our careers to care for this community.

This resolution reiterates those requests, and supports a similar resolution issued by the Oakland City Council in January 2022.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS

CONTACT PERSON
Councilmember Taplin Council District 2 510-981-5120
Attachments:
1: Resolution

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

RESOLUTION IN SUPPORT OF HIGH-QUALITY, EQUITABLE HEALTHCARE SERVICES AT CHILDREN’S HOSPITAL OAKLAND
WHEREAS, the 2014 Affiliation of Children’s Hospital Oakland and Children’s Hospital Oakland Research Institute with University of California San Francisco (UCSF) was touted as a collaboration of equals—a public-private partnership strengthening both hospitals, with Children’s Hospital Oakland retaining its identity and benefiting from additional financial resources; and
WHEREAS, the 2014 Affiliation of Children’s Hospital Oakland and Children’s Hospital Oakland Research Institute with University of California San Francisco (UCSF) was touted as a collaboration of equals—a public-private partnership strengthening both hospitals, with Children’s Hospital Oakland retaining its identity and benefiting from additional financial resources; and
WHEREAS, the vast majority of Children's Hospital Oakland patients come from Alameda, Contra Costa, Solano, and San Joaquin Counties and the patient population at Children's Hospital Oakland reflects the demographics of the East Bay, including many immigrants and children from families of color; and WHEREAS, costs to patients and families have skyrocketed, with devastating economic impacts often exacerbated by the loss of household income during the recent pandemic; and
WHEREAS, inpatient and surgical volumes at UCSF Oakland have gone down since the affiliation, while UCSF Children’s Hospital in San Francisco has increased significantly; and
WHEREAS, as critical services have been adjusted, many of Children’s Hospital Oakland’s patients have been forced to travel to San Francisco for services that had been provided in Oakland for decades; and
WHEREAS, critical services and health care service providers in Oakland, including complex cardiovascular surgery, adolescent medicine, behavior and development specialists, pulmonologists, pediatric surgeons, MRI capability, neuro-oncologists, have been neglected or cut after UCSF took over the leadership and control of Children’s Hospital Oakland; and
WHEREAS, Children’s Hospital Oakland remains a separate, not-for-profit children’s hospital lacking true representation in the UC system, and with a separate operating budget from UCSF; and

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Children’s Hospital CONSENT CALENDAR
Sept. 13, 2022

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WHEREAS, decreases in Oakland patient volume as well as loss of subspeciality services have decreased revenue for Children’s Oakland, further limiting staff and services; and
WHEREAS, loss of radiologists and other subspecialists such as neurologists and pulmonologists has limited the clinical program’s ability to provide comprehensive care; and
WHEREAS, since the affiliation, nurses, health care technicians, nurse practitioners, and physicians have strived to address these increasing healthcare disparities and costs, and have attempted to engage the UCSF leadership as partners with limited and inadequate success; and
WHEREAS, the lack of success by UCSF management to fill vacant positions has exacerbated short staffing and called into question the remaining staff’s ability to provide high quality care consistent with the Children’s Hospital Oakland’s long-standing reputation as one of the premier children’s hospitals in the country; and WHEREAS, the transfer of financial resources from Children’s Hospital Oakland to UCSF in San Francisco can lead to racial inequity for East Bay families, where people with less access to resources also get more limited access to quality health care.

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley respectfully urges UCSF Health, the UC Office of the President, and the UC Board of Regents to restore comprehensive high quality, tertiary care for all children at Children's Hospital Oakland locations;
BE IT FURTHER RESOLVED that the City Council respectfully urges UCSF Health, the UC Office of the President, and the UC Board of Regents to restore comprehensive high quality, tertiary care for all children at Children's Hospital Oakland locations; BE IT FURTHER RESOLVED that the City Council requests and urges UCSF to create a health care system committed to correcting the inequities between San Francisco and Oakland— as well as the other East Bay and Central Valley communities where the overwhelming majority of Children Hospital’s patient population lives; BE IT FURTHER RESOLVED that the City Council urges UCSF to re-commit to respecting the views of and retaining nurses, doctors, and other health care workers who have dedicated their careers to care to serving children and families in our East Bay community.

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

CONSENT CALENDAR
Sept. 13, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin
Subject: Berkeley Youth Alternatives (BYA) Charity Golf Classic: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds

RECOMMENDATION
Adopt a Resolution approving the expenditure of an amount not to exceed $500 per Councilmember, including $200 from Councilmember Taplin, to support the 4th Annual Charity Golf Classic hosted by Berkeley Youth Alternatives (BYA).

FINANCIAL IMPLICATIONS
No General Fund impact. $200 is available from contributing Councilmember’s Council Office Budget discretionary accounts.

BACKGROUND
Berkeley Youth Alternatives (BYA) is hosting its fifth annual Charity Golf Tournament on September 16, 2022.

For over 40 years, BYA has served the children and families of Berkeley and the surrounding cities in Alameda County and Contra Costa Counties by providing comprehensive services in a supportive and bias-free haven. Founded in 1969 as a runaway youth shelter, BYA has since expanded to provide comprehensive youth and family services. Funds raised by this charity event will help support important services such as mental health counseling, case management, academic support, mentoring, health education, sports and fitness programs, recreation, workforce development and youth internships.

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BYA CONSENT CALENDAR
Sept 13, 2022

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ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

CONTACT PERSON
Councilmember Taplin Council District 2 510-981-7120
Attachments:
1: Resolution

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BYA CONSENT CALENDAR
Sept 13, 2022

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

AUTHORIZING THE EXPENDITURE OF SURPLUS FUNDS FROM THE OFFICE

EXPENSE ACCOUNTS OF THE MAYOR AND COUNCILMEMBERS FOR A GRANT TO

PROVIDE PUBLIC SERVICES FOR A MUNICIPAL PUBLIC PURPOSE
WHEREAS, Councilmember Taplin has surplus funds in his office expenditure account (budget code 011-11-102-100-0000-000-411); and
WHEREAS, a California non-profit tax exempt corporation Berkeley Youth Alternatives seeks funds in the amount of $200 to provide the following public services: BYA 4th Annual Charity Golf Classic; and
WHEREAS, the provision of such services would fulfill the following municipal public purpose: providing youth athletic programming and mentorship; NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that funds relinquished by the Mayor and Councilmembers from their Council Office Budget up to $200 amount per office shall be granted to Berkeley Youth Alternatives to support the BYA Charity Golf Classic.

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

CONSENT CALENDAR
Sept. 13, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin, Councilmember Droste (co-sponsor), Councilmember Wengraf (co-sponsor), Councilmember Kesarwani (co-sponsor) Subject: California Marriage Equality Resolution (Prop 8 Repeal)

RECOMMENDATION
Adopt a Resolution Urging the California Legislature to Place a Measure on the Ballot to Repeal Article I Section 7.5 of the State Constitution, a.k.a. Proposition 8; and send copies to the Offices of the Speaker of the Assembly, Senate President Pro Tempore, and Governor.

FINANCIAL IMPLICATIONS
None.

BACKGROUND
Marriage equality and LGBTQ+ rights are under existential threat in the United States.

When the US Supreme Court voted to remove essential reproductive rights by overturning Roe v. Wade (1973) in Dobbs v. Jackson (2022), Justice Clarence Thomas issued a concurring opinion citing Obergefell v. Hodges (2015), the historic decision providing marriage equality to same-sex couples, as another judicial precedent that he wished to revisit.1
As a nakedly partisan body, the conservative Supreme Court majority is very likely to pursue further action to undermine civil rights. Thus, it is urgent for California to enshrine marriage equality in state law. In order to do so, voters would have to repeal Proposition 8 (2008), which prohibited same-sex marriage. The state legislature has the power to place measures on the ballot without the costly signature-gathering process, and the City of Oakland has already issued a resolution calling for Prop 8 repeal to be placed on the ballot.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

CONTACT PERSON
Councilmember Terry Taplin Council District 2 510-981-7120 1 Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. (2022).

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Prop 8 Resolution CONSENT CALENDAR
Sept. 13, 2022

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Attachments:
1: Resolution

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

RESOLUTION URGING THE CALIFORNIA STATE LEGISLATURE TO DEFEND

MARRIAGE EQUALITY BY PLACING A MEASURE ON THE BALLOT TO REPEAL ARTICLE I SECTION 7.5 OF THE STATE CONSTITUTION, ALSO KNOWN AS PROPOSITION 8
WHEREAS, the path to full marriage equality in the United States has been one of the most affirmative social movements fought by the lesbian, gay, bisexual, Transgender, and Queer (LGBTQ+) community over the past century; and
WHEREAS, according to estimates from the 2019 Current Population Survey Annual Social and Economic Supplement (CPS ASEC), there are 543,000 same-sex married households across the US; and
WHEREAS, in California, Proposition 8 was approved by 52% of the voters on November 4, 2008, adding a new section to the state Constitution that “Only marriage between a man and a woman is valid or recognized in California.”; and WHEREAS, when Proposition 8 passed in 2008, the State of California reported an increase in depression, anxiety, and suicide in the LGBTQ+ community and in children with LGBTQ+ parents; and
WHEREAS, following the Dobbs v. Jackson (2022) decision overturning abortion rights that had been guaranteed by Roe v. Wade (1973), US Supreme Court Justice Clarence Thomas issued a concurring opinion suggesting further legal challenges to same-sex marriage rights; and
WHEREAS, LGBTQ+ rights are increasingly under threat in the United States and the world at large.

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley hereby urges California State Legislature to defend marriage equality by placing a measure to repeal Article I Section 7.5 of the state Constitution, also known as Proposition 8, onto the ballot.

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7170 ● TDD: (510) 981-6903 E-Mail: [email protected]

CONSENT CALENDAR
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Rigel Robinson (Author), Councilmember Terry Taplin (Co-Sponsor), Mayor Jesse Arreguín (Co-Sponsor), and Councilmember Kate Harrison (Co-Sponsor)
Subject: Referral: Keep Innovation in Berkeley

RECOMMENDATION
Refer to the City Manager and the Planning Commission to consider and return to Council with Zoning Ordinance amendments, codified performance standards, and other actions to encourage the growth and retention of Research & Development (R&D) in Berkeley. Staff and the Commission should explore:

1. Naming R&D as an allowed land use in the commercial districts of Telegraph (C- T and C-C), West Berkeley (C-W), University (C-U), and Downtown Berkeley (C- DMU) with a Zoning Certificate, subject to performance standards. a. Performance standards should regulate and mitigate potential impacts on quality of life, public health, and environmental health, such as noise, odors, fumes, vibrations, dust, light pollution, hours of operation, and disposal and storage protocols for flammable, combustible, chemical, and hazardous substances.

2. Updating the “District Purpose” sections of the MM and MU-LI districts to specifically embrace R&D. Consider doing the same for other districts where R&D is allowed, if deemed appropriate.

3. Amending R&D parking requirements in M-prefixed districts to align with Laboratory parking requirements and in C-prefixed districts, excluding C-T, to align with Manufacturing parking requirements.

4. Reviewing Berkeley Municipal Code 23.206.080 to ensure that language regulating Biosafety Level (BSL) Classes 1-4 is clear and consistent with regulations in neighboring jurisdictions and other cities that support a broad range of R&D. Consider repealing the section or amending it to permit BSL-2 in all districts where research and development facilities or laboratories are permitted.

5. Returning to Council with additional recommendations, if any, that would serve to encourage R&D in Berkeley, as determined by staff or that present themselves through the Planning Commission process.

POLICY COMMITTEE RECOMMENDATION

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Referral: Keep Innovation in Berkeley CONSENT CALENDAR September 13, 2022

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On July 19, 2022, the Land Use, Housing, & Economic Development Policy Committee adopted the following action: M/S/C (Robinson/Bartlett) to approve the item with a positive recommendation. Vote: All Ayes.

BACKGROUND
The City of Berkeley has over 400 “innovation sector” businesses in tech, biotech, R&D, and other STEM industries. The 2021 Berkeley Economic Dashboard (published in Q1 2022) reported robust growth opportunities in this sector, with 10 Berkeley-based companies receiving a total of nearly $9 million in federal and state grants for R&D.1 35% of Berkeley’s innovation companies develop software, 31% develop biotechnology and healthcare technologies, and 13% develop clean technologies to support environmental sustainability and address climate change. Nearly 87% of these innovation companies are relatively early stage and take advantage of the city’s coworking spaces, accelerators, and incubators.

It is critical for the City to continue efforts to encourage the growth of R&D in Berkeley.

In addition to providing jobs and fueling economic development locally, innovation companies make a global impact across sectors, including in the healthcare field and the fight against climate change. Berkeley benefits from the presence of the University of California, Berkeley and the Lawrence Berkeley National Laboratory (LBNL), whose affiliates go on to found startups supported by the Berkeley Startup Cluster and accelerators or incubators like Berkeley SkyDeck or Bakar Labs.2 There is a clear demand for R&D space from companies who have grown out of UC Berkeley and are seeking to build their enterprise in Berkeley, close to the talent, facilities, and entrepreneur support programs on campus. If the City’s zoning regulations do not provide sufficient opportunities for emerging growth companies, they have no choice but to leave Berkeley and settle in nearby cities that accommodate them with open arms, such as Oakland, Emeryville, San Leandro, and Alameda.

On March 22, 2022, Council adopted the first reading of a Zoning Ordinance amendment that modified the land use definition of Research and Development (R&D) in Berkeley Municipal Code 23.502.020.R.8.3 This amendment came to Council as a referral response to a March 20, 2020 referral from Mayor Arreguín and Councilmember Wengraf.

The original definition read:

Research and Development. An establishment comprised of laboratory or other non-office space, which is engaged in one or more of the following activities:
1 https://berkeleyca.gov/sites/default/files/2022-04/2022-03- 22%20Item%2038%20Economic%20Dashboards%20Update.pdf
2 https://berkeleystartupcluster.com/
3 https://berkeleyca.gov/sites/default/files/city-council-meetings/2022-03- 22%20Agenda%20Packet%20-%20Council%20-%20WEB.pdf

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industrial, biological or scientific research; product design; development and testing; and limited manufacturing necessary for the production of prototypes.

The updated definition reads:

Research and Development: An establishment engaged in the following activities: 1) industrial, biological or scientific research; and/or 2) product or process design, development, prototyping, or testing. This may include labs, offices, warehousing, and light manufacturing functions as part of the overall Research and Development use.

The March 2020 referral observed that the R&D definition in the BMC did not adequately reflect present-day R&D business activities. For example, the definition prohibited R&D establishments from including office space and required the inclusion of a laboratory. The referral requested that the new definition reflect evolving business practices and provide flexibility for R&D establishments to occupy spaces that meet their operating needs. Modifying the R&D definition supported the City’s Strategic Plan goal of fostering a dynamic, sustainable, and locally-based economy.

Through that process, additional issues have come to light that have the effect of inhibiting innovation in Berkeley, which this referral aims to address.

Recommendation #1: Naming R&D as an allowed land use in the commercial districts of Telegraph (C-T and C-C), West Berkeley (C-W), University (C-U), and Downtown Berkeley (C-DMU) with a Zoning Certificate, subject to performance standards.

BMC 23.204.020.A Table 23.204-14 and 23.206.020.A Table 23.206-15 lay out allowed land uses for each commercial and manufacturing district, respectively. Currently, R&D is permitted in three districts across the city: C-W (with an Administrative Use Permit) and MM and MU-LI (with a Zoning Certificate if under 20,000 sq. ft. and an AUP if over 20,000 sq. ft.).

Notably, the commercial districts in Southside (C-T), the southern portion of Telegraph (C-C), and the Downtown (C-DMU) do not currently allow R&D. R&D spaces close to campus would be extremely valuable to students, alumni, and others affiliated with UC Berkeley and LBNL. By allowing R&D in these districts, the City would make it easier to keep the innovation and talent that flows from the university in Berkeley. Furthermore, permitting R&D in the University Avenue commercial corridor (C-U) would play an important role in connecting West Berkeley and UC Berkeley, the City’s two primary hubs of innovation.
4 https://berkeley.municipal.codes/BMC/23.204.020
5 https://berkeley.municipal.codes/BMC/23.206.020

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Startups have expressed that the City’s permitting process remains a challenge, particularly if the Zoning Ordinance requires an AUP. This process can take months or even years, which is problematic for R&D companies whose runway for finding a suitable space to develop proof of concept is limited by the funding they have available from early-stage investors. The timelines associated with an AUP provide founders no concrete assurance and can jeopardize operations during the most critical time for startups.

However, noise disruption and biohazard safety are of particular concern when permitting new uses in commercial districts due to their mixed-use residential buildings and proximity to residential districts. It is important that staff and the Planning Commission consider strategies for mitigating any impacts of R&D in C-prefixed districts, including the use of performance standards. Performance standards, which lay out metrics and regulations that the applicant must agree to before being issued a Zoning Certificate, are an important tool to ensure conformance to the neighborhood without imposing lengthy permit approval timelines.

One example that the City of Berkeley can look towards is the City of Fremont. Fremont utilizes performance standards in their industrial districts, which house R&D activities, to ensure that “adjoining properties, persons and the community as well as the region are provided protection against adverse conditions which may be created by the various uses operating within the industrial zoning districts.” The performance standards regulate noise, vibration, glare or heat, fire hazards, liquid or solid wastes, fissionable or radioactive material, and aesthetics.6 See Attachment 1.

