Berkeley City Council
June 4, 2024

35

FY 2024/2025 Transportation Development Act Article 3 Fund Allocation CONSENT CALENDAR June 4, 2024

Bicycle Plan update was initiated. No matching funds are required for this funding allocation.

Reallocation request $121,374
Funding increase request $151,950
Total Bicycle Plan update cost $273,324

CURRENT SITUATION AND ITS EFFECTS
FY 2024/2025 Transportation Development Act Article 3 Fund Allocation will support updating the City’s Bicycle Plan, which is a Strategic Plan Priority Project, advancing our goals to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities and to create a resilient, safe, connected, and prepared city.

The Bicycle Plan update was launched in 2021 and put on hold in 2022 due to staffing vacancies within Public Works. Before it was suspended in 2022, several tasks and deliverables were initiated, including public outreach and high injury corridor research.

The City of Berkeley is submitting a FY 2024-25 TDA Article 3 allocation request to complete a comprehensive Bicycle Plan update. This project will analyze the City’s existing bicycle network, engage the public and City stakeholders, make new recommendations for a low-stress bikeway network, update bike boulevard design guidelines, identify key projects for priority corridors and create an implementation strategy to be presented as a final plan for adoption by City Council. MTC, Alameda County Transportation Commission (CTC) and the State of California all require that cities update their bicycle, pedestrian and active transportation plans every five years to maintain eligibility for County, regional and State competitive transportation grant funding. The City is apportioned approximately $100,000 to $120,000 annually under TDA Article 3 for qualified bicycle and pedestrian projects. The City’s currently available TDA fund balance is $377,173.

BACKGROUND
The State Legislature passed the Transportation Development Act in 1971, implementing a statewide quarter-cent sales tax. TDA is one of the major funding sources for public transportation in California, and under Article 3, funds are to be used by local jurisdictions for qualified bicycle and pedestrian projects. Writing and updating bicycle, pedestrian and active transportation plans are considered eligible TDA expenses.

Local jurisdictions obtain these funds in a three-step process: apportionment, allocation and payment through reimbursement. Apportionment in the San Francisco Bay Area follows the MTC formula based upon population. The City submits TDA allocation requests to MTC on an annual basis, and unused TDA funds allocated to any project are rolled over from one fiscal year to the next. No matching funds are required, but the project must meet the funding objectives and be developed in cooperation with the

FY 2024/2025 Transportation Development Act Article 3 Fund Allocation CONSENT CALENDAR June 4, 2024

community. The basic funding objectives are to increase the safety, security and efficiency of bicycle and pedestrian travel and to provide for a coordinated system. The City receives payment of allocated grant funds upon submission of claims for reimbursement.

MTC requires both a supporting resolution from the City Council and a review of TDA allocations by a pedestrian and/or bicycle advisory committee. The City’s Transportation and Infrastructure Commission functions as the City’s Bicycle and Pedestrian Advisory Committee. At the April 15, 2021 Commission meeting, it was motioned and seconded (Ghosh/Gosselin) and unanimously approved that the “Commission recommends that City Council authorize the City Manager to submit an allocation request to the Metropolitan Transportation Commission (MTC) for $450,000 of FY2021-22 Transportation Development Act (TDA) Article 3 funds for the Bicycle Plan Update ($200,000).”

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The primary goal of the Bicycle Plan update is to improve traffic safety for people riding bicycles. This is consistent with the 2009 Climate Action Plan Policy 5.a that calls for expanding and improving Berkeley’s bicycle and pedestrian infrastructure. The Bicycle Plan sets targets of reducing transportation emissions 33% below year 2000 levels by 2020 and 80% below year 2000 levels by 2050. The Bicycle Plan further states that transportation modes, such as public transit, walking, and bicycling, must become the primary means of fulfilling the City’s mobility needs in order to meet these targets.

RATIONALE FOR RECOMMENDATION
The City’s most recent update to the Bicycle Plan was adopted in 2017 (Resolution No.67,945-N.S.). Since then, the City’s bicycle network has changed as several capital projects in the plan have been designed and constructed. Existing conditions need to be evaluated and public outreach must be conducted to determine the current priorities for the bicycle network. An implementation strategy will need to be developed as well so that the City can pursue available funding to complete prioritized projects. Bicycle Boulevard design guidelines also need to be updated. All of these needs will be addressed within the scope of this Bicycle Plan update.

ALTERNATIVE ACTIONS CONSIDERED
The City could choose not to apply for and accept for these funds. However, no alternative funding source has been identified to update the Bicycle Plan.

CONTACT PERSON
Wahid Amiri, Deputy Director, 510-981-6396
Hamid Mostowfi, Transportation Manager, 510-981-6403
Eric Anderson, Principal Planner, 510-981-7062
Dani Dynes, Associate Planner, 510-981-7053

FY 2024/2025 Transportation Development Act Article 3 Fund Allocation CONSENT CALENDAR June 4, 2024

Attachments:
1: Resolution
Exhibit A: Findings
Exhibit B: TDA Article 3 Project Application Form
2: Resolution
Exhibit A: Findings
Exhibit B: TDA Article 3 Project Application Form

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

REQUEST TO THE METROPOLITAN TRANSPORTATION COMMISSION FOR THE ALLOCATION OF FISCAL YEAR 2024-2025 TRANSPORTATION DEVELOPMENT ACT ARTICLE 3 PEDESTRIAN/BICYCLE PROJECT FUNDING
WHEREAS, Article 3 of the Transportation Development Act (TDA), Public Utilities Code (PUC) Section 99200 et seq., authorizes the submission of claims to a regional transportation planning agency for the funding of projects exclusively for the benefit and/or use of pedestrians and bicyclists; and
WHEREAS, the Metropolitan Transportation Commission (MTC), as the regional transportation planning agency for the San Francisco Bay region, has adopted MTC Resolution No. 4108, Revised, entitled “Transportation Development Act, Article 3, Pedestrian/Bicycle Projects,” which delineates procedures and criteria for submission of requests for the allocation of “TDA Article 3” funding; and WHEREAS, MTC Resolution No. 4108, Revised requires that requests for the allocation of TDA Article 3 funding be submitted as part of a single, countywide coordinated claim from each county in the San Francisco Bay region; and
WHEREAS, the City of Berkeley desires to submit a request to MTC for the allocation of TDA Article 3 funds to support the projects described in Attachment B to this resolution, which are for the exclusive benefit and/or use of pedestrians and/or bicyclists; and NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Berkeley that the City Manager is authorized to submit a request to the Metropolitan Transportation Commission prior to the June 14, 2024 deadline for the allocation of FY 2024-25 Transportation Development Act Article 3 pedestrian/bicycle project funding in the amount of $151,950 for the Berkeley Bicycle Plan Update; and that the City Manager is authorized to accept the allocation; execute any resultant agreements and amendments; and authorize the implementation of the project, subject to securing the allocation.

BE IT FURTHER RESOLVED that the City of Berkeley declares it is eligible to request an allocation of TDA Article 3 funds pursuant to Section 99234 of the Public Utilities Code.

BE IT FURTHER RESOLVED that there is no pending or threatened litigation that might adversely affect the project or projects described in Attachment B to this resolution, or that might impair the ability of the City of Berkeley to carry out the project.

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

Attachment A
RE: REQUEST TO THE METROPOLITAN TRANSPORTATION COMMISSION FOR THE ALLOCATION OF FISCAL YEAR 2024-2025 TRANSPORTATION
DEVELOPMENT ACT ARTICLE 3 PEDESTRIAN/BICYCLE PROJECT FUNDING Findings

1. That the City of Berkeley is not legally impeded from submitting a request to the Metropolitan Transportation Commission for the allocation of Transportation Development Act (TDA) Article 3 funds, nor is the City of Berkeley legally impeded from undertaking the project(s) described in “Attachment B” of this resolution.

2. That the City of Berkeley has committed adequate staffing resources to complete the project(s) described in Attachment B.

3. A review of the project(s) described in Attachment B has resulted in the consideration of all pertinent matters, including those related to environmental and right-of-way permits and clearances, attendant to the successful completion of the project(s).

4. Issues attendant to securing environmental and right-of-way permits and clearances for the projects described in Attachment B have been reviewed and will be concluded in a manner and on a schedule that will not jeopardize the deadline for the use of the TDA funds being requested.

5. That the project(s) described in Attachment B comply with the requirements of the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.).

6. That as portrayed in the budgetary description(s) of the project(s) in Attachment B, the sources of funding other than TDA are assured and adequate for completion of the project(s).

7. That the project(s) described in Attachment B are for capital construction and/or final design and engineering or quick build project; and/or for the maintenance of a Class I bikeway which is closed to motorized traffic and/or Class IV separated bikeway; and/or for the purposes of restriping Class II bicycle lanes; and/or for the development or support of a bicycle safety education program; and/or for the development of a comprehensive bicycle and/or pedestrian facilities plan, and an allocation of TDA Article 3 funding for such a plan has not been received by the City of Berkeley within the prior five fiscal years.

8. That the project(s) described in Attachment B which are bicycle projects have been included in a detailed bicycle circulation element included in an adopted general plan, or included in an adopted comprehensive bikeway plan (such as outlined in Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.) or responds to an immediate community need, such as a quick-build project.

9. That any project described in Attachment B bicycle project meets the mandatory minimum safety design criteria published in the California Highway Design Manual or is in a National Association of City and Transportation Officials (NACTO) guidance or similar best practices document.

10. That the project(s) described in Attachment B will be completed in the allocated time (fiscal year of allocation plus two additional fiscal years).

11. That the City of Berkeley agrees to maintain, or provide for the maintenance of, the project(s) and facilities described in Attachment B, for the benefit of and use by the public.

Resolution No. _____ page ___ of ___

TDA Article 3 Project Application Form
Fiscal Year of this Claim: 2024-2025 Applicant: City of Berkeley Contact person: Dani Dynes
Mailing Address: 1947 Center St. 4th Floor Berkeley, CA 94704 E-Mail Address: [email protected] Telephone: 510-981-7053 Secondary Contact (in event primary not available) Eric Anderson E-Mail Address: [email protected] Telephone: 510-981-7062 Project Title (Short Description): Berkeley Bicycle Plan Update Amount of claim: $151,950
Description of Overall Project:

Project Scope Proposed for Funding: (Project level environmental, preliminary planning, and ROW are ineligible uses of TDA funds.)
Project Budget and Schedule
Project Budget is $151,950. Schedule is: Consultant procurement and kickoff Spring 2024, Outreach and Engagement Summer 2024, Input from internal stakeholders and Commissions Spring-Fall 2024, Final Draft outreach and comment Fall 2024, Plan adoption December 10th 2024.

Project Phase TDA 3 Other Funds Total Cost Estimated Completion (month/year)
Bike/Ped Plan $151,950 12/10/24
ENV
PA&ED
PS&E
ROW
CON
Total Cost $151,950 12/10/24
The project is a comprehensive update to the City of Berkeley’s Bicycle Plan, last updated in 2017. The project will fulfill the requirements of Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.

Project scope will include outreach and engagement, analysis, drafting proposed updates to Bicycle Plan chapters and appendices, and adoption of the final comprehensive update to the Bicycle Plan.

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/ Project Eligibility: YES?/NO?
A. Has the project been approved by the claimant's governing body? (If "NO," provide the approximate date approval is anticipated).

YES
B. Has this project previously received TDA Article 3 funding? If "YES," provide an explanation on a separate page. YES C. For "bikeways," does the project meet Caltrans minimum safety design criteria pursuant to Chapter 1000 of the California Highway Design Manual? (Available on the internet via: http://www.dot.ca.gov).

N/A
D. Has the project been reviewed by the Bicycle and Pedestrian Advisory Committee? (If "NO," provide an explanation).

YES
E. Has the public availability of the environmental compliance documentation for the project (pursuant to CEQA) been evidenced by the dated stamping of the document by the county clerk or county recorder? (required only for projects that include construction).

N/A
F. Will the project be completed before the allocation expires? Enter the anticipated completion date of project (month and year) December 10, 2024
YES
G. Have provisions been made by the claimant to maintain the project or facility, or has the claimant arranged for such maintenance by another agency? (If an agency other than the Claimant is to maintain the facility provide its name:
)
N/A

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

RE: REQUEST TO THE METROPOLITAN TRANSPORTATION COMMISSION FOR THE ALLOCATION OF FISCAL YEAR 2024-2025 TRANSPORTATION DEVELOPMENT ACT ARTICLE 3 PEDESTRIAN/BICYCLE PROJECT FUNDING

WHEREAS, Article 3 of the Transportation Development Act (TDA), Public Utilities Code (PUC) Section 99200 et seq., authorizes the submission of claims to a regional transportation planning agency for the funding of projects exclusively for the benefit and/or use of pedestrians and bicyclists; and

WHEREAS, the Metropolitan Transportation Commission (MTC), as the regional transportation planning agency for the San Francisco Bay region, has adopted MTC Resolution No. 4108, Revised, entitled “Transportation Development Act, Article 3, Pedestrian/Bicycle Projects,” which delineates procedures and criteria for submission of requests for the allocation of “TDA Article 3” funding; and

WHEREAS, MTC Resolution No. 4108, Revised requires that requests for the allocation of TDA Article 3 funding be submitted as part of a single, countywide coordinated claim from each county in the San Francisco Bay region; and

WHEREAS, the City of Berkeley desires to submit a request to MTC for the allocation of TDA Article 3 funds to support the projects described in Attachment B to this resolution, which are for the exclusive benefit and/or use of pedestrians and/or bicyclists; now, therefore,

BE IT RESOLVED, that the City of Berkeley declares it is eligible to request an allocation of TDA Article 3 funds pursuant to Section 99234 of the Public Utilities Code, and furthermore,

BE IT RESOLVED, that there is no pending or threatened litigation that might adversely affect the project or projects described in Attachment B to this resolution, or that might impair the ability of the City of Berkeley to carry out the project; and furthermore,

BE IT RESOLVED, that the City of Berkeley attests to the accuracy of and approves the statements in Attachment A to this resolution; and furthermore,

BE IT RESOLVED, that a certified copy of this resolution and its attachments, and any accompanying supporting materials shall be forwarded to the congestion management agency, countywide transportation planning agency, or county association of governments, as the case may be, of Alameda for submission to MTC as part of the countywide coordinated TDA Article 3 claim.

The City of Berkeley adopted this resolution on June 4, 2024.

AYES:

NAYS:

Certified to by (signature):

TYPE NAME OF CERTIFYING INDIVIDUAL HERE

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

Attachment A
RE: REQUEST TO THE METROPOLITAN TRANSPORTATION COMMISSION FOR THE ALLOCATION OF FISCAL YEAR 2024-2025 TRANSPORTATION
DEVELOPMENT ACT ARTICLE 3 PEDESTRIAN/BICYCLE PROJECT FUNDING Findings

1. That the City of Berkeley is not legally impeded from submitting a request to the Metropolitan Transportation Commission for the allocation of Transportation Development Act (TDA) Article 3 funds, nor is the City of Berkeley legally impeded from undertaking the project(s) described in “Attachment B” of this resolution.

2. That the City of Berkeley has committed adequate staffing resources to complete the project(s) described in Attachment B.

3. A review of the project(s) described in Attachment B has resulted in the consideration of all pertinent matters, including those related to environmental and right-of-way permits and clearances, attendant to the successful completion of the project(s).

4. Issues attendant to securing environmental and right-of-way permits and clearances for the projects described in Attachment B have been reviewed and will be concluded in a manner and on a schedule that will not jeopardize the deadline for the use of the TDA funds being requested.

5. That the project(s) described in Attachment B comply with the requirements of the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.).

6. That as portrayed in the budgetary description(s) of the project(s) in Attachment B, the sources of funding other than TDA are assured and adequate for completion of the project(s).

7. That the project(s) described in Attachment B are for capital construction and/or final design and engineering or quick build project; and/or for the maintenance of a Class I bikeway which is closed to motorized traffic and/or Class IV separated bikeway; and/or for the purposes of restriping Class II bicycle lanes; and/or for the development or support of a bicycle safety education program; and/or for the development of a comprehensive bicycle and/or pedestrian facilities plan, and an allocation of TDA Article 3 funding for such a plan has not been received by the City of Berkeley within the prior five fiscal years.

8. That the project(s) described in Attachment B which are bicycle projects have been included in a detailed bicycle circulation element included in an adopted general plan, or included in an adopted comprehensive bikeway plan (such as outlined in Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.) or responds to an immediate community need, such as a quick-build project.

9. That any project described in Attachment B bicycle project meets the mandatory minimum safety design criteria published in the California Highway Design Manual or is in a National Association of City and Transportation Officials (NACTO) guidance or similar best practices document.

10. That the project(s) described in Attachment B will be completed in the allocated time (fiscal year of allocation plus two additional fiscal years).

11. That the City of Berkeley agrees to maintain, or provide for the maintenance of, the project(s) and facilities described in Attachment B, for the benefit of and use by the public.

Resolution No. _____ page ___ of ___
TDA Article 3 Project Application Form
Fiscal Year of this Claim: 2024-2025 Applicant: City of Berkeley Contact person: Dani Dynes
Mailing Address: 1947 Center St. 4th Floor Berkeley, CA 94704 E-Mail Address: [email protected] Telephone: 510-981-7053 Secondary Contact (in event primary not available) Eric Anderson E-Mail Address: [email protected] Telephone: 510-981-7062 Project Title (Short Description): Berkeley Bicycle Plan Update Amount of claim: $151,950
Description of Overall Project:

Project Scope Proposed for Funding: (Project level environmental, preliminary planning, and ROW are ineligible uses of TDA funds.)
Project Budget and Schedule
Project Budget is $151,950. Schedule is: Consultant procurement and kickoff Spring 2024, Outreach and Engagement Summer 2024, Input from internal stakeholders and Commissions Spring-Fall 2024, Final Draft outreach and comment Fall 2024, Plan adoption December 10th 2024.

Project Phase TDA 3 Other Funds Total Cost Estimated Completion (month/year)
Bike/Ped Plan $151,950 12/10/24
ENV
PA&ED
PS&E
ROW
CON
Total Cost $151,950 12/10/24
The project is a comprehensive update to the City of Berkeley’s Bicycle Plan, last updated in 2017. The project will fulfill the requirements of Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.

Project scope will include outreach and engagement, analysis, drafting proposed updates to Bicycle Plan chapters and appendices, and adoption of the final comprehensive update to the Bicycle Plan.

Project Eligibility: YES?/NO?
A. Has the project been approved by the claimant's governing body? (If "NO," provide the approximate date approval is anticipated).

YES
B. Has this project previously received TDA Article 3 funding? If "YES," provide an explanation on a separate page. YES C. For "bikeways," does the project meet Caltrans minimum safety design criteria pursuant to Chapter 1000 of the California Highway Design Manual? (Available on the internet via: http://www.dot.ca.gov).

N/A
D. Has the project been reviewed by the Bicycle and Pedestrian Advisory Committee? (If "NO," provide an explanation).

YES
E. Has the public availability of the environmental compliance documentation for the project (pursuant to CEQA) been evidenced by the dated stamping of the document by the county clerk or county recorder? (required only for projects that include construction).

N/A
F. Will the project be completed before the allocation expires? Enter the anticipated completion date of project (month and year) December 10, 2024
YES
G. Have provisions been made by the claimant to maintain the project or facility, or has the claimant arranged for such maintenance by another agency? (If an agency other than the Claimant is to maintain the facility provide its name:
)
N/A

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

CONSENT CALENDAR
June 4, 2024
To:

Honorable Mayor and Members of the City Council
From: Mental Health Commission
Submitted by: Jamie Works-Wright, Secretary Mental Health Commission Subject: Reappointment of Monica Renee Jones to the Mental Health Commission

RECOMMENDATION
Adopt a Resolution approving the reappointing of Monica Renee Jones to the Mental Health Commission, as a representative of the General Public Interest Category for a second
3-year term beginning June 4, 2024 and ending June 3, 2027. During her first term she was a member of the youth subcommittee and was the Chair for the last year.

FISCAL IMPACTS O

F RECOMMENDATION
None.

CURRENT SITUATION AND ITS EFFECTS
Monica Renee Jones served her first term from May 26, 2021 to May 25, 2024. The Mental
Health Commission is authorized to be composed of thirteen members.

However, there are presently eight vacancies on the Commission. These vacancies impair the Commission's ability to adequately review and evaluate the community's mental health needs, resources, and programs.

Approval of the recommended action will keep the Chair position filled, and allow the Commission to be closer to having a full and diverse complement of commissioners to review and evaluate the community's mental health needs, resources, and programs.

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

36

Re-Appointment of Monica Renee Jones to the MHC CONSENT CALENDAR June 4, 2024

Monica Renee Jones is a resident of Berkeley and previously worked in the area of Corrections for 25 years. She has the compassion to help others and passion to serve the marginalized population by staying involved in the community by attending commission and council meetings. She would like to re-join the Mental Health Commission to be part of the solution and address issues around housing and medication evaluations for mental health consumers. During her first term Ms. Jones held the Chair position and was elected to be the Chair for the 2024 year as well. This would be her second term participating on the Mental Health Commission.

The Mental Health Commission passed the following motions at the March 28, 2024 meeting:

Re- appoint Monica Jones to the Mental Health Commission M/S/C (Prichett, Turner) So moved to re-appoint Monica Jones to the Mental Health Commission -
PASSED
Ayes: Jones, Opton, Prichett, Turner Noes: None; Abstentions: None; Absent:

Kimber-Smith

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

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

ALTERNATIVE ACTIONS CONSIDERED
None.

CITY MANAGER
The City Manager concurs with the content and recommendations of the Commission's Report.

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

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

REAPPOINTMENT OF MONICA RENEE JONES TO THE MENTAL HEALTH

COMMISSION
WHEREAS, membership of the Mental Health Commission is composed of thirteen appointments by the City Council as a whole, including one appointment by the Mayor (or designee), six special public interest appointments, and four general public interest appointments; and
WHEREAS, with the ongoing implementation of the Mental Health Services Act, the City of Berkeley will need to have a full complement of diverse appointees to the Commission to review and evaluate the community's mental health needs, resources, and programs and to fulfill its mandate; and
WHEREAS, Ms. Jones has investment in the community, trained in post trauma and conflict management and is prepared to contribute to helping others.

WHEREAS, the Mental Health Commission at its March 28, 2024 meeting recommended the re-appointment of Monica Renee Jones.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council appoints Monica Renee Jones as a representative of the General Public Interest category, to complete her second term ending June 3, 2027.

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099

CONSENT CALENDAR
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Jenny Wong, City Auditor
Subject
: Contract: GPP Analytics Inc. for Independent Third-Party Audit of Payroll Audit Division

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract and any amendments,
extensions, or other change orders with GPP Analytics Inc. in an amount not to exceed $120,000 to conduct an independent performance audit of the City Auditor’s Office’s Payroll Division activities.

FISCAL IMPACTS OF RECOMMENDATION
Funding for this contract comes from salary savings and is in the City Auditor’s Office fiscal year 2024 budget, General Fund budget code 011-12-122-000-0000-000-411- 612-990.

CURRENT SITUATION AND ITS EFFECTS
By City Charter, the City Auditor’s Office is responsible for management and oversight of the Payroll Audit Division. Because of this structure, the City Auditor’s Office cannot complet
e an independent audit of payroll operations in accordance with generally accepted government auditing standards, which the City Charter requires that we comply with. Performing an audit of the Payroll Audit division would be considered “auditing our own work” by those standards. To do so could create an independence

impairment in both mind and appearance, compromising the public trust in our professional judgment, integrity, objectivity, and professional skepticism. However, the City Auditor recognizes that payroll operations is a high-risk area that warrants regular, independent audits. Therefore, in keeping with the City Auditor’s Office’s commitment to the Berkeley community to ensure assessment of high-risk City operations, the City

Auditor is seeking to contract with an independent third-party to audit its payroll services. The City Auditor’s Office will present to City Council the third-party's- report, including findings and recommendations, and then continue to report to City Council on progress with implementing the recommendations until they have all been implemented.

37

Contract: GPP Analytics Inc. for consent CALENDAR
Independent Third-Party Audit of Payroll Audit Division June 4, 2024

BACKGROUND
The City Auditor is an elected official who serves the residents of Berkeley and whose mission is to be a catalyst for improving City government. The City Auditor’s Office is comprised of two divisions:
 Performance Audit Division: Conducts performance, financial, and compliance audits in accordance with generally accepted government auditing standards to promote efficiency, effectiveness, and accountability; provide objective, timely, and accurate information about City program performance to the public, Council, management, and staff; and make recommendations for improvement that help Berkeley residents hold City government accountable for stewardship of public resources.
 Payroll Audit Division: Examines and monitors City payroll for accuracy, accountability, and compliance with federal and state regulations, City policies, procedures, and memorandums of understanding (i.e., labor agreements); processes City payroll; issues pay checks and related reports; and performs other payroll-related activities.

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

RATIONALE FOR RECOMMENDATION
The City Charter requires that the City Auditor’s Office perform audits in accordance with generally accepted government auditing standards. Those standards state, “In all matters relating to the audit work, the audit organization and the individual auditor, whether government or public, must be independent.” By that standard, the City

Auditor’s Office cannot independently perform an audit of its Payroll Audit Division.

Recent resignations and underfilled positions have provided the City Auditor’s Office

with salary savings to use towards the recommended contract.

ALTERNATIVE ACTIONS CONSIDERED
No alternative was considered. The City Auditor’s Office cannot independently perform an audit of its Payroll Audit Division and, therefore, a third-party contractor is needed to

complete the work.

CONTACT PERSON
Jenny Wong, City Auditor, 510-981-6750
Attachments:
1: Resolution – Contract: GPP Analytics Inc. for Independent Third-Party Audit of Payroll Audit Division

E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

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

CONTRACT: GPP ANALYTICS INC. FOR INDEPENDENT THIRD-PARTY AUDIT OF

PAYROLL AUDIT DIVISION
WHEREAS, payroll operations is a high-risk area that warrants regular, independent audits; and
WHEREAS, the Payroll Audit Division is a division of the City Auditor’s Office; and WHEREAS, the City Charter requires that the City Auditor’s Office perform audits in accordance with generally accepted government auditing standards; and WHEREAS, the generally accepted government auditing standards state that “In all matters relating to the audit work, the audit organization and the individual auditor, whether government or public, must be independent”; and WHEREAS, a request for proposal, Specification No. #24-11660-C, was released in March 2024 with two firms responding, and GPP Analytics Inc. was selected as one of the firms best meeting the City Auditor’s needs to perform an independent audit of payroll activities within the City Auditor’s Office Payroll Audit Division; and WHEREAS, funding for this contract comes from salary savings and is in the City Auditor’s Office fiscal year 2024 budget, General Fund budget code 011-12-122-000-0000-000- 411-612-990.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a contract and any amendments, extensions, or other change orders with GPP Analytics Inc. to perform an independent internal controls and performance audit of the City Auditor’s Office Payroll Audit Division.

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-6750 ● TDD: (510) 981-6903 E-mail: [email protected] Website: http://www.berkeleyca.gov/your-government/city-audits

ACTION CALENDAR
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Jenny Wong, City Auditor
Subject: Amendments to Berkeley’s Municipal Code Chapter 2.24

RECOMMENDATION
Adopt first reading of an ordinance amending City Auditor’s Office (BMC Chapter 2.24) authority and scope of work to formally establish the City Auditor’s authority to receive and refer reports of fraud, waste, or abuse as well as investigate those reports and any reports of retaliation against whistleblowers.

FISCAL IMPACTS OF RECOMMENDATION
While there are no direct fiscal impacts associated with the amendments and additions suggested, a whistleblower program could reduce the impacts to city finances associated with undetected fraud in the City. Additionally, providing adequate whistleblower protections can increase the likelihood of whistleblowers coming forward with reports of fraud, waste, or abuse, and therefore increasing the likelihood of detecting and deterring fraud, waste, or abuse.

CURRENT SITUATION AND ITS EFFECTS
These recommended amendments will formally establish the City Auditor’s authority to receive and refer reports of fraud, waste, or abuse as well as investigate those reports and any reports of retaliation against whistleblowers. The amendments also provide the City Auditor with the authority to recommend corrective actions in response to investigations and follow up on those recommendations. The City Council previously adopted a resolution on June 6th, 2023 to support and endorse the City Auditor’s plan to implement a Whistleblower Program.1

BACKGROUND
State legislation encourages Cities to specifically focus on fraud, waste, or abuse of city resources through whistleblower programs led by City Auditors. In 2009, California Government Code Section 53087.62 went into effect, which enabled local government auditors to establish whistleblower programs and to provide whistleblower protections. Local auditors are authorized under Section 53087.6 to create whistleblower programs with the approval of their respective legislative bodies, and have discretion in how to operate their programs.

California cities with established whistleblower programs within auditor’s offices include Oakland, San Francisco, Sacramento, San Diego, and Long Beach, with information publicly available. Each program was formally established through updates to charter and/or municipal 1 City Council Meeting, June 3rd, 2023
2 California Government Code Section 53087.6

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-6750 ● TDD: (510) 981-6903 E-mail: [email protected] Website: http://www.berkeleyca.gov/your-government/city-audits code language, and contain the right to receive, refer, and investigate reports of fraud, waste and abuse. Additionally, all of these jurisdictions protect whistleblowers from retaliation in line with best practices, and have mechanisms in place to investigate reports of whistleblower AMENDMENTS TO BERKELEY’S MUNICIPAL CODE CHAPTER 2.24 TO ESTABLISH WHISTLEBLOWER PROGRAM AUTHORITYretaliation.

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

RATIONALE FOR RECOMMENDATION
The Auditor’s Office is uniquely positioned to manage a whistleblower program. The Berkeley City Auditor maintains a level of structural independence well-suited for a whistleblower program, as they are elected by the public and do not report to the City Manager or Council.

The City Auditor is well-positioned due to their role in providing objective information, like audits, on the operations of government programs and helping ensure full accountability to the public, among other reasons. By amending the BMC, this will formally provide the Auditor with the authority to commence this important work to detect and deter fraud, waste, or abuse of city resources. The proposed amendments will also update the BMC to align with California Government Code Section 53087.6 that establishes local auditors’ authority to manage whistleblower programs and provide whistleblower protections.

CONTACT PERSON
Jenny Wong, City Auditor, City Auditor’s Office, 510-981-6750 Attachments:
1: Amendments to BMC Chapter 2.24 Ordinance

Chapter 2.24 BMC, City Auditor’s Office Page 1 of 7
ORDINANACE NO. X,XXX-N.S.

AMENDING BERKELEY MUNICIPAL CODE CHAPTER 2.24: CITY AUDITOR’S OFFICE BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Section 2.24.010 A is amended to read as follows:

2.24.010 Findings.

A.  Public officials, government managers, and private citizens want and need to know not only whether government funds are handled properly and in compliance with laws and regulations, but also whether public programs are achieving the purposes for which they were authorized and funded, and whether they are doing so efficiently, effectively and equitably economically.

Section 2. That Berkeley Municipal Code Section 2.24.010 C is amended to read as follows:

C.  An independent auditing function can provide objective information, like audits, on the operations of government programs, assist managers in carrying out their responsibilities, and help ensure full accountability to the public.

Section 3. That Berkeley Municipal Code Section 2.24.010 N is amended to read as follows:

N. It is vital to the effectiveness of audit work that it be performed by staff who collectively possess sufficient professional proficiency, qualifications and skills, which may be demonstrated by obtaining relevant certifications such as a CIA (Certified Internal Auditor), CPA (Certified Public Accountant), CFE (Certified Fraud Examiner), degrees in relevant fields such as public policy, public administration, accounting, business administration, political science or related fields, or years of auditing experience, and the City Council may wish to consider taking such competencies and certifications into account in setting the salary for the Auditor and other audit staff.

Section 4. That Berkeley Municipal Code Section 2.24.050 A is amended to read as follows:

2.24.050 Scope of audits.

A.  The Auditor may conduct financial, performance, and other audits of all agencies, offices, boards, activities, and functions of the City of Berkeley to include but not be limited to the objectives of independently determining whether:

Chapter 2.24 BMC, City Auditor’s Office Page 2 of 7

1.  Activities and programs being implemented have been authorized by government charter or code, state law or applicable federal law or regulations;

2.  Activities and programs are being conducted as prescribed by management/governing body to accomplish the objectives intended by government charter or code, state law or applicable federal law or regulations;

3.  Activities or programs efficiently and ,effectively, and equitably serve the purpose intended by government charter, code, state law or applicable federal law or regulations;

4.  Activities and programs are being conducted and funds expended in compliance with applicable laws;

5.  Payers of City taxes and fees are submitting accurate information and correct amounts; revenues are being properly collected, deposited and accounted for;

6.  City contractors are providing efficient and effective services efficiently, effectively, and equitably to the City in compliance with the terms of their contracts;

7.  City resources, including funds, property and personnel, are adequately safeguarded, controlled and used in a faithful, effective and efficient manner;

8.  City financial and other reports are being provided that disclose fairly and fully all information that is required by law, that is necessary to ascertain the nature and scope of programs and activities and that is necessary to establish a proper basis for evaluating City programs and activities;

9.  The City has adequate operating and administrative procedures and practices, systems of accounting, internal control systems, and internal management controls;

10.  There are indications of fraud, abuse or illegal acts which need further investigation.

Section 5. That Berkeley Municipal Code Section 2.24.050 C is amended to read as follows:

C.  Non-audit and Similar Services, Charter mandated non-audit services:

Government Auditing Standards make a distinction between audit services and non-audit services that auditors may perform. These are generally services that auditors are typically well qualified to perform, but which often do not result in a written audit report. Non-audit services work may be initiated by the Auditor or performed by the Auditor at the request of the City Manager and shall be

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performed to the extent mandated by the City Charter and consistent with the professional standards applicable to such non-audit work by auditors except where such work is expressly required by the City Charter. In order to continue to maintain independence, and in particular to avoid a situation in which auditors may in appearance or in fact be auditing their own work or making management decisions, Government Auditing Standards currently include requirements for careful consideration regarding when and how to conduct non audit services.

The Auditor shall perform any other non audit services required by the City Charter under Sections 61 and 65. In compliance with these sections, the Auditor reviews, countersigns, numbers, and registers all city agreements (contracts) after the City Manager or designee has signed. The Auditor is authorized to examine or review all City payments and payrolls before issuance and no payment may be made against any City contract until that contract is registered by the Auditor; the Auditor and the City Manager are co-signers on all City checks. Responsibility for reviewing, countersigning, numbering, and registering all city agreements (contracts) as well as performing municipal accounting and non-payroll payment (accounts payable) functions have been delegated to the Finance Department; however, the Auditor may review selected items before payment is approved.

The Auditor also directs a Payroll Audit division, responsible for certain centralized payroll functions of the City’s decentralized payroll system. (Ord. 6910-NS § 2 (part), 2006) Section 6. That Berkeley Municipal Code Section 2.24.050 D is added to read as follows:

D. Whistleblower Program:

The Auditor shall administer a whistleblower program for the reporting of fraud, waste, or abuse of City resources. Subject to subsection (3), the Auditor may investigate and otherwise attempt to resolve reports submitted to the whistleblower program. 1) DEFINITIONS.
a) For purposes of this section, “fraud, waste, or abuse” means any activity by a local agency or employee that is undertaken in the performance of the employee's official duties, including activities deemed to be outside the scope of their employment, that is in violation of any local, state, or federal law or regulation relating to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, is economically wasteful, or involves gross misconduct.

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b) “Whistleblower” is defined as an officer or employee who reports or otherwise brings to the attention of the City Auditor any information which, if true, would constitute fraud, waste, or abuse of City resources.
c) “Retaliation” is any adverse employment action, including discharge, discipline, or demotion.
d) “Adverse employment action” is defined as any employment action that has a detrimental and substantial effect on the terms, conditions, or privileges of a complainant's employment or requires the complainant to work in a discriminatorily hostile or abusive work environment. A change that is merely contrary to a complainant's interests or liking is insufficient.
e) “City” is defined as the City of Berkeley, its agencies, departments, boards, and commissions.
2) REPORTS. Any person may file a report for investigation with the City Auditor’s whistleblower program alleging that a City officer or employee has engaged in fraud, waste, or abuse. Any City officer or employee who has received a report of fraud, waste, or abuse of city resources shall refer the report to the City Auditor’s Office.
3) REFERRAL OF CERTAIN REPORTS. The Auditor shall refer the following reports to the appropriate government agency for review and possible investigation, including without limitation:
a) Those which another government agency is required by federal, state, or local law to adjudicate: To that agency;
b) Those which may be resolved through a grievance mechanism established by collective bargaining agreement or contract: To the official or agency designated in the agreement or contract;
c) Those which involve allegations of conduct which may constitute a violation of criminal law: To the District Attorney or other appropriate law enforcement agency; d) Those which allege misconduct by a Berkeley police officer: The reporter will be provided information about how to file a complaint with the Office of the Director of Police Accountability and Berkeley Police Department;
e) Those which are subject to an existing, ongoing investigation by the District Attorney or City Attorney, where the applicable official or Commission states in writing that

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investigation by the Auditor would substantially impede or delay its own investigation of the matter: To the investigating office; and f) Those which allege conduct that may constitute a violation of local campaign finance laws: To the Fair Campaign Practices Commission.
4) CONTRACTING OUT INVESTIGATIONS. The City Auditor has the authority to enter into contracts for investigative services when appropriate due to conflicts of interest or need for specialized expertise, as determined by the City Auditor. In such cases, the City Auditor may refer investigation work in whole or in part to a contractor under the management of the City Auditor.
5) TRACKING AND INVESTIGATING. The Auditor shall receive, track, and review reports made or referred to the whistleblower program. An investigation may include all steps that the Auditor deems appropriate, including the review of the report and any documentary or other evidence provided with it, the gathering of any other relevant documents from any City department or other source, and interviews of the complainant and other persons with relevant information.
6) FURNISHING FALSE OR MISLEADING INFORMATION; DUTY TO COOPERATE. When making or filing a report pursuant to this Chapter or participating in an investigation conducted by the City Auditor, or an agent of the Auditor, as authorized under this Chapter, City officers and employees may not knowingly and intentionally furnish false or fraudulent evidence, documents, or information, misrepresent any material facts, or conceal any evidence, documents, or information for the purpose of misleading any officer or employees or any of their agents. In conducting investigations pursuant to this Chapter, pursuant to the Auditor’s authority under Charter Section 61, the Auditor shall have unrestricted access to employees, officials, records, and reports, and as necessary, require all branches, departments, and officials of government to produce documents, files, and other records and information.

INFORMATION PROVIDED UNDER PENALTY OF PERJURY. In those instances, in which the Auditor deems it appropriate, the Auditor may require that persons making reports or providing information swear to the truth of their statements by taking an oath administered by the Auditor, or an agent of the Auditor, or through written declarations made under penalty of perjury under the laws of the State of California. 7) REFERRAL AND RECOMMENDATION BY AUDITOR. The Auditor may refer the fraud, waste, or abuse report to a City department for investigation, either before conducting an initial investigation or after doing so and may recommend that a City department take specific action based on the Auditor’s initial investigation. Within such time as the Auditor shall

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specify, the City department shall report to the Auditor in writing the results of the department’s investigation and any action that the department has taken in response to a recommendation by the Auditor that the department take specific action. 8) RETALIATION. Any officer or employee who believes that they have been subject to an adverse employment action as a result of being a whistleblower or participating in a whistleblower investigation may file a complaint of retaliation with the City Auditor within one hundred and eighty (180) days of the alleged retaliation. The City Auditor shall thereupon investigate the complaint. If the Office of the City Auditor is named in the complaint, the complaint shall be directed to the City Attorney for investigation. Any officer or employee who receive a complaint alleging retaliation under this chapter must keep the complaint confidential and immediately assist the complainant by referring the complainant to the City Auditor and documenting the referral in writing. Documentation must include the date and time of the referral and that the report was about retaliation. Any reports regarding retaliation are confidential and not subject to disclosure. 9) CONFIDENTIALITY.
a) Any investigative audit conducted pursuant to this section shall be kept confidential, except to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public. In any event, the identity of the individual or individuals reporting the improper government activity, and the subject employee or employees shall be kept confidential, unless the disclosure is to a law enforcement agency that is conducting a criminal investigation. b) Notwithstanding paragraph (a), the Auditor may provide a copy of a substantiated report that includes the identities of the subject employee or employees and other pertinent information concerning the investigation to the appropriate appointing authority for disciplinary purposes. The substantiated report, any subsequent investigatory materials or information, and the disposition of any resulting disciplinary proceedings are subject to the confidentiality provisions of applicable local, state, and federal statutes, rules, and regulations.

Section 7. That Berkeley Municipal Code Section 2.24.110 is amended to read as follows:

2.24.110 Right to retain contract auditors, investigators, consultants and experts; Cooperation with City Manager.

Chapter 2.24 BMC, City Auditor’s Office Page 7 of 7
A.  The Auditor may obtain the services of Certified Public Accountants, qualified management consultants, investigators, or other professional experts necessary to perform the Auditor’s duties within the Auditor’s budget approved by the City Council. These expenses may be included in the Auditor’s annual budget as part of the published annual audit plan, or may be substituted in case of position vacancies if needed to complete the audit plan on schedule. An audit that is performed by contract must be conducted by persons who have no financial interests in the affairs of the governmental unit or its officers. The use of such contracts will follow the City’s normal contracting procedures.

B.  The City Manager is urged to shall provide the Auditor with timely information about contemplated and ongoing required or elective audits, investigations, or similar consulting engagements to be performed by other external auditors or investigators, so that all auditors may comply with Government Auditing Standards concerning the coordination of audit work, and sharing of information regarding internal control concerns, and to avoid duplication of effort and ensure effective audit coverage. The Mayor is also urged to provide such information and opportunities for coordination with the public accounting firm selected for the City’s annual financial statement audits.

The Auditor may assist with the selection or oversight of this audit if requested to do so. (Ord. 6910-NS § 2 (part), 2006)

50617029.2/006547.00016

MEETING
DATE:

June 4, 2024
SUBJECT: Resolution Approving Employment Agreement Between the City of Berkeley and LaTanya Bellow for the position of Interim City Manager CEQA: Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION

1. Motion to adopt Resolution approving Employment Agreement between the City of Berkeley and LaTanya Bellow for the position of Interim City Manager.

2. Alternative action based on the direction of the City Council related to this subject matter.

DISCUSSION
On May 10, 2024, the City Council appointed Mayor Jesse Arreguin as the Labor Negotiator, with duties to engage in negotiation with an Interim City Manager candidate.

Following a diligent negotiation, the City Council will discuss and consider for potential Council action a decision to appoint current Deputy City Manager LaTanya Bellow as the Interim City Manager for the City of Berkeley, subject to the parties’ execution of an Employment Agreement and approval of a related Resolution.

The proposed Resolution approving such Employment Agreement and related Employment Agreement are provided as Attachment 1.

The Employment Agreement provides, among other material terms and subject to certain terms and conditions, that Ms. Bellow will receive the same rate of pay as the current City Manager Dee Williams-Ridley, who presently receives an annualized salary of $401,722.10, that Ms. Bellow’s employee benefits shall remain the same as her present benefits as Deputy City Manager, that she will commence such role effective July 11, 2024, that her role in such position shall conclude the day before the next City Manager’s first day of City employment, and that upon such conclusion, she will return to her role as Deputy City Manager.

OPTIONS

1. Adopt the proposed Resolution.

2. Do not adopt the proposed Resolution.

3. Some other action or inaction related to this subject matter at the direction of the City Council.

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50617029.2/006547.00016

FINANCIAL IMPACT
Ms. Bellow’s compensation is a pro-rated rate of pay based on an annual rate of $401,722.10, with additional employee benefits as stated in the Employment Agreement.

Attachments
Written Public comments.

1. Resolution Approving City Manager Employment Agreement Between City and LaTanya Bellow.

50461155.3/006547.00016
RESOLUTION NO. #####-N.S.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BERKELEY APPROVING

INTERIM CITY MANAGER EMPLOYMENT AGREEMENT
WHEREAS, on May 6, 2024, the City Council for the City of Berkeley announced its receipt of notice from existing City Manager Dee Williams-Ridley of her intent to resign her City employment effective July 10, 2024; and
WHEREAS, the City currently employs LaTanya Bellow as Deputy City Manager (“Employee”); and
WHEREAS, to ensure continuity in leadership and management of the City during this period of transition, the City Council desires to appoint an Interim City Manager to serve in such role between Ms. Williams-Ridley’s resignation date through the date of commencement of employment for next City Manager; and
WHEREAS, Employee has agreed to serve as the Interim City Manager during said period, subject to the terms and conditions of a related Employment Agreement; and WHEREAS, said Employment Agreement provides, without limitation, terms pertaining to Employee’s reversion to her role as Deputy City Manager once the City Manager commences employment; and
WHEREAS, the City Council hereby takes action to adopt said Employment Agreement, attached hereto as Attachment A, to codify such terms and conditions.

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

Section 1. The City Council determines that the above findings are true and correct, and by reference incorporates those findings as an integral part of this Resolution.