The City of San Diego serves as a case study of how R&D can co-exist with commercial and residential uses. In 2019, the San Diego City Council approved the creation of two new mixed-use zones, RMX (Residential Mixed-Use) and EMX (Employment Mixed- Use).7 The stated purpose of the zones was to “provide housing and jobs near commercial centers and corridors to reduce dependency on the automobile, promote access to transit and multi-model transportation systems, and to provide for a walkable, pedestrian-oriented setting, including infill of existing development.” In both RMX and EMX zones, R&D is permitted by-right alongside multi-family residential development, retail, and most commercial services. San Diego also permits R&D in several of its commercial zones.8
Recommendation #2: Updating the “District Purpose” sections of the MM and MU-LI districts to specifically embrace R&D. Consider doing the same for other districts where R&D is allowed, if deemed appropriate.
6 https://www.codepublishing.com/CA/Fremont/#!/html/Fremont18/Fremont1850.html (18.50.040 Performance Standards)
7 https://docs.sandiego.gov/municode/MuniCodeChapter13/Ch13Art01Division07.pdf 8 https://docs.sandiego.gov/municode/MuniCodeChapter13/Ch13Art01Division05.pdf

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The “District Purpose” sections of the Zoning Ordinance determine the purpose of each zoning district, detailing what uses are allowed, welcomed, and explicitly stated to further the City’s goals. R&D applicants need to feel confident that they will have a place in the district if they choose to locate there. In MM and MU-LI, where R&D is currently permitted, the Purpose sections do not mention R&D despite calling out the importance and belonging of similar industries, including manufacturing, industrial use, and laboratories.

Staff and the Commission should consider amending BMC 23.206.070.A and

23.206.080.A with the following language:

23.206.070 MM Mixed Manufacturing District.

A. District Purpose. The purpose of the Mixed Manufacturing (MM) district is to:

1. Implement the West Berkeley Plan MM designation;

2. Encourage development of a general manufacturing district for the full range of manufacturers, including larger scale materials processing manufacturers sometimes known as heavy manufacturers;

3. Encourage development of a manufacturing district targeted to manufacturing and industrial uses including research and development, so that manufacturers and industrial businesses will not be interfered with by incompatible uses;

4. Encourage the creation and continuation of well paid (often unionized) jobs for men and women without advanced degrees;

5. Provide an appropriate location for the development of compatible industries which can provide high quality employment for people at all educational levels, and add significantly to the tax base, such as the biotechnology industry and other research and development uses;

6. Allow reuse of upper story industrial space as offices to facilitate use of upper story space;

7. Maintain and improve the quality of the West Berkeley environment, while allowing the lawful and reasonable operation of the full range of manufacturers; and

8. Support the development of industrial businesses which contribute to the maintenance and improvement of the environment.

23.206.080 MU-LI Mixed Use-Light Industrial District.

A. District Purpose. The purpose of the Mixed Use-Light Industrial (MU-LI) district is to:

1. Implement the West Berkeley Plan Light Manufacturing District designation;

2. Encourage development of a mixed use-light industrial area for a range of compatible uses;

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3. Encourage development of an area where light manufacturers can operate free from the economic, physical and social constraints caused by incompatible uses;

4. Encourage the creation and continuation of well-paid jobs which do not require advanced degrees;

5. Provide for the continued availability of manufacturing and industrial buildings for manufacturing uses, especially of larger spaces needed by medium sized and larger light manufacturers;

6. Provide opportunities for office development when it will not unduly interfere with light manufacturing uses and/or the light manufacturing building stock;

7. Provide the opportunity for laboratory development the development of research and development facilities in appropriate locations;

8. Support the development of businesses which contribute to the maintenance and improvement of the environment;

9. Allow on-site ancillary retail as a tool to maintain and enhance the economic viability of manufacturers in the district; and

10. Maintain and improve the quality of the West Berkeley environment, while allowing the lawful and reasonable operation of light industrial uses.

Recommendation #3: Amending R&D parking requirements in M-prefixed districts to align with Laboratory parking requirements and in C-prefixed districts, excluding C-T, to align with Manufacturing parking requirements.

BMC 23.322.030 details the minimum off-street parking spaces required for each use.

Currently, in M-prefixed districts, R&D is not explicitly named in Table 23.322-4, meaning that it is parked under “All non-residential uses except uses listed below” at 2 spaces per 1,000 sq. ft. In contrast, laboratories are parked as 1 space per 650 sq. ft., despite R&D spaces typically accommodating a similar number of people per square foot as laboratories. This disadvantages R&D by requiring them to provide more parking than their laboratory counterparts, which is expensive and creates incentives for employees to drive to work that run counter to the City’s Climate Action Plan goals. For the purposes of consistency, R&D parking requirements should be amended to align with Laboratory parking requirements.

In C-T, off-street parking is not required, so no amendments are needed. In C-prefixed districts excluding C-T, R&D is also not listed in Table 23.322-2. It may be unclear to applicants whether R&D falls under Manufacturing (which requires 1.5 spaces per 1,000 sq. ft. in C-DMU, 1 per 1,000 sq. ft. in C-W, and 2 per 1,000 sq. ft. in all other C-prefixed districts), or under “All non-residential uses except uses listed below,” (which requires

1.5 spaces per 1,000 sq. ft. in C-DMU and 2 per 1,000 in all other C-prefixed districts).

This can create confusion for R&D companies looking to locate in C-W. Adding an R&D section here to align parking requirements with Manufacturing would improve clarity and consistency.

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In addition to considering the following changes to BMC 23.322.030 Table 23.322-2 and Table 23.322-4, staff and the Commission may take up the R&D parking discussion in concert with other Council referrals that address off-street parking, such as Councilmember Taplin’s “Parking Minima for Mixed-Use Projects and Manufacturing Districts” item referred on June 28, 2022.

Table 23.322-2. REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL

DISTRICTS (EXCLUDING C-T)
Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling Unit See Chapter 23.306
Dwellings, including Group
Living Accommodations
If located on a roadway less than 26 feet in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Hotel, Residential None required
Mixed-Use Residential
(residential use only)
None required
Senior Congregate Housing None required
Non-Residential Uses
All non-residential uses except
uses listed below
C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Hospital 1 per each 4 beds plus 1 per each 3 employees
Library C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 1 per 500 sq. ft. of publicly accessible floor area
Nursing Home 1 per 3 employees
Medical Practitioners C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 1 per 300 sq. ft.

Hotels, Tourist C-DMU District: 1 per 3 guest/sleeping rooms or suites C-C, C-U, C-W Districts: 1 per 3 guest/sleeping rooms or suites plus 1 per 3 employees
All Other Commercial Districts: 2 per 1,000 sq. ft.

Motels, Tourist C-DMU District: 1 per 3 guest/sleeping rooms or suites

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C-C, C-U, C-W Districts: 1 per guest/sleeping room plus 1 for owner or manager [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.

Large Vehicle Sales and
Rental
C-DMU District: 1.5 per 1,000 sq. ft.

C-SA District: 1 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Small Vehicle Sales and
Service
C-DMU District: 1.5 per 1,000 sq. ft.

C-SA District: 1 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Manufacturing C-DMU District: 1.5 per 1,000 sq. ft.

C-W District: 1 per 1,000 sq. ft [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.

Research and Development C-DMU District: 1.5 per 1,000 sq. ft.

C-W District: 1 per 1,000 sq. ft [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.

Wholesale Trade C-DMU District: 1.5 per 1,000 sq. ft.

C-W District: 1 per 1,000 sq. ft
All Other Commercial Districts: 2 per 1,000 sq. ft.

Live/Work If workers/clients are permitted in work area, 1 per first 1,000 sq. ft. of work area and 1 per each additional 750 sq. ft. of work area

Notes:
[1] Spaces must be on the same lot as building it serves.

Table 23.322-4. REQUIRED OFF-STREET PARKING IN MANUFACTURING DISTRICTS

Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling Unit See Chapter 23.306
Dwellings None required
Group Living
Accommodation
None required
Non-Residential Uses

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All non-residential uses
except uses listed below
2 per 1,000 sq. ft.

Art/Craft Studio 1 per 1,000 sq. ft.

Community Care Facility 1 per 2 non-resident employees
Food Service Establishment 1 per 300 sq. ft.

Library 1 per 500 sq. ft. of publicly accessible floor area Laboratories 1 per 650 sq. ft.

Research and Development 1 per 650 sq. ft.

Nursing Home 1 per 5 residents, plus 1 per 3 employees
Medical Practitioners One per 300 sq. ft.

Large Vehicle Sales and
Rental
MU-LI District: 1.5 per 1,000 sq. ft.

All Other Districts: 1 per 1,000 sq. ft. of display floor area plus 1 per 500 sq. ft. of other floor area; 2 per service bay
Manufacturing MU-R District: 1.5 per 1,000 sq. ft.

All Other Districts: 1 per 1,000 sq. ft. for spaces less than 10,000 sq. ft.; 1 per 1,500 sq. ft. for spaces 10,000 sq. ft. or more
Storage, warehousing, and
wholesale trade
1 per 1,000 sq. ft. for spaces of less than 10,000 sq. ft.; 1 per 1,500 sq. ft. for spaces 10,000 sq. ft. or more
Live/Work MU-LI District: 1 per 1,000 sq. ft. of work area where workers/clients are permitted
MU-R District: if workers/clients are permitted in work area, 1 per first 1,000 sq. ft. of work area and 1 per each additional 750 sq. ft. of work area
Notes:
[1] For multiple dwellings where the occupancy will be exclusively for persons over the age of 62, the number of required off-street parking spaces may be reduced to 25% of what would otherwise be required for multiple-family dwelling use, subject to obtaining a Use Permit.

Recommendation #4: Reviewing Berkeley Municipal Code 23.206.080 to ensure that language related to Biosafety Level (BSL) Classes 1-4 is clear and consistent with requirements in neighboring jurisdictions and other cities that support a broad range of

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R&D. Consider repealing the section or amending it to permit BSL-2 in all districts where research and development facilities or laboratories are permitted.

BSL lab levels, ranging from BSL-1 to BSL-4, are set by the Centers for Disease Control and Prevention to protect laboratory personnel and the surrounding community. The primary risks that determine levels of containment are infectivity, severity of disease, transmissibility, and the nature of the work conducted.9 Chart of Biosafety Levels10
Another way of classifying biological agents and organisms is using Risk Groups 1-4.

While these two classification methods often align (e.g. BSL-2 equals Risk Group 2), they do not always. Biosafety Levels prescribe the work practices, engineering controls, personal protective equipment, and facility requirements required for working with biological agents. The Risk Group classification is only one factor to consider when determining the appropriate Biosafety Level for a particular agent. Other factors to 9 https://www.cdc.gov/training/quicklearns/biosafety/
10 https://consteril.com/biosafety-levels-difference/

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consider include the mode of transmission, pathogenicity, manipulations that will be conducted, volume, experience of staff, and more.11
BMC 23.206.080.B.512 reads:

Commercial Physical or Biological Laboratories. Commercial physical or biological laboratories using Class 3 organisms are not permitted in the MU-LI district. Use of Class 2 organisms are permitted only in locations at least 500 feet from a Residential District or a MU-R district.

This section is the only place in the BMC where organism classes, presumably referring to BSL, are mentioned other than in the defined terms. The BMC is silent on BSL regulations in districts other than MU-LI, or for non-laboratory uses such as research and development.

A preliminary review finds that the City of Berkeley is more restrictive than other Bay Area cities in our regulation of Biosafety Levels. For example, the Cities of Emeryville, 11 https://www.safetypartnersinc.com/are-biosafety-levels-and-risk-groups-the- same/#:~:text=Biosafety%20levels%20prescribe%20the%20work,level%20for%20a%20particular%20age nt.
12 https://berkeley.municipal.codes/BMC/23.206.080

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San Jose, Mountain View, Alameda, San Leandro, South San Francisco, and San Mateo do not reference BSLs or Risk Groups in their zoning ordinances. The Cities of Fremont, Oakland, Palo Alto, and San Francisco permit BSL-1, BSL-2, and BSL-3 (or the Risk Group equivalents) in varying degrees. See Attachment 2.

Moreover, laboratories that work with Risk Group 1-3 agents are already allowed on the UC Berkeley campus. Most campus experiments use agents classified as Risk Group 1 or 2, although work with Risk Group 3 is permitted with a biological use authorization (BUA) application approved by UC Berkeley’s Committee for Laboratory and Environmental Biosafety.13
Staff and the Commission should conduct further research into nearby jurisdictions, including Oakland, San Francisco, South San Francisco, Emeryville, Alameda, San Leandro, and Fremont, as well as other cities across the country that support a broad range of R&D, such as Cambridge, MA. This research should provide insight into best practices for BSL zoning regulations that keep the surrounding neighborhood safe while allowing biological research facilities where they make sense, with federally-required protocols and locally-required performance standards or other conditions in place.

Staff and the Commission should return to Council with amendments to this BMC section and other relevant sections that provide clarity for potential applicants, ensure that Biosafety Levels are clearly stated and defined in accordance with the most recent CDC guidelines, and bring the City of Berkeley in alignment with other jurisdictions.

Recommendation #5: Returning to Council with additional recommendations, if any, that would serve to encourage R&D in Berkeley, as determined by staff or that present themselves through the Planning Commission process.

The City Manager and/or Planning Commission may choose to return to Council with additional recommendations that would serve to encourage R&D in Berkeley, in addition to the ones suggested in this item.

FINANCIAL IMPLICATIONS
Staff time.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable negative environmental impacts associated with this action.

CONTACT PERSON
Councilmember Rigel Robinson, (510) 981-7170
Angie Chen, Legislative Assistant
13 https://ehs.berkeley.edu/sites/default/files/biosafetymanual.pdf

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Attachments:
1: City of Fremont performance standards
2: BSL regulations in neighboring jurisdictions

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Attachments
Not Received

These attachments have not been received from the
submitting office.

City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900

The City of Berkeley, City Council’s Web site:
http://www.cityofberkeley.info/citycouncil/

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7170 ● TDD: (510) 981-6903 E-Mail: [email protected]

CONSENT CALENDAR
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Rigel Robinson (Author) and Councilmember Ben Bartlett (Author)
Subject: Relinquishment of Council Office Budget Funds to the General Fund and Grant of Such Funds for the Center for Independent Living’s 50th Anniversary

RECOMMENDATION
Adopt a Resolution approving the expenditure of an amount not to exceed $500 per Councilmember, including $500 each from Councilmember Robinson and Councilmember Bartlett, to the Center for Independent Living to fund a Berkeley mural project, street festival, CIL open house, three-day conference on independent living, and other activities for their 50th Anniversary.

BACKGROUND
In 1972, The Center for Independent Living was established in Berkeley, California as the first independent living center in the United States, founded in order to support people with disabilities in living independent and dignified lives. The Center for Independent Living engaged in grassroots advocacy that resulted in the passage of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, in addition to some of the first curb cuts in the nation that were installed here in Berkeley.

Their work became the catalyst of the emerging Independent Living Movement, based on the principle that people with disabilities are entitled to the same civil rights, options, and autonomy over their lives as people without disabilities. The movement grew to over 400 independent living centers in the United States and more in 20 countries across the globe.

From October 19-23, 2022, The Center for Independent Living will hold a week of events to honor their 50th Anniversary, celebrate with the community, and raise funds to continue to advocate for and provide services to support independent living for people with diverse disabilities. The Center for Independent Living is requesting funds from the City of Berkeley to assist with paying for their 50th Anniversary events.

FINANCIAL IMPLICATIONS
No General Fund impact; $500 each is available from Councilmember Robinson’s and Councilmember Bartlett’s discretionary accounts.

ENVIRONMENTAL SUSTAINABILITY

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No impact.

CONTACT PERSON
Councilmember Rigel Robinson (510) 981-7170
Councilmember Ben Bartlett (510) 981-7130
Attachments:
1: Resolution

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

AUTHORIZING THE EXPENDITURE OF SURPLUS FUNDS FROM THE OFFICE

EXPENSE ACCOUNTS OF THE MAYOR AND COUNCILMEMBERS FOR A GRANT

TO PROVIDE PUBLIC SERVICES FOR A MUNICIPAL PUBLIC PURPOSE WHEREAS, Councilmember Ben Bartlett and Councilmember Rigel Robinson have surplus funds in their office expenditure accounts; and WHEREAS, a California non-profit tax exempt corporation, The Center for Independent Living, Inc., seeks funds in the amount of $500 to fund a Berkeley mural project, street festival, CIL open house, three-day conference on independent living, and other activities for their 50th Anniversary; and
WHEREAS, the provision of such services would fulfill the municipal public purpose of supporting and celebrating a treasured disability rights advocacy group that catalyzed the Independent Living Movement and continues to support people with disabilities in the City of Berkeley today.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the $500 relinquished by Councilmembers Robinson and Bartlett from each of their Council Office Budgets and any other Councilmember who wishes to contribute shall be granted to the Center for Independent Living to fund their 50th Anniversary activities.

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Kate Harrison
Councilmember District 4
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7140 TDD: 510.981.6903 E-Mail: [email protected]

REVISED AGENDA MATERIAL
for Supplemental Packet 1
Meeting Date: July 26, 2022
Item Number: 29
Item Description: Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers
Submitted by: Vice Mayor Harrison

RECOMMENDATION
Adopt the updated BPD Policy 1302, the legally enforceable Surveillance Use Policy for Automated License Plate Readers (ALPR) pursuant to BMC 2.99.