Section 2. Employee is hereby appointed to the position of Interim City Manager effective July 11, 2024, at a prorated rate of pay based on an annualized salary of $401,722.10 for the period of service in this role.

Section 2. All other benefits for the position of Interim City Manager shall be as provided for in the Interim City Manager Employment Agreement.

Section 3. The Interim City Manager Employment Agreement, attached hereto as Attachment A, is hereby approved.

Section 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the Office of the City Clerk.

ATTACHMENT A: Interim City Manager Employment Agreement

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INTERIM CITY MANAGER

EMPLOYMENT AGREEMENT BETWEEN

THE CITY OF BERKELEY AND LATANYA BELLOW
This Interim City Manager Employment Agreement (“Agreement”) is made by and between the City of Berkeley (“City”) and LaTanya Bellow (“Employee”). City and Employee are hereinafter collectively referred to as the “Parties.”

RECITALS
A. Employee is currently employed with the City as a Deputy City Manager, and the City and Employee have the mutual desire to temporarily appoint Employee as Interim City Manager during the appointment process to hire a full-time City Manager.

B. On June 4, 2024, the Berkeley City Council (“Council”) appointed Employee as the Interim City Manager, with the expectation that she will begin such service on July 11, 2024 or as otherwise directed by the Council (hereinafter referred to as “Start Date”).

C. Employee has specialized skills to perform the work of the City's Interim City Manager for a limited duration during the pendency of the appointment process for a new City Manager.

Employee desires to accept the position of Interim City Manager consistent with certain terms and conditions of said employment as set forth in this agreement.

D. The Council and Employee desire to memorialize in this Agreement certain benefits, terms, and conditions of employment of Employee.

OPERATIVE PROVISIONS

1. Position and Duties.

1.1 Position. Employee agrees to serve as the City’s Interim City Manager and shall perform all functions, duties, and services set forth in Section 1.2 of this Agreement.

Employee shall provide services at the direction and under the supervision of the City Council.

Employee’s employment as Interim City Manager of the City shall commence on July 11, 2024, to serve at the pleasure of the City Council subject to the terms and conditions set forth in this Agreement.

1.2 Duties. Employee shall serve as the Interim City Manager and shall for the Term of the Agreement be vested with the powers, duties, and responsibilities of the City Manager as set forth in Section 28 of the Berkeley City Charter, the terms of which are incorporated herein by reference. Employee shall provide services at the direction and under the supervision of the City Council. It is the intent of the parties that the Interim City Manager shall keep the City Council fully apprised of all significant ongoing operations of the City. Toward that end, Employee shall report directly to the City Council and will periodically, or as maybe otherwise specifically requested by the City Council, provide status reports to the City Council on her activities and those of the City. It is the intent of the City Council for the Interim City Manager to function as the chief executive officer of the City’s organization. Without additional

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compensation, Employee shall provide such other services as are customary and appropriate to the position of City Manager, including assisting with a smooth transition of City Manager duties to the next City Manager, together with such additional services assigned from time to time by the City Council as may be consistent with California law, the City Charter, Municipal Code, any other source of local law, memorandums of understanding, collective bargaining agreements and other contracts to which the City may be bound, and City policy, as determined in the Council’s discretion. Employee shall devote her best efforts and attention to the performance of these duties.

1.3 Hours of Work. Employee shall devote the time necessary to adequately perform her duties as Interim City Manager. The parties anticipate that Employee will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings. Toward that end, Employee shall be allowed reasonable flexibility in setting her own office hours, provided the schedule of such hours provides a significant presence at City Hall and other City facilities, reasonable availability to the City Council, City staff, and members of the community during regular City business hours and for the performance of her duties and of City business. Employee may perform work off site as appropriate. For purposes of this Agreement, regular City business hours are 8:00 a.m. to 5:00 p.m. Employee agrees to be reachable by telephone for consultation and advice when she is not physically working in the City.

Employee also agrees to respond to the City for emergency situations.

2. Term. This Agreement shall become and remain effective on July 11, 2024 subject to the following conditions: (1) the City Council’s approval of the Agreement; (2) transition by current City Manager Dee Williams-Ridley from active status as a full time City employee to inactive status while she exhausts her administrative leave benefits in accordance with the terms of her separation agreement on July 1, 2024; (3) Employee’s agreement to serve as the Acting City Manager, while maintaining her official position as Deputy City Manager, between July 2, 2024 and July 10, 2024, and the City’s agreement to provide Employee acting pay for such service in accordance with existing City policy; (4) Williams-Ridley’s resignation from City employment as of July 10, 2024 and her and the City’s complete execution of her separation agreement; and (5) lack of revocation of Williams-Ridley’s separation agreement on or before July 17, 2024. Should any of these conditions not come to fruition, then the City Council reserves its right to nullify this Agreement, notwithstanding the City’s right to terminate this Agreement in accordance with Section 8 below. Employee shall commence work as Interim City Manager on July 11, 2024 (“Commencement Date”) or such date and time as directed by the City Council. This Agreement shall expire when a new City Manager assumes office or as otherwise provided in this Agreement.

3. At-Will. Employee acknowledges that she is an at-will employee of the City who shall serve at the pleasure of the City Council at all times during the period of her service hereunder. Employee expressly acknowledges and agrees that this appointment to Interim City Manager does not confer upon Employee any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council or City generally to terminate her employment, in this position or otherwise. Employee expressly acknowledges and agrees that nothing in this Agreement is intended to, or does, confer upon Employee any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council to remove her from this position or to terminate her City employment generally, except as is expressly provided in Section 2 or Section

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8 of this Agreement. Nothing contained in this Agreement shall in any way prevent, limit, or otherwise interfere with the right of the City to terminate the services of Employee, as provided in Section 2 or Section 8. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of Employee to resign at any time from her role as Interim City Manager or as a Deputy City Manager, subject only to the provisions set forth in Section 2 or Section 8 of this Agreement.

This at-will employment shall be expressly subject to the rights and obligations of the City and Employee, as set forth in Section 2 or Section 8 below.

4. Return Rights to Previous Position. Employee will return to the position of Deputy City Manager, subject to the provisions in Section 3, if this Agreement is terminated or expires pursuant to Sections 2 or 8 of this Agreement, notwithstanding the otherwise at-will nature of her City employment generally. The Council retains discretion to return Employee to her prior position before appointment of a permanent City Manager. If/when Employee returns to the Deputy City Manager classification, Employee shall earn her previous annual salary, including any eligible cost-of-living adjustments provided by the Council for all City management employees under any successor Management Compensation Resolutions. The Council agrees that her position of Deputy City Manager will not be filled with a permanent replacement during Employee’s service as the Interim City Manager under this Agreement. This paragraph will survive the termination of this Agreement.

5. Compensation.

5.1 Rate of Pay. For all services performed by Employee as the Interim City Manager under this Agreement, the City shall pay Employee compensation, on a bi-weekly basis, at an hourly rate of $193.136 based upon a pro-rated annualized salary of $401,722.10. The Interim City Manager position is exempt from the overtime provision of the Fair Labor Standards Act and is not eligible for overtime pay.

5.2 Benefits. In addition to the salary set forth in Section 5.1 of this Agreement, Employee shall be entitled to at least the same employment benefits she receives as Deputy City Manager.

6. Reimbursement. The City shall reimburse Employee for authorized, reasonable, and necessary travel expenses incurred by Employee in the performance of her duties as Interim City Manager pursuant to this Agreement. Employee shall document and claim said reimbursement for such travel in the manner and forms required by the City and subject to approval of the City Council, the Mayor, or other designee as appointed by the Council. All reimbursements shall be for actual expenses and shall be subject to and in accordance with California and federal law and the City’s adopted reimbursement policies. Such reimbursements shall not be reported to CalPERS. Other than as specifically provided herein, Employee shall receive no other compensation or reimbursements for expenses incurred by her in performance of this Agreement.

7. Professional Development. Employee shall be entitled to the same degree of reimbursement that she currently receives as Deputy City Manager in connection with participation in any professional development activities that may take place during her period of service as Interim City Manager.

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8. Termination of Agreement.

8.1 By City. This Agreement may be terminated by the City for any reason after providing written notice to Employee of such termination. The City’s only obligation in the event of such termination will be payment to Employee of all compensation then due and owing in her role as Interim City Manager as set forth in Section 5.1 up to and including the effective date of termination of the Agreement.

8.2 By Employee. This Agreement may be terminated by Employee for any reason fourteen (14) calendar days after providing written notice to the City of such termination, absent extenuating personal circumstances. The City shall have the option, in its complete discretion, to make Employee’s termination effective at any time prior to the end of such period, provided the City pays Employee all compensation owed as Interim City Manager as set forth in Section 5.1 then due and owing her through the last day actually worked.

8.3 No Notice for Expiration. Nothing in this Section 8 shall be construed to require either party to give advance written notice in order for the Agreement to expire as set forth in Section 2. When the Council hires a permanent City Manager, this Agreement shall naturally expire at 11:59 p.m. the day prior to the permanent City Manager’s start date.

8.4 City Property. Employee agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined in Section 10), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by Employee incident to her service as Interim City Manager, belongs to the City and shall be returned promptly to the City upon cessation of her service as Interim City Manager to the extent she would not otherwise have a City-business related reason to maintain such property in connection with her duties as Deputy City Manager. Employee’s obligations under this subsection shall survive the termination of her employment and the expiration of this Agreement.

9. Conflicts of Interest. Employee represents and warrants to the City that she presently has no interest, and represents that she will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or interfere in any way with performance of her services under this Agreement.

10. Proprietary Information. “Proprietary Information” is all information and any ideas pertaining in any manner to the business of the City (or any City affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of the City in the course of their employment or otherwise produced or acquired by or on behalf of the City.

Proprietary Information shall include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data, know-how, software and other computer programs, copyrightable material, marketing plans, strategies, sales, financial reports, forecasts, and customer lists. All Proprietary Information not generally known outside of the City’s organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During her employment with the City, Employee shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of the City and as is, or may be, necessary to perform her job responsibilities under this Agreement. Employee shall not use any Proprietary Information for any non-City-business related reason and shall not disclose any Confidential

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Information, except with the express written consent of the City. Employee’s obligations under this Section shall survive the termination of her employment and the expiration of this Agreement.

11. Indemnification. Subject to, in accordance with, and to the extent permitted by the California Government Claims Act, Government Code Section 810 et seq., the City will indemnify, defend, and hold Employee harmless from and against any action, demand, suit, monetary judgment, or other legal or administrative proceeding, and any liability, injury, loss, or other damages, arising out of any act or omission occurring during Employee’s tenure as Interim City Manager, except that this provision shall not apply with respect to any intentional tort or crime committed by Employee, or any actions outside the course and scope of her employment as Interim City Manager.

12. General Provisions.

12.1 Entire Agreement. This Agreement contains the final, complete, and exclusive agreement and understanding between the parties. Any amendment, modifications, or variations from the terms of this agreement shall be in writing and shall be effective only upon approval of such amendment, modification, or variation by the City Council and Employee.

12.2 Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended, or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled, superseded, or changed by any oral agreement, course of conduct, waiver, or estoppel. It is the intent of the Council that this Agreement and the appointment of Employee as Interim City Manager are in accordance with the requirements and provisions of the City Charter. Wherever possible, the provisions of this Agreement shall be construed in a manner consistent with the Charter. If any provision of this Agreement conflicts with the Charter, the Charter shall control to the fullest extent permitted by law.

12.3 Severability. The terms of this Agreement are contractual and not a mere recital. Should any provision or part of any provision or application thereof be held invalid, the invalidity shall not affect any other provisions or applications of the Agreement which can be given effect without the invalid provision or application, and to this end, the provisions of this Agreement are declared to be severable.

12.4 Attorneys’ Fees. In any legal action, brought to enforce or interpret the terms of this Agreement, reasonable parties shall bear their own attorneys’ fees and costs.

12.5 Governing Law. This Agreement, and the rights and obligations of the parties, shall be construed and enforced in accordance with the laws of the State of California.

Venue shall be in the Alameda County Superior Court.

12.6 Amendment. This Agreement may not be amended except in a written

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document signed by Employee, approved by the City Council and signed by the City’s Mayor with the approval and delegation from the Council.

12.7 Acknowledgment. Employee acknowledges that she has had the opportunity to consult legal counsel regarding this Agreement, that she has read and understands this Agreement, that she is fully aware of its legal effect, and that she has entered into it freely and voluntarily and based on her own judgment and not on any representations or promises other than those contained in this Agreement.

12.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument.

12.9 Electronic Signatures. The parties may execute this Agreement by electronic signature, subject to the terms and conditions set forth in Government Code section

16.5. [SIGNATURES TO FOLLOW]

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ON BEHALF OF THE CITY:
_____________________________ _____________________
Mayor Jesse Arreguín __________, 2024
EMPLOYEE:
_____________________________ _____________________
LaTanya Bellow __________, 2024
APPROVED AS TO FORM:
_____________________________ _____________________
Farimah F. Brown __________, 2024
City Attorney

50616731.2/006547.00016

MEETING
DATE:

June 4, 2024
SUBJECT: Resolution Approving Employment Agreement Between the City of Berkeley and Paul Buddenhagen for the position of City Manager
CEQA: Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION

1. Motion to adopt Resolution approving Employment Agreement between the City of Berkeley and Paul Buddenhagen for the position of City Manager.

2. Alternative action based on the direction of the City Council related to this subject matter.

DISCUSSION
On May 10, 2024, the City Council appointed Mayor Jesse Arreguin as the Labor Negotiator, with duties to engage in negotiation with a City Manager candidate.

Following a diligent negotiation, the City Council will discuss and consider for potential Council action a decision to appoint Paul Buddenhagen as the City Manager for the City of Berkeley, subject to the execution of an Employment Agreement and approval of a related Resolution.

The proposed Resolution approving such Employment Agreement and related Employment Agreement are provided as Attachment 1.

The Employment Agreement provides, among other material terms and subject to certain terms and conditions, that Mr. Buddenhagen will receive compensation in an annual amount of $401,722.10, that Mr. Buddenhagen will receive employee benefits as explained further in the Employee Agreement, and that Mr. Buddenhagen would commence work for the City on September 16, 2024.

OPTIONS

1. Adopt the proposed Resolution.

2. Do not adopt the proposed Resolution.

3. Some other action or inaction related to this subject matter at the direction of the City Council.

40

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FINANCIAL IMPACT
Mr. Buddenhagen’s compensation is an annual rate of $401,722.10, with additional employee benefits as stated in the Employment Agreement. The actual benefit amount will depend on his selection of health benefits.

Attachments
Written Public comments.

1. Resolution Approving City Manager Employment Agreement Between City and Paul Buddenhagen

50465254.2/006547.00016
RESOLUTION NO. #####-N.S.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BERKELEY APPOINTING

PAUL BUDDENHAGEN TO THE POSITION OF CITY MANAGER AND APPROVING

AN EMPLOYMENT AGREEMENT IN CONNECTION WITH SAID APPOINTMENT WHEREAS, the City Council now desires to appoint Paul Buddenhagen (“Employee”) as the City Manager for the City of Berkeley; and
WHEREAS the functions, duties, powers, and prerogatives of the City Manager are specified in Berkeley City Charter Sections 27 and 28, as well as in the Berkeley Municipal Code. These provisions shall control should any conflict exist pertaining to this Resolution or the City Manager Employment Agreement that it authorizes; and WHEREAS, the City Council desires to set the salary and benefits as well as other terms and conditions of employment for Employee and to approve an Employment Agreement; and
WHEREAS, Employee is willing and qualified to provide City Manager services to the City of Berkeley.

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

Section 1. The City Council determines that the above findings are true and correct, and by reference incorporates those findings as an integral part of this Resolution.

Section 2. The City Council hereby adopts this Resolution approving the Employment Agreement between the City of Berkeley and Paul Buddenhagen for the position of City Manager, attached hereto as Attachment A.

Section 3. Paul Buddenhagen is hereby appointed to the position of City Manager effective September 16, 2024.

Section 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the Office of the City Clerk.

ATTACHMENT A: City Manager Employment Agreement

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EMPLOYMENT AGREEMENT BETWEEN

THE CITY OF BERKELEY AND PAUL BUDDENHAGEN
This Employment Agreement (“Agreement”) is made by and between the City of Berkeley (“City”) and Paul Buddenhagen (“Employee”). City and Employee are hereinafter collectively referred to as the “Parties.”

RECITALS
WHEREAS, the City desires to retain the services of Employee as City Manager of the City; and
WHEREAS, the City Council of the City desires to provide certain benefits, establish certain conditions of employment, and establish working conditions for Employee; and WHEREAS, Employee desires to provide said services as City Manager to the City under the terms and conditions hereinafter set forth; and
WHEREAS, Employee represents that Employee is willing and qualified to provide such services to the City; and
WHEREFORE, in consideration of the respective mutual covenants and promises hereinafter contained and made subject to all of the terms and conditions hereof, the Parties hereto do agree as follows:

OPERATIVE PROVISIONS

1. Effective Date. This Agreement shall become effective on the date that the Agreement is signed by the Mayor (“Effective Date”).

2. Position and Duties. Employee shall serve as the City Manager and shall perform the functions, services, and duties specified in Section 28 of the Berkeley City Charter, and perform other legally permissible and proper duties and functions as designated by the City Council from time to time. Employee shall provide services at the direction and under the supervision of the City Council. It is the intent of the Parties that Employee shall keep the City Council fully apprised of all significant ongoing operations of the City. Toward that end, Employee shall report directly to the City Council and will periodically, or as may be otherwise specifically requested by the City Council, provide status reports to the City Council on Employee’s activities and those of the City. Without additional compensation, Employee shall provide such other services as are customary and appropriate to the position of City Manager, together with such additional services assigned from time to time by the City Council as may be consistent with California law, the City’s Charter and the City’s Municipal Code. Employee shall devote best efforts and attention to the performance of these duties. Employee agrees to remain in the exclusive employ of the City while employed
.

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3. At-Will. Employee acknowledges that Employee is an at-will employee of the City who shall serve at the pleasure of the City Council at all times during the period of Employee's service hereunder, pursuant to City Charter Section 27. Employee expressly acknowledges and agrees that nothing in this Agreement is intended to, or does, confer upon Employee any right to any property interest in continued employment, or any right to a hearing before or after a decision by the City Council to terminate Employee’s employment, except as is expressly provided by law, including but not limited to under the Brown Act (Gov. Code sec. 54950 et seq.). Employee understands that notwithstanding any other applicable laws, resolutions, and policies, they have no right to pre-or-post-disciplinary due process.

Nothing contained in this Agreement shall in any way prevent, limit, or otherwise interfere with the right of the City to terminate the services of Employee. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign at any time from this position with the City, subject only to the provisions set forth in Section 11 of this Agreement. This at-will employment relationship shall be expressly subject to the rights and obligations of the City and Employee, as set forth in Section 11 below.

4. Term. The term of this Agreement shall commence on Employee’s first day of City employment, which shall be September 16, 2024 (“Commencement Date”). This Agreement shall remain in effect until terminated by either party hereto as provided herein (“Term”), consistent with the nature of Employee’s at-will employment status.

5. Hours of Work. Employee is an exempt employee but is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager's position.

Employee does not have set hours of work as Employee is expected to be available at all times. Employee shall maintain regular office hours at City Hall between the hours of 8:30 a.m. and 5:30 p.m., Monday through Friday, excepting holidays or furlough days, except when absent in the proper performance of Employee’s duties and responsibilities as City Manager, or when utilizing leave. Employee may, with Council’s express written approval, flex their working hours from something other than 8:30 a.m. to 5:30 p.m. on specific days of the week and/or change their work location from City Hall to a permissible remote work location for a specified period time.

6. Evaluation of Performance. The City Council shall conduct performance evaluations of the City Manager in a manner consistent with the terms in this Section 6 and other relevant City policies. While the City Council shall consult with the City Manager over the format and process of any evaluation, the ultimate format and process shall be at the City Council’s discretion. The City shall conduct an initial performance evaluation following the first six (6) months of employment and again at the twelve (12) month mark, then annually thereafter or as Council otherwise deems necessary. Annual performance evaluations shall be provided to the City Manager within sixty days of the anniversary of the Commencement Date. Nothing in this section shall prohibit the City Council from evaluating the City Manager's performance at any other interval or time. City Council shall review base salary and/or benefits of the Employee at the time of the Employee’s annual performance review, taking into account factors such as Employee’s performance, available City budget, and any recent or anticipated cost of living adjustments that have or will be given to other

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managerial employees for the City. Such evaluations will become part of Employee’s personnel file.

7. Compensation. Employee shall receive, as starting base salary for performance of the duties of City Manager, the sum of Four Hundred and One Thousand, Seven Hundred Twenty-Two Dollars and Ten Cents ($401,722.10) per year. To the extent the salary amount prescribed by this Agreement deviates from the City’s existing salary schedule for the City Manager position, the Council will adopt an amended salary schedule as required by California Code Regulations tit. 2 section 570.5. Any such adjustments shall be made in open session during a regularly scheduled meeting of the City Council, with a record of said City Council action being subsequently attached to this Agreement as an automatic amendment thereto.

8. Benefits. City shall provide benefits to Employee as specified for City Department Head employees by the Municipal Code, ordinance, resolution or a Memorandum of Understanding or policy to the extent expressly approved by the City Council, including without limitation the Unrepresented Employees Manual. To the extent a term concerning the benefits specifically identified below conflicts with this Agreement, this Agreement controls.

A. Vacation Leave. Vacation must be approved in advance by the Mayor or their designee, as determined by a majority of the Council (“Designee”). Employee shall earn five weeks of vacation leave annually. After two (2) years of service, Employee may take up to two (2) weeks of vacation in advance of actual earning upon approval of the City Council or the Council’s Designee. Vacation leave can accrue up to three hundred and twenty (320) hours. After that threshold is reached, an employee may be required to take vacation at the option of the City.

All employees must reduce their accrued vacation leave to 320 hours by the last pay period in February of each year. Upon termination, an employee or their estate shall be paid for all accrued unused vacation leave at the employee's base rate at the time of his or her termination, and such employee or his or her estate shall reimburse the City for any vacation leave taken before it had accrued. If an observed City holiday occurs during an employee's scheduled vacation, no deduction from accrued vacation will be made for the holiday period.

B. Sick Leave. Employee is eligible for one (1) sick leave day (eight [8] hours) per month of service. To qualify for sick leave, Employee shall notify Mayor or the Council’s Designee prior to or within two hours of Employee’s start time for daily duties. For every six (6) months of perfect attendance, Employee will receive eight (8) hours of bonus time. "Perfect attendance" means the employee has not received sick leave or salary continuation benefits and has not taken or been placed on leave without pay. Sick leave bonus time can be used for any leave purpose authorized by the Unrepresented Employees’ Manual. Employee may accumulate sick leave up to a maximum of two hundred (200) days (1600 hours). Sick leave will not accrue during any period of absence without pay.

Sick leave credits are accrued on the basis of actual straight time hours worked or paid, based on a forty-hour workweek. Except as otherwise provided under

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the CalPERS conversion of sick leave retirement credit benefit (California Government Code Section 20965) and the other exceptions set forth below, all accrued sick leave shall be canceled upon termination of Employee.

C. Administrative Leave. The Employee may be approved by the Mayor or Designee to receive up to an 50 hours of compensated administrative leave per January 1, or prorated for the course of the year when employed for less than a full year. This administrative leave is granted to employees whose job responsibilities cause them to work numerous hours in excess of the normal City work week. If administrative leave is abused or misused, the City Council or its Designee may rescind administrative leave. Administrative leave must be approved in advance by the Mayor or Designee. Unused administrative leave may be carried over to the next calendar year, providing the total of excess vacation and unused administrative leave does not exceed three hundred and twenty (320) hours. Otherwise, the excess administrative leave must be taken within the calendar year in which it was earned, or it may be forfeited. Upon termination or retirement, no monetary award will be authorized for unused accumulated administrative leave.

D. Tenure Date. All tenure-related benefits shall be calculated using the Commencement Date or as otherwise determined by the City’s Human Resources Department to facilitate the terms of this Agreement.

E. Automobile Allowance. The City shall reimburse the use of Employee’s vehicle on authorized City business equal to the amount established by the Internal Revenue Service. This automobile allowance is intended to reimburse Employee for local travel, defined as travel within fifty (50) miles of the City.

All travel outside of local travel shall be paid at the same rate as other City employees.

F. Holidays and Floating Personal Days Off. Employee may observe the holidays specified in section 5.1 of the Unrepresented Employees Manual. These holidays shall be taken in the same manner as the City management employees.

Employee shall accrue three (3) floating personal days off to be used at Employee’s option, subject to approval of the Mayor or Designee. Employees shall have the number of floating holidays for the months before the January of their first calendar year prorated based upon their date of hire. All use of floating holidays must be approved in advance. If the City Council cannot permit Employee’s use of a floating holiday during the relevant calendar year, employee may add the floating holiday time to their accrued vacation time, subject to the maximum vacation accumulation.

G. Retirement. The City’s CalPERS plan includes a two-tiered retirement system for members as required by the California Public Employees’ Pension Reform Act (PEPRA) of 2013. Employee shall be enrolled in the Classic member tier, as defined by CalPERS law and regulations, since Employee is not a “New Member” under CalPERS. Employee shall receive and make contributions to

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CalPERS retirement as specified for Classic members and in compliance with PEPRA requirements.

H. Health, Dental, and Vision. City shall provide Employee with health, dental and vision insurance benefits in the same manner as the City provides for Department Head employees and their dependents.

I. Life Insurance. City shall provide term life insurance for Employee, with a payable death benefit of twenty-five thousand ($25,000). Employee has the option to purchase additional coverage offered by the City’s insurance carrier.

J. Fitness Subsidy. Employee may take advantage of the City’s partially subsidized membership to the Berkeley YMCA. Neither the City nor its Claims Administrator shall be liable for any injury that may arise out of Employee’s participation in and use of a YMCA membership. The amount that the City contributes towards Employee’s monthly membership fee is subject to federal and state income tax withholding.

9. Fidelity Bond. City shall bear the full cost of any fidelity or other bonds required of Employee relating to Employee’s service as City Manager under any law or ordinance.

10. Expenses.

A. City-Related Expenses. City agrees to pay for City-related expenses incurred by Employee in accordance with City policy, provided that approval of such expenses must be by the Mayor or Designee.

B. Phone. Employee shall receive a city cell phone.

C. Travel. Travel expenses for the City Manager shall be subject to approval in writing by the Mayor or Designee.

D. Development Expenses. City agrees to budget for and pay reasonable professional dues, subscriptions to professional publications, and travel and subsistence expenses for Employee for professional participation and travel, meetings, and occasions adequate to continue professional development.

Professional development expenses shall be subject to approval in writing by the Mayor or Designee.

11. Termination of Agreement.

A. By City. This Agreement may be terminated by the City for any reason by a simple majority vote of the City Council in a regular council meeting, with written notice provided to Employee.

1. No Cause Termination. In the event that Employee’s employment as City Manager is terminated for no reason or for any reason other than as set forth below in Section 11(A)(2) or Section 11(A)(3), and Employee signs, does

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not revoke, and delivers to the City Council a general and full release of all claims substantially in the form attached as Exhibit A (General Release Agreement), which may be amended as required by law to effectuate a full and complete release, on or after Employee’s termination date but no later than the date set by the City Council at the time of termination in accordance with applicable law, City shall provide the following severance benefits (“Severance”):
a. If Employee is Terminated before nine months following the Commencement Date, then City shall pay Employee a severance amount equal to six (6) months’ base salary and shall pay for continued health benefits (medical, dental, and vision) for Employee and any dependents enrolled during employment for six (6) months or until Employee secures health benefits through another source, whichever comes first.
b. If Employee is Terminated between nine months-and-one-day and eleventh months following Commencement Date, City shall pay Employee a severance amount equal to eight (8) months’ base salary and shall pay for continued health benefits (medical, dental, and vision) for Employee and any dependents enrolled during employment for eight (8) months or until Employee secures health benefits through another source, whichever comes first. c. If Employee is Terminated after eleven months-and-one-day following the Commencement Date, City shall pay Employee a severance amount equal to 12 (12) months’ base salary and shall pay for continued health benefits (medical, dental, and vision) for Employee and any dependents enrolled during employment for 12 (12) months or until Employee secures health benefits through another source, whichever comes first.
d. The Parties understand and agree that any severance-related payments through the City’s payroll system and/or on its payroll schedule shall not constitute continued employment for any purpose, nor shall they entitle Employee to any benefits beyond those set forth in this Section 11(A).
e. Severance shall include only the cash payments and health benefits described in this Section 11(A)(1).
f. For the purposes of this Section 11(A)(1), “Terminated” shall mean either of the following:
(1) The City Council ends the employment relationship; or (2) Employee resigns after the City Council or Designee makes a written request for the Employee’s resignation.

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g. The City shall, in its discretion, decide whether to issue the severance amount and the continued health benefits as either a lump- sum cash payment and direct payment of Employee’s COBRA costs for the continued health benefits period, or to issue the severance- related payments through the City’s payroll system and/or its payroll schedule and maintain the Employee and eligible dependents on the City’s health insurance plan during the continued health benefits period. For purposes of this subsection, “continued health benefits period” refers to the duration for which the Employee and eligible dependents shall receive health insurance benefits pursuant to this Section 11(A)(1). If the City decides to issue severance-related payments through the City’s payroll system, the City shall convert the remaining non-health related payments to a lump-sum cash payment if requested by the Employee and necessary for the Employee to obtain employment elsewhere.

2. For Cause Termination. Notwithstanding Section 11(A)(1) above, the City shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under the provisions of Section 11(A)(1) if Employee is terminated for Cause. Cause shall be defined as any of the following:
a. Conviction of or a plea of nolo contendere to a felony or a misdemeanor involving moral turpitude, dishonesty, breach of trust, abuse of position, or unethical conduct; or
b. Material willful misconduct, material or willful gross neglect, fraud, misappropriation, embezzlement, theft, or dishonesty; or c. Willful or repeated failure, for reasons other than disability, to devote substantially all of Employee’s business time and effort to the City or abandonment of duties; or
d. Harassment, discrimination, retaliation, or “Abusive Conduct”. For the purposes of this Section, “Abusive Conduct” shall mean “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious”; or
e. Abuse of office or position. For the purposes of this Section, “abuse of office or position” means conduct that meets the criteria of a crime involving abuse of their office or position or moral turpitude,

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including abuse of public authority, waste, fraud, misappropriation of funds, or other illegal fiscal practices, violation of the law under color of authority, or a crime against public justice.

3. Employee Conviction. If an Employee is convicted of a crime involving an abuse of their office or position, or moral turpitude, all of the following shall apply as per Government Code, Section 53243 et seq. For the purposes of this Section, “abuse of office or position” means either an abuse of public authority, including waste, fraud, misappropriation of funds, or other illegal fiscal practices, violation of the law under color of authority, or a crime against public justice.
a. If Employee is provided with paid administrative leave pending an investigation, then Employee shall be required to fully reimburse City such amounts paid; and
b. If City pays for the legal defense of Employee, then Employee shall be required to fully reimburse City such amounts paid to the extent permitted by law; and
c. If the City paid a cash settlement to the Employee related to the termination of Employee, then Employee shall be required to fully reimburse City such amounts paid; and
d. Any severance benefits not yet paid to Employee shall be forfeited.

4. Death of Employee. If, during the Term or any extended Term, Employee dies, Employee’s estate shall receive outstanding wages and accruals subject to payout upon separation but shall not be entitled to any additional compensation or payment, including Severance.

5. Disability or Inability to Perform. If, as the result of long-term or permanent disability, sickness, accident, injury, mental incapacity or other personal health-related reason, the City determines that Employee is unable to perform the essential duties and functions of the City Manager role, with or without reasonable accommodation, after exhausting all authorized use of accruals or other authorized paid/unpaid leave available under City policies or state or federal law, the City Council may terminate Employee. If the City Council does elect to terminate Employee due to incapacity, Employee shall receive severance benefits provided in Section 11(A)(1) above. In exercising this option, the City will comply with its obligations under applicable state and federal disability and public retirement laws.

B. By Employee. Employee shall provide at least sixty (60) days’ written notice to City in the event Employee voluntarily resigns or retires. This notice requirement may be waived by the City in its sole discretion. In the event Employee voluntarily retires or resigns their position (unless asked to do so in writing by the City Council pursuant to Section 11(A)(1)(f)(2)), Employee shall

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be entitled only to earned but unpaid base salary, accrued but unpaid expenses required to be reimbursed, and any accruals subject to payout upon separation, through the date of separation from employment.

12. Workplace Investigations. The City Council has authority, acting as a majority, to place the City Manager on paid administrative leave during the pendency of a workplace investigation in which the City Manager is an actual or potential target or respondent.

During such leave of absence, the Council shall designate an Acting City Manager to exercise the responsibilities of the City Manager or as otherwise dictated by City Charter or the City’s Municipal Code.

13. Conflicts of Interest.

A. Employee represents and warrants to the City that Employee presently has no interest and represents that the Employee will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or interfere in any way with the performance of services under this Agreement.

B. Employee shall not, during the Term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in corporate limits in the City, except for stock ownership in any company whose capital stock is publicly held and regularly traded, without prior approval of the Council. For and during the Term of the Agreement, Employee further agrees, except for a personal residence or residential property acquired or held for future use as Employee’s personal residence, not to invest in any other real estate or property improvements within the corporate limits of the City of Berkeley, without the prior written consent of the Council.

C. None of Employee’s immediate family members shall have interests, business ventures, or investments that would create a conflict of interest for Employee under Section 13 (A) or (B) above, per California Government Code, Section 87103. Immediate family is defined as Employee’s spouse and dependent children under Government Code Section 82029.

14. City Property.

A. “Proprietary Information” is all information and any idea pertaining in any manner to the business of the City (or any City affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of the City in the course of employment or otherwise produced or acquired by or on behalf of the City. Proprietary Information shall include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data, know-how, software and other computer programs, copyrightable material, marketing plans, strategies, sales, financial reports, banking information, audit reports, forecasts, customer lists, electronic logins, usernames, and passwords. All Proprietary Information not generally known outside of the City’s organization,

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and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.”
B. During Employee’s employment by the City, Employee shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of the City and as is, or may be, necessary to perform the job responsibilities under this Agreement.

C. At the outset of employment, City shall provide Employee with the following equipment: laptop, credit card, parking pass, and keys. Depending on Employee’s choice, a city cell phone may be provided. If the City switches to requiring an ID or swipe pass, such will be provided. Employee acknowledges that any and all property provided to Employee will be and remain the sole property of the City.

D. Employee shall return all of the property listed in this Section and any additional City property in Employee’s possession at the conclusion of employment.

Employee shall delete and destroy all physical files and copies and all files and copies which may reside on personal electronic devices or in any electronic or virtual location that includes Proprietary Information of the City. Employee shall furnish to the City Attorney all login and password information for programs, services, subscriptions, apps, databases and other electronic, web- based or cloud-based locations that Employee has created or had access to in connection with Employee’s City employment. Employee must comply with this Section by no later than the close of business on Employee’s separation date, or as otherwise directed by the Mayor or Designee.

E. Following termination, Employee shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of the City.

F. Employee’s obligations under this Section shall survive the termination of employment and the expiration of this Agreement.

15. Indemnification. Subject to, in accordance with, and to the extent permitted by the California Government Claims Act, Government Code Section 810 et seq. and Government Code Section 995 et seq., the City will indemnify, defend, and hold Employee harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during Employee’s tenure as City Manager, except that this provision shall not apply with respect to any intentional tort or crime committed by Employee, or any actions outside the course and scope of employment as City Manager.

16. General Provisions.

A. Entire Agreement. This Agreement contains the final, complete, and exclusive agreement and understanding between the Parties. Any amendments, modifications, or variations from the terms of this agreement shall be in writing

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and shall be effective only upon approval of such amendment, modification or variation by the City Council and Employee.

B. Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended, or modified only by an instrument in writing, executed by the Parties to this Agreement and by no other means. Each party waives their future right to claim, contest, or assert that this Agreement was modified, cancelled superseded, or changed by any oral agreement, course of conduct, waiver, or estoppel.

C. Severability. The terms of this Agreement are contractual and not a mere recital. Should any provision or part of any provision or application thereof be held invalid, the invalidity shall not affect any other provisions or applications of the Agreement which can be given effect without the invalid provision or application, and to this end, the provisions of this Agreement are declared to be severable.

D. Attorneys’ Fees. In any legal action, brought to enforce or interpret the terms of this Agreement, the parties shall bear their own attorneys’ fees and costs.

E. Notices. Notices given under this Agreement shall be in writing and shall be either:

1. Served personally; or

2. Delivered via first-class U.S. Mail, certified, with postage prepaid and a return receipt requested; or

3. Sent via Federal Express, or some other equivalent private mail delivery service.

Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid. Notices shall be directed to the addresses shown below, provided that a party may change such party's address for notice by giving written notice to the other party in accordance with this subsection.

CITY:

Attn: Mayor of the City of Berkeley
City Hall, 2180 Milvia St.

Berkeley, CA, 94704
Phone: (510) 981-2489

EMPLOYMENT AGREEMENT – Page 12 of 13
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EMPLOYEE:

As on File with City in Employee’s Personnel File
F. Governing Law. This Agreement, and the rights and obligations of the Parties, shall be construed and enforced in accordance with the laws of the State of California. Venue shall be in the Alameda County Superior Court.

G. Amendment. This Agreement may not be amended except in a written document signed by Employee, approved by the City Council and signed by the City’s Mayor.

H. Acknowledgment. Employee acknowledges that Employee had the opportunity to consult legal counsel regarding this Agreement, that Employee has read and understands this Agreement, that Employee is fully aware of its legal effect, and has entered into it freely and voluntarily and based on Employee’s own judgment and not on any representations or promises other than those contained in this Agreement.

I. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument.

J. Electronic Signatures. The Parties may execute this Agreement by electronic signature, subject to the terms and conditions set forth in Government Code, Section 16.5.

EMPLOYMENT AGREEMENT – Page 13 of 13
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IN WITNESS THEREOF, the City of Berkeley has caused this Agreement to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk on this ____ day of ______, 2024.

ON BEHALF OF THE CITY:
_____________________________ _____________________
Mayor Jesse Arreguín Date

EMPLOYEE
_____________________________ _____________________
PAUL BUDDENHAGEN Date

APPROVED AS TO FORM
_____________________________ _____________________
Name: Farimah Brown
City Attorney Date

50581122.8/
“EXHIBIT A”

GENERAL RELEASE AGREEMENT
This General Release Agreement (“Agreement”) is entered into by and Between PAUL BUDDENHAGEN (“Manager”) and CITY OF BERKELEY (“City”) (individually “Party” and collectively, “Parties”), in light of the following facts:

WHEREAS, Manager’s employment with the City concluded on [DATE]; WHEREAS, Certain disputes have arisen between the City and Manager; WHEREAS, the City and Manager each deny any liability whatsoever to the other; WHEREAS, the City and Manager wish to fully and finally resolve any and all disputes they may have with each other;
WHEREAS, Manager is hereby informed that Manger has twenty-one (21) days from receipt of this Agreement to consider it. The City hereby advises Manager to consult with legal counsel before signing this Agreement;
WHEREAS, Manager acknowledges that for a period of seven (7) days following the signing of this Agreement (“Revocation Period”), Manager may revoke the Agreement, and that this Agreement shall not become effective or enforceable until the day the Revocation Period has expired;
WHEREAS, Manager acknowledges that the salary payment referenced in Section 7 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to Manager through the date of employment separation.

Manager also acknowledges that City has made this salary payment without regard to whether Manager signs this Agreement. The salary payment does not constitute consideration for this Agreement.

WHEREFORE, in consideration of the respective mutual covenants and promises hereinafter contained and made subject to all of the terms and conditions hereof, the Parties hereto do hereby agree as follows:

TERMS AND CONDITIONS

1. Effective Date. The effective date of this Agreement shall be the date of the signature of the last of the Parties to sign this Agreement.

2. Purpose of Agreement; Separation Date. The intent of this Agreement is, in furtherance of the Parties’ mutual desire to conclude their employment relationship, in exchange for Manager’s resignation from City employment and full release and waiver of claims against the City and commitment to the other material terms set forth in this Agreement, the City

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shall provide Manager with the fair and adequate consideration pursuant to Section 4 of this Agreement. The Parties acknowledge and agree that Manager will resign City employment effective close of business on [DATE] (the “Separation Date”).

3. Receipt of Salary Payment. Manager hereby acknowledges receipt of a check or checks for all compensation owing to Manager, including salary, accrued benefit balances and reimbursed expenses (“Salary Payment”) from the City.

4. Severance. Within five (5) business days following Manager’s signing, delivering to the City, and not revoking this Agreement, the City shall pay Manager the gross amount provided for in Section 11 of the attached Employment Agreement, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 11. Manager acknowledges that the severance is in excess of all amounts due and owing to Manager as a result of Manager’s employment by the City.

5. Release of Claims. In further exchange for the consideration and compromises set forth in this Agreement, except as set forth herein, Manager, on behalf of themselves, their heirs, estate, executors, administrators, successors and assigns, irrevocably and unconditionally releases, acquits and forever discharges the City, and its affiliates, partners, joint venturers, successors and assigns, and its officers, employees, volunteers, interns, attorneys, agents and insurers, and all persons acting by, through, under or in concert with any of them, individually and jointly (“Released Parties”) from all charges, complaints, promises, agreements, controversies, suits, rights, demands, costs, losses, debts, actions, causes of action, claims, judgments, obligations, damages, liabilities and expenses, including any claims for attorneys’ fees and costs, of any kind or character whatsoever, known and unknown, suspected, unsuspected, anticipated and unanticipated (“Released Claim” or “Released Claims”), which Manager now has, owns or holds, or claims to have, own or hold, against each or any of the Released Parties on or before Effective Date of this Agreement.

A. This release of all known or unknown, suspected or unsuspected, anticipated and unanticipated Released Claims specifically includes, without limitation:
i. any Released Claims alleged or referred to, directly or indirectly, or in any way connected with, or arising out of, or which may hereafter be claimed to arise out of
Manager’s employment with the City or actions taken
during Employee’s tenure as City Manager;
ii. any Released Claims or causes of action arising out of, in connection with or relating to Manager’s employment with the City in any position, including, but not limited to, claims or causes of action based on: federal, state, or local employment discrimination, harassment, or retaliation
statutes, laws, regulations or ordinances, based on any category protected by law, including without limitation age,

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sex, gender identity or expression, race, religion, national origin, marital status, sexual orientation, ancestry, parental status, or disability arising under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000 et seq. (“Title VII”), the Age Discrimination in Employment
Act of 1967 (29 U.S.C. §§ 621 et seq. (“ADEA”), the
California Fair Employment and Housing Act (California
Government Code §§ 12900 et seq.); the Federal
Americans With Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq. (“ADA”) ; the Federal
Occupational Safety and Health Act of 1970 (29 U.S.C. §§ 651 et seq.); the California Occupational Safety and Health Act of 1973 (California Labor Code §§ 6300 et seq.); the Family Medical Leave Act (29 U.S. § 2601); the California Family Rights Act (Cal. Gov. Code § 12950 et seq.); the Unruh and George Civil Rights Acts; the Genetic
Information and Non-Discrimination Act; the
Rehabilitation Act of 1973; the Employee Retirement
Income Security Act of 1974 (29 U.S.C. § 1001 et seq.); the Equal Pay Act; the Fair Labor Standards Act (29 U.S.C. § 203); qui tam claims under Federal False Claim Act (31
U.S.C. §§ 3730 et seq.); 42 U.S.C. Section 1981; the
California Constitution; the California Labor Code; the California Government Code; the Federal Equal Pay
Act of 1963 (29 U.S.C. §§ 201 et seq. (“EPA”) ; the
Meyers-Milias-Brown Act (California Government Code
§§ 3500 et seq.); any other federal, state or municipal constitution, statute, regulation and/or ordinance affecting or relating to the claims and rights of the Manager; or claims for attorneys’ fees and costs;
iii. any claim (i) sounding in tort, specifically including, but not limited to, any torts related to constructive and/or wrongful discharge in violation of public policy,
defamation, invasion of privacy, intentional and negligent interference with contract and/or prospective economic
advantage, fraud and any misrepresentation, and intentional and negligent infliction of emotional distress; (ii) any breach of contract of employment or collective bargaining agreement (expressed or implied) or any grievance initiated by an employee under a collective bargaining agreement; or (iii) any covenant of good faith and fair dealing (express or implied); or
iv. Any administrative claim or charge that may be submitted to a local, state, or federal agency, including without limitation the California Civil Rights Department, the

GENERAL RELEASE AGREEMENT - Page 4 of 9
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California Department of Labor Standards and
Enforcement, the California Public Employment Relations Board, the U.S. Department of Labor, but excluding the
U.S. Equal Employment Opportunity Commission
(“EEOC”).

B.