BACKGROUND
The proposed Policy 1302 represents near complete agreement between BPD, the City Manager’s Office, and Vice Mayor Harrison’s Office.

Council originally financed and authorized ALPR technology to help automate BPD’s parking and scofflaw enforcement, but through BPD policy development, usage expanded to criminal enforcement. To date, due to the pandemic and policy concerns regarding data retention, sharing, and civil liberties protections, Council deferred adoption of a Surveillance Use Policy pursuant to BMC Sections 2.99.020 and 2.99.050 of the Surveillance Ordinance for ALPR.

BPD Administrative Order #001-2016, prepared in 2016 before adoption of the Surveillance Ordinance, has served as a de facto ALPR policy, yet Administrative Order #001-2016 is out of date with local and state law and does not satisfy the specific requirements of the Surveillance Ordinance. Most recently, adoption of a proposed update to the use policy for ALPRs (Policy 1302) was deferred by Council in 2020 and 2021. In November 2021, Councilmembers Harrison and Hahn, and separately Councilmember Taplin, submitted proposed revisions. Council referred the matter to the Agenda Committee for future scheduling to allow for further policy development.

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Since the referral to the Agenda Committee, Vice Mayor Harrison and Councilmember Hahn have been working diligently with BPD, the City Manager, City Attorney, the Information Technology and Public Works Departments, and City Contractors to craft a sensible policy that (1) fully addresses the requirements of the Surveillance Ordinance, (2) clarifies the purpose and scope of collection, (3) enacts various safeguards to protect sensitive data, and (4) provides clarity on the circumstances when parking enforcement and analysis ALPRs and associated data can be used to support criminal investigations.

Use Policy Updates Overview:

Definitions

• Provides key new definitions related to the City’s ALPR equipment, vendors, and data types. Also provides definitions for Parking Enforcement Operations and Parking Analysis as part of the goBerkeley system.

• Enumerates the specific authorized uses of ALPR technology associated with Parking Enforcement and Parking Analysis.

Authorized and Prohibited Uses

• Allows BPD to query ALPR data retroactively to support a specific BPD criminal investigation when an officer has a good faith belief that an emergency involving the danger of, or imminent threat of death or serious physical injury to any person requires such a query or use, and the officer reasonably believes there is a nexus between a vehicle and the alleged crime scene. Approval to query the data must be granted by the Chief of Police and City Manager. The City Manager shall log any queries or use of such information pursuant to this subsection in its Annual Surveillance Technology Report pursuant to BMC 2.99.

• Provides that officers may investigate hits based on reasonable suspicion resulting from apparent matches, discovered in the regular course of work of Parking Enforcement Operations, between the Genetec ALPR System and the following databases: Stolen Vehicles System, Amber, Silver, and Blue Alerts, local missing persons, scoff law violator, gig car, general permit, or other non-criminal local lists.

• Explicitly prohibits ALPR use that invades privacy and during crowd control.

• Limits the use of ALPR in conjunction with lists or databases to the: Stolen Vehicles System, Amber, Silver and Blue Alerts, local missing persons, scoff law violator, gig car, general permit, or other non-criminal local lists.

Data Collection and Retention

• ALPR Reads Not Resulting in ALPR Hits - All ALPR Read Images and ALPR Read Metadata transmitted to and stored in the Genetec ALPR System shall be purged within fourteen (14) days to allow for the City's enforcement of its

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72- Hour Rule (BMC Section 14.36.050).

ALPR Read Metadata in the form of license plate data or other non-PII data may be transmitted to and stored in the Passport Automatic Data Collection System for Parking Analysis purposes and retained pursuant to applicable retention policies.

• ALPR Hits - All ALPR Hits and related metadata resulting from ALPR Reads should be uploaded daily to the Genetec server and shall be purged from Genetec within fourteen (14) days to allow for the City's enforcement of its 72- Hour Rule (BMC Section 14.36.050).

• Unenforced ALPR Hits - All erroneous and unenforced ALPR Hit data shall be purged locally at least nightly.

• Enforced ALPR Hits - Only ALPR Read Images and Metadata associated with Enforced ALPR Hits shall be downloaded to the Passport Parking Management System servers, with a maximum retention period of one (1) year in Passport and in accordance with the established records retention schedule.

Third Party Data Sharing

• The ALPR data may be shared only with other law enforcement or prosecutorial agencies as pursuant to a valid court order, subpoena, or a search warrant, Cal. Civ. Code §1798.90.5(f), and as limited by this Policy, and shall not be shared with federal immigration enforcement officials consistent with this policy and other applicable City policy.

• Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided by this policy and the Records Maintenance and Release Policy.

• Aggregated ALPR data not related to specific criminal or civil investigations authorized by a court order, subpoena, or search warrant shall not be released to any local, or state agency or entity without the express written consent of the City Manager and only in accordance with this Use Policy.

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Surveillance Use Policy - ALPR- Automated
License Plate Reader
1302.1 PURPOSE
This Surveillance Use Policy is issued in compliance with BMC 2.99, and incorporates by reference language from the Berkeley Police Department ALPR Policy #422 and adds elements as required bylegally-enforceable pursuant to BMC 2.99.

The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images for Parking Enforcement Operations, Parking Analysis, and limited criminal enforcement purposes associated with Parking Enforcement Operations while recognizing the established privacy rights of the public.

1302.2 DEFINITIONS
"Alleged Parking Violation" means an alleged violation of time limits in parking areas designated by state and local law, or a violation of time limits and/or non-permit parking in the City's RPP zones.
"ALPR Read Image" means images of license plates, vehicles, wheels or any other incidentally captured image.
"ALPR Read" means computer-readable data captured by an ALPR Reader, including ALPR Read Image and associated ALPR Read Metadata. ALPR Reads are transient means to create potential government records, to include Parking Analysis data and Enforced Citations. "ALPR Hit" means an Alleged Parking Violation or Stolen Vehicle System alert resulting from computer generated analysis of ALPR Reads by the Genetec ALPR System resulting in an apparent:

1. match between an ALPR Read and ALPR Read Metadat a stored in the Genetec ALPR System, to include the Stolen Vehicle System; or

2. cross checking between ALPR Read and permit information which is stored on the Genetec ALPR System.
"ALPR Read Metadata" means any image-based or other metadata, including but not limited to, global positioning system coordinates, block face information, tire position information, digitized license plates in alphanumeric characters, and timestamps. "Automated License Plate Reader" or "ALPR" means one or more Genetec AutoVu mobile cameras affixed to Parking Enforcement Vehicles and combined with computer software and algorithms to read and convert images of license plates, the characters they contain, and associated ALPR Read Metadata related to Parking Enforcement Operations or Parking Analysis into computer-readable data.
"Deploy" or "Deployment” means any operation or use of ALPR Readers affixed to Parking Enforcement Vehicles.
"Enforced ALPR Hit" means an Alleged Parking Violation confirmed by a Parking Enforcement Policy Policy
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Officer that results in the transmission of associated ALPR Read Image and ALPR Read Metadata to the Passport Parking Management System for storage in a database as a government record for the purpose of citation processing.
"Genetec ALPR System" means the computerized Genetec server and database that stores all ALPR Reads, metadata and hits, and also pushes an Enforced ALPR Hit metadata to the Passport Parking Management System.
"Residential Parking Permits" or "RPP" means an annual, visitor, merchant or in-home care parking permit, typically represented by a vehicle's license plate, and associated with the City's Residential Parking Permit program across designated zones. "Parking Enforcement Vehicle" means the GO-4 three-wheeled parking enforcement vehicle. "Parking Enforcement Officers" means employees of the City who work weekly rotations on Parking Enforcement Operations beats throughout the City and are properly trained to operate ALPRs and access the Genetec ALPR System.
"Parking Enforcement Operations" means Parking Enforcement Officer enforcement of parking regulations associated with local ordinances, the California Vehicle Code, and Stolen Vehicle System enforcement through Parking Enforcement Vehicle-based automated (ALPR) and non- automated means.
"Personally Identifiable Information" or "PII" means information:

1. that directly identifies an individual (e.g., name, address, telephone number, email address, etc.) or

2. by which the City or other agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification. "Parking Analysis" means ongoing computational or algorithmic analyses performed by the City of Berkeley on ALPR Read Metadata regarding the occupancy of total parking spaces across commercial districts as part of goBerkeley, the City's data-driven, demand-responsive parking management program. ALPR Read Metadata data associated with Parking Analysis may include non-randomized license plates, to be maintained by Public Works for Parking Analysis. "Parking Permit Application" means an application submitted to the City for RPP or other permit that may include but is not limited to PII such as names, address, photo identification, vehicle registration (license plate and vehicle identification number), phone number and email address. "Passport Automatic Data Collection System" means the server and database whereby the Passport Parking Management System vendor, on behalf of the City, downloads, stores and transfers Parking Analysis ALPR Read Metadata stripped of any and all PII before being transferred to the goBerkeley program.
"Passport Parking Management System" means the servers and databases maintained by Passport Labs Incorporated, containing the database of the license plate numbers and other PII associated with Parking Permit Applications and Residential Parking Permits, and including historic parking citation data, to include Enforced Hits. "OPSMan Mobile" means a mobile device providing handheld ticket issuance and ALPR data reference capabilities.
"Stolen Vehicle System" or "SVS" means information from the California Law Enforcement Telecommunications System's (CLETS) Department of Justice (DOJ) Stolen Vehicle System (SVS) database providing data regarding wanted and stolen vehicles.

1302.3 AUTHORIZED AND PROHIBITED USES
Use of an ALPR is restricted to the purposes outlined below.

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All data and images gathered by the ALPR are for the official use of by the Berkeley Police Department (BPD) for Parking Enforcement Operations and may be retroactively queried in limited circumstances only as specified by this department. Because such data may containpolicy and/or federal, state, local law.

ALPR data may be used by the Finance, Information Technology (IT), Customer Service, and Public Works Departments only as specified in this policy, and consistent with Parking Enforcement Operations and Parking Analysis. Data that is considered confidential information, itpursuant to case law, state statutes, and BPD Policy 804 Records Release Management and/or applicable federal, state, or local law is not open to public review. (Ref. policy 422.2) Berkeley Police
1302.2 AUTHORIZED AND PROHIBITED USES USE
Use of an ALPR is restricted to the purposes outlined below. Department members or other Departments shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53). (Ref. policy 422.4), and will enforce this policy pursuant to Section 1302.11(1). (a) An ALPR shall only be Deployed and used for official law enforcement businessParking Enforcement Operations, and Parking Analysis. (b) ALPR data obtained from Parking Enforcement Operations and retained pursuant to this use policy, including data and metadata associated with ALPR Reads and Hits, may be queried and used to support a specific BPD criminal investigation when an officer has a good faith belief that an emergency involving the danger of, or imminent threat of death or serious physical injury to any person requires such a query or use, and the officer reasonably believes there is a nexus between a vehicle and the alleged crime scene. Approval to query or use the data must be granted by the Chief of Police and City Manager. The City Manager shall log any queries or use of such information pursuant to this subsection in its Annual Surveillance Technology Report pursuant to BMC 2.99.
(c) Notwithstanding subsection (b), officers may investigate hits based on reasonable suspicion resulting from apparent matches, discovered in the regular course of work of Parking Enforcement Operations, between the Genetec ALPR System and the following databases: Stolen Vehicles System, Amber, Silver, and Blue Alerts, local missing persons, scoff law violator, gig car, general permit, or other non-criminal local lists.
(d) Data obtained from Parking Analysis shall not be queried or used for criminal investigations.
(e) The following uses of the Genetec ALPR System are specifically prohibited:

1. Invasion of Privacy
(a) It is a violation of this Policy to utilize the Genetec ALPR System to capture license plates not on a public road or street, or in a place not accessible to the public.

2. Crowd Control
(a) ALPRs shall not be deployed in crowd control operations except strictly for the purposes of Parking Enforcement Operations.

3. Criminal Enforcement
(a) It is a violation of this Policy to use or Deploy ALPRs to scan or canvass license plates in connection with any crime scene, patrol operation, or investigation except pursuant to Section 1302.3(c) of this Policy.

4. Use of Lists and Databases
(a) It is a violation of this Policy to use the Genetec ALPR System or

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associated ALPR Read data in conjunction with any list or database other than those specified pursuant to Section 1302.3(c) of this Policy, or for any personal use.

1302.4An ALPR may be used to support a patrol operation or criminal investigation.

Reasonable suspicion or probable cause is not required before using an ALPR. (a) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR -equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.

1302.3 DATA COLLECTION
All data and images gathered by an ALPR are for the official use of the Berkeley Police Department. Such data may DATA COLLECTION AND RETENTION The Investigations Division Captain, or their designee, is responsible for ensuring proper collection and retention of ALPR data. Technical support and assistance shall be provided by the City of Berkeley's Information Technology (IT) Department and associated Genetec ALPR system providers/vendors as identified below.

IT's role will be limited to providing initial infrastructure set-up and accessing or viewing individual records or reports (potentially including PII or CLETS information as authorized by the Chief of Police), and testing the accuracy of the equipment. Genetec ALPR System data provided to Parking Control Officers may also contain confidential CLETS information and is not open to public review.

(a) ALPR information gathered and retained by this department may be usedRead Images ALPR Reads Images are license plate images which are uploaded daily Genetec server and shall be purged pursuant to the retention guidelines in subsection (b). (b) ALPR Reads Not Resulting in ALPR Hits
All ALPR Read Images and shared with prosecutorsALPR Read Metadata transmitted to and stored in the Genetec ALPR System shall be purged within fourteen (14) days to allow for the City's enforcement of its 72- Hour Rule (BMC Section 14.36.050).

All ALPR lawHits and related metadata resulting from ALPR Reads should be uploaded daily to the Genetec server and shall be purged from Genetec within fourteen (14) days to allow for the City's enforcement agencies only as permitted by law. (Ref. policy 422of its 72-Hour Rule (BMC Section 14.36.050).
(d) Unenforced ALPR Hits
All erroneous and unenforced ALPR Hit data shall be purged locally at least nightly. (e) Enforced ALPR Hits
Only ALPR Read Images and Metadata associated with Enforced ALPR Hits shall be downloaded to the Passport Parking Management System servers, with a maximum retention period of one (1) year in Passport and in accordance with the established records retention schedule.

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1302.5 )

1302.4DATA ACCESS
(a) Only properly trained Parking Enforcement Officers, Sworn Officers as selected by the Investigation's Division Captain, and Information Technology personnel are allowed access to the Genetec ALPR system or to collect ALPR information. (a)(b) No member of this departmentthe BPD shall operate ALPR equipment or access ALPR data without first completing department-approved training, which shall include compliance with this use policy.
(b)(c) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. (c)(d) IfIf a Sworn officer is called to verify a stolen vehicle, if practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alertHit.
(e) Sworn Officers shall visually verify that the license plate of interest matches identically with the ALPR Read Image of the license plate number captured (ALPR Read) by the ALPR, including both the alphanumeric characters of the license plate, state of issue, and vehicle descriptors before proceeding. BPD members alerted to the fact that an observed motor vehicle's license plate is entered as an ALPR Hit in a specific Stolen Vehicle System list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle.

1302.

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1302.5 6 DATA PROTECTION
All saved data will be safeguarded and protected by both procedural and technological means.

Aggregated ALPR data not related to specific BPD criminal or civil investigations shall not be released to any local, state or federal agencyauthorized by a court order, subpoena, or entity without the express written consent of the City Managersearch warrant.
(c) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question. If a Berkeley Police Department member becomes aware of an inaccurate manual entry into the ALPR databases, that member shall immediately contact the originating agency or officer to notify the agency of the inaccuracy. The member shall then notify both the Investigations Division Captain and the Inspections and Audit Sergeant of the data error for appropriate follow up and tracking.

1302.67 CIVIL LIBERTIES AND RIGHTS PROTECTION:

1302.7 DATA RETENTION
The Investigations Division Captain, or his/her designee, is responsible for ensuring proper collection and retention of ALPR data. Technical support and assistance shall be provided by the City of Berkeley's Information Technology (IT) department and associated ALPR system providers/vendors as identified below. IT staff will not have the ability to access or view individual records or reports, as they may contain CLETS information they are not authorized to receive.

IT's role will be limited to providing initial infrastructure set-up, unless particular IT staff members have been cleared by DOJ background checks and authorized by the Chief of Police to receive ALPR records.The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for the purpose of federal immigration

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enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CPB).

1302.8 PUBLIC ACCESS
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law. (Ref. policy 422.6 (a))
Non-law enforcement requests for information regarding a specific vehicle's license plate may be honored when the requester is the registered owner of the vehicle in question, and when providing such information will not invade the privacy of a third party. The requester in such cases must provide acceptable proof of his or hertheir identity and of ownership of the vehicle in question. (Ref. policy 422.6 (b)) All requests will be evaluated on a case-by-case basis to ensure they conform to the requirements and limitations of public records requests and other applicable law.

1302.9 THIRD -PARTY DATA-SHARING
(a) Non-law enforcement requests for anonymized ALPR bulk data related to parking enforcement and access to stored ALPR data related to parking management shall be processed according to this policy, the Records Maintenance and Release Policy and applicable federal, state, and local law.