The Released Claims subject to release under this Agreement do not include: any rights that cannot be waived as a matter of law; any rights Manager has to file or pursue a claim for workers’ compensation or unemployment insurance; any rights or claims for indemnification the City may have according to any written indemnification agreement with the City to which Manager is a party or under applicable law; or any claims for breach of this Agreement.

C. Notwithstanding the foregoing, this Agreement and the releases contained within, do not limit Manager’s ability to bring an administrative charge with an administrative agency, but Manager expressly waives and releases any right to recover any type of personal relief from the City, including but not limited to monetary damages or reinstatement, in any administrative action or proceeding, whether California or federal, and whether brought by Manager or on Manager’s behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this Agreement prohibits the Parties from reporting possible violations of law or regulation to any government agency or entity, including but not limited to the Equal Employment Opportunity Commission and/or the California Civil Rights Department, or making other disclosures that are protected under the whistleblower provisions of law.

6. Waiver of Unknown Claims/Specific Waiver of Section 1542. Manager specifically and expressly waives all rights under the provisions of Section 1542 of the Civil Code of California ("Section 1542 Waiver") with respect to the Released Claims. Section 1542 Waiver provides as follows:

GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN [EMPLOYEE’S] FAVOR

AT THE TIME OF EXECUTING THE RELEASE AND THAT,
IF KNOWN BY [EMPLOYEE], WOULD HAVE MATERIALLY
AFFECTED [EMPLOYEE’S] SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.

Thus, for the purposes of making a complete settlement of the Released Claims which Manager may have or claims to have against the Released Parties, Manager waives and releases any and all Released Claims against the Released Parties, including Released Claims which are unknown and unsuspected as of the Effective Date of this Agreement.

Manager warrants that they have read this Agreement, including the Section 1542 Waiver,

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and have had an opportunity to consult with counsel of their own choosing about this Agreement and specifically about the Section 1542 Waiver, and that they understand this Agreement and the Section 1542 Waiver. Manager acknowledges that they may later discover facts different from or in addition to those now known or believed to be true regarding the matters released or described in this Agreement, and even so they agree that the releases and agreements contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts. Manager assumes any and all risk of any mistake in connection with the facts involved in the matters, disputes, or controversies released or described in this Agreement or with regard to any facts now known to them relating thereto. Manager agrees, to the fullest extent permitted by law, that they will not initiate or file a lawsuit or internal City proceeding to assert any Released Claims. If any such action is brought, this Agreement will constitute an Affirmative Defense thereto, and the City shall be entitled to recover reasonable costs and attorneys' fees incurred in defending against any Released Claim.

7. Return of Documents. Manager agrees and represents that no later than [DATE] they will return to the City all City property of which they have possession, custody or control, including, but not limited to, computer, electronic and telephonic equipment, as well as all City data (including logins and passwords) and documents whether in hard copy or maintained on any electronic media.

8. Non-Disclosure of Confidential and Proprietary Information. The Parties acknowledge that as City Manager is a high-ranking official and an officer of the City; in that capacity they were and are responsible for, among other things, executing and enforcing all laws, and policies of the City and administering the City’s affairs, controlling and administering the City’s financial affairs and supervising purchasing, contracting, and confidential information. Consistent with their Employment Agreement and the City Charter, Manager represents and agrees that they have not and shall not at any time or in any manner, either directly or indirectly, whether or not for compensation use, divulge, disclose or communicate to any person, firm, corporation or any other entity in any manner whatsoever any confidential information concerning any matters affecting or relating to the business of the City or any Proprietary Information as defined in the Employment Agreement except with the express written permission of the City or as required by court order or properly- issued subpoena. Such information includes but is not limited to, any attorney-client communications and attorney work product, or any of the information concerning the business of the City, its manner of operation, its plans, or other proprietary data where such information is not publicly known and is not otherwise subject to public inspection or disclosure.

9. Information Regarding Employment. Subject to any applicable law, the City agrees that all inquiries with respect to Manager’s separation will be referred to the Mayor or the Mayor’s delegee who will provide only the following information: (a) the date of hire and date of separation; (b) that this is a mutual and amicable separation based on a mutual desire to separate Manager from employment and provide a smooth leadership transition.

GENERAL RELEASE AGREEMENT - Page 6 of 9
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10. Personnel File Documents. No documents shall be entered into Manager’s personnel file after the Effective Date of this agreement without both Parties approving the entry of the document.

11. Age Discrimination Waiver. THIS AGREEMENT CONTAINS A WAIVER OF

AGE DISCRIMINATION CLAIMS, AND MANAGER HAS CAREFULLY READ AND ACKNOWLEDGES THE FOLLOWING:

A. In connection with the Older Workers' Benefits Protection Act (“OWBPA”) which prohibits discrimination against older workers in a variety of different contexts, Manager acknowledges that the City has advised Manager to consult with an attorney prior to signing this Agreement. As set forth in the OWBPA, 29 U.S.C. § 626(f)(1), Manager hereby acknowledges the following:
i. that this Agreement is written in a manner calculated to be understood by Manager and that Manager in fact
understands the Agreement;
ii. that this Agreement specifically refers to and waives rights or claims arising under the OWBPA;
iii. that this Agreement applies only to claims arising up to and including the Effective Date of this Agreement;
iv. that in exchange for this Agreement, Manager received value beyond that to which Manager is already entitled; v. that the City has advised Manager in writing to consult with an attorney before executing the Agreement and the
Manager has done so; and
vi. that Manager has been provided with an adequate period of time to review this Agreement.

B. Manager further acknowledges that Manager is entitled to consider this Agreement for up to twenty-one (21) calendar days before signing it.

Manager may waive the twenty-one (21) calendar day notice period; if the Manager chooses to do so, they may initial below, indicating they have made a knowing and voluntary decision to sign the Agreement prior to expiration of the twenty-one (21) calendar day period with informed consent and after consultation with legal counsel.

INITIALS: ___
C. Manager may revoke this Agreement for a period of seven (7) calendar days after executing the Agreement. Any such revocation must be communicated in writing to the City Attorney at [EMAIL ADDRESS] within the seven (7) calendar day revocation period. This Agreement shall

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not become effective or enforceable until the revocation period has expired. No payments shall be made pursuant to this Agreement prior to expiration of this revocation period.

12. Complete and Voluntary Agreement.

A.

Manager acknowledges that Manager has read and understands this Agreement; that Manager has had the opportunity to seek legal counsel of Manager’s choosing and to have the terms of the Agreement fully explained to Manager; that Manager is not executing this Agreement in reliance on any promises, representations or inducements other than those contained herein; and that Manager is executing this Agreement voluntarily, free of any duress or coercion. Manager specifically understands that by entering into this Agreement Manager is forever foreclosed from pursuing any of the claims waived herein.

B. Manager acknowledges that Manager has at least five (5) business days to seek legal counsel of Manager’s choosing before signing this Agreement. This five (5) business day period runs concurrently with the twenty-one (21) day period referenced in Section 11.B. above. Manager may waive the five (5) business day review period; if the Manager chooses to do so, Manager shall initial below, thus providing written confirmation that Manager has made a knowing and voluntary decision to sign the Agreement prior to the expiration of the five (5) business day period with informed consent and after consultation with legal counsel.

INITIALS: ____

13. Settlement Privilege. The Parties agree that if this Agreement does not become effective for any reason, this Agreement shall be deemed negotiation for settlement purposes only and will not be admissible in evidence or used for any purpose whatsoever, and will not be admissible in any trial or appeal under California Evidence Code § 1152 and Federal Rules of Evidence 408.

14. No Admissions. By entering into this Agreement, the Released Parties do not admit that they have engaged in, or are now engaging in, any unlawful conduct or employment practice. It is understood and agreed that this Agreement is not an admission of liability, and that the City specifically denies liability related in any manner to Manager’s employment. The Parties agree that it is their mutual intention that neither this Agreement nor any terms hereof shall be admissible in any other or future proceedings against the City, except a proceeding to enforce this Agreement.

15. Tax Consequences. The City has made no representation about and takes no position on the tax consequences of this Agreement. A dispute regarding the tax status of this Agreement shall not affect the validity of this Agreement. Manager has had an opportunity to discuss the potential tax consequences of this Agreement with their own counsel and agrees to indemnify and hold harmless the City from any and all costs and assessments

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including, but not limited to delinquent taxes, penalties and/or assessments levied against the City in connection with this Agreement.

16. Assignment. Manager acknowledges that they have not heretofore assigned or transferred to or purported to assign or transfer to any person or entity the Released claims or any part or portion thereof, and agrees to indemnify and hold harmless the Released Parties from and against any claim, demand, controversy, damage, debt, liability, account, reckoning, obligation, cost, expense, lien, action or cause of action (including the payment of attorneys' fees and costs actually incurred whether or not litigation commenced) based on, in connection with, or arising out of any assignment or transfer or claimed assignment or transfer thereof.

17. Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the Parties with respect to the separation of Manager’s employment relationship with the City. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party that are not contained in this Agreement. No agreement, statement, or promise not contained in this Agreement shall be valid or binding.

18. Applicable Law and Venue. This Agreement shall be interpreted according to the laws of the State of California. Venue of any action regarding this Agreement shall be in the Alameda County Superior Court.

19. Modification. Any modification of this Agreement shall be effective only if it is in writing and signing by all Parties to this Agreement.

20. Severability. If any part of this Agreement is determined to be invalid, unlawful, or unenforceable, that part shall not be deemed to be part of this Agreement.

21. Full Execution Authority. Each Party executing this Agreement warrants and represents that it or they have full authority to bind the corresponding Party to this Agreement.

22. Attorneys’ Fees and Costs. Each Party shall bear its own attorneys’ fees and costs arising from and/or in any way related to this Agreement and the claims covered by this Agreement. Manager expressly waives any and all rights and claims Manager might otherwise have against City for reimbursement of attorneys’ fees and costs associated with any legal representation related to this Agreement and the claims covered by this Agreement.

23. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original, and all such counterparts, taken together, shall constitute the same instrument.

24. Electronic Signatures. The Parties may execute this Agreement by electronic signature, subject to the terms and conditions set forth in Government Code section 16.5.

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THE UNDERSIGNED HAVE READ THE FOREGOING AGREEMENT AND ACCEPT

AND AGREE TO THE PROVISIONS CONTAINED HEREIN, AND HEREBY

EXECUTE IT, KNOWINGLY AND VOLUNTARILY AND WITH FULL
UNDERSTANDING OF ITS CONSEQUENCES.
___________________________
Name:

Title:

City of BERKELEY
Date: ______________________
___________________________
City Manager
Date: ______________________
Approved as to Form and Legality:
___________________________
Name:

City Attorney
Date: ______________________
___________________________
Name:

Attorney for City Manager
Date: ______________________

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

CONSENT CALENDAR
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin
Subject: Berkeley Humane: Bark (& Meow) Around the Block: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds

RECOMMENDATION
Adopt a Resolution approving the expenditure of council office budget funds, including $500 from Councilmember Taplin, to support the Back (& Meow) Around the Block adoption event hosted by Berkeley Humane, with funds relinquished to the City’s general fund.

FINANCIAL IMPLICATIONS
No General Fund impact. $500 is available from contributing Councilmember’s Council Offi
ce Budget discretionary accounts.

BACKGROUND
The 12th Annual Bark (& Meow) Around the Block adoption event and family street fair will
take place on Saturday, September 7, 2024, in West Berkeley. This annual pet adopt
ion event, free to the public, is a large community based, family friendly street fair and adopt-a-thon complete with great food, live entertainment, vendors (pet and non- pet) and fun activities for all ages.

Last year, Bark (& Meow) Around the Block stretched over four city blocks, attracted at least 2,500 attendees, over 40 diverse vendors, and 26 local partner animal rescue organizations. Over 175 shelter
and rescue animals were adopted into loving homes in
just a few hours.

To be held on Ninth Street between Parker and Pardee Streets, and Carleton Street, between 8th and 10th Street, the festival will draw a substantial number of families and potential pet adopters out to engag
e with a pet friendly event that includes local food
trucks, live music, and a variety of vendors.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

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

41

Berkeley Humane CONSENT CALENDAR
June 4, 2024

Attachments:
1: Resolution

Berkeley Humane CONSENT CALENDAR
June 4, 2024

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-East Bay Humane Society seeks funds to provide the following public services: Bark (& Meow) Around the Block adoption drive; and
WHEREAS, the provision of such services would fulfill the following municipal public purpose: pet adoption drive;
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 $1000 shall be granted to Berkeley-East Bay Humane Society to fund the following services: Bark (& Meow) Around the Block adoption drive.

Susan Wengraf
Vice Mayor and Councilmember District 6
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160● TDD: (510) 981-6903 ● Fax: (510) 981-7166 E-Mail: [email protected]

CONSENT CALENDAR
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Vice Mayor Wengraf (Author), Councilmember Bartlett (Co-Sponsor), Councilmember Hahn (Co-Sponsor)
Subject: Support for H.R. 7849 (Thompson and LaMalfa)

RECOMMENDATION
Adopt a letter of support for the Disaster Resiliency and Coverage Act of 2024 (H.R. 7849, Thompson and LaMalfa) and send it to Representatives Mike Thompson, Doug LaMalfa, Barbara Lee and Senators Alex Padilla and Laphonza Butler.

FINANCIAL IMPLICATIONS
None

CURRENT SITUATION AND ITS EFFECTS
The Disaster Resiliency and Coverage Act of 2024 (H.R. 7849), is legislation providing homeowners in disaster-prone regions with broad incentives to harden their properties against wildfires and other risks. The legislation is intended to help address the ongoing insurance crisis in California as the rising frequency and intensity of natural disasters has led insurers to raise rates and, in several cases, exit certain markets entirely. By incentivizing homeowners to mitigate disaster risks on their property, the legislation will help bring insurers back into the market and lower rates.

The legislation includes four main provisions: The first creates a grant program, administered through State governments, through which individual households in designated disaster-prone regions (with certain limitations) are eligible for up to $10,000 for specified disaster resiliency work on their homes. The second and third provisions (Sections 3 and 4 of the legislation) mirror existing legislation (H.R. 4070) stipulating that payments from State-run disaster resiliency programs and payments from various federal emergency agricultural programs are not considered income for federal tax purposes. The final section provides a 30 percent tax credit for qualified disaster risk mitigation activities conducted by individuals or businesses. The credit is meant to complement the grant program by providing meaningful assistance to larger property owners for whom mitigation activity costs would far exceed $10,000.

42

Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

BACKGROUND
Natural disasters fueled by climate change are threatening the insurance industry’s ability to serve California’s homeowners. Many insurers have responded to climate related financial risks by withdrawing their services from high-risk markets.

In 2023, State Farm, one of the US' biggest insurance providers, announced it would stop selling new home insurance policies in California. "[We] made this decision due to historic increases in construction costs outpacing inflation, rapidly growing catastrophe exposure, and a challenging reinsurance market," a statement from the company read. Many other insurance companies followed State Farm’s lead and withdrew from California.

Since then, Berkeley homeowners have been reporting receiving notices of non-renewal, despite efforts at creating defensible space and home hardening their properties.

Insurers base their decisions on proprietary data and modeling but provide little public insight into how these assessments are made or how they affect outcomes for customers. As a result, homeowners are left resorting to the FAIR Plan, the insurance of last resort, which is far more expensive and covers much less than previous policies.

The current insurance crisis puts what is often a homeowner’s largest asset at risk; it threatens to reduce the value of their home, and it could ultimately damage the City’s financial stability.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Extreme weather is causing wildfires to burn hotter and spread faster than ever before due to climate change. This bill, if passed, will support the resiliency of families and communities to implement wildfire disaster mitigations and to rebuild should they need to.

CONTACT PERSON
Vice Mayor Susan Wengraf Council District 6 510-981-7160 Attachments:
1: Letter
2: Co-Sponsors of Bill
3: Bill – H.R. 7849

Berkeley City Council
June 4, 2024
The Honorable Mike Thompson
United States Congressmember
268 Cannon Office Building
Washington, DC 20515
The Honorable Doug LaMalfa
United States Congressmember
408 Cannon House Office Building
Washington, DC 20515
RE: H.R. 7849, Disaster Resiliency and Coverage Act of 2024 Support from the Berkeley City Council
Dear Honorable Representative Mike Thompson and Representative Doug LaMalfa, We write in support of your efforts and applaud you for bringing H.R. 7849 to Congress for consideration.

Property owners in Berkeley have been reporting notices of non-renewal of their insurance policies with increased frequency in the last several months. Many major insurers have pulled out of California and are no longer offering policies here, claiming that the risk is too high.

Providing incentives to homeowners who mitigate wildfire risks on their property will hopefully encourage insurers to return to California to provide insurance policies to those who take steps to create defensible space and harden their homes.

Building community resilience to wildfire is a top priority for our city. We are working hard to educate our constituents and to help Berkeley’s homeowners implement actions to achieve that goal.

H.R. 7849 is a critical step to stabilizing California’s Insurance Market. I hope you will continue your good work to not only incentivize insurance companies to return to California but also encourage them to provide insurance to those who engage in qualified disaster risk mitigation activities.

Sincerely,
Jesse Arreguín
Vice Mayor
City of Berkeley
Cc: Representative Barbara Lee and Senators Alex Padilla and Laphonza Butler

CONSENT CALENDAR
Attachment 2 – Support for H.R. 7849 June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Attachment 3 - Support for H.R. 7849 CONSENT CALENDAR
June 4, 2024

Office of the City Manager

PUBLIC HEARING
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: David Sprague, Fire Chief, Berkeley Fire Department Subject: Modification and Adoption of Berkeley Fire Code Local Amendments and Incorporation of California Intervening Code Adoption Cycle Amendments Based on the 2022 California Fire Code

RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt the second reading of Ordinance No. 7,903-N.S. (Attachment 1) which proposes to amend certain portions of Section

19.48.020 of the Berkeley Municipal Code (“Amendments to the California Fire Code”).

SUMMARY
On December 6, 2022 the Berkeley City Council adopted the current edition of the Berkeley Fire Code (BFC), which was based on the State of California adoption of the 2022 California Fire Code. The current Berkeley Fire Code contains appropriate local amendments and additions as adopted by Council. This code went into effect on January 1, 2023.

The State of California has issued new amendments and additions (“amendments”) to the 2022 California Fire Code. These new amendments will take effect on July 1, 2024.

If the City of Berkeley wishes to continue enforcement of our existing local fire code amendments without interruption, any local amendments which have been affected by the new state amendments must be revised, and the revised local amendments adopted by City Council on June 4, 2024, and shall be effective on July 4, 2024.

As part of the recurring, triennial cycle of building standards adoption, the California Building Standards Commission and allied State code development agencies (including the Office of the State Fire Marshal) develop and issue supplemental building standards. The process of developing supplemental building standards is formally referred to as the Intervening Code Adoption Cycle. These standards are normally issued and become effective approximately eighteen months into a three-year triennial code cycle, and are often referred to as “mid-cycle amendments”.

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PUBLIC HEARING
June 4, 2024

The mid-cycle amendments will override locally adopted building and fire code amendments if the language or section numbering of the state revisions conflicts with local amendments to the codes. Local jurisdictions may adopt local amendments to the California Fire Code (CFC), and to any supplemental building standards which may subsequently amend the CFC, including the mid-cycle amendments.

In the current situation, mid-cycle amendments to the fire code that have been adopted by the state have modified some language within fire code sections that are the subject of local Berkeley amendments. Additionally, the state’s changes have renumbered some code sections. This change in language and renumbering will overwrite important provisions of local Berkeley fire code amendments unless the local amendments are revised to avoid conflict with the state code. As previously stated, If Berkeley wishes to continue to apply our local fire code amendments without interruption, the Berkeley City Council must act to amend the Berkeley Fire Code adoption to conform with the new California Fire Code language and numbering before July 1, 2024.

These local Berkeley fire code amendments address local conditions specific to our community that effect our local fire and life safety. The City has adopted multiple fire code amendments in the past that are designed to address these concerns. Staff recommends that the City Council revise and adopt the effected local amendments to the California Fire Code that have been modified in the state’s Intervening Code Adoption Cycle as set forth in the attached documents. This action will maintain the current local level of fire and life safety as intended by Council’s original adoption action.

FISCAL IMPACTS
The fiscal impact to the City will be negligible. The publisher of the California Fire Code prints and distributes mid-cycle amendments to the state codes at no charge to existing code subscribers. No new fire code books, inspection guides, inspection forms or training is required.

Updating the local fire code amendments to continue them in-force simply maintains the current status quo. It does not create cost increases for homeowners, builders or developers beyond those costs already mandated by current Berkeley codes and statutes.

CURRENT STATUS AND EFFECTS
As part of a regular three-year cycle, the Office of the California State Fire Marshal and the California Building Standards Commission promulgated the 2022 California Fire Code. The California Fire Code (Title 24, Part 9 of the California Code of Regulations), and Berkeley’s local adoption of the fire code in the form of the Berkeley Fire Code (B.M.C. section 19.48) took effect on January 1, 2023. The Berkeley Fire Code provides minimum standards for fire and life safety.

Berkeley has long elected to establish more restrictive building standards as reasonably necessary because of local climatic, geological or topographical conditions in accordance with Calif. Health & Safety Code Sections 18941, 17958, 17958.5, 17958.7

PUBLIC HEARING
June 4, 2024

and other statutes. Findings of the local condition(s) and the adopted local building standard(s) must be filed with the California Building Standards Commission.

California’s mid-cycle amendments effect local fire code adoptions to varying degrees.

The current body of mid-cycle amendments effects the language and numbering of code sections throughout the entire body of the California Fire Code, and effects over 190 pages of the current code in total. In the present case, the majority of these California mid-cycle amendments do not affect our local fire code adoption. The impact to Berkeley’s local amendments requires relatively minor changes in language to, or renumbering of, local fire code amendments in order to maintain consistency with the language, structure and organization of the California Fire Code as amended by the Intervening Cycle Code Adoption process. In the current situation, the state mid-cycle amendments that conflict with local Berkeley amendments occur within Berkeley’s wildfire safety amendments (Chapter 49 of the Berkeley Fire Code).

Staff’s recommendations on modifications to local amendments required to harmonize the Berkeley Fire Code with the California Fire Code as amended by the California Intervening Code Adoption Cycle, include:
1) Amend Paragraph DDD of Section 19.48.020 of the Berkeley Municipal Code (“Amendments to the California Fire Code”). Paragraph DDD currently implements local amendments to Section 4902.1 (“General”), of the California Fire Code (CFC).

Our current local amendments to CFC Section 4902.1 add important local definitions related to the regulation, control and abatement of wildfire hazards within Berkeley.

This paragraph and the amended CFC section define our Local Agency Very High Fire Hazard Severity Zone and Wildland Urban Interface area, as they are currently recognized in local law, and as that recognition effects current and future requirements as established in state law. These definitions relate the local definitions of “Fire Zone 1”, “Fire Zone 2” and “Fire Zone 3” to the Local Agency Very-High Fire Hazard Severity Zone and Wildland-Urban Interface area. The existing locally amended BFC Section also modifies the definition of “Fire Protection Plan” so that it can apply to both proposed and existing properties, projects and developments.

While the bulk of Paragraph DDD of Section 19.48.020 of the B.M.C. is not directly impacted by the mid-cycle amendments, as of July 4, 2024, the CFC amendments will slightly modify the code’s usage of the term “Wildland-Urban Interface”. The amendments being proposed to Paragraph DDD will implement those same changes in language while preserving our local amendments, and will ensure continued compatibility between the BFC adoption and the CFC.

2) Amend Paragraphs UUU through PPPP of Section 19.48.020 of the Berkeley Municipal Code (“Amendments to the California Fire Code”). The twenty-two Paragraphs embodied by UUU through PPPP currently occupy Section 4911 of the Berkeley Fire Code and create an additional fire code section and subsections within our local adoption that do not exist within the current CFC. These additional sections define and regulate activity and hazards within Berkeley’s Wildland-Urban Interface

PUBLIC HEARING
June 4, 2024

area, and provide important tools for regulating and mitigating related hazards, such as providing appropriate ignition controls in hazardous wildfire areas.

The controls established by these Paragraphs of B.M.C. 19.48.020 regulate such mundane but important topics as prohibiting the placing, depositing or disposing of ashes or coals in wildland areas. The state’s mid-cycle amendments have now adopted Section 4911 for purposes unrelated to these local controls, so these controls must be moved to a newly created code section, which is proposed as Section 4912. In addition to the conflict caused by renumbering, the local hazard controls will also be affected by the same changes in Wildland-Urban Interface terminology that was previously discussed related to Paragraph DDD above. The proposed changes in the language used in these Berkley amendments will also ensure compatibility between the California and State fire codes, as well as consistency within our own code adoption.

BACKGROUND
The City of Berkeley has unique climatic, geological, and topographical conditions, which require local amendments to mitigate potential hazards, and to reduce loss of life caused by fires or natural disasters. To address local fire and life safety impacts, the City of Berkeley has adopted local amendments to address local conditions which make CFC requirements inadequate. Without the adoption of local amendments, needed fire and life safety enhancements cannot be enforced.

In the current case where state amendments to the CFC effect Berkeley’s local fire code amendments, an ordinance modifying the existing local amendments and a findings-of- fact resolution are proposed in order to ensure successful adoption of local amendment modifications and the maintenance of our local standards. These local amendments, or other building or fire code requirements triggered by these amendments, may qualify as building standards in accordance with state law. In the current case, no new permits, fees, or fee adjustments are proposed at this time, so no changes to the current fee schedule are required or proposed.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Unwanted fires have a significant, detrimental effect on the environment, climate, and the sustainability of our society. Air emissions from fires include soot/carbon particulate as well as carbon-dioxide and many un-desirable fire byproducts. The water used to extinguish fires not only becomes runoff and may transport pollutants into waterways and other portions of the environment, but is often treated, potable water that must be processed and transported into the City via a water utility service at some financial expense and expense to the City’s overall carbon-footprint. Fires also damage structures and other built-environment infrastructure that ultimately must be removed and replaced, generally with an associated financial and carbon-footprint cost to remove, manufacture, transport and reinstall the infrastructure. The adoption of a strong fire code ultimately serves to reduce the frequency, severity and cost of fires to society, environment, and the climate.

PUBLIC HEARING
June 4, 2024

RATIONALE FOR RECOMMENDATION
When the state adopts a new fire code, or as in the current case makes amendments to the California Fire Code that impact locally adopted amendments to the California Fire Code, the affected local amendments must be modified to remain compatible with the new state code language. In the case of Intervening Code Adoption Cycle mid-cycle amendments, these amendments do not always trigger the need for modification of local code adoptions. In the current case of the 2024 mid-cycle amendments, modifications of local amendments and findings are needed to preserve our local fire code amendments that account for Berkeley’s particular topographic, geologic and climatic conditions. The fire and seismic danger and other local conditions, as described in detail in the attached resolution justify the proposed local amendments that are stricter than the California Fire Code.

ALTERNATIVE ACTIONS CONSIDERED
None

CONTACT PERSON
Steven Riggs, Fire Marshal, Berkeley Fire Department, 981-5585.

Attachments
1 Ordinance – “AMENDMENT OF SECTION 19.48.020 OF THE BERKELEY MUNICIPAL CODE (“AMENDMENTS TO THE CALIFORNIA FIRE CODE”) TO

MAINTAIN LOCAL AMENDMENTS TO, AND COMPATIBILITY WITH,

RECENT CHANGES TO CALIFORNIA FIRE CODE LANGUAGE AND
NUMBERING AS ENACTED BY THE STATE OF CALIFORNIA”
2 Public Hearing Notice – June 4, 2024

Ordinance No. 7,903-N.S. Page 1 of 7
ORDINANCE NO. 7,903-N.S.

AMENDMENT OF SECTION 19.48.020 OF THE BERKELEY MUNICIPAL CODE (“AMENDMENTS TO THE CALIFORNIA FIRE CODE”) TO MAINTAIN LOCAL

AMENDMENTS TO, AND COMPATIBILITY WITH, RECENT CHANGES TO

CALIFORNIA FIRE CODE AS ENACTED BY THE STATE OF CALIFORNIA BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Paragraph DDD. of Section 19.48.020 of the Berkeley Municipal Code (“Amendments to the California Fire Code”) is amended to read as follows:

DDD. Section 4902.1 General [Amended subsection]. For the purpose of this chapter, certain terms are defined as follows:

DIRECTOR. Director of the California Department of Forestry and Fire Protection (CAL FIRE).

FIRE PROTECTION PLAN [Amended definition]. A document prepared for a specific premises, project or development, either existing or proposed for a Wildland-Urban Interface (WUI) area. It describes ways to minimize and mitigate potential for loss from wildfire exposure.

FIRE HAZARD SEVERITY ZONES. Geographical areas designated pursuant to California Public Resources Codes, Sections 4201 through 4204 and classified as Very High, High, or Moderate in State Responsibility Area or as Local Agency Very High Fire Hazard Severity Zones designated pursuant to California Government Code, Sections 51175 through 51189.

The California Code of Regulations, Title 14, Section 1280 entitles the maps of these geographical areas as "Maps of the Fire Hazard Severity Zones in the State Responsibility Area of California."
FIRE ZONE ONE [Additional definition] shall encompass the entire City of Berkeley except for Fire Zones Two and Three.

FIRE ZONE TWO [Additional definition] encompasses those areas designated as Combined Hillside District in the Official Zoning map of the City of Berkeley and those areas designated as Very High in the official Fire Hazard Severity Zones (FHSZ) map of the California Department of Forestry and Fire Protection (CAL FIRE), as they may be amended from time to time. The following properties, not part of the Combined Hillside District, are included in Fire Zone Two under the Very High designation of the FHSZ map: the eastern section of the University of California, Berkeley main campus, block number 2042 (Alameda County Assessor’s parcel numbering (APN) system), to the east city line; all of the Clark-Kerr campus, block number 7690, to the east city line; all of block number 7680 in the City of Berkeley; portions of block number 1702 in the City of Berkeley. These additional parcels and their assigned street address are established in Section 19.28.030 of the Berkeley Municipal Code, Berkeley Building Code and are specified in Table 4902.1.

Table 4902.1

Ordinance No. 7,903-N.S. Page 2 of 7
Parcels Added to the Berkeley Combined
Hillside District
Parcel Number (APN) Address
048-7680-001-02
048-7680-002-01
048-7680-031-00
048-7680-019-00
048-7680-014-00
048-7680-032-01
048-7680-027-00
054-1702-067-00
054-1702-068-00
054-1702-069-00
054-1702-070-00
054-1702-063-00
054-1702-076-00
054-1702-075-00
054-1702-074-00
054-1702-073-00
054-1702-112-00
054-1702-123-01
054-1702-122-00
054-1702-120-01
054-1702-114-01
054-1702-115-00
054-1702-072-00
054-1702-071-00
054-1702-113-00
054-1702-116-00
3 Tanglewood Road
5 Tanglewood Road
7 Tanglewood Road
11 Tanglewood Road
19 Tanglewood Road
25 Tanglewood Road
29 Tanglewood Road
10 Tanglewood Road
18 Tanglewood Road
22 Tanglewood Road
28 Tanglewood Road
2701 Belrose Avenue
2715 Belrose Avenue
2721 Belrose Avenue
2729 Belrose Avenue
2737 Belrose Avenue
2801 Claremont Boulevard
2811 Claremont Boulevard
2815 Claremont Boulevard
2821 Claremont Boulevard
2816 Claremont Avenue
2820 Claremont Avenue
3005 Garber Street
3015 Garber Street
3020 Garber Street
3017 Avalon Avenue
Fire Zone Two is declared as a Very-High Fire Hazard Severity Zone and Wildland-Urban Interface area.

FIRE ZONE 3 [Additional definition] encompasses those areas designated as Environmental Safety - Residential Districts on the Official Zoning Map of the City of Berkeley, as it may be amended from time to time. Fire Zone Three is declared as a Very-High Fire Hazard Severity Zone and Wildland-Urban Interface area.

FIRE-RESISTANT VEGETATION. Plants, shrubs, trees and other vegetation that exhibit properties, such as high moisture content, little accumulation of dead vegetation, and low sap or resin content, that make them less likely to ignite or contribute heat or spread flame in a fire than native vegetation typically found in the region.
[Note: The following sources contain examples of types of vegetation that can be considered fire-resistant vegetation (Fire-resistant Plants for Home Landscapes, A Pacific Northwest Extension publication; Home Landscaping for Fire, University of California Division of Agriculture and

Ordinance No. 7,903-N.S. Page 3 of 7
Natural Resources; Sunset Western Garden Book)].

IGNITION-RESISTANT MATERIAL. [Amended definition] A type of building material that complies with the requirements in Section 704A.2 in the California Berkeley Building Code.

LOCAL RESPONSIBILITY AREAS (LRA). Areas of the state in which the financial responsibility of preventing and suppressing fires is the primary responsibility of a city, county, city and county, or district.

STATE RESPONSIBILITY AREA (SRA). Lands that are classified by the Board of Forestry pursuant to Public Resources Code Section 4125 where the financial responsibility of preventing and suppressing wildfires is primarily the responsibility of the state.

WILDFIRE. Any uncontrolled fire spreading through vegetative fuels that threatens to destroy life, property, or resources as defined in Public Resources Code, Sections 4103 and 4104.

WILDFIRE EXPOSURE. One or a combination of radiant heat, convective heat, direct flame contact and burning embers being projected by vegetation fire to a structure and its immediate environment.

WILDLAND-URBAN INTERFACE (WUI).[Amended definition] A geographical area identified by the state as a "Fire Hazard Severity Zone" in accordance with the Public Resources Code, Sections 4201 through 4204, and Government Code, Sections 51175 through 51189, or other areas designated by the enforcing agency to be at a significant risk from wildfires. Berkeley Fire Zones 2 and 3 are designated as Wildland-Urban Interface areas. See Government Code Chapter

6.8 Very High Fire Hazard Severity Zones and Public Resources Code Article 9 Fire Hazard Severity Area for the applicable referenced sections.

Section 2. That Paragraphs UUU. through PPPP. of Section 19.48.020 of the Berkeley Municipal Code (“Amendments to the California Fire Code”) are renumbered and amended to read as follows:

UUU. Section 4912 SUPPRESSION AND CONTROL OF HAZARDS IN WILDLAND- URBAN INTERFACE AREAS [Additional section]
VVV. Section 4912.1 Permit [Additional subsection]. The fire code official is authorized to stipulate conditions for permits. Permits shall not be issued when public safety would be at risk, as determined by the fire code official.

WWW. Section 4912.2 Restricted Entry [Additional subsection]. The fire code official shall determine and publicly announce when Wildland-Urban Interface areas shall be closed to entry and when such areas shall again be opened to entry. Entry on and occupation of Wildland-Urban Interface areas, except public roadways, inhabited areas or established trails and camp sites which have not been closed during such time when the Wildland-Urban Interface areas are closed to entry, is prohibited.

Exceptions:

Ordinance No. 7,903-N.S. Page 4 of 7
1) Residents and owners of private property within Wildland-Urban Interface areas and their invitees and guests going to or being upon their lands; 2) Entry, in the course of duty, by peace officers, and other duly authorized public officers, members of a fire department and members of the United States Forest Service
XXX. Section 4912.3 Trespassing on Posted Property [Additional subsection] YYY. Section 4912.3.1 General [Additional subsection]. When the fire code official determines that a specific area within a Wildland-Urban Interface Areas presents an exceptional and continuing fire danger because of the density of natural growth, difficulty of terrain, proximity to structures or accessibility to the public, such areas shall be closed until changed conditions warrant termination of closure. Such areas shall be posted as hereinafter provided.

ZZZ. Section 4912.3.2 Signs [Additional subsection]. Approved signs prohibiting entry by unauthorized persons and referring to this section shall be placed on every closed area.

AAAA. Section 4912.3.3 Trespassing [Additional subsection]. Entering and remaining within areas closed and posted is prohibited.

Exception: Owners and occupiers of private or public property within closed and posted areas, their guests or invitees, and local, state and federal public officers and their authorized agents acting in the course of duty.

BBBB. Section 4912.4 Smoking [Additional subsection]. Lighting, igniting or otherwise setting fire to or smoking tobacco, cigarettes, pipes or cigars in Wildland-Urban Interface areas are prohibited.

Exception: Places of habitation or within the boundaries of established smoking areas or campsites as designated by the fire code official.

CCCC. Section 4912.5 Spark Arresters [Additional subsection]. Chimneys used in conjunction with fireplaces, barbecues, incinerators or heating appliances in which solid or liquid fuel is used, upon buildings, structures or premises located within Wildland-Urban Interface areas shall be provided with a spark arrester.

See Berkeley Building Code Section 705A.5 for specifications.

DDDD. Section 4912.6 Tracer Bullets, Tracer Charges, Rockets and Model Aircraft [Additional subsection]. Tracer bullets and tracer charges shall not be possessed, fired or caused to be fired into or across Wildland-Urban Interface areas. Rockets, model planes, gliders and balloons powered with an engine, propellant or other feature liable to start or cause fire shall not be fired or projected into or across Wildland-Urban Interface Areas.

Ordinance No. 7,903-N.S. Page 5 of 7
EEEE. Section 4912.7 Explosives and Blasting [Additional subsection]. Explosives shall not be possessed, kept, stored, sold, offered for sale, given away, used, discharged, transported or disposed of within Wildland-Urban Interface areas except by permit from the fire code official.

FFFF. Section 4912.8 Fireworks [Additional subsection]. Fireworks shall not be used or possessed in Wildland-Urban Interface areas. The fire code official is authorized to seize, take, remove or cause to be removed fireworks in violation of this section.

Exception: Fireworks allowed by the fire code official under permit when not prohibited by applicable local or state laws, ordinances and regulations.

GGGG. Section 4912.9 Apiaries [Additional subsection]. Lighted and smoldering material shall not be used in connection with smoking bees in or upon Wildland- Urban Interface areas except by permit from the fire code official.

HHHH. Section 4912.10 Open-Flame Devices [Additional subsection]. See Berkeley Fire Code Sections 308.1.6 Open Flame Devices and 308.1.6.1 Signals and Markers.

IIII. Section 4912.11 Outdoor Fires [Additional subsection]. Outdoor fires shall not be built, ignited or maintained in or upon Wildland-Urban Interface areas, except by permit from the fire code official.

Exception: Outdoor fires within habited premises or designated campsites, where such fires are built in a permanent barbecue, portable barbecue, outdoor fireplace, incinerator or grill and are a minimum of 30 feet (9144 mm) from a grass-, grain-, brush or forest-covered area.

Permits shall incorporate such terms and conditions, which will reasonably safeguard public safety and property.

Outdoor fires shall not be built, ignited or maintained in or upon Wildland-Urban Interface areas under the following conditions:

1. When high winds are blowing,

2. When a person age 17 or over is not present at all times to watch and tend such fire, or

3. When public announcement is made that open burning is prohibited.

Permanent barbecues, portable barbecues, outdoor fireplaces, fire pits or grills shall not be used if solid or liquid fueled.

JJJJ. Section 4912.12 Incinerators and Fireplaces [Additional subsection].

Incinerators, outdoor fireplaces, fire pits, permanent barbecues and grills shall not be built, installed or maintained in Wildland-Urban Interface areas without prior approval of the fire code official. Existing incinerators, outdoor fireplaces, fire pits,

Ordinance No. 7,903-N.S. Page 6 of 7
permanent barbecues and grills shall be maintained in good repair and in a safe condition at all times. Openings in such appliances shall be provided with an approved spark arrester, screen or door.

Exception: When approved, unprotected openings in barbecues and grills necessary for proper functioning shall be allowed.

KKKK. Section 4912.13 Dumping [Additional subsection]. Garbage, cans, bottles, papers, ashes, refuse, trash, rubbish or combustible waste material shall not be placed, deposited or dumped in or upon Wildland-Urban Interface areas or in, upon or along trails, roadways or highways in Wildland-Urban Interface areas.

Exception: Approved public and private dumping areas.

LLLL. Section 4912.14 Disposal of Ashes [Additional subsection]. Ashes and coals shall not be placed, deposited or dumped in or upon Wildland-Urban Interface areas.

Exceptions:

1. In the hearth of an established fire pit, camp stove or fireplace;

2. In a noncombustible container with a tight-fitting lid, which is kept or maintained in a safe location not less than 10 feet (3048mm) from combustible vegetation or structures;

3. Where such ashes or coals are buried and covered with 1 foot (304.8mm) of mineral earth not less than 25 feet (7620 mm) from combustible vegetation or structures.

MMMM. Section 4912.15 Use of Fire Roads and Firebreaks [Additional subsection]. Motorcycles, motor scooters and motor vehicles shall not be driven or parked upon, and trespassing is prohibited upon, fire roads or firebreaks beyond the point where travel is restricted by a cable, gate or sign, without the permission of the property owner(s). Vehicles shall not be parked in a manner, which obstructs the entrance to a fire road or firebreak.

Exception: Public officers acting within their scope of duty. Radio and television aerials, guy wires thereto, and other obstructions shall not be installed or maintained on fire roads or fire breaks unless located 16 feet (4877 mm) or more above such fire road or firebreak.

NNNN. Section 4912.16 Use of Motorcycles, Motor Scooters and Motor Vehicles [Additional subsection]. Motorcycles, motor scooters and motor vehicles shall not be operated within Wildland-Urban Interface areas, without a permit by the fire code official, except upon clearly established public or private roads.

Permission from the property owner(s) shall be presented when requesting a permit.

Ordinance No. 7,903-N.S. Page 7 of 7
OOOO. Section 4912.17 Tampering with Fire Department Locks, Barricades and Signs [Additional subsection]. Locks, barricades, seals, cables, signs and markers installed within Wildland-Urban Interface areas, by or under the control of the fire code official, shall not be tampered with, mutilated, destroyed or removed. Gates, doors, barriers and locks installed by or under the control of the fire code official shall not be unlocked.

PPPP. Section 4912.18 Liability for Damage [Additional subsection]. The expenses of fighting fires and securing emergencies, which result from a violation of this code, Chapter 6.15.030 of the Berkeley Municipal Code (“Unauthorized barbecues and fire on public property”), Sections 13000-13011 of the California Health and Safety Code, Sections 4421-4446 of the California Public Resources Code, or Sections 451, 451.5, 452 or 455 of the California Penal Code is a charge against the person(s) whose violation of the code section(s) caused the fire. Damages caused by such fires shall constitute a debt of such person(s) and shall be collectable by the fire code official in accordance with Section 107.7 of this code.

Section 2. 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.

At a regular meeting of the Council of the City of Berkeley held on May 7, 2024, this Ordinance was passed to print and ordered published by posting by the following vote:

Ayes: Bartlett, Hahn, Humbert, Kesarwani, Lunaparra, Taplin, Wengraf, and Arreguin.

Noes: None.

Absent: None.

NOTICE OF PUBLIC HEARING

BERKELEY CITY COUNCIL

ADOPTION OF LOCAL AMENDMENTS TO THE BERKELEY FIRE

CODE - BASED ON THE CALIFORNIA INTERVENING CODE
ADOPTION CYCLE FOR THE 2022 CALIFORNIA FIRE CODE
Notice is hereby given that on June 4, 2024 at 6:00 P.M. the City Council will conduct a public hearing to consider the adoption of amendments to Section 19.48.020 (“Amendments to the California Fire Code”) as proposed by the Berkeley Fire Department.

A copy of the agenda material for this hearing will be available on the City’s website at https://berkeleyca.gov/ as of May 23, 2024. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.

For further information, please contact Dori Tieu, Deputy Fire Marshal, Berkeley Fire Department at (510) 981-5585.

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

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

If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at (510) 981-6900 or [email protected] for further information.

Published: May 17 and May 24, 2024 – The Berkeley Voice ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on May 23, 2024.
__________________________________
Mark Numainville, City Clerk

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: https://berkeleyca.gov/

PUBLIC HEARING
June 4, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Re-Adoption of the Berkeley Building Codes, including Local Amendments to the 2022 California Building Standards Code

RECOMMENDATION
Conduct a public hearing, and upon conclusion, adopt the second reading of Ordinance No. 7,906-N.S. repealing and reenacting the Berkeley Building, Residential, Electrical, Mechanical, Plumbing, Energy, and Green Building Standards Codes in BMC Chapters

19.28, 19.29, 19.30, 19.32, 19.34, 19.36 and 19.37, and adopting related procedural and stricter provisions.

FISCAL IMPACTS OF RECOMMENDATION
See report from first reading of Ordinance, at Council May 7, 2024 (Attachment 2).

CURRENT SITUATION AND ITS EFFECTS
At its meeting May 7, 2024 the City Council considered the first reading of the proposed Ordinance and a Resolution making related findings. Council revised the Ordinance and passed it on first reading, and adopted a revised version of the Resolution. The Ordinance included here for second reading reflects the revisions from May 7, action which also referred consideration of future requirements for Zero NOx emission buildings to the Health, Life Enrichment, Equity & Community Policy Committee, while adopting all other local reach codes recommended by staff.

CONTACT PERSON
David Lopez, Chief Building Official, Building and Safety Division Manager, Planning and Development Department, 510-981-7441
Attachments:

1. Ordinance for second reading

2. Staff report to City Council May 7, 2024

3. Public Hearing notice

44

Attachment 1

ORDINANCE NO. 7,906–N.S.