(a)(b) The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes as pursuant to a valid court order, subpoena, or as otherwisea search warrant, Cal. Civ. Code § 1798.90.55(b), and as permitted by law. ALPR data is subject to the provisions of BPD Policy 415, and hence maythis policy and shall not be shared with federal immigration enforcement officials consistent with this policy and other applicable City policy.

Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in by this policy and the Records Maintenance and Release Policy (Civil Code§ 1798.90.55)..

Aggregated ALPR data not related to specific criminal or civil investigations authorized by a court

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order, subpoena, or search warrant shall not be released to any local, or state or federal agency or entity without the express written consent of the City Manager. (Ref. policy 422.6 (e)) and only in accordance with this Use Policy.

Such third-party data-sharing shall be subject to non-privileged and non-confidential City Council notification pursuant to BMC 2.99.020 (2) (a).

The Berkeley Police Department is prohibited from selling any ALPR data.

1302.10 TRAINING AND ALPR ADMINISTRATOR
Training for the operation of ALPR Technologytechnology shall be provided by BPD personnel.

All BPD employees who utilize ALPR Technologytechnology shall be provided a copy of this Surveillance Use Policy.
(1) The Investigations Division Captain shall be responsible for compliance with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):

(i) Ensuring that training requirements are completed for authorized users. The Administrator shall ensure that members receive department-approved training for those authorized to use or access ALPRs (Civil Code § 1798.90.51; Civil Code § 1798.90.53).

(ii) Procedures for system operators to maintain records of access in compliance with Civil Code§ 1798.90.52 and this Use Policy
(i)(iii) Ensuring this policy and related procedures are conspicuously posted on the City's website.

1302.11 AUDITING AND OVERSIGHT
Genetec ALPR systemSystem audits will be conducted by the Professional Standards Bureau's Audit and Inspections Sergeant on a regular basis, at least biannually. (Ref. policy 422.6 (g))

1. Any unauthorized access or data breach shall be reported immediately to the City Manager. BPD will enforce against prohibited uses of the Genetec ALPR system, associated ALPR Read and Hit metadata, and lists and databases pursuant to Policy P-26, or other applicable law or policy.

2. The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected. After review by the Chief of Police, the memorandum and any associated documentation shall be placed into the annual report filed with the City Council pursuant to BMC Section 2.99.020 2. d., published on the City of Berkeley website in an appropriate location, and retained within Professional Standards Bureau.

1302.12 MAINTENANCE
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under his/hertheir command to administer the day-to-day operation of the ALPR equipment and data. (Ref. policy 422.3)

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1302.12.1 ALPR ADMINISTRATOR
The Investigations Division Captain, or his/her designee, shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code§ 1798.90.5 et seq.

This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53) (Ref. policy 422.3.1):
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information.
(b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws. (d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation.

Ensuring this policy and related procedures are conspicuously posted on the City's website.

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Plate Reader
1302.1 PURPOSE
This Surveillance Use Policy is legally-enforceable pursuant to BMC 2.99.

1. match between an ALPR Read and ALPR Read Metadata stored in the Genetec AL PR System, to include the Stolen Vehicle System; or

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Enforcement Vehicles.
"Enforced ALPR Hit" means an Alleged Parking Violation confirmed by a Parking Enforcement Officer that results in the transmission of associated ALPR Read Image and ALPR Read Metadata to the Passport Parking Management System for storage in a database as a government record for the purpose of citation processing.
"Genetec ALPR System" means the computerized Genetec server and database that stores all ALPR Reads, metadata and hits, and also pushes an Enforced ALPR Hit metadata to the Passport Parking Management System.
"Residential Parking Permits" or "RPP" means an annual, visitor, merchant or in-home care parking permit, typically represented by a vehicle's license plate, and associated with the City's Residential Parking Permit program across designated zones. "Parking Enforcement Vehicle" means the GO-4 three-wheeled parking enforcement vehicle. "Parking Enforcement Officers" means employees of the City who work weekly rotations on Parking Enforcement Operations beats throughout the City and are properly trained to operate ALPRs and access the Genetec ALPR System.
"Parking Enforcement Operations" means Parking Enforcement Officer enforcement of parking regulations associated with local ordinances, the California Vehicle Code, and Stolen Vehicle System enforcement through Parking Enforcement Vehicle-based automated (ALPR) and non- automated means.
"Personally Identifiable Information" or "PII" means information:

1. that directly identifies an individual (e.g., name, address, telephone number, email address, etc.) or

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"OPSMan Mobile" means a mobile device providing handheld ticket issuance and ALPR data reference capabilities.
"Stolen Vehicle System" or "SVS" means information from the California Law Enforcement Telecommunications System's (CLETS) Department of Justice (DOJ) Stolen Vehicle System (SVS) database providing data regarding wanted and stolen vehicles.

1302.3 AUTHORIZED AND PROHIBITED USES
Use of an ALPR is restricted to the purposes outlined below.

All data and images gathered by the ALPR are for official use by the Berkeley Police Department (BPD) for Parking Enforcement Operations and may be retroactively queried in limited circumstances only as specified by this policy and/or federal, state, local law.

Berkeley Police Department members or other Departments shall not use, or allow others to use the equipment or database records for any unauthorized purpose, and will enforce this policy pursuant to Section 1302.11(1).
(a) An ALPR shall only be Deployed and used for Parking Enforcement Operations, and Parking Analysis.
(b) ALPR data obtained from Parking Enforcement Operations and retained pursuant to this use policy, including data and metadata associated with ALPR Reads and Hits, may be queried and used to support a specific BPD criminal investigation when an officer has a good faith belief that an emergency involving the danger of, or imminent threat of death or serious physical injury to any person requires such a query or use, and the officer reasonably believes there is a nexus between a vehicle and the alleged crime scene. Approval to query or use the data must be granted by the Chief of Police and City Manager. The City Manager shall log any queries or use of such information pursuant to this subsection in its Annual Surveillance Technology Report pursuant to BMC 2.99.
(c) Notwithstanding subsection (b), officers may investigate hits based on reasonable suspicion resulting from apparent matches, discovered in the regular course of work of Parking Enforcement Operations, between the Genetec ALPR System and the following databases: Stolen Vehicles System, Amber, Silver, and Blue Alerts, local missing persons, scoff law violator, gig car, general permit, or other non-criminal local lists.
(d) Data obtained from Parking Analysis shall not be queried or used for criminal investigations.
(e) The following uses of the Genetec ALPR System are specifically prohibited:

1. Invasion of Privacy
(a) It is a violation of this Policy to utilize the Genetec ALPR System to capture license plates not on a public road or street, or in a place not accessible to the public.

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2. Crowd Control
(a) ALPRs shall not be deployed in crowd control operations except strictly for the purposes of Parking Enforcement Operations.

4. Use of Lists and Databases
(a) It is a violation of this Policy to use the Genetec ALPR System or associated ALPR Read data in conjunction with any list or database other than those specified pursuant to Section 1302.3(c) of this Policy, or for any personal use.

1302.4 DATA COLLECTION AND RETENTION
The Investigations Division Captain, or their designee, is responsible for ensuring proper collection and retention of ALPR data. Technical support and assistance shall be provided by the City of Berkeley's Information Technology (IT) Department and associated Genetec ALPR system providers/vendors as identified below.

(a) ALPR Read Images
ALPR Reads Images are license plate images which are uploaded daily Genetec server and shall be purged pursuant to the retention guidelines in subsection (b). (b) ALPR Reads Not Resulting in ALPR Hits
All ALPR Read Images and ALPR Read Metadata transmitted to and stored in the Genetec ALPR System shall be purged within fourteen (14) days to allow for the City's enforcement of its 72- Hour Rule (BMC Section 14.36.050).

All ALPR Hits and related metadata resulting from ALPR Reads should be uploaded daily to the Genetec server and shall be purged from Genetec within fourteen (14) days to allow for the City's enforcement of its 72-Hour Rule (BMC Section 14.36.050). (d) Unenforced ALPR Hits

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All erroneous and unenforced ALPR Hit data shall be purged locally at least nightly. (e) Enforced ALPR Hits
Only ALPR Read Images and Metadata associated with Enforced ALPR Hits shall be downloaded to the Passport Parking Management System servers, with a maximum retention period of one (1) year in Passport and in accordance with the established records retention schedule.

1302.5 DATA ACCESS
(a) Only properly trained Parking Enforcement Officers, Sworn Officers as selected by the Investigation's Division Captain, and Information Technology personnel are allowed access to the Genetec ALPR system or to collect ALPR information. (b) No member of the BPD shall operate ALPR equipment or access ALPR data without first completing department-approved training, which shall include compliance with this use policy.
(c) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. (d) If a Sworn officer is called to verify a stolen vehicle, if practicable, the officer should verify an ALPR response through CLETS before taking enforcement action that is based solely on an ALPR Hit.
(e) Sworn Officers shall visually verify that the license plate of interest matches identically with the ALPR Read Image of the license plate number captured (ALPR Read) by the ALPR, including both the alphanumeric characters of the license plate, state of issue, and vehicle descriptors before proceeding. BPD members alerted to the fact that an observed motor vehicle's license plate is entered as an ALPR Hit in a specific Stolen Vehicle System list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle.

1302.6 DATA PROTECTION
All saved data will be safeguarded and protected by both procedural and technological means.

The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data:
(a) All ALPR data downloaded to any workstation or server shall be accessible only through a login and/or password-protected system capable of documenting all access of information by name, date and time.
(b) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for Parking Enforcement Operations or

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specific BPD criminal or civil investigations authorized by a court order, subpoena, or search warrant.
(c) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question. If a Berkeley Police Department member becomes aware of an inaccurate manual entry into the ALPR databases, that member shall immediately contact the originating agency or officer to notify the agency of the inaccuracy. The member shall then notify both the Investigations Division Captain and the Inspections and Audit Sergeant of the data error for appropriate follow up and tracking.

1302.7 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal, state, and local law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third-Party Data Sharing) protect against the unauthorized use of ALPR data. These policies ensure the data is not used in a way that would violate or infringe upon anyone's civil rights and/or liberties, including but not limited to impacts that may violate the First and Fourth Amendments and other potentially disparate or adverse impacts on any communities or groups.

The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for the purpose of federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CPB).

1302.8 PUBLIC ACCESS
Non-law enforcement requests for information regarding a specific vehicle's license plate may be honored when the requester is the registered owner of the vehicle in question, and when providing such information will not invade the privacy of a third party. The requester in such cases must provide acceptable proof of their identity and of ownership of the vehicle in question. All requests will be evaluated on a case-by-case basis to ensure they conform to the requirements and limitations of public records requests and other applicable law.

1302.9 THIRD PARTY DATA-SHARING
(a) Non-law enforcement requests for anonymized ALPR bulk data related to parking enforcement and access to stored ALPR data related to parking management shall be processed according to this policy, the Records Maintenance and Release Policy and applicable federal, state, and local law.

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(b) The ALPR data may be shared only with other law enforcement or prosecutorial agencies as pursuant to a valid court order, subpoena, or a search warrant, Cal. Civ. Code § 1798.90.55(b), and as permitted by this policy and shall not be shared with federal immigration enforcement officials consistent with this policy and other applicable City policy.

Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided by this policy and the Records Maintenance and Release Policy.

Aggregated ALPR data not related to specific criminal or civil investigations authorized by a court order, subpoena, or search warrant shall not be released to any local, or state agency or entity without the express written consent of the City Manager and only in accordance with this Use Policy.

Such third-party data-sharing shall be subject to non-privileged and non-confidential City Council notification pursuant to BMC 2.99.020 (2) (a).

The Berkeley Police Department is prohibited from selling any ALPR data.

1302.10 TRAINING AND ALPR ADMINISTRATOR
Training for the operation of ALPR technology shall be provided by BPD personnel. All BPD employees who utilize ALPR technology shall be provided a copy of this Surveillance Use Policy. (1) The Investigations Division Captain shall be responsible for compliance with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):

(ii) Procedures for system operators to maintain records of access in compliance with Civil Code§ 1798.90.52 and this Use Policy
(iii) Ensuring this policy and related procedures are conspicuously posted on the City's website.

1302.11 AUDITING AND OVERSIGHT
Genetec ALPR System audits will be conducted by the Professional Standards Bureau's Audit and Inspections Sergeant on a regular basis, at least biannually.

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Surveillance Use Policy- Automated License Plate Reader

website in an appropriate location, and retained within Professional Standards Bureau.

1302.12 MAINTENANCE
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under their command to administer the day-to-day operation of the ALPR equipment and data.

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Kate Harrison
Councilmember District 4
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7140 TDD: 510.981.6903 E-Mail: [email protected]

REVISED

AGENDA MATERIAL
for Supplemental Packet 1

Meeting Date: February 25, 2020

Item Number: 23

Item Description: Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras

Submitted by: Councilmember Harrison

Revisions

Revised the following Berkeley Police Department (BPD) proposed Policies 422, Policy 1302 and 1302(a) as follows:

1. Clarified that the intended purpose of ALPR technology is to capture and store digital license plate data and images for parking and scofflaw enforcement, while also recognizing data retained by BPD (limited to positive ALPR hits) may only be used to support specific criminal investigations.

2. Removed blanket provision that reasonable suspicion or probable cause is not required before ALPR use.

3. Removed ALPR crime scene canvass provision and blanket policy of entering plates into the ALPR system in an attempt to identify suspect vehicles.

4. Clarified that it shall be a violation of City policy to share a login with anyone outside of the City of Berkeley, except in cases of disaster or emergency that do not allow time for proper procedures to be followed.

5. Clarified that unauthorized access or data breaches shall be reported immediately to the City Manager.

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6. Consistent with the Surveillance Ordinance BMC 2.99.020 (2) (a), clarified that third-party data-sharing shall be subject to non-privileged and non-confidential City Council notification.

Rationale

Proposed Policies 1302 and 422 inappropriately expand the scope of permitted deployments of Automated License Plate Readers (ALPR) to “support criminal investigations” and “canvass license plates around any crime scene.” Both polices instruction officers that “[p]artial license plates reported during major crimes should be entered into the ALPR system in any attempt to identify suspect vehicles." 1 Council has neither given policy nor budgetary approval for such proposed ALPR uses and therefore the Resolution as proposed by staff should not be accepted without revision.

The proposed BPD Policies 1302 and 422 are inconsistent with the scope of the following effective Council and BPD policies regarding ALPR:

1. Resolution No. 68,085-N.S.

• Resolution No. 68,085-N.S. authorizes the collection of ALPR data for a single use: anonymized parking data supporting the goBerkeley parking program.

2. July 11, 2017 City Council Annotated Agenda

• The Annotated Agenda notes Council direction to the City Manager to amend Section 7.f of General Administrative Order #0001-2016 to defer any release of data until the surveillance policy and ordinance are adopted. To date, the City Manager has not amended Order #0001- 2016.

3. BPD General Administrative Order #001-2016

• Section 1 of the effective BPD General Administrative Order #001-2016 specifies that only the BPD Parking Enforcement and Traffic Units may use ALPRs.

• Section 9 specifies further that “parking and scofflaw enforcement” are the only permitted use and deployment for ALPR technology in the City of Berkeley.

4. Contract No. 9977

• The scope of Contract No. 9977 is limited to the purchase of ALPR units in service of parking enforcement activities.

Attachments

1 Sections 1302.2 (b) - (c); Sections 422.4 (b) - (c).

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1. Revised Policies 422, Policy 1302 and 1302(a)

2. July 11, 2017 City Council Annotated Agenda

3. BPD General Administrative Order #001-2016

4. Contract No. 9977

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BPD Policy Manual 422
Automated License Plate Readers (ALPRs)
422.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. 422.2 POLICY
The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images for parking and scofflaw enforcement while recognizing the established privacy rights of the public. All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review. 422.3 ADMINISTRATION
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data. 422.3.1 ALPR ADMINISTRATOR
The Investigations Division Captain, or his/her designee, shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code§ 1798.90.5 et seq. This includes, but is not limited to (Civil Code§ 1798.90.51; Civil Code§ 1798.90.53):
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information. (b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws.
(d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Ensuring this policy and related procedures are conspicuously posted on the City's website. 422.4 USE OF THE ALPR
The intended purpose ofAn ALPR shall only be used is for official law enforcement business parking and scofflaw enforcement.

Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).

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(a) An ALPR may be used by Berkeley Police Department Parking Enforcement for parking and scofflaw enforcement.
(b) An ALPR data obtained from parking and scofflaw enforcement may be used to support a specific criminal investigations. Reasonable suspicion or probable cause is not required before using an ALPR. (c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped vehicles to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.

No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.

No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. 422.5 DATA COLLECTION AND RETENTION
All data and images gathered by an ALPR are for the official use of the Berkeley Police Department. Such data may contain confidential CLETS information and is not open to public review.

The Investigations Division Captain, or his/her designee, is responsible for ensuring proper collection and retention of ALPR data.

Technical support and assistance shall be provided by the City of Berkeley's Information Technology (IT Department and associated ALPR system providers/vendors as identified below.

IT staff will not have the ability to access or view individual records or reports, as they may contain CLETS information they are not authorized to receive. IT's role will be limited to providing initial infrastructure set-up, unless particular IT staff members have been cleared by DOJ background checks and authorized by the Chief of Police to receive ALPR records.

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All saved data will be safeguarded and protected by both procedural and technological means. The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code§ 1798.90.51; Civil Code§ 1798.90.53):
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law. (b) Non-law enforcement requests for information regarding a specific vehicle's license plate may be honored when the requester is the registered owner of the vehicle in question, and when providing such information will not invade the privacy of a third party. The requestor in such cases must provide acceptable proof of his or her identity and of ownership of the vehicle in question. (c) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code§ 1798.90.52). It shall be a violation of this policy to share a login with anyone outside of the City of Berkeley, except in cases of disaster or emergency that do not allow time for proper procedures to be followed.
(d) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action or parking enforcement.
(e) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the express written consent of the City Manager. (f) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question.
(g) ALPR system audits will be conducted by the Professional Standards Bureau's Audit and Inspections Sergeant on a regular basis, at least biannually. For security or data breaches, see the Records Release and Maintenance Policy. Any unauthorized access or data breach shall be reported immediately to the City Manager.
422.7 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law, using the following procedures:
(a) The agency makes a written request for the ALPR data that includes:

1. The name of the agency.

2. The name of the person requesting.

3. The intended purpose of obtaining the information.

4. The related case number.

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(b) The request is reviewed by the Investigations Division Captain, or his/her designee, and approved before the request is fulfilled.
(c) The approved request is retained on file. Requests for ALPR data by non-law enforcement or non- prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).

ALPR data is subject to the provisions of the Berkeley Police Department's Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.

Third-party data-sharing shall be subject to non-privileged and non-confidential City Council notification pursuant to BMC 2.99.020 (2) (a).
422.8 SCOFFLAW ENFORCEMENT
The Berkeley Police Department uses ALPR technology in the Parking Enforcement Unit for parking and scofflaw enforcement.

The Parking Enforcement Unit will utilize vehicles equipped with ALPR units to conduct enforcement of posted time limits in commercial areas and Residential Preferential Parking (RPP) permit areas. These ALPR's will also access information in the DMV's Stolen Vehicle System (SVS) database for wanted and stolen vehicles.

The Scofflaw Enforcement program (often referred to as the "booting" program) utilizes an ALPR to scan license plates and check the scanned "reads" against a list of vehicles which have five or more outstanding parking citations exceeding 30 days old. Typically, upon a confirmed "hit," the vehicle is immobilized with a "boot", or towed, and the owner has to pay the outstanding citations and fees in order to release the boot and/or recover their car from storage. This allows the City to recover outstanding citation fees.

The contracted vendor for the City's Scofflaw Enforcement program is currently Paylock. Paylock stores data on a secure server, and provides access to authorized personnel via Paylock's "Bootview" secure website.

When a car is booted and/or towed, the read, hit and photographic data relating to the booting and/or towing of scofflaw vehicles is uploaded to Paylock's secure server. No other data is uploaded to Paylock's secure server.

The City's Parking Enforcement ALPR vendor (currently Genetec) will periodically provide reports to the City of Berkeley Transportation Division's "goBerkeley" parking management program so that it can analyze data about parking demand. These reports will not contain any information about a vehicle's license plate number, the name of the registered owner, address of registered owner, or any other information gleaned from the license plate number associated with a particular vehicle. Rather, the reports will consist of 100 percent anonymized information using identification numbers that are not associated with a particular license plate or registered owner.

The reports will provide only the date, time, location, approximate address, "go Berkeley" blockface ID, and RPP area in which a vehicle was observed. If a citation was not issued for an RPP or other time limit

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violation, the report may also provide the reason a parking enforcement officer concluded there was no parking violation, e.g., RPP visitor pass, disabled placard or license plate, etc.

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Surveillance Use Policy - ALPR
1302.1 PURPOSE
This Surveillance Use Policy is issued in compliance with BMC 2.99, and incorporates by reference language from the Berkeley Police Department ALPR Policy #422 and adds elements as required by BMC

2.99. The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images for parking and scofflaw enforcement while recognizing the established privacy rights of the public.

All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review. (Ref. policy 422.2) 1302.2 AUTHORIZED AND PROHIBITED USES USE
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53). (Ref. policy 422.4) (a) The intended purpose of An ALPR shall only be usedis for parking and scofflaw enforcement.official law enforcement business.

(b) An ALPR data obtained from parking and scofflaw enforcement may be used to support a patrol operation or specific criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles. 1302.3 DATA COLLECTION
All data and images gathered by an ALPR are for the official use of the Berkeley Police Department. Such data may contain confidential CLETS information and is not open to public review. ALPR information gathered and retained by this department may be used and shared with prosecutors or other law enforcement agencies only as permitted by law. (Ref. policy 422.5) 1302.4 DATA ACCESS
(a) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(b) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so.

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(c) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
1302.5 DATA PROTECTION
All saved data will be safeguarded and protected by both procedural and technological means.

The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code§ 1798.90.51; Civil Code§ 1798.90.53) (Ref. policy 422.6):
(a) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). It shall be a violation of this policy to share a login with anyone outside of the City of Berkeley, except in cases of disaster or emergency that do not allow time for proper procedures to be followed.
(b) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action and parking enforcement.
(c) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the express written consent of the City Manager. (d) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question. Any unauthorized access or data breach shall be reported immediately to the City Manager.
1302.6 CIVIL LIBERTIES AND RIGHTS PROTECTION:

The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third Party Data Sharing) protect against the unauthorized use of ALPR data. These policies ensure the data is not used in a way that would violate or infringe upon anyone's civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.
1302.7 DATA RETENTION
The Investigations Division Captain, or his/her designee, is responsible for ensuring proper collection and retention of ALPR data. Technical support and assistance shall be provided by the City of Berkeley's Information Technology (IT) department and associated ALPR system providers/vendors as identified below. IT staff will not have the ability to access or view individual records or reports, as they may contain CLETS information they are not authorized to receive. IT's role

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will be limited to providing initial infrastructure set-up, unless particular IT staff members have been cleared by DOJ background checks and authorized by the Chief of Police to receive ALPR records.

All ALPR data downloaded to the server should be stored for a minimum of one year (Government Code§ 34090.6) and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a lawful action to produce records. In those circumstances the applicable data should be downloaded from the server onto portable media and booked into evidence. (Ref. policy 422.5)
(a) Collected images and metadata of hits will not be stored for more than 365 days. Metadata of reads will not be stored for more than 30 days. Images of reads will not be transferred to the server. 1302.8 PUBLIC ACCESS
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law. (Ref. policy 422.6 (a)) (b) Non-law enforcement requests for information regarding a specific vehicle's license plate may be honored when the requester is the registered owner of the vehicle in question, and when providing such information will not invade the privacy of a third party. The requester in such cases must provide acceptable proof of his or her identity and of ownership of the vehicle in question. (Ref. policy 422.6 (b)) 1302.9 THIRD-PARTY DATA-SHARING
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law. ALPR data is subject to the provisions of BPD Policy 415, and hence may not be shared with federal immigration enforcement officials.

Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).

Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the express written consent of the City Manager.

Third-party data-sharing shall be subject to non-privileged and non-confidential City Council notification pursuant to BMC 2.99.020 (2) (a).
(Ref. policy 422.6 (e))
1302.10 TRAINING
Training for the operation of ALPR Technology shall be provided by BPD personnel. All BPD employees who utilize ALPR Technology shall be provided a copy of this Surveillance Use Policy. 1302.11 AUDITING AND OVERSIGHT
ALPR system audits will be conducted by the Professional Standards Bureau's Audit and Inspections Sergeant on a regular basis, at least biannually. (Ref. policy 422.6 (g)) 1302.12 MAINTENANCE

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Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data. (Ref. policy 422.3)
1302.12.1 ALPR ADMINISTRATOR
The Investigations Division Captain, or his/her designee, shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code § 1798.90.5 et seq.

This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53) (Ref. policy 422.3.1):
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information. (b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws.
(d) Procedures for system operators to maintain records of access in compliance with Civil Code§ 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Ensuring this policy and related procedures are conspicuously posted on the City's website.

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1302 APPENDIX A

BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT-AUTOMATED LICENSE PLATE

READER DEVICES

AUTOMATED LICENSE PLATE READER (ALPR) DEVICES

Automated License Plate Readers (ALPRs) are high-speed, computer controlled camera systems that are typically mounted on Berkeley Police Department Parking Enforcement Vehicles.

ALPRs capture license plate numbers which come into view, along with the location, date and time. The data, which includes a photo of the front or the back of the car displaying the license plate, is then uploaded to a central server.

B. PURPOSE
The Berkeley Police Department's Parking Enforcement Unit utilizes vehicles equipped with ALPRs to conduct enforcement of posted time limits in commercial areas and Residential Preferential Parking (RPP) permit areas. These ALPR's also access information in the California Law Enforcement Telecommunications System's (CLETS) Stolen Vehicle System (SVS) database, which provides information on matches for stolen and wanted vehicles.

The Berkeley Police Department's Scofflaw Enforcement program (often referred to as the "booting" program) utilizes an ALPR to scan license plates, and check the scanned "reads" against a list of vehicles which have five or more outstanding parking citations exceeding 30 days old. Typically, upon a confirmed "hit," the vehicle is immobilized with a "boot", or towed, and the owner has to pay the outstanding citations and fees in order to release the boot and/or recover their car from storage. This allows the City to recover outstanding parking citation fees.

C. LOCATION
Parking Enforcement vehicles travel throughout the city; using the ALPRs as described above.

D. IMPACT
The Berkeley Police Department is dedicated to promoting public safety with the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures utilized with ALPR Units will help to ensure unauthorized use of its data. The procedures will ensure the data is not used in a way that would violate or infringe upon anyone's civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.

E. MITIGATION
All saved data will be safeguarded and protected by both procedural and technological means which are implemented to safeguard the public from any impacts identified in subsection (D).

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See subsection (G) for further.

F. DATA TYPES AND SOURCES
Photographs of license plates and location data may be obtained through the use of ALPR Units.

G. DATA SECURITY
The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code§ 1798.90.51; Civil Code§ 1798.90.53):

1. All ALPR data downloaded to any workstation or server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code§ 1798.90.52). It shall be a violation of this policy to share a login with anyone outside of the Berkeley Police Department, except in case of disaster or emergency that does not allow time for proper procedures to be followed.

2. Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department related civil or administrative action and parking enforcement.

3. Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the express written consent of the City Manager.

4. Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question.

H. FISCAL COST
In 2015, Public Works brought an ALPR Contract to City Council. Council approved a contract for Public Works to buy five Genetec ALPR Units with PCS Mobile communication, for a pilot program for $450,000.

In 2017, after success with the program, City Council approved an amendment to the contract, allowing Public Works to purchase 15 more ALPR Units for Parking Enforcement vehicles, and to continue its use of PCS Mobile, for 1,200,000. The money was allocated from the goBerkeley/Federal Highway Administration Parking Meter Fund.

Yearly service for the ALPR Units includes warranties, hosting services, cellular connection, mobile computing, and training which varies. The costs through fiscal year 2022 are currently estimated at $1,175,000.

Personnel costs are minimal in that the ALPR Units are used as a resource during normal working hours.

I. THIRD PARTY DEPENDENCE AND ACCESS

1. Vendor Access-Scofflaw Enforcement: The contracted vendor for the City's Scofflaw Enforcement program .is currently Paylock. Paylock stores data on a secure server, and provides access to authorized personnel via Paylock's "Bootview" secure website, as described below:

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a. All data captured by the ALPR is stored on the booting vehicle's laptop for 30 days, and is only accessible during that period via the ALPR proprietary software. This includes reads, hits, and photographs associated with each.
b. When a car is booted and/or towed, the read, hit and photographic data relating to the booting and/or towing of scofflaw vehicles is uploaded to Paylock's secure server. No other data is uploaded to Paylock's secure server.

2. Vendor Access-General Parking Enforcement and goBerkeley Program: The contracted vendor for the City's Parking Enforcement ALPR is currently Genetec. The city uses Genetec ALPRs to support efficient enforcement of posted time limit parking and Residential Preferential Parking permits. a. In addition, Genetec periodically provides reports to the City of Berkeley Transportation Division's "goBerkeley" parking management program so that the City's program can analyze data about parking demand. These reports do not contain any information about a vehicle's license plate number, the name of the registered owner, address of registered owner, or any other information gleaned from the license plate number associated with a particular vehicle.

Rather, the reports consist of completely anonymized information, using identification numbers that are not associated with a particular license plate or registered owner. b. The reports will provide only the date, time, location, approximate address, "goBerkeley" blockface ID, and Residential Permit Pass (RPP) area in which a vehicle was observed. If a citation was not issued for an RPP or other time limit violation, the report may also provide the reason a parking enforcement officer .concluded there was no parking violation, e.g., RPP visitor pass, disabled placard or license plate, etc.

3. Department of Information Technology Access: Technical support and assistance for ALPR's is provided by the City of Berkeley's Department of Information Technology (IT) and associated ALPR system providers/vendors as identified herein. IT staff who do not have the proper clearance and training do not have the ability to access or view individual records or reports, as they may contain CLETS information they are not authorized to receive. IT provides initial infrastructure set-up, and continued systems support as needed to ensure efficient and accurate performance of the ALPR hardware and software. Only IT staff members who have successfully undergone DOJ background checks and training are authorized by the Chief of Police to view specific ALPR records.

4. Other Law Enforcement Agency Access: ALPR data may only be shared with other law enforcement or 'prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.

Requests for ALPR data by non-law enforcement or nonprosecutorial agencies will be processed as provided in the Records Maintenance and
Release Policy (Civil Code§ 1798.90.55). Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the express written consent of the City Manager.

5. Member Access: No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training. No ALPR operator may access CLETS data unless

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otherwise authorized to do so. If practicable, the officer should verify an ALPR response through CLETS before taking enforcement action that is based solely on an ALPR alert.

6. Public Access: Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law. Non-law enforcement requests for information regarding a specific vehicle's license plate may be honored when the requester is the registered owner of the vehicle in question, and when providing such information will not invade the privacy of a third party. The requestor in such cases must provide acceptable proof of his or her identity and of ownership of the vehicle in question.

7. Third-party data-sharing is subject to non-privileged and non-confidential City Council notification pursuant to BMC 2.99.020 (2) (a).

J. ALTERNATIVES
None.

K. EXPERIENCE OF OTHER ENTITIES
The use of ALPR technology is common amongst law enforcement agencies throughout the country, in support of parking enforcement, and law enforcement criminal investigations.

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 1

AN N O T AT E D AG E N D A

BERKELEY CITY COUNCIL MEETING
Tuesday, July 11, 2017
6:00 P.M.

COUNCIL CHAMBERS - 2134 MARTIN LUTHER KING JR. WAY

JESSE ARREGUIN, MAYOR
Councilmembers:

DISTRICT 1 – LINDA MAIO DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – CHERYL DAVILA DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – KRISS WORTHINGTON DISTRICT 4 – KATE HARRISON DISTRICT 8 – LORI DROSTE

Preliminary Matters
Roll Call: 6:03 p.m.

Present: Bartlett, Davila, Droste, Hahn, Maio, Wengraf, Worthington, Arreguin

Absent: Harrison
Councilmember Harrison present 6:14 p.m.

Ceremonial Matters:

1. Recognition of UN Association of California, Alpha Kappa Alpha, and Alpha Nu Omega City Auditor Comments:

1. Recognition of Public Works for completing the Equipment Fund Audit City Manager Comments:

1. Launch of Berkeley Bike Share Program on July 11, 2017 Public Comment on Non-Agenda Matters: 3 speakers.

Public Comment on Consent Calendar and Information Items Only: 1 speakers.

Consent Calendar

Action: M/S/C (Maio/Worthington) to adopt the Consent Calendar in one motion except as indicated.

Vote: All Ayes.

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Consent Calendar

Tuesday, July 11, 2017 ANNOTATED AGENDA Page 2

1. Referral Response: Healthy Default Beverages with Children’s Meals; Adding BMC Chapter 12.72
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,560-N.S. adding Berkeley Municipal Code (BMC) Chapter 12.72 to require that any food vendor that sells a children’s meal with a beverage included shall make the default beverage offered with the children’s meal either water or milk, with no added sweeteners.

First Reading Vote: All Ayes.

Financial Implications: See report
Contact: Paul Buddenhagen, Housing and Community Services, 981-5400 Action: Adopted second reading of Ordinance No. 7,560-N.S.

2. Technical Corrections to the Zoning Ordinance, Amending Berkeley Municipal Code Sub-Titles 23D and 23E
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,561-N.S. amending Berkeley Municipal Code Sub-Titles 23D and 23E to make non-substantive, technical corrections to the Zoning Ordinance.

First Reading Vote: All Ayes.

Financial Implications: None
Contact: Timothy Burroughs, Planning and Development, 981-7400 Action: Adopted second reading of Ordinance No. 7,561-N.S.

3. Changes to Affordable Housing Mitigation Fee; Amending Berkeley Municipal Code Section 22.20.065
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,562-N.S. amending BMC Section 22.20.065 related to the Affordable Housing Mitigation Fee.

First Reading Vote: Ayes – Maio, Davila, Bartlett, Harrison, Hahn, Wengraf, Worthington, Arreguin; Noes – None; Abstain - Droste; Absent – None Financial Implications: See report
Contact: Zach Cowan, City Attorney, 981-6950
Action: Adopted second reading of Ordinance No. 7,562-N.S.

4. FY 2018 Annual Appropriations Ordinance
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,563-N.S. adopting the FY 2018 Annual Appropriations Ordinance (AAO) in the amount of $476,396,570 (gross appropriations) and $424,590,046 (net appropriations).