REPEALING AND REENACTING BERKELEY MUNICIPAL CODE CHAPTERS 19.28 (BERKELEY BUILDING CODE), 19.29 (BERKELEY RESIDENTIAL CODE), 19.30 (BERKELEY ELECTRICAL CODE), 19.32 (BERKELEY MECHANICAL CODE), 19.34 (BERKELEY PLUMBING CODE), 19.36 (BERKELEY ENERGY CODE), AND 19.37 (BERKELEY GREEN CODE)
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Chapter 19.28 is hereby repealed and reenacted to read as follows:

Chapter 19.28
BERKELEY BUILDING CODE*
Sections:

19.28.010 Adoption of the California Building Code
Article 1. Scope and Administrative Provisions

19.28.020 Adoption of Chapter 1 Scope and Administration Article 2. Restrictions in Fire Zones

19.28.030 Chapter 7A Materials and Construction Methods for Exterior Wildlife Exposure
Article 3. Wood Burning Appliances

19.28.040 Wood Burning Appliances
Article 4. Projection into Public Right of Way

19.28.050 Encroachment into the Public Right of Way - Revocation and Removal Indemnification and Hold Harmless
Article 5. Existing Buildings

19.28.060 Adoption of 2022 California Existing Building Code with Mid- Cycle Supplement and certain Chapters of the 2021 International Existing Building Code by Reference
Article 6. Repairs to Existing Buildings and Structures

19.28.070 Adoption of Regulations for the Repairs of Existing Structures Article 7. Amendments to Structural Standards

19.28.080 Technical Amendments to Structural Standards
Article 8. Construction of Exterior Appurtenances

19.28.090 Technical Amendments for Construction of Exterior Projecting Elements and Appurtenances
Article 9. Emergency Housing

19.28.100 Emergency Housing and Emergency Housing Facilities Notes:
* See Chapter 1.24 for abatement of nuisances by City.

19.28.010 Adoption of the California Building Code.

A. The California Building Code with Mid-Cycle Supplement, 2022 edition, as adopted in Title 24 Part 2 of the California Code of Regulations, including Appendices I, J and P, is hereby adopted and made a part of this Chapter as though fully set forth herein, subject to the modifications thereto which are set forth in this Chapter. One copy of this Code is on file in the office of the City Clerk of the City of Berkeley.

B. The California Historical Building Code, 2022 edition, as adopted in Title 24 Part 8 of the California Code of Regulations, is hereby adopted and made a part of this Chapter as though fully set forth herein, subject to the modifications thereto which are set forth in this Chapter. One copy of this Code is on file in the office of the City Clerk of the City of Berkeley.

C. The California Existing Building Code with Mid-Cycle Supplement, 2022 edition, as adopted in Title 24 Part 10 of the California Code of Regulations, including Appendix A, is hereby adopted and made a part of this Chapter as though fully set forth herein, subject to the modifications thereto which are set forth in this Chapter. One copy of this Code is on file in the office of the City Clerk of the City of Berkeley.

D. This Chapter shall be known as the "Berkeley Building Code" and shall be referred to in this Chapter as "this Code."
E. This Chapter will become effective on July 5, 2024, and shall not apply to any building permit submitted by June 30, 2024.

Article 1. Scope and Administrative Provisions

19.28.020 Adoption of Chapter 1 Scope and Administration Chapter 1 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below.

CHAPTER 1 SCOPE AND ADMINISTRATION
SECTION 101 – GENERAL
101.1 Title. These regulations shall be known as the Berkeley Building Code, hereinafter referred to as “this Code”.
101.4 Referenced codes. The other codes specified in Sections 101.4.1 through 101.4.9, and referenced elsewhere in this Code, shall be considered part of the requirements of this Code to the extent prescribed in each such reference.

101.4.1 Gas. The provisions of the Berkeley Mechanical Code, based on the 2022 California Mechanical Code with Mid-Cycle Supplement, and the Berkeley Plumbing Code, based on the 2022 California Plumbing Code with Mid-Cycle Supplement, as amended herein, shall apply to the installation of gas piping from the point of delivery, gas appliances and related accessories as covered in this Code. These requirements apply to gas piping systems extending from the point of delivery to the inlet connections of appliances and the installation and operation of residential and commercial gas appliances and related accessories. 101.4.2 Mechanical. The provisions of the Berkeley Mechanical Code, based on the 2022 California Mechanical Code with Mid-Cycle Supplement, as amended herein, shall apply to the installation, alterations, repairs and replacement of mechanical systems, including equipment, appliances, fixtures, fittings and/or appurtenances, including ventilating, heating, cooling, air-conditioning and refrigeration systems, incinerators and other energy-related systems. 101.4.3 Plumbing. The provisions of the Berkeley Plumbing Code, based on the 2022 California Plumbing Code with Mid-Cycle Supplement, as amended herein, shall apply to the installation, alteration, repair and replacement of plumbing systems, including equipment, appliances, fixtures, fittings and appurtenances, and where connected to a water or sewage system and all aspects of a medical gas system. The provisions of the Berkeley Plumbing Code shall apply to private sewage disposal systems.
101.4.4 Residential property maintenance. The provisions of the Berkeley Housing Code, as adopted in Chapter 19.40, shall apply to existing residential buildings and premises; equipment and facilities; light, ventilation, space heating, sanitation, life and fire safety hazards; responsibilities of owners, operators and occupants; and occupancy of existing premises and structures.

Notwithstanding any provisions contrary in this Chapter, any building or portion thereof constructed in compliance with the Berkeley Building Code shall not be deemed to be in violation of the Housing Code provisions that may conflict. 101.4.5 Fire prevention. The provisions of the Berkeley Fire Code based on the 2022 California Fire Code with Mid-Cycle Supplement, as adopted in Chapter

19.48, shall apply to matters affecting or relating to structures, processes and premises from the hazard of fire and explosion arising from the storage, handling or use of structures, materials or devices; from conditions hazardous to life, property or public welfare in the occupancy of structures or premises; and from the construction, extension, repair, alteration or removal of fire suppression and alarm systems or fire hazards in the structure or on the premises from occupancy or operation.
101.4.6 Energy. The provisions of the Berkeley Energy Code, based on the 2022 California Energy Code with Mid-Cycle Supplement, as amended herein, shall

apply to all matters governing the design and construction of buildings for energy efficiency.
101.4.7 Existing buildings. The provisions of the Berkeley Existing Building Code, based on the 2022 California Existing Building Code with Mid-Cycle Supplement, as amended herein, shall apply to matters governing the repair, alteration, change of occupancy, addition to and relocation of existing buildings. 101.4.8 Electrical. The provisions of the Berkeley Electrical Code, based on the 2022 California Electrical Code, as amended herein, shall apply to the installation of electrical systems, including alterations, repairs, replacement, equipment, appliances, fixtures, fittings and appurtenances thereto. 101.4.9 Green. The provisions of the Berkeley Green Code, based on the 2022 California Green Building Standards Code with Mid-Cycle Supplement, as amended herein, shall apply to enhanced design and construction of buildings through the use building concepts having a reduced negative impact or the positive environmental impact and encouraging sustainable construction practices. 101.5 References to prior codes. Unless superseded and expressly repealed, references in City forms, documents and regulations to the chapters and sections of former Berkeley Building Code editions, shall be construed to apply to the corresponding provisions contained within the 2022 Berkeley Building Code Ordinance No. X,XXX–N.S. and all ordinances amendatory thereof. Any ordinances or parts of ordinances in conflict herewith are hereby superseded and expressly repealed.

SECTION 103 – DIVISION OF BUILDING AND SAFETY
103.1 Creation of enforcement agency. The Division of Building and Safety is hereby created and the official in charge thereof shall be known as the building official. The function of the agency shall be the implementation, administration and enforcement of the provisions of this code.
103.2 Appointment. The building official shall be appointed by the City Manager. 103.3 Deputies. The building official shall have the authority to appoint an assistant building official, building inspectors, plans examiners, housing inspectors, other technical officers and employees. Such employees shall have powers as delegated by the building official.

SECTION 104 – DUTIES AND POWERS OF BUILDING OFFICIAL
104.7 Division records. The building official shall keep official records of applications received, permits and certificates issued, fees collected, reports of inspections, notices of violations, and notices and orders issued. Such records shall be retained in the official records for the period required for retention of public records.

Add a new Subsection 104.12 to read:
104.12 Unpermitted dwelling units. When a building permit record for a residential unit does not exist, the building official is authorized to make a determination of when the residential unit was constructed and then apply the building standards in effect when the residential unit was determined to be constructed or the current building standards, whichever is the least restrictive, provided the building or portion thereof does not become or continue to be a substandard or unsafe building. The Building Official is authorized to accept reasonable alternatives to the requirements of the prior or current code editions when dealing with unpermitted dwelling units.

SECTION 105 – PERMITS
105.3.2 Expiration of application. An application for a permit for any proposed work shall expire one year after the date of filing, unless it can be demonstrated by the applicant that such application has been pursued in good faith or a permit has been issued. The building official or the permit service center coordinator are authorized to grant one or more extensions of time for additional periods not exceeding a 180 days per extension.

The extension shall be requested in writing and justifiable cause demonstrated. Requests for time extensions shall be accompanied by the payment of a fee set by resolution of the City Council.

If a project is associated with a code enforcement case, the dates specified in the code enforcement notices take precedence over the timelines specified in this section. 105.5 Expiration of permit. Permits issued by the building official shall expire one year from the date of issuance. The building official or the supervising building inspector are authorized to grant one or more extensions of time to complete the work for additional periods not exceeding one year per extension. The extension shall be requested in writing and justifiable cause demonstrated. Requests for time extensions shall be accompanied by the payment of a fee set by resolution of the City Council.

The issuance of a building permit shall not excuse the permittee or any other person from compliance with any notice and/or order to correct a code violation issued by the City.

When a permit is expired and a new permit is required to complete the work, a new permit application and plans shall be filed describing the remaining work to be done. If a site visit or other review is required to determine the extent of the remaining work, a fee may be charged to make such determination.

SECTION 109 – FEES
109.1 Payment of fees. Except when fees are deferred, a permit shall not be valid until the fees as set forth by resolution of City Council have been paid, nor shall an amendment to a permit be released until the additional fee, if any, has been paid.

109.2 Schedule of permit fees. On buildings, structures, electrical, gas, mechanical, and plumbing systems or alterations requiring a permit, a fee for each permit shall be paid as required, in accordance with the fee as set forth by resolution of the City Council. Fees for permits and inspections and other related services under this Code shall be assessed and paid as set forth by resolution of the City Council. Unless waived or deferred as provided by local regulations, a plan review fee and other fees as specified in the resolution shall be paid at the time of submitting any documents for review and additional fees as specified in the resolution shall be paid at issuance of the permit. 109.4 Work commencing before permit issuance. Any person who commences any work on a building, structure, electrical, gas, mechanical or plumbing system before obtaining the necessary permit shall be subject to a fee as set forth by resolution of the City Council equal to and in addition to the permit fees for the portion of the scope of work performed without the permit.
109.7 Re-inspection fees. A re-inspection fee, as set forth by resolution of the City Council, may be assessed for each re-inspection when such portion of work for which an inspection is scheduled is not complete or when corrections previously called for are not made.

Re-inspection fees shall not be required each time a job is disapproved for failure to comply with the requirements of this Code. Rather this section shall be used to control the practice of calling for inspections before the job is ready for such inspection, or when the approved plans are not readily available to the inspector, or for failure to provide access on the date for which the inspection is requested, or when work deviates from the approved plans but no revision is submitted to the City.

To obtain a re-inspection, the applicant shall pay the re-inspection fee as set forth by resolution of the City Council. In instances where re-inspection fees have been assessed, no additional inspection of the work will be performed until the required fees have been paid.

SECTION 112 – SERVICE UTILITIES
112.4 Authority to connect utilities. Clearance for connection of one utility, either gas or electrical, will be withheld until final building, electrical, plumbing, and/or mechanical inspections are made and approval has been given for any new building or change in occupancy classification to an existing building for which connection to such utilities is sought, unless approval has been first obtained from the building official, as provided by a Temporary Certificate of Occupancy or Final Certificate of Occupancy. 112.5 Unsafe service utilities. Unsafe service utilities are hereby declared to be public nuisances and shall be abated, repaired, rehabilitated, demolished or removed in accordance with the procedures set forth in Chapter 19.40 of the Berkeley Municipal Code (BMC) for residential buildings and Berkeley Building Code for all other buildings, or any alternate procedure that may be adopted by the City of Berkeley. In addition, the City

Attorney may pursue other appropriate action to prevent, restrain, correct or abate the violation as provided for in the BMC. Remedies under this section are cumulative. When service utilities are maintained in violation of this Code and in violation of a notice issued pursuant to the provisions of this section, the building official shall institute appropriate action to prevent, restrain, correct or abate the violation. 112.6 Authority to disconnect utilities in emergencies. The building official or building official’s authorized representative shall have the authority to disconnect electrical power or other energy service supplied to the building, structure or building service equipment therein regulated by this Code in case of emergency where necessary to eliminate an immediate hazard to life or property. The building official or building official’s authorized representative shall, whenever possible, notify the serving utility, and the owner of the building, structure or electrical system or equipment and any building occupants of the decision to disconnect prior to taking such action and shall notify them, in writing, of the disconnection as soon as possible thereafter.

112.7 Authority to condemn electrical system and equipment. Whenever the building official determines that an electrical system or electrical equipment regulated by this Code is hazardous to life, health or property, the building official may order in writing that such electrical system or equipment either be removed or restored to a safe condition. The written notice shall fix a reasonable time limit for compliance with such order. Persons shall not use or maintain defective electrical systems or equipment after receiving such notice except as may be provided therein.

When equipment or an installation is to be disconnected, a written notice of such disconnection and the reasons therefore shall be given within 24-hours of the order to disconnect to the serving utility, the owner and occupants of the building, structure or premises.

When equipment or an installation is maintained in violation of this Code and in violation of a notice issued pursuant to the provisions of this section, the building official shall institute appropriate action to prevent, restrain, correct or abate the violation.

Unsafe electrical systems or equipment are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedures set forth in Chapter 19.40 of the BMC for residential buildings and Berkeley Building Code for all other buildings, or any alternate procedure that may be adopted by the City of Berkeley. In addition, the City Attorney may pursue other appropriate action to prevent, restrain, correct or abate the violation as provided for in the BMC. Remedies under this section are cumulative.
112.8 Connection after order to disconnect. Persons shall not make connections to a service utility system or equipment that has been disconnected or ordered to be disconnected by the building official, or the use of which has been ordered to be discontinued by the building official, until the building official authorizes the reconnection and use of the electrical system or equipment.

SECTION 113 – BOARD OF APPEALS
113.1 General. In order to hear and decide appeals of orders, decisions, or determinations made by the building official relative to the application and interpretation of this Code, there shall be and is hereby created a board of appeals consisting of the Housing Advisory Commission pursuant to Section 19.44.020 of the Berkeley Municipal Code. The building official may convene and consult with an advisory panel of qualified individuals. This advisory panel is intended to help the building official in formulating and making staff recommendations to the Housing Advisory Commission. The advisory panel may provide written and/or oral presentations to the Housing Advisory Commission as needed.
113.3 Qualifications. The board of appeals shall consist of members meeting the qualifications required for the Housing Advisory Commission. The advisory panel shall consist of individuals found by the building official to be qualified by experience and training in the specific area of the appeal who are not employees of the jurisdiction.

SECTION 114 – VIOLATIONS
114.4 Violation penalties. Any person who violates a provision of this Code or fails to comply with any of the requirements thereof or who erects, constructs, alters or repairs a building or structure in violation of the approved construction documents or directive of the building official, or of a permit or certificate issued under the provisions of this Code, shall be subject to penalties as prescribed by law. Violations of this Code are misdemeanors, but may be cited or charged, at the election of the enforcing officer, building official, or City Attorney, as infractions, subject to an election by the defendant under Penal Code Subsection 17(d). Nothing in this Section shall prevent any other remedy afforded by law.

SECTION 116 - UNSAFE STRUCTURES AND EQUIPMENT
116.1 Conditions. Structures or existing equipment that are or hereafter become structurally unsafe, insanitary or deficient because of inadequate means of egress facilities, inadequate light and ventilation, or which constitute a fire hazard, or are otherwise dangerous to human life or the public welfare, or that involve illegal or improper occupancy or inadequate maintenance shall be deemed an unsafe condition. Unsafe structures shall be taken down and removed or made safe, as the building official deems necessary and as provided for in this section. A vacant structure that is not secured against entry shall be deemed unsafe.

All such unsafe buildings, equipment, structures or appendages are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedures set forth in Chapters 1.24, 19.28, 19.40 and/or 19.44 of the BMC as applicable. As an alternative, the building official, or other employee or official of this jurisdiction as designated by the City Council, may institute any other appropriate action to prevent, restrain, correct or abate the violation.

116.6 Safety Assessment Placards.
116.6.1 Intent. This section establishes standard placards to be used to indicate the condition of a structure for occupancy after a natural or human-caused disaster and a rapid evaluation by authorized personnel. The building official or authorized representatives shall post the appropriate placard at each entry point to a building or structure upon completion of a safety assessment.
116.6.2 Application of provisions. The provisions of this section are applicable to all buildings and structures of all occupancies regulated by the City of Berkeley. The City Council may extend the provisions as necessary.
116.6.3 Definitions.
116.6.3.1 "Safety Assessment" is a visual, non-destructive examination of a building or structure for the purpose of determining the condition for continued occupancy. 116.6.3.2 Placards. Following are titles and descriptions of the official jurisdiction placards to be used to designate the condition of a building structure for continued occupancy, partial or conditional occupancy, or unsafe to enter. Copies of placards are on file in the Building and Safety Division of the Planning and Development Department.

INSPECTED – Lawful Occupancy Permitted is to be posted on any building or structure wherein no apparent hazard has been found. This placard is not intended to mean there is no damage to the building or structure, but that any damage that occurred does not present a hazard to occupants.

RESTRICTED USE is to be posted on each building or structure that has been damaged wherein the damage has resulted in some form of restriction to the continued occupancy.

The individual who posts this placard will note in general terms the type of damage encountered and will clearly and concisely note the restrictions on continued occupancy.

UNSAFE – Do Not Enter or Occupy is to be posted on each building or structure that has been damaged such that continued occupancy poses a threat to life safety. Building or structures posted with this placard shall not be entered under any circumstances except as authorized in writing by the building official, or the building official’s authorized representative. Safety assessment teams shall be authorized to enter these building at any time. This placard is not to be used or considered as a demolition order. The individual who posts this placard will note in general terms the type of damage encountered. 116.6.4 Content of placard. The BMC Section number and the words "City of Berkeley" shall be permanently affixed to each placard.
116.6.5 Unlawful to remove. Once a placard has been attached to a building or structure, it is not to be removed, altered or covered until done so by an authorized representative

of the Building Official. It shall be unlawful for any person, firm or corporation to alter, remove, cover or deface a placard unless authorized pursuant to this section.

Article 2. Restrictions in Fire Zones

19.28.030 CBC Chapter 7A Materials and Construction Methods for Exterior Wildlife Exposure.

Chapter 7A of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below. 701A – SCOPE, PURPOSE AND APPLICATION
701A.1 Scope. This chapter applies to building materials, systems and/or assemblies used in the exterior design and construction of new buildings and structures, additions, alterations, repairs and re-roofs located within a Wildland-Urban Interface (WUI) area as defined in Section 702A.
701A.2 Purpose. The purpose of this chapter is to establish minimum standards for the protection of life and property by increasing the ability of a building located in any Fire Hazard Severity Zone within a State Responsibility Area (SRA) or Local Responsibility Areas (LRA) or any building or structure in the Wildland-Urban Interface (WUI) areas as specified in Section 701A.3.1 to resist the intrusion of flames or burning embers projected by a vegetation fire and contributes to a systematic reduction in conflagration losses.
701A.3 Application. New buildings located in any Fire Hazard Severity Zone or new buildings and structures, additions, alterations, repairs and re-roofs located in any Wildland-Urban Interface (WUI) area designated by the enforcing agency constructed after the application date shall comply with the provisions of this chapter. This shall include all new buildings and structures, additions, alterations, repairs and re-roofs with residential, commercial, educational, institutional or similar occupancy type uses, which shall be referred to in this chapter as “applicable building(s)” (see definition in Section 702A), as well as new buildings and structures, additions, alterations, repairs and re- roofs accessory to those applicable buildings (see Exceptions 1 and 4).

Exceptions:

1. Group U occupancy accessory buildings or structures, of any size located at least 50 feet (15 240 mm) from an applicable building on the same lot.

2. Group U occupancy agricultural buildings or structures, as defined in Section 202 of this code of any size located at least 50 feet (15 240 mm) from an applicable building.

3. Group C occupancy special buildings or structures conforming to the limitations specified in Section 450.4.1.

4. New accessory buildings and miscellaneous structures specified in Section 710A shall comply only with the requirements of that section.

5. Additions to and remodels of buildings originally constructed prior to July 1, 2008.
701A.3.1 Application date and where required. New buildings for which an application for a building permit is submitted on or after July 1, 2008, located in any Fire Hazard Severity Zone or buildings and structures, additions, alterations, repairs and re- roofs for which an application for a building permit is submitted on or after July 1, 2008 located in the Wildland-Urban Interface area shall comply with all sections of this chapter., including all the following areas:

1. All unincorporated lands designated by the State Board of Forestry and Fire Protection as State Responsibility Area (SRA) including:

1.1. Moderate Fire Hazard Severity Zones.

1.2. High Fire Hazard Severity Zones.

1.3. Very-High Fire Hazard Severity Zones.

2. Land designated as Very-High Fire Hazard Severity Zone by cities and other local agencies.

3. Land designated as Wildland Interface area by cities and other local agencies.

Exceptions:

1. New buildings located in any Fire Hazard Severity Zone within State Responsibility Area, for which an application for a building permit is submitted on or after January 1, 2008, shall comply with all sections of this chapter.

2. New buildings located in any Fire Hazard Severity Zone within State Responsibility Areas or any Wildland Interface area designated by cities and other local agencies for which an application for a building permit is submitted on or after December 1, 2005 but prior to July 1, 2008, shall only comply with the following sections of this chapter:

2.1. Section 705A — Roofing.

2.2. Section 706A — Attic Ventilation.
702A – DEFINITIONS
APPLICABLE BUILDING. A building or structure that has residential, commercial, educational, institutional or similar occupancy type use.

FIRE ZONE ONE shall encompass the entire City of Berkeley except for Fire Zones Two and Three.

FIRE ZONE TWO encompasses those areas designated as Combined Hillside District in the Official Zoning map of the City of Berkeley and those areas designated as Very High in the official Fire Hazard Severity Zones (FHSZ) map of The Department of Forestry and Fire Protection (CAL FIRE), as they may be amended from time to time. The following properties, not part of the Combined Hillside District, are included in Fire Zone Two under the Very High designation of the FHSZ map: the eastern section of the University of California, Berkeley main campus, block number 2042 (Alameda County Assessor’s parcel numbering (APN) system), to the east city line; all of the Clark-Kerr campus, block number 7690, to the east city line; all of block number 7680 in the City of Berkeley; portions of block number 1702 in the City of Berkeley. See Exhibit A for the specific parcels by APN and address.

FIRE ZONE 3 encompasses those areas designated as Environmental Safety – Residential Districts on the Official Zoning Map of the City of Berkeley, as it may be amended from time to time.

LOCAL RESPONSIBILITY AREA (LRA). Areas of the state in which the financial responsibility of preventing and suppressing fires is the primary responsibility of a city, county, city and county, or district . Fire Zones 2 and 3 are designated as Local Responsibility Area.

WILDLAND-URBAN INTERFACE (WUI). A geographical area identified by the state as a “Fire Hazard Severity Zone” in accordance with the Public Resources Code Sections 4201 through 4204 and Government Code Sections 51175 through 51189, or other areas designated by the enforcing agency to be at a significant risk from wildfires. Fire Zones 2 and 3 are designated as Wildland-Urban Interface (WUI) area. 705A – ROOFING
705A.1 General. Roofs shall comply with the requirements of Chapter 7A and Chapter

15. Roof assemblies in Fire Hazard Severity Zones shall be tested in accordance with ASTM E108 or UL 790 and meet a Class A fire classification. For additional compliance see Chapter 15, Section 1505.2 for Class A roof assemblies. The roof assembly shall be installed in accordance with its listing and the manufacturer’s installation instructions.

The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any 1 5-year period; the entire roof covering of every new structure; and any roof covering applied in the alteration, repair, or replacement of the roof of every existing structure shall be a fire-retardant roof covering that meets a Class A fire classification.

Wooden shakes and shingles are prohibited roof coverings regardless of the assembly rating of the roof system

705A.5 Spark Arrestors. All chimneys of fireplaces, stoves, barbecues or heating appliances using solid fuel shall be provided with an approved spark arrestor whenever modification has been made to any of these appliances, or whenever a structure is re- roofed. The net free area of the spark arrestor shall be not less than four times the net free area of the outlet of the chimney. The spark arrestor shall have heat and corrosion resistance equivalent to twelve-gauge wire, nineteen-gauge galvanized wire, or twenty- four-gauge stainless steel. Openings shall not permit the passage of spheres having a diameter larger than one-half inch and shall not block the passage of spheres having a diameter of less than three-eighths inch. The arrestor shall be securely attached to the chimney or stovepipe and shall be adequately supported. The use of bands, mollies, masonry anchors or mortar ties are recommended depending upon the individual need. 707A – EXTERIOR COVERING
707A.3.2 Replacement of Exterior Wall Covering. Materials for replacement of existing exterior wall covering shall meet or exceed the standards set forth in this Chapter.

Exception: Where less than 50% of any wall surface is being replaced or repaired, and the matching of the new plane to the existing plane on that wall is not possible. 711A 712A – UNDERGROUND UTILITY CONNECTIONS
711A.1 712A.1 Underground utility connections. For new construction, provisions shall be made for the undergrounding of all utilities serving the property, including but not limited to electrical, telephone and cable television, by the installation of appropriately sized underground conduits extending from the street property. 712A 713A – ADDITIONAL REQUIREMENTS IN FIRE ZONE THREE
712A.1 713A.1 General. In addition to meeting the other requirements of this Chapter, buildings or structures hereinafter erected, constructed, moved, altered, added, or repaired within Fire Zone Three shall comply with the following requirements for buildings and structures.
712A.2 713A.2 Fire warning system. All residential units shall be equipped with a Fire Warning System as specified by the residential smoke detector requirements of the current edition of the California Building Code and with an audible exterior alarm. The exterior alarm must meet the requirements of NFPA 72 or equivalent and generate 45 decibels ten feet from the alarm, or more.
712A.3 713A.3 Automatic fire sprinkler systems. Automatic fire sprinkler system requirements shall be as set forth in Berkeley Fire Code Section 903.2.24.

712A.4 713A.4 Utilities. Utilities, pipes, furnaces, water heaters or other mechanical devices located in an exposed underfloor area of a building or structure shall be enclosed with material as required for exterior one hour fire resistive construction. Adequate covered access openings for servicing and ventilation of such facilities shall be provided as required by appropriate codes.
712A.5 713A.5 Control of brush or vegetation. Brush and vegetation shall be controlled as required in the Berkeley Fire Code.
712A.6 713A.6 Special Conditions. The following additional conditions must be met:

1. Public access roads and fire trails. No person(s) shall use any public access road or fire trail for the storage of any construction material, stationary construction equipment, construction office, portable refuse container, or earth from any grading or excavating.

2. Water Service. The water service to the site shall be installed with a ¾” hose bib connection prior to beginning any wood framing. The person responsible for the construction shall have at the site a 75 ft ¾” hose available.

Exhibit A
Parcels in Addition to the Combined Hillside District
The following additional parcels by Assessor’s Parcel Number and address are included in Fire Zone Two:

Parcel Number (APN) Address
048-7680-001-02 3 Tanglewood Road
048-7680-002-01 5 Tanglewood Road
048-7680-031-00 7 Tanglewood Road
048-7680-019-00 11 Tanglewood Road
048-7680-014-00 19 Tanglewood Road
048-7680-032-01 25 Tanglewood Road
048-7680-027-00 29 Tanglewood Road
054-1702-067-00 10 Tanglewood Road
054-1702-068-00 18 Tanglewood Road
054-1702-069-00 22 Tanglewood Road
054-1702-070-00 28 Tanglewood Road
054-1702-063-00 2701 Belrose Avenue
054-1702-076-00 2715 Belrose Avenue
054-1702-075-00 2721 Belrose Avenue
054-1702-074-00 2729 Belrose Avenue
054-1702-073-00 2737 Belrose Avenue
054-1702-112-00 2801 Claremont Boulevard
054-1702-123-01 2811 Claremont Boulevard
054-1702-122-00 2815 Claremont Boulevard
054-1702-120-01 2821 Claremont Boulevard

054-1702-114-01 2816 Claremont Avenue
054-1702-115-00 2820 Claremont Avenue
054-1702-072-00 3005 Garber Street
054-1702-071-00 3015 Garber Street
054-1702-113-00 3020 Garber Street
054-1702-116-00 3017 Avalon Avenue
Article 3. Wood Burning Appliances

19.28.040 Wood Burning Appliances.

Chapter 31 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below. 3116 Wood Burning Appliances.

A. The purpose of this section is to reduce the health risks caused by wood smoke under the climatic conditions applicable to Berkeley.

B. For purposes of this section the following terms shall be defined as set forth below.

1. “EPA” means the United States Environmental Protection Agency.

2. “EPA Certified” means any wood heater that is labeled “EPA Certified” in accordance with the standards in Title 40, Part 60, Subpart AAA, of the Code of Federal Regulations or equivalent, in effect at the time the wood heater is installed.

3. “Pellet heater” means wood heaters that burn pellet fuel exclusively and are either EPA-certified or exempted under EPA requirements set forth in Part 60 Title 40, Subpart AAA, of the Code of Federal Regulations, February 26, 1988.

4. “Wood-burning” means an appliance that burns wood or any wood-based solid fuel, including but not limited to wood pellets.

5. “Wood burning cooking device” means any wood-burning device that is designed or primarily used for cooking.

6. “Wood-burning fireplace” means any permanently-installed masonry or factory- built wood-burning appliance, either open or with doors in front of the combustion chamber, which is neither a wood heater as defined in 40 CFR

60.531 nor designed and used for cooking.

C. No wood-burning fireplace or wood heater as defined in 40 CFR 60.531, that is not EPA certified or exempted by under EPA requirements may be installed in any occupancy.

Exception: Existing masonry fireplaces may be repaired in accordance with the applicable codes in effect at the time of the proposed repair or reconstruction. For purposes of this exception, the term repair includes resurfacing the combustion chamber, but does not include replacing any other part of the combustion chamber.

D. Wood burning cooking devices are not prohibited by this section.

E. Any person planning to install a wood-burning fireplace or heating stove must submit verifiable documentation to the City showing that the appliance conforms to the requirements of this section.

Article 4. Projection into Public Right of Way

19.28.050 Encroachments into the Public Right of Way – Revocation, Removal, Indemnification and Hold Harmless.

Chapter 32 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below. 3202 – ENCROACHMENTS
3202.5 Projection into the Public Right of Way – Revocation, Removal, Indemnification and Hold Harmless.

Any permits granted pursuant to this Code which allow any projection upon, over, or under the public right of way may be revoked by the City at any time. Upon such revocation, the permittee or permittee’s successor(s) or assignee(s) shall forthwith remove such projection at permittee’s cost and expense and without any cost or expense whatsoever to the City.

Any person who is granted a permit pursuant to the provisions of this Code which allows a projection upon, over or under the public right of way shall by the issuance of such permit thereby indemnify and hold harmless the City of Berkeley, its officers and employees of and from any and all liabilities, claims, demands, actions or causes of action for injury or injuries to any person or persons or death or deaths of any person or persons or damage to property arising out of or occasioned in any way by the issuance of said permit, the work performed pursuant to such permit, or the existence of such projection.

The obligation of such indemnification and hold harmless provision shall be applicable to the successor(s) and assignee(s) of the permittee.

Article 5. Existing Buildings

19.28.060 Adoption of 2022 California Existing Building Code with Mid-Cycle Supplement and certain Chapters of the 2021 International Existing Building Code by reference.
2022 California Existing Building Code with Mid-Cycle Supplement (CEBC), including Appendix A, is adopted in its entirety subject to the modifications thereto which are set forth below.

DIVISION II SCOPE AND ADMINISTRATION
All of the administrative provisions contained in Article 1 of Chapter 19.28, the Berkeley Building Code, shall apply to this Code as well and take precedence over any CEBC administrative provisions that may conflict.
101.9 Adoption of Certain Chapters of the 2021 International Existing Building Code by reference.

When seismic retrofit is not otherwise required by this Code, the following Chapters of the 2021 International Existing Building Code (IEBC) published by the International Code Council contained in the IEBC Appendix A are hereby adopted by reference as applicable to the types of buildings as designated therein as though fully set forth herein:

Chapter A2, Earthquake Hazard Reduction in Existing Reinforced Concrete and Reinforced Masonry Wall Buildings with Flexible Diaphragms Article 6. Repairs to Existing Buildings and Structures

19.28.070 Adoption of Regulations for the Repairs of Existing Structures.

Add a new Subsection 405.2.7 to Chapter 4 Section 405 of the California Existing Building Code with Mid-Cycle Supplement.
405.2.7 Seismic Evaluation and Design Procedures for Repairs. The seismic evaluation and design shall be based on the procedures specified in the California Building Code or ASCE 41 Seismic Evaluation and Retrofit of Existing Buildings. The procedures contained in Appendix A Chapters A1, A3 and A4 of the California Existing Building Code and Appendix A Chapter A2 of the International Existing Building Code shall be permitted to be used as specified in Section 405.2.7.2. 405.2.7.1 Compliance with CBC level seismic forces. Where compliance requires the use of full seismic forces, the criteria shall be in accordance with one of the following:

1. One-hundred percent of the values in the California Building Code. Where the existing seismic force-resisting system is a type that can be designated as “Ordinary,” the values of R, Ωo, and Cd used for analysis in accordance with Chapter 16 of the California Building Code shall be those specified for structural systems classified as “Ordinary” in accordance with Table 12.2-1 of ASCE 7, unless it is demonstrated that the structural

system will provide performance equivalent to that of a “Detailed,” “Intermediate” or “Special” system.

2. ASCE 41, using a Tier 3 procedure and the two-level performance objective in Table 405.2.7.1.

Table 405.2.7.1
PERFORMANCE OBJECTIVES FOR USE IN ASCE 41 FOR COMPLIANCE WITH

FULL SEISMIC FORCES
RISK CATEGORY (Based
on CBC Table 1604.5)

STRUCTURAL

PERFORMANCE LEVEL FOR
USE WITH BSE-1N

EARTHQUAKE HAZARD
LEVEL

STRUCTURAL

PERFORMANCE LEVEL

FOR USE WITH
BSE-2N EARTHQUAKE

HAZARD LEVEL
I Life Safety (S-3) Collapse Prevention (CP)
II Life Safety (S-3) Collapse Prevention (CP)
III Damage Control (S-2) Limited Safety (S-4)
IV Immediate Occupancy (S-1) Life Safety (S-3)
405.2.7.2 Compliance with reduced CBC level seismic forces. Where seismic evaluation and design is permitted to meet reduced seismic forces, the criteria used shall be in accordance with one of the following:

1. The California Building Code using 75 percent of the prescribed forces. Values of R, Ωo, and Cd used for analysis shall be as specified in Section 405.2.7.1 Item 1.

2. Structures or portions of structures that comply with the requirements of the applicable chapter in Appendix A of the California Existing Building Code (CEBC) or Appendix A of the International Existing Building Code (IEBC) as specified in Items 2.1 through 2.4 below shall be deemed to comply with this section.

2.1. The seismic evaluation and design of unreinforced masonry bearing wall buildings in Risk Category I or II are permitted to be based on the procedures specified in CEBC Appendix A Chapter A1, provided the design is no less stringent than required in Berkeley Municipal Code Section 19.38.130.

2.2. Seismic evaluation and design of the wall anchorage system in reinforced concrete and reinforced masonry wall buildings with flexible diaphragms in Risk Category I or II are permitted to be based on the procedures specified in IEBC Appendix A Chapter A2.

2.3. Seismic evaluation and design of cripple walls and sill plate anchorage in residential buildings of light-frame wood construction in Risk Category I or II are permitted to be based on the procedures specified in CEBC Appendix A Chapter A3.

2.4. Seismic evaluation and design of soft, weak, or open-front wall conditions in multiunit residential buildings of wood construction in Risk Category I or II are permitted to be based on the procedures specified in CEBC Appendix A Chapter A4.

3. ASCE 41, using the performance objective in Table 405.2.7.2 for the applicable risk category. The design spectral response acceleration parameters Sxs and Sx1 specified in ASCE 41 shall not be taken less than 75 percent of the respective design spectral response acceleration parameters S DS and S D1 defined by the California Building Code and its reference standards.

Table 405.2.7.2
PERFORMANCE OBJECTIVES FOR USE IN ASCE 41 FOR COMPLIANCE WITH

REDUCED SEISMIC FORCES

RISK CATEGORY
(Based on CBC
Table 1604.5)

STRUCTURAL PERFORMANCE
LEVEL FOR USE WITHBSE-1E

EARTHQUAKE HAZARD LEVEL

STRUCTURAL

PERFORMANCE LEVEL FOR
USE WITH BSE-2E

EARTHQUAKE HAZARD
LEVEL
I Life Safety (S-3). See Note a Collapse Prevention (S-5) II Life Safety (S-3). See Note a Collapse Prevention (S-5) III Damage Control (S-2). See Note a Limited Safety (S-4). See Note b IV Immediate Occupancy (S-1) Life Safety (S-3). See Note c a. For Risk Categories I, II, and III, the Tier 1 and Tier 2 procedures need not be considered for the BSE-1E earthquake hazard level.
b. For Risk Category III, the Tier 1 screening checklists shall be based on the Collapse Prevention, except that checklist statements using the Quick Check provisions shall be based on MS-factors that are the average of the values for Collapse Prevention and Life Safety.
c. For Risk Category IV, the Tier 1 screening checklists shall be based on Collapse Prevention, except that checklist statements using the Quick Check provisions shall be based on MS-factors for Life Safety.

Table 405.2.7.3

REFERENCED STANDARDS
Standard Reference
Number Title Referenced in Code
Section Number

ASCE 41-17
Seismic Evaluation and
Retrofit of Existing
Buildings
405.2.7
Table 405.2.7.1
405.2.7.2
Table 405.2.7.2
Article 7. Technical Amendments to Structural Standards

19.28.080 Various Technical Amendments to Structural Standards.

Chapter 17 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below. 1705.3 Concrete construction. Special inspections and tests of concrete construction shall be performed in accordance with this section and Table 1705.3.

Exception: Special inspections and tests shall not be required for: 1. Isolated spread concrete footings of buildings three stories or less above grade plane that are fully supported on earth or rock, where the structural design of the footing is based on a specified compressive strength, f’ c, no greater than 2,500 pounds per square inch (psi) (17.2 MPa).

Chapter 19 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below. 1905.1.7 ACI 318, Section 14.1.4. Delete ACI 318, Section 14.1.4, and replace with the following:

14.1.4 - Plain concrete in structures assigned to Seismic Design Category C, D, E or F.

14.1.4.1 - Structures assigned to Seismic Design Category C, D, E or F shall not have elements of structural plain concrete, except as follows:
 Structural plain concrete basement, foundation or other walls below the base are permitted in detached one and two-family dwellings three stories or less in height constructed with stud bearing walls. In dwellings assigned to seismic design category D or E, the height of the wall shall not exceed 8 feet (2438 mm), the thickness shall not be less than 7 1/2 inches (190 mm), and the wall shall retain no more than 4 feet (1219 mm) of unbalanced fill.

Walls shall have reinforcement in accordance with 14.6.1.  Isolated footings of plain concrete supporting pedestals or columns are permitted, provided the projection of the footing beyond the face of the supported member does not exceed the footing thickness.

Exception: In detached one- and two-family dwelling three stories or less in height, the projection of the footing beyond the face of the supported member is permitted to exceed the footing thickness.

 (Plain concrete footings supporting walls are permitted, provided the footings have at least two continuous longitudinal reinforcing bars. Bars shall not be smaller than No. 4 and shall have a total area of not less than

0.002 times the gross cross-sectional area of the footing. For footings that exceed 8” inches (203 mm) in thickness, A minimum of one bar shall be provided at the top and bottom of the footing. Continuity of reinforcement shall be provided at corners and intersections.

Exceptions:

1. In seismic design categories A, B and C, detached one- and two-family dwellings three stories or less in height and constructed with stud bearing walls, are permitted to have plain concrete footings without longitudinal reinforcement.

2. For foundation systems consisting of a plain concrete footing and a plain concrete stem wall, a minimum of one bar shall be provided at the top of the stem wall and at the bottom of the footing.

3. Where a slab on ground is cast monolithically with the footing, one No. 5 bar is permitted to be located at either the top of the slab or bottom of the footing.

Article 8. Construction of Exterior Appurtenances

19.28.090 Technical Amendments for Construction of Exterior Projecting Elements and Appurtenances.

Chapter 12 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below:
1202.7 Ventilation of weather exposed enclosed assemblies. Balconies, landings, decks, stairs and similar exterior projecting elements and appurtenances exposed to the weather and sealed underneath shall have cross ventilation for each separate enclosed space by ventilation openings protected against the entrance of rain and snow and as set forth in Section 2304.12.2.5. Blocking and bridging shall be arranged so as not to interfere with the movement of air. The net free ventilating area shall not be less than 1/150th of the area of the space ventilated. Ventilation openings shall comply with Section 1202.2.2.

An access panel of sufficient size shall be provided on the underside of the enclosed space to allow for periodic inspection.

Exceptions:

1. An access panel is not required where the exterior coverings applied to the underside of joists are easily removable using only common tools.

2. Removable soffit vents 4 inches minimum in width can be used to satisfy both ventilation and access panel requirements.

Chapter 14 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below:
1403.15 Projections exposed to weather. Balconies, landings, decks, stairs and similar floor projections exposed to the weather shall be constructed of naturally durable wood, preservative-treated wood, corrosion resistant (e.g., galvanized) steel, or similar approved materials.

Chapter 23 of the 2022 California Building Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below:
2304.12.2.3 Supporting members for permanent appurtenances. Naturally durable or preservative-treated wood shall be utilized for those portions of wood members that form the structural supports of buildings, balconies, porches or similar permanent building appurtenances where such members are exposed to the weather without adequate protection from a roof, eave, overhang or other covering to prevent moisture or water accumulation on the surface or at joints between members. 2304.12.2.4 Supporting members for permeable floors and roofs. Wood structural members that support moisture-permeable floors or roofs that are exposed to the weather, such as concrete or masonry slabs, shall be of naturally durable or preservative- treated wood unless and shall be separated from such floors or roofs by an impervious moisture barrier. The impervious moisture barrier system protecting the structure supporting floors shall provide positive drainage of water that infiltrates the moisture- permeable floor topping.

Table 2308.6.1 WALL BRACING REQUIREMENTSa, f, g
Add new footnotes “f” and “g” to the end of Table 2308.6.1 to read:
f. Methods GB, PBS, HPS and SFB are not permitted in Seismic Design Categories D or E. In Seismic Design Categories D, the use of Method PCP is limited to one-story dwellings and accessory structures. g. Methods DWB and PCP are not permitted in Seismic Design Categories E.

Article 9. Emergency Housing

19.28.100 Emergency Housing and Emergency Housing Facilities.

HCD Appendix P of the 2022 California Building Code with Mid-Cycle Supplement is adopted on an emergency basis and reproduced in its entirety subject to the modifications thereto which are set forth below:

APPENDIX P

EMERGENCY HOUSING
SECTION P101

GENERAL

P101.1 Scope. This appendix shall be applicable to emergency housing and emergency housing facilities, as defined in Section P102. The provisions and standards set forth in this appendix shall be applicable to emergency housing established pursuant to the declaration of a shelter crisis under Government Code section 8698 et seq. and located in new or existing buildings, structures, or facilities owned, operated, erected, or constructed by, for or on behalf of the City of Berkeley on land owned or leased by the City of Berkeley.

P101.2 Application. Notwithstanding any provisions of this Code to the contrary, the following requirements shall apply to emergency housing operated during a shelter crisis, as provided for in Government Code Section 8698 et seq. Other than the specific requirements set forth in this appendix, the facilities need not comply with the requirements of this Code for Group R occupancies unless otherwise specified in this Code.

SECTION P102

DEFINITIONS
P102.1 General. The following words and terms shall, for the purposes of this appendix, have the meanings shown herein. Refer to Chapter 2 of this code for general definitions.

DECLARATION OF SHELTER CRISIS. The duly proclaimed existence of a situation in which a significant number of persons