First Reading Vote: All Ayes.

Financial Implications: See report
Contact: Teresa Berkeley-Simmons, Budget Manager, 981-7000 Action: Adopted second reading of Ordinance No. 7,563-N.S.

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5. Housing Trust Fund Recommendation – Harper Crossing
From: City Manager
Recommendation: Adopt a Resolution: 1) Approving a Housing Trust Fund (HTF) reservation for Satellite Affordable Housing Associates’ Harper Crossing in the amount of $285,464, and 2) Authorizing the City Manager to execute all original or amended documents or agreements to effectuate this action.

Financial Implications: See report
Contact: Paul Buddenhagen, Housing and Community Services, 981-5400 Action: Adopted Resolution No. 68,077–N.S.

6. Housing Trust Fund Recommendation – Northern California Land Trust (NCLT) Scattered Site Rehabilitation
From: City Manager
Recommendation: Adopt a Resolution reserving funds for Northern California Land Trust’s Scattered Sites rehabilitation, specifically by: 1. Waiving Section III.A.1 of the Housing Trust Fund (HTF) Guidelines and accepting NCLT as an eligible developer despite its lack of recent experience. 2. Adopting a finding that a City subsidy in excess of 40% of total development costs is justified by the nature of Northern California Land Trust’s Scattered Site Rehab and unavailability of alternative funding, as required by the HTF Guidelines, Section V.B.7. 3. Approving a HTF reservation for Northern California Land Trust’s Scattered Site Rehab project, in the amount of $569,692. 4. Authorizing City Manager to refinance the Scattered Site Rehab properties’ outstanding HTF loans, with a combined balance currently estimated at $695,000, into the new development loan with terms consistent with the HTF Guidelines. 5. Authorizing the City Manager to execute all original or amended documents or agreements to effectuate these actions. 6. Recommending that Council recommend to the Northern California Land Trust that the organization move towards establishing a Board of Directors’ structure consistent with current community land trust model standards.

Financial Implications: See report
Contact: Paul Buddenhagen, Housing and Community Services, 981-5400 Action: Moved to Action Calendar. 4 speakers. M/S/C (Maio/Harrison) to adopt Resolution No. 68,078–N.S. revised to add the two Whereas clauses below, and to direct staff to include the conversion language in the loan documents with NCLT.

BE IT FURTHER RESOLVED that NCLT educate all current tenants about the benefits of transitioning to a limited equity co -op structure, subsequently begin negotiations to make the conversion to a limited equity co -op structure, and collaborate with an organization that has the capacity and experience to conduct the education and advise on the conversion process.

BE IT FURTHER RESOLVED that NCLT submit quarterly financial reports and annual reports relaying the status of their financial situation and progress in changing the structure of the Board of Directors and transition to a limited equity co-op.

Vote: All Ayes.

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7. Classification and Salary: Homeless Services Coordinator From: City Manager
Recommendation: Adopt a Resolution amending Resolution No. 67,484-N.S.

Classification and Salary Resolution for Public Employees Union - Local One, to establish the classification of Homeless Services Coordinator with a monthly salary range of $8,200 - $9,915 effective July 11, 2017.

Financial Implications: See report
Contact: Sarah Reynoso, Human Resources, 981-6800
Action: Adopted Resolution No. 68,079–N.S.

8. Contract: AMS.NET for Network Equipment and Maintenance From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract with AMS.NET, Inc. for network hardware, support, and maintenance, for a total not to exceed $455,335 from July 1, 2017 to June 30, 2020.

Financial Implications: Capital Improvement Fund - $455,335 Contact: Savita Chaudhary, Information Technology, 981-6500 Action: Adopted Resolution No. 68,080–N.S.

9. Contract No. 10522 Amendment: Redwood Engineering Construction for Willard Park Play Area and Pathway Renovations Project
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 10522 with Redwood Engineering Construction for the Willard Park Play Area and Pathway Renovation project, increasing the amount by $115,000 for an amended total amount not to exceed $417,400.

Financial Implications: Parks Tax Fund - $417,400
Contact: Scott Ferris, Parks, Recreation and Waterfront, 981-6700 Action: Adopted Resolution No. 68,081–N.S.

10. Contract No. 9044 Amendment: Building Opportunities for Self Sufficiency (BOSS)
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9044 with Building Opportunities for Self Sufficiency for leaf and litter abatement services increasing the contract amount by $120,000 for a total not to exceed $1,722,500.

Financial Implications: Zero Waste Fund - $120,000
Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,082–N.S.

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11. Contract No. 9488B Amendment: Berry Brothers Towing for Towing Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9488B with Berry Brothers Towing to provide towing services for Department of Public Works Equipment Maintenance, increasing the contract amount $20,000 for an amended total not to exceed of $110,000.

Financial Implications: Equipment Maintenance Fund - $20,000 Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,083–N.S.

12. Contract No. 9730A Amendment: Fairbanks Scales, Inc.

From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9730A with Fairbanks Scales, Inc. for preventative maintenance and repairs on various scales at the City’s Solid Waste Management and Transfer Station, increasing the contract amount by $50,000 for a total contract amount not to exceed $140,000, and extending the term of the contract to June 30, 2019.

Financial Implications: Zero Waste Fund - $50,000
Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,084–N.S.

13. Contract No. 9977 Amendment: Portable Computer Systems dba PCS Mobile to Purchase 15 Automated License Plate Recognition (ALPR) Units From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9977 with Portable Computer Systems dba PCS Mobile to purchase fifteen additional Automated License Plate Recognition units to increase parking enforcement operations capacity and effectiveness, and increasing the total $1,200,000 for a new amount not to exceed $1,650,000, and extending the term from May 30, 2020 to June 30, 2022.

Financial Implications: Parking Meter Fund - $1,200,000 Contact: Phillip Harrington, Public Works, 981-6300
Action: Moved to Action Calendar. 8 speakers. M/S/C (Worthington/Wengraf) to adopt Resolution No. 68,085–N.S. authorizing the City Manager to execute an amendment to Contract No. 9977 with Portable Computer Systems dba PCS Mobile to purchase fifteen additional Automated License Plate Recognition units to increase parking enforcement operations capacity and effectiveness, and increasing the total $1,200,000 for a new amount not to exceed $1,650,000, and extending the term from May 30, 2020 to June 30, 2022; and amend Section 7.f of Administrative Order #0001-2016 to defer any release of data until the surveillance policy and ordinance are adopted.

Vote: Ayes – Maio, Harrison, Wengraf, Worthington, Droste, Arreguin; Noes – Davila, Bartlett, Hahn.

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14. Contract No. 10472 Amendments: ELS Architecture & Urban Design and Contract No. 10464 Noll & Tam Architects: On-Call Architectural Services From: City Manager
Recommendation: Adopt two Resolutions authorizing the City Manager to execute amendments to the following contracts for on-call architectural services for a combined total of $2,000,000 as follows:

1. ELS Architecture and Urban Design, Contract No. 10472, increasing the contract amount by $1,000,000, for a total not-to-exceed amount of $1,500,000 and extending the contract period through June 30, 2019;

2. Noll & Tam Architects, Contract No. 10464, increasing the contract amount by $1,000,000, for a total not-to-exceed amount of $1,500,000 and extending the contract period through June 30, 2019.

Financial Implications: Various Funds - $2,000,000
Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,086–N.S. (ELS) and Resolution No. 68,087–N.S. (Noll & Tam)

15. Contract: Chrisp Company for Roadway Thermoplastic Markings From: City Manager
Recommendation: Adopt a Resolution approving plans and specifications for the Roadway Thermoplastic Markings Project, 16-11078-C; and authorizing the City Manager to execute a five year contract period from July 1, 2017 through June 30, 2022, and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specifications with Chrisp Company in an amount not to exceed $1,250,000.

Financial Implications: Various Funds - $1,250,000
Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,088–N.S.

16. Contract: Clean Harbors, Inc. for Hazardous Waste Management Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract with Clean Harbors, Inc. for hazardous waste management, removal, and disposal services for the City of Berkeley in an amount not-to-exceed $150,000 for the period August 1, 2017 through June 30, 2020.

Financial Implications: Various Funds - $150,000
Contact: Phillip Harrington, Public Works, 981-6300
Action: Adopted Resolution No. 68,089–N.S.

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17. Mitigating Impacts of Outdoor Air Quality on Indoor Air Quality in Berkeley From: Community Environmental Advisory Commission
Recommendation: Direct the City Manager to request the Planning Commission use the analyses presented here, and the draft provided in Appendix II, to create new Standard Conditions of Approval (SCA) for new building construction near major sources of air pollution, to achieve an acceptable level of indoor air quality (IAQ) for sensitive receptors. Total spending for required IAQ mitigations shall be at 1-2% of estimated total project costs.

Financial Implications: See report
Contact: Nabil Al-Hadithy, Commission Secretary, 981-7400 Action: Approved recommendation as modified below.

Refer the item to the Planning Commission to consider the analyses presented here, and the draft provided in Appendix II, to create new Standard Conditions of Approval (SCA) for new building construction near major sources of air pollution, to achieve an acceptable level of indoor air quality (IAQ) for sensitive receptors.

18. Ending Tax Breaks for Private Prisons Act
From: Peace and Justice Commission
Recommendation: Adopt a Resolution: 1. Directing the City Clerk to send a letter to Rep. Devin Nunes (R-CA) of the Joint Committee on Taxation with copies to all members of the Congressional Joint Committee on Taxation, and the Senate Finance Committee calling on Congress to pass the “Ending Tax Breaks for Private Prisons Act;” and 2. Having the Council of the City of Berkeley sign the MoveOn.org online petition telling congress to end private prison tax breaks.

Financial Implications: None
Contact: Eric Brenman, Commission Secretary, 981-5400

Action: Moved to Action Calendar. 1 speaker. M/S/C (Worthington/Maio) to adopt Resolution No. 68,090–N.S.

Vote (Recommendation #1): All Ayes.

Vote (Recommendation #2): Ayes – Maio, Davila, Bartlett, Harrison, Wengraf, Worthington, Droste, Arreguin; Noes – None; Abstain – Hahn.

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19. Vitality of University Avenue
From: Councilmembers Maio, Davila, and Harrison
Recommendation: Refer to the City Manager and Economic Development to analyze storefront vacancies on University Avenue and make recommendations on how to create a more vibrant streetscape on our main boulevard.

Financial Implications: Staff time
Contact: Linda Maio, Councilmember, District 1, 981-7110 Action: Approved recommendation.

20. Support Oakland Public Defender Rodney Brooks’ Efforts to Keep In-Custody Arraignment Hearings in Oakland and Not Move Them to the East County Hall of Justice in Dublin
From: Councilmembers Davila and Harrison, and Mayor Arreguin Recommendation: Send a letter from Berkeley City Council supporting Oakland Public Defender Rodney Brooks’ efforts to keep in-custody arraignment hearings in Oakland and not move them to the East County Hall of Justice in Dublin.

Financial Implications: None
Contact: Cheryl Davila, Councilmember, District 2, 981-7120 Action: Approved recommendation.

21. Referral to the Community Environmental Advisory Commission: Cigarette Butt Pollution Prevention Program in South Berkeley (Item contains revised materials.)
From: Councilmembers Bartlett and Harrison
Recommendation: Refer to the Community Environmental Commission (CEAC) to consider developing a Cigarette Butt Pollution Prevention Program for South Berkeley. Explore the following items: a) Location. Work with the local business associations, business owners, as well as other neighborhood and community organizations to identify key locations for cigarette butt receptacles. b) Operation.

Work with local businesses to develop a system for cleanup and disposal of the contents of the receptacles. c) Cost. Identify any one-time costs associated with the program, including purchasing and installation of the receptacles. Identify any costs that should be set aside for maintenance. There should not be regular ongoing costs.

CEAC should work with the businesses and neighborhoods to develop a community- based system to facilitate daily operations.

Financial Implications: Staff time
Contact: Ben Bartlett, Councilmember, District 3, 981-7130 Action: Approved recommendation as revised in Supplemental Reports Packet #1 to add Councilmember Harrison as a co-sponsor and add that the item is also referred to the City Manager.

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22. Support for AB 932 – Bill Giving San Francisco and San Diego Flexibility to Build Shelters and Transitional Housing for Unsheltered Homeless Residents From: Councilmembers Bartlett, Hahn, and Davila
Recommendation: Recommend that the Berkeley City Council send a letter to Senator Nancy Skinner and Governor Jerry Brown urging them to support AB 932.

Financial Implications: None
Contact: Ben Bartlett, Councilmember, District 3, 981-7130 Action: Approved recommendation with the letter revised to add the following phrase to the last sentence, “and request the addition of the City of Berkeley to the cities included in the bill.”

23. Support for SB 33: Bill Prohibiting Financial Institutions from Forcing Consumers to Give up Legal Rights when the Bank has Committed Intentional Fraud Against Them
From: Councilmembers Bartlett, Hahn, and Davila
Recommendation: Recommend that the Berkeley City Council send a letter to Assemblymember Tony Thurmond, and Governor Jerry Brown urging them to support SB 33.

Financial Implications: None
Contact: Ben Bartlett, Councilmember, District 3, 981-7130 Action: Approved recommendation.

24. Support of AB 214: Postsecondary Education, Student Hunger (Item contains revised materials.)
From: Councilmembers Harrison, Hahn, Davila, and Bartlett Recommendation: Adopt a Resolution supporting AB 214 Postsecondary Education, Student Hunger, an act to reduce hunger and homelessness in college students in California, and sending a copy of the resolution to Governor Jerry Brown, and Assemblymembers Lorena Gonzalez Fletcher (Appropriations Chair), Frank Bigelow (Vice Chair), Richard Bloom, Raul Bocanegra, Rob Bonta, William Brough, Ian Calderon, Ed Chau, Susan Talamantes Eggman, Vince Fong, Laura Friedman, James Gallagher, Eduardo Garcia, and Adam Gray.

Financial Implications: Minimal
Contact: Kate Harrison, Councilmember, District 4, 981-7140 Action: Adopted Resolution No. 68,091–N.S.

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25. Adopt a Resolution Approving the Allocation of $3,131,651 in Predevelopment from the Housing Trust Fund for the Berkeley Way Project From: Councilmembers Worthington, Harrison, Hahn, and Mayor Arreguin Recommendation: That the Council adopts a Resolution to approve the allocation of $3,131,651 in Housing Trust Funds for the predevelopment of BRIDGE Housing Corporation and Berkeley Food and Housing Project’s Berkeley Way project, in compliance with the Housing Advisory Commission’s recommendation, scheduled to be voted on July 6, 2017.

Financial Implications: See report
Contact: Kriss Worthington, Councilmember, District 7, 981-7170 Action: Adopted Resolution No. 68,092–N.S. as revised in Supplemental Reports Packet #2.

26. Support California AB 395 to Protect Internet Privacy From: Councilmember Worthington
Recommendation: That the Council support California Assembly Bill 395 (AB 395) in its aim to protect the internet security and privacy of Californians.

Financial Implications: See report
Contact: Kriss Worthington, Councilmember, District 7, 981-7170 Action: Approved recommendation as Revised in Supplemental Reports Packet #2 to correct the bill number to AB 375.

Action Calendar – Public Hearings

27. Amending the Berkeley Election Reform Act to Implement Public Financing From: Fair Campaign Practices Commission
Recommendation: Conduct a public hearing and upon conclusion, adopt first reading of an Ordinance amending Berkeley Municipal Code 2.12 to make changes to facilitate the implementation of the Berkeley Fair Elections Act of 2016 by a vote of not less than two-third of the City Council, in accordance with procedure for amending the Berkeley Election Reform Act set forth in Berkeley Municipal Code

2.12.051.A.

Financial Implications: See report
Contact: Jessica Mar, Commission Secretary, 981-6950

Public Testimony: The Mayor opened the public hearing. 3 speakers.

M/S/C (Worthington/Hahn) to close the public hearing.

Vote: All Ayes.

Action: Adopted first reading of Ordinance No. 7,564–N.S. Second reading scheduled for July 25, 2017.

Vote: All Ayes.

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28a.

Automatic Door Openers in Multi-Unit Residential Buildings (Continued from May 30, 2017)
From: Commission on Disability
Recommendation: Adopt a Resolution requiring: all new construction of multi-unit residential buildings (four or more units) with a common entryway in the City of Berkeley to include automatic door openers; significant remodeling or conversion of residential multi-unit buildings with four or more units and a common entryway to include automatic door openers; and owners of existing multi-unit residential buildings (four or more units) with a common entryway must install automatic door openers at the request of a resident.

Financial Implications: Unknown
Contact: Ella Callow, Commission Secretary, 981-6300

28b.

Companion Report: Automatic Door Openers in Multi-Unit Residential Buildings (Continued from May 30, 2017)
From: City Manager
Recommendation: The City Manager recommends the City Council evaluate the resolution requested by the Commission on Disability as an amendment to BMC §

19.28.010. If Council agrees with the substantive recommendations in the Commission on Disability (CoD) report entitled “Recommendations to Require Inclusion of Automatic Door Openers in Residential Buildings with Four or More Units and a Common Entryway,” the City Manager recommends Council consider a stand- alone ordinance (similar to BMC § 19.80) that would (1) limit the scope to privately owned buildings with four or more units and a common entryway; (2) not subsidize installation of automatic door openers by building owners/builders; (3) include language that limits the City’s responsibility to conduct inspections to ensure compliance; and (4) limit the City’s liability for torts related to automatic door openers that are installed.

Financial Implications: See report
Contact: Phillip Harrington, Public Works, 981-6300

Action: 2 speakers. M/S/C (Worthington/Maio) to hold over the item to September 12, 2017.

Vote: All Ayes.

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29. Housing Accountability Act (Continued from June 13, 2017. Item includes supplemental materials.)
From: City Manager
Contact: Zach Cowan, City Attorney, 981-6950
Action: 5 speakers. M/S/C (Arreguin/Davila) to refer to the City Manager, Planning Commission, Zoning Adjustments Board, and Design Review Committee to consider the following actions, and others they may find appropriate, to address the potential impacts of the Housing Accountability Act and to preserve local land use discretion:

1. Amend the General Plan and Zoning Ordinance to adopt numerical density and/or building intensity standards that can be applied on a parcel-by-parcel basis in an easy and predictable manner. These would constitute reliable and understandable “objective general plan and zoning standards” that would establish known maximum densities. This could be done across the board or for specified districts.

2. Devise and adopt “objective, identified written public health or safety standards” applicable to new housing development projects.

3. Adopt “design review standards that are part of ‘applicable, objective general plan and zoning standards and criteria”.

4. Quantify and set objective zooming standards and criteria under the first sentence of Government Code Section 65589.5(j) for views, shadows, and other impacts that often underlie detriment findings.

Vote (Paragraphs 1-3): Ayes – Maio, Davila, Harrison, Hahn, Wengraf, Worthington, Arreguin; Noes – Bartlett, Droste.

Vote (Paragraph 4): Ayes – Maio, Davila, Harrison, Hahn, Wengraf, Arreguin; Noes – Bartlett, Droste, Worthington.

Recess: 9:10 p.m. – 9:27 p.m.

30. Amend BMC Sections 3.78.030, 040, and 050 Related to Commission Procedures (Continued from June 13, 2017)
From: Human Welfare and Community Action Commission
Recommendation: Adopt a Resolution requesting that the City Manager examine the addition of language to the Berkeley Municipal Code that clarifies aspects of the management of City of Berkeley commissions and the removal and appointment of commissioners.

Financial Implications: See report
Contact: Wing Wong, Commission Secretary, 981-5400
Action: Moved to Consent Calendar. No action taken by the City Council on this item.

Vote: Ayes – Maio, Bartlett, Harrison, Hahn, Wengraf, Worthington, Droste, Arreguin; Noes – Davila.

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31. Ordinance to Ban the Sale of Fur in Berkeley; Adding BMC Chapter 9.22 From: Councilmember Worthington (Continued from June 13, 2017) Recommendation: Adopt second reading of Ordinance No. 7,539-N.S. adding BMC Chapter 9.22 to eliminate the sale of fur apparel products in order to promote community awareness of animal welfare.

First Reading Vote: Ayes - Maio, Davila, Bartlett, Hahn, Wengraf, Arreguin; Noes – Harrison, Worthington, Droste; Abstain – None; Absent – None.

Financial Implications: None
Contact: Kriss Worthington, Councilmember, District 7, 981-7170 Action: Item held over to July 25, 2017.

32. Support the Resilient Shoreline Program of Citizens for East Shore Parks (Continued from June 27, 2017)
From: Mayor Arreguin and Councilmembers Hahn, Wengraf, and Maio Recommendation: Adopt a Resolution supporting the Resilient Shoreline Program of Citizens for East Shore Parks (CESP) to raise awareness about the detrimental effects of sea-level rise and promote resilient shoreline solutions. Additionally, refer to the mid-year budget process a contribution of $10,000 to participate in CESP’s Visualizing Sea-level Rise event in Berkeley.

Financial Implications: General Fund - $10,000
Contact: Jesse Arreguin, Mayor, 981-7100
Action: Moved to Consent Calendar. Adopted Resolution No. 68.093–N.S. in support of the Resilient Shoreline Program, and Resolution No. 68,094–N.S. to authorize the expenditure of surplus funds from the Mayor’s and Councilmembers’ expense accounts for CESP from the following Councilmembers up to amounts listed: Mayor Arreguin - $2,000; Councilmember Wengraf - $500; Councilmember Maio - $250; Councilmember Harrison - $250; Councilmember Davila - $250.

33. Expedited Review for Affordable Housing Projects (Continued from June 27, 2017. Item contains revised materials.)
From: Councilmembers Hahn, Davila, and Bartlett
Recommendation: 1. Refer to the City Manager the creation of an expedited review process for housing projects in which Affordable Housing units make up more than 20% of the proposed on-site units; and

2. Direct the City Manager to immediately confer priority status and offer expedited review to 100% Affordable projects, pending adoption of a more formal and widely applicable expedited review process.

Financial Implications: Staff time
Contact: Sophie Hahn, Councilmember, District 5, 981-7150 Action: Item held over to July 25, 2017.

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34. General Fund Stability Reserve Usage Criteria (Continued from June 27, 2017.

Item contains revised materials.)
From: Councilmembers Droste, Wengraf, and Maio
Recommendation: Discuss the General Fund Stability Reserve Usage Policies described in the report and adopt policies such as those proposed, requiring a two- thirds vote of the City Council to amend them. Following recommendation from the City Manager, the City Council shall, from time to time, recognize and define “essential services”, “appropriate levels” of such services, and “extreme conditions”.

Any draw-down of Stability Reserve funds shall coincide with the adoption of a plan to repay the dollar amount of the draw down. If adopting a repayment plan immediately is infeasible due to emergency circumstances, it shall be adopted no more than 3 months from the date of the withdrawal appropriation. The level of the Stability Reserve shall be restored as economic recovery occurs, consistent with the maintenance of essential services, with repayment to begin no more than 5 years from the date of withdrawal and be completed within 10 years from the date of withdrawal.

Financial Implications: See report
Contact: Lori Droste, Councilmember, District 8, 981-7180 Action: 4 speakers. M/S/C (Hahn/Arreguin) to continue the item to September 26, 2017.

Vote: All Ayes.

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35. Medical Cannabis Cultivation Ordinance Revisions (Continued from June 27, 2017. Item contains revised materials.)
From: City Manager
Recommendation: Consider the responses provided by the Planning Commission and Medical Cannabis Commission (MCC) to Council’s referral regarding the desired maximum number of Medical Cannabis Cultivation locations (Zoning Ordinance/BMC Section 23E.72.040.A) and give direction to staff regarding any recommended changes to the Zoning Ordinance.

Financial Implications: See report
Contact: Timothy Burroughs, Planning and Development, 981-7400

Action: M/S/C (Arreguin/Maio) to suspend the rules and extend the meeting to 11:30 p.m.

Vote: Ayes – Maio, Davila, Bartlett, Harrison, Hahn, Wengraf, Worthington, Arreguin; Noes – None; Abstain – Droste.

Action: 1 speaker. M/S/Failed (Hahn/Bartlett) to adopt the proposal from Councilmember Hahn in Supplemental Reports Packet #2

1. To initially allow 6 Standard cultivation sites at no more than 22,000 square feet per site, as allowed by State regulations, for a cumulative maximum of 132,000 square feet. The remainder of square footage, up to a cumulative maximum of 182,000 square feet, would be dedicated to a Small Sites program, reserved for local, artisan, cooperative, and green growers, with 5 additional sites allowed, each of no more than 10,000 square feet. The total combined number of Standard and Small Sites allowed would be 11, and total square footage capped at 182,000 square feet;

2. To direct staff to create two application processes; one for Standard Sites and another for Small Sites favoring local, artisan, cooperative, and green growers;

3. To allow only 1 site per operator, and create an overall preference for qualified owners from populations or groups that are or have been disproportionately targeted for enforcement, criminalization, and/or incarceration related to marijuana offenses;

4. One year after a site commences operations, direct staff to undertake an evaluation that includes, but is not limited to, contacting neighbors and businesses within 500 feet and evaluating potential positive and negative impacts, recommending any helpful/necessary changes to the enabling code and helping ensure the operator is in compliance with all rules and regulations. This site -by- site review will be limited to 8 sites, representing a variety of sizes and locations, as a means of identifying benefits and challenges of cultivation operations and improving the City’s regulatory framework;

5. Once the first 11 sites have been permitted, direct staff to evaluate the overall and cumulative success and impacts of the cultivation sites program on a neighborhood and city-wide basis, review the preferences and programs for effectiveness, and consider whether the number of sites can be increased.

Vote: Ayes – Bartlett, Hahn; Noes – Davila, Harrison; Abstain – Maio, Wengraf, Worthington, Droste, Arreguin.

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 16
Action: M/S/C (Harrison/Maio) to adopt the proposal from Councilmember Harrison in Supplemental Reports Packet #2 amended to include paragraph #3 from Councilmember Hahn’s proposal.

Direct staff to prioritize local growers and cooperatives in the permitting process or set aside some of the allotted square footage specifically for use by local small growers and cooperatives. This could be achieved by maintaining the limit of 6 cultivation locations between 15,000 and 22,000 ft2 in size for all forms of cultivators (using between 90,000 and 132,000 of the available 180,000 ft 2) while allocating the remaining 48,000 ft2 to local cultivators and cooperatives, without a specific location limit. During the permitting process, each operator will be limited to one site to avoid anti-competitive practices and prevent a monopoly. After one year of operation, staff will evaluate the positive and negative impacts of the cultivation site on the surrounding businesses and neighbors, and enforce on a complaint- driven basis

#3 Hahn: To allow only 1 site per operator, and create an overall preference for qualified owners from populations or groups that are or have been disproportionately targeted for enf orcement, criminalization, and/or incarceration related to marijuana offenses;

Vote: Ayes – Maio, Davila, Bartlett, Harrison, Wengraf, Worthington, Droste, Arreguin; Noes – None; Abstain – Hahn.

Action: M/S/Failed (Droste/Wengraf) to adjourn the meeting.

Vote: Ayes – Maio, Bartlett, Wengraf, Droste; Noes – Davila, Harrison, Hahn, Worthington, Arreguin.

Action: M/S/C (Arreguin/Maio) to suspend the rules and extend the meeting to 12:00 a.m.

Vote: Ayes – Maio, Davila, Bartlett, Harrison, Hahn, Worthington, Arreguin; Noes – Droste; Abstain – Wengraf.

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 17

36. Analysis and Recommendations for the Pathways Project to Address Homelessness in Berkeley (Continued from June 27, 2017. Item contains supplemental materials.)
From: City Manager
Recommendation: Prioritize funding decisions for proposed Pathways Project programs (an Encampment Resolution Team, a STAIR Center, a Bridge Living Community, and a Homeward Bound program) based on which homeless issue Council most wishes to address in Berkeley:

1. Fund an Encampment Resolution Team and a STAIR Center for an estimated $2.4 million in year one, plus $2.1 million annually thereafter, if Council most wishes to provide temporary respite for unsheltered homeless individuals with no dedicated housing exits.

2. Fund a Bridge Living Community and a Homeward Bound program for an estimated $2.6 million in year one, plus $2.4 million annually thereafter, if Council most wishes to house an estimated 100-120 homeless individuals per year, but add no new emergency respite programs.

3. Fund all four programs at an estimated $4.8 million in year one, and an estimated $4.3 million annually thereafter, if Council wishes to address both the goal of temporary respite and permanent housing concurrently.

All funding estimates include roughly $190,000 for 1 FTE in new City Staff time for program administration.

The City Manager recommends prioritizing a Bridge Living Community and associated rental subsidies and a Homeward Bound program.

Financial Implications: See report
Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

Action: M/S/C (Arreguin/Maio) to suspend the rules and extend the meeting to 12:15 a.m.

Vote: Ayes – Maio, Davila, Bartlett, Harrison, Hahn, Worthington, Arreguin; Noes – Droste; Abstain – Wengraf.

Action: 5 speakers. M/S/C (Hahn/Davila) to adopt “Option 4” as presented in the City Manager’s report to Council on June 27, 2017, submitted by Paul Buddenhagen, Director of Health, Housing and Community Services, to establish a combined STAIR Center/Bridge Living Community and associated Homeward Bound and rapid rehousing components with the following additions, as recommended by formal action of the Council’s Ad Hoc Subcommittee on Homelessness:

1. Add an Outreach Resolution Team

2. Add a program to address illegal dumping and excessive accumulations of items and materials associated with homeless encampments, in particular in the heavily impacted West Berkeley corridor

Vote: All Ayes.

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Action Calendar – Old Business
Tuesday, July 11, 2017 ANNOTATED AGENDA Page 18
37a.

Allocation of U1 Funds by the City Council (Continued from June 27, 2017) From: Housing Advisory Commission
Recommendation: 1. As specified by Measure U1, the City Council shall receive and consider housing strategy recommendations from the Housing Advisory Commission prior to allocating any Measure U1 funds.

2. When considering allocations for U1 funds, the City Council will make specific findings of how the spending meets the goals of Measure U1: improve housing affordability in Berkeley and protect residents from homelessness.

Financial Implications: See report
Contact: Amy Davidson, Commission Secretary, 981-5400

37b.

Companion Report: Allocation of U1 Funds by the City Council (Continued from June 27, 2017)
From: City Manager
Recommendation: 1. Reaffirm that, as specified in Measure U1, the City Council shall receive and consider recommendations by the Housing Advisory Commission on funding and programs to increase affordable housing and protect Berkeley residents from homelessness, either annually or biannually. 2. Take no action with regard to committing to make findings that expenditures meet the goals of Measure U1.

Financial Implications: See report
Contact: Jovan Grogan, Deputy City Manager, (510) 981-7000

Action: Item 37b moved to the Consent Calendar and approved recommendation as amended below.

1. Reaffirm that the City Council shall receive and consider recommendations by the Housing Advisory Commission as specified in Measure U1; and 2. Take no action with regard to committing to make findings that expenditures meet the goals of Measure U1.

38a.

Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley (Continued from June 27, 2017) From: Housing Advisory Commission
Recommendation: That the City Council not use U1 funds to backfill the Workers’ Compensation Fund for the acquisition of the properties located at 1001, 1007, and 1011 University Avenue, and 1925 Ninth Street, City of Berkeley.

Financial Implications: See report
Contact: Amy Davidson, Commission Secretary, 981-5400

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Action Calendar – Old Business
Tuesday, July 11, 2017 ANNOTATED AGENDA Page 19
38b.

Companion Report: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley (Continued from June 27, 2017)
From: Housing Advisory Commission
Recommendation: Accept staff’s recommendation to use $4,730,815 of Measure U1 revenue over a 5 year period ($946,163 annually) to repay the Workers’ Compensation Fund for the acquisition of the properties located at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley.

Financial Implications: See report
Contact: Jovan Grogan, Deputy City Manager, (510) 981-7000

Action: M/S/Failed (Hahn/Davila) to suspend the rules and extend the meeting to 12:25 a.m.

Vote: Ayes – Davila, Harrison, Hahn, Worthington, Arreguin; Noes – Maio, Bartlett, Wengraf; Abstain – None; Absent - Droste.

Councilmember Droste absent 12:05 a.m. – 12:15 a.m.

Action: 5 speakers. Item held over to July 25, 2017

Action Calendar – New Business

39a.

International Symbol of Accessibility (ISA) Change for City Signage From: Commission on Disability
Recommendation: Adopt a Resolution changing future signs indicating accessibility in Berkeley. The Berkeley Commission on Disability is recommending Council support a proposed change in signs that indicates accessibility.

Financial Implications: Minimal
Contact: Ella Callow, Commission Secretary, 981-6300

39b.

Companion Report: International Symbol of Accessibility (ISA) Change for City Signage
From: City Manager
Recommendation: Refer the item back to the Commission on Disability for further analysis regarding cost differences between the existing International Symbol of Accessibility signage and the recommended signage as well as specific vendors that currently provide the recommended signage to other municipalities.

Financial Implications: Unknown
Contact: Phillip Harrington, Public Works, 981-6300

Action: Item 39a moved to Consent Calendar. Adopted Resolution No. 68,095-N.S. changing future signs indicating accessibility in Berkeley.

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Action Calendar – New Business
Tuesday, July 11, 2017 ANNOTATED AGENDA Page 20

Information Reports

40. FY 2018 Civic Arts Grant Awards
From: City Manager
Contact: Jordan Klein, Economic Development, 981-7530
Action: Received and filed.

41. FY 2017 Investment Report: Quarter Ended March 31, 2017 From: City Manager
Contact: Henry Oyekanmi, Finance, 981-7300
Action: Received and filed.

42. Status of City’s $6M Loan to the Ed Roberts Campus
From: City Manager
Contact: Paul Buddenhagen, Housing and Community Services, 981-5400 Action: Received and filed.

43. Update on Retrofit Grants Program, Activities Funded by FEMA Hazard Mitigation Grant, and Status of the Soft Story Ordinance From: City Manager
Contact: Timothy Burroughs, Planning and Development, 981-7400 Action: Received and filed.

44. Status Report July 2017 - Audit of Equipment Replacement Reserve From: City Manager
Contact: Phillip Harrington, Public Works, 981-6300
Action: Received and filed.

Public Comment – Items Not Listed on the Agenda – 0 speakers.

Adjournment:

Adjourned at 12:15 a.m. in memory of:

1. Frances Rachel, Local Activist

2. David Williamson, Local Athlete and Mentor
Communications
Restricting Flavored Tobacco Sales

1. Carol Denney
Vegetables Growing in Shade

2. Diego Aguilar-Canabal
Community Concerns

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 21

3. Nick Faber
Housing and Climate Change

4. Cameron Scherer
Thank You Letter

5. Berkeley Neighborhoods Council
Housing and Zoning Suggestions

6. Berkeley Design Advocates
Berkeley Animal Care Services Concerns

7. Jane Funk / Jovan Grogan
Free Speech

8. Therese Fitzpatrick (2)
Environmental Health Division Concerns

9. Leo Schwartz
Bank Divestments

10. Sheila Goldmacher
Berkeley Police Department Response to Protest

11. Rachel Lederman
Bike Improvements for Repaving

12. Dave Campbell
Berkeley Rose Garden

13. Annie Dillon
Request for Certificate of Permissible Rent Level Form

14. W.B.C.

Supplemental Communications and Reports 1
Item 21: Referral to the Community Environmental Advisory Commission: Cigarette Butt Pollution Prevention Program in South Berkeley

15. Revised materials, submitted by Councilmember Bartlett Item 24: Support of AB 214: Postsecondary Education, Student Hunger

16. Revised materials, submitted by Councilmember Harrison Item 29: Housing Accountability Act

17. Rob Wrenn
Item 33: Expedited Review for Affordable Housing Projects

18. Revised materials, submitted by Councilmember Hahn
Item 35: Medical Cannabis Cultivation Ordinance Revisions

19. Supplemental materials, submitted by Councilmember Hahn Item 36: Analysis and Recommendations for the Pathways Project to Address Homelessness in Berkeley

20. Supplemental materials, submitted by Councilmember Hahn

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 22
Item 37a: Allocation of U1 Funds by the City Council
Item 37b: Companion Report: Allocation of U1 Funds by the City Council Item 38a: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley
Item 38b: Companion Report: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley

21. Cecile Pineda

22. Norma Harrison

23. Tree Fitzpatrick

24. Nico Calavita
Item 40: FY 2018 Civic Arts Grant Awards

25. Bruce Coughran

26. Cherie Hill

27. Andrea Hirsig

28. Susan Muscarella

29. Andrew Page

30. Liz Ozol

31. Pamela Miller

32. Carol Lashof

33. Rebecca Seeman

34. George-Ann Bowers

35. Sara Gambina-Belknap

36. Janice Murota

37. Inferno Theatre

38. Dyana Vukovich

39. Sharon Dolan

40. Wendy Ponder

41. Emmerich Anklam

42. Rachel Nissim

43. Carol Handelman

44. Jan Zvaifler

45. Emily Wainacht
Supplemental Communications and Reports 2
Item 6: Housing Trust Fund Recommendation – Northern California Land Trust (NCLT) Scattered Site Rehabilitation

46. Revised materials, submitted by Councilmember Harrison Item 13: Contract No. 9977 Amendment: Portable Computer Systems dba PCS Mobile to Purchase 15 Automated License Plate Recognition (ALPR) Units

47. Alfred Twu

48. Ryan Thorngren
Item 21: Referral to the Community Environmental Advisory Commission: Cigarette Butt Pollution Prevention Program in South Berkeley

49. Carol Denney

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 23
Item 25: Adopt a Resolution Approving the Allocation of $3,131,651 in Predevelopment from the Housing Trust Fund for the Berkeley Way Project

50. Revised materials, submitted by Councilmember Worthington

51. Supplemental materials, submitted by Health, Housing & Community Services Item 26: Support California AB 395 to Protect Internet Privacy

52. Revised materials, submitted by Councilmember Worthington Item 27: Amending the Berkeley Election Reform Act to Implement Public Financing

53. Daniel Newman, on behalf of the Berkeley Fair Elections Coalition

54. Rob Wrenn

55. Igor Tregub
Item 28: Automatic Door Openers in Multi-Unit Residential

56. Supplemental materials, submitted by Commission on Disability Item 32: Support the Resilient Shoreline Program of Citizens for East Shore Parks

57. Revised materials, submitted by Mayor Arreguin
Item 33: Expedited Review for Affordable Housing Projects

58. Supplemental materials, submitted by Councilmember Droste Item 35: Medical Cannabis Cultivation Ordinance Revisions

59. Supplemental materials, submitted by Councilmember Hahn

60. Supplemental materials, submitted by Councilmember Harrison

61. Medical Cannabis Commission

62. Charley Pappas
Item 37a: Allocation of U1 Funds by the City Council
Item 37b: Companion Report: Allocation of U1 Funds by the City Council Item 38a: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley
Item 38b: Companion Report: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley

63. Sheila Goldmacher (2)

64. Lynnda Ohama

65. Jim Latchney

66. Christine Schwartz

67. Kris Eggen

68. Diana Bohn

69. Sally Nelson (2)

70. Bill Bogert

71. Judy Nakadegawa

72. Pei Wu

73. Joshua

74. Joel Reed

75. Daniel Moore

76. Joshua Pfeffer

77. Gary Hicks

78. Ellen Woods

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 24

79. Happy Skywalker

80. Pam Webster

81. Phil Allen

82. Marcia Poole

83. Lisa Giampaoli

84. Maurice Catlett

85. Norma Harrison

86. Moni Law

87. Cassidy Crofton

88. Linda Franklin

89. Chimey Lee

90. Lauren Chester

91. Alex White
Item 25: Adopt a Resolution Approving the Allocation of $3,131,651 in Predevelopment from the Housing Trust Fund for the Berkeley Way Project

92. 37 Communications submitted via Berkeley Considers, includes summary information.

Supplemental Communications and Reports 3
Item 6: Housing Trust Fund Recommendation – Northern California Land Trust (NCLT) Scattered Site Rehabilitation

93. Ian Winters
Item 13: Contract No. 9977 Amendment: Portable Computer Systems dba PCS Mobile to Purchase 15 Automated License Plate Recognition (ALPR) Units

94. Presentation, submitted by Public Works Department

95. Gunnar Rieth

96. Felipe Diaz

97. Blair Beekman
Item 27: Amending the Berkeley Election Reform Act to Implement Public Financing

98. Presentation, submitted by Fair Campaign Practices Commission Item 35: Medical Cannabis Cultivation Ordinance Revisions

99. Presentation, submitted by Planning & Development
Item 36: Analysis and Recommendations for the Pathways Project to Address Homelessness in Berkeley
100. Presentation, submitted by Health, Housing & Community Services Item 37a: Allocation of U1 Funds by the City Council
Item 37b: Companion Report: Allocation of U1 Funds by the City Council Item 38a: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley
Item 38b: Companion Report: Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street, Berkeley 101. Sheila Goldmacher
102. John Tortorice

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Tuesday, July 11, 2017 ANNOTATED AGENDA Page 25
Misc. Communications
Board of Library Trustees
103. Unknown
HERO Program
104. Unknown

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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]

SUPPLEMENTAL

AGENDA MATERIAL
for Supplemental Packet 2

Meeting Date: November 12, 2019

Item Number: 30

Item Description: Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras

Submitted by: Dee Williams-Ridley, City Manager

Attached is the originally published s taff report with updated attachments. The staff report that was published did not include the surveillance technology reports. The following has been incorporated into the attachments:

 Surveillance Technology Report for Body Worn Cameras incorporated into Attachment 2.

 Surveillance Technology Report for Global Positioning System Tracking Devices incorporated into Attachment 3.

 Surveillance Technology Report for Automated License Plate Readers incorporated into Attachment 4.

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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

ACTION CALENDAR
November 12, 2019
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Andrew Greenwood, Chief of Police
David White, Deputy City Manager
Subject: Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras

RECOMMENDATION
Adopt a Resolution accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras submitted pursuant to Chapter 2.99 of the Berkeley Municipal Code.

FISCAL IMPACTS OF RECOMMENDATION
There are no fiscal impacts associated with adopting the attached resolution.

CURRENT SITUATION AND ITS EFFECTS
On March 27, 2018, the City Council adopted Ordinance 7,592-N.S., adding Chapter 2.99 to the Berkeley Municipal Code, which is also known as the Surveillance Technology Use and Community Safety Ordinance (“Ordinance”). The purpose of the Ordinance is to provide transparency surrounding the use of surveillance technology, as defined by Section 2.99.020 in the Ordinance, and to ensure that decisions surrounding the acquisition and use of surveillance technology consider the impacts that such technology may have on civil rights and civil liberties. Further, the Ordinance requires that the City evaluate all costs associated with the acquisition of surveillance technology and regularly report on their use.

The Ordinance imposes various reporting requirements on the City Manager and staff.

The purpose of this staff report and attached resolution is to satisfy annual reporting requirements as outlined in sections 2.99.050 and 2.99.070. The attached Surveillance Technology Reports
, Surveillance Acquisition Reports and Surveillance Use Policies for Automatic License Plater Readers, GPS Trackers, and Body Worn Cameras are for technologies that were acquired by the City prior to the adoption of the Ordinance.

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Resolution Accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy Pursuant to Chapter 2.99 of the Berkeley Municipal Code

ACTION CALENDAR
November 12, 2019

Page 2 ends

Section 2.99.050 of the Ordinance required the City Manager to submit a Surveillance Acquisition Report and Surveillance Use Policy for each surveillance technology that has been possessed or used prior to the effective date of the Ordinance. The requirements of this section were not satisfied due to a multitude of factors, and the Police Department opted to submit the attached acquisition reports and use policies to the Police Review Commission prior to their review by the City Council. The Police Review Commission underwent an extensive engagement process and the full Commission discussed the attached use policies and reports at scheduled meetings from May to October 2019. In all cases, the Police Review Commission approved the attached acquisition reports and use policies and conveyed any concerns or suggested modifications to the Police Chief .

In addition to the technologies covered by the attached resolution, City staff continues to evaluate whether or not there is any other technology that is used or possessed that is subject to the Ordinance.

Finally, Section 2.99.040 of the Ordinance allows the City Manager to borrow, acquire, or temporarily use surveillance technology in exigent circumstances without having to obtain the approval of City Council. Since the adoption of the ordinance, the City is reporting two instances in which the City Manager has made use of Section 2.99.040. In preparation for the potentially violent August 5, 2018 demonstration in downtown Berkeley, the City borrowed remote accessible cameras from the Northern California Regional Intelligence Center (NCRIC) in order to have the ability to remotely monitor intersections in real time. The cameras did not have face recognition technology. Signage was posted in the areas of the cameras, informing people that the area may be under video surveillance. Using cameras to monitor intersections is at times preferable to physically placing officers in those locations. In addition, as a mutual aid resource, the Police Department requested the Alameda County Sheriff’s Office Small Unmanned Aerial System (sUAS) team as a mutual aid resource. The purpose of the request was to support the identification and apprehension of any felony suspects, should a felony occur. Following the felony vandalism of over ten City of Berkeley vehicles, the sUAS team deployed a drone, but no suspects were apprehended.

BACKGROUND

On March 27, 2018, the City Council adopted Ordinance 7,592-N.S., adding Chapter 2.99 to the Berkeley Municipal Code, which is also known as the Surveillance Technology Use and Community Safety Ordinance. The Ordinance contains various reporting requirements including the following:


Section 2.99.050, which requires that the City Manager shall submit a Surveillance Acquisition Report and a proposed Surveillance Use Policy for each technology governed by the Ordinance that had been possessed or used by the City prior to the effective date of the Ordinance; and

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Resolution Accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy Pursuant to Chapter 2.99 of the Berkeley Municipal Code

ACTION CALENDAR
November 12, 2019

Page 3 ends


Section 2.99.070 of the Ordinance, which requires that the City Manager must submit to the City Council a Surveillance Technology Report as defined by Section

2.99.020(2) of the Ordinance at the first regular City Council meeting in November.

For each of the three technologies, the Surveillance Technology Report, Surveillance Acquisition Report and Surveillance Use Policies were prepared to satisfy the specific, section-by-section requirements of the Ordinance, and are attached to this report. It should be noted that substantial policies already existed for Body Worn Cameras and License Plate Readers. Those policies—
also reviewed by the Police Review Commission
for purposes of this report—are also attached. The existing policies will continue to remain in effect upon Council’s approval. Henceforth, all new Surveillance Use Policies and Surveillance Acquisition Reports will be listed in Chapter 13 of the Berkeley Police Department Policy Manual, which is being created to provide easy access to all policies relating to BMC 2.99. All BPD policies are available to the public on BPD’s website.

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

RATIONALE FOR RECOMMENDATION
City Council is being asked to adopt the attached resolution for the City to be in compliance with the Ordinance.

ALTERNATIVE ACTIONS CONSIDERED
City Council could decide not to adopt the resolution or could direct staff to revise the attached policies.

CONTACT PERSON
Andrew Greenwood, Chief of Police, (510) 981-7017
David White, Deputy City Manager, (510) 981-7012

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Resolution Accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy Pursuant to Chapter 2.99 of the Berkeley Municipal Code

ACTION CALENDAR
November 12, 2019

Page 4 ends

ATTACHMENTS

1. Proposed Resolution

2. Body Worn Cameras
Surveillance Technology Report: Body Worn Cameras
Policy 1300 Body Worn Camera Use Policy
Policy 1300(a) Appendix: Body Worn Camera Acquisition Report Policy 425 Body Worn Camera Policy (Existing Policy)

3. Global Positioning System Tracking Devices
Surveillance Technology Report
Policy 1301 Global Positioning System Tracking Devices Use Policy Policy 1301(a) Appendix: Global Positioning System Tracking Devices Acquisition Report

4. Automated License Plate Readers
Surveillance Technology Report: Automated License Plate Readers Policy 1302 Automated License Plate Reader Use Policy
Policy 1302(a) Appendix: Automated License Plate Reader Acquisition Report Policy 422 Automated License Plate Reader (Latest version of existing Policy)

5. Police Review Commission Memorandum Regarding Automatic License Plate Readers

i:\surveillance ordinance\city council meeting -- 11-12-19\11-12-2019_surveillance ordinance staff report and resolution (04).docx

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

A RESOLUTION ACCEPTING THE SURVEILLANCE TECHNOLOGY REPORT,

SURVEILLANCE ACQUISITION REPORT, AND SURVEILLANCE USE POLICY FOR

AUTOMATIC LICENSE PLATE READERS, GPS TRACKERS, AND BODY WORN

CAMERAS

WHEREAS, on March 27, 2018, the City Council adopted Ordinance 7, 592-N.S., which is known as the Surveillance Technology Use and Community Safety Ordinance (“Ordinance”); and

WHEREAS, Section 2.99.050 of the Ordinance requires that the City Manager shall submit a Surveillance Acquisition Report and a proposed Surveillance Use Policy for each piece of technology governed by the Ordinance that had been possessed or used by the City prior to the effective date of the Ordinance; and

WHEREAS, Section 2.99.070 of the Ordinance requires that the City Manager must submit to the City Council a Surveillance Technology Report as defined by Section

2.99.020(2) of the Ordinance at the first regular City Council meeting in November; and

WHEREAS, the Surveillance Acquisition Reports and Surveillance Use Policies for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras satisfy the requirements of the Ordinance.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley:

Section 1. Pursuant to Section 2.99.060, as it pertains to the use of Automatic License Plater Readers, GPS Trackers, and Body Worn Cameras, the City Council hereby finds and determines the following:

a. The benefits of using the technologies outweigh the costs; b. The policies attached to this resolution safeguard civil liberties; and c. No feasible alternatives exist with similar utility that will have a lesser impact on civil rights or liberties.

Section 2. The City Council hereby accepts the Surveillance Technology Reports ,
Surveillance Acquisition Reports, and Surveillance Use Policies for Automatic License Plate Readers, GPS Trackers, and Body Worn Cameras.

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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

ACTION CALENDAR
September 13, 2022
(Continued from July 26, 2022)
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Andrew Greenwood, Chief of Police
David White, Deputy City Manager
Subject: Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers

RECOMMENDATION
Adopt a Resolution accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy for Automatic License Plate Readers submitted pursuant to Chapter 2.99 of the Berkeley Municipal Code.

FISCAL IMPACTS OF RECOMMENDATION
There are no fiscal impacts associated with adopting the attached resolution.

The Ordinance imposes various reporting requirements on the City Manager and staff.

The purpose of this staff report and attached resolution is to satisfy annual reporting requirements as outlined in sections 2.99.050 and 2.99.070. The attached Surveillance Technology Reports, Surveillance Acquisition Reports and Surveillance Use Policies for Automatic License Plater Readers, GPS Trackers, and Body Worn Cameras are for technologies that were acquired by the City prior to the adoption of the Ordinance.

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Resolution Accepting the Surveillance Technology Report, Surveillance Acquisition Report, and Surveillance Use Policy Pursuant to Chapter 2.99 of the Berkeley Municipal Code

ACTION CALENDAR
September 13, 2022

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BACKGROUND
On March 27, 2018, the City Council adopted Ordinance 7,592-N.S., adding Chapter 2.99 to the Berkeley Municipal Code, which is also known as the Surveillance Technology Use and Community Safety Ordinance. The Ordinance contains various reporting requirements including the following:
 Section 2.99.050, which requires that the City Manager shall submit a Surveillance Acquisition Report and a proposed Surveillance Use Policy for each technology governed by the Ordinance that had been possessed or used by the City prior to the effective date of the Ordinance; and

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Berkeley City CouncilSeptember 13, 2022

Berkeley City Council
September 13, 2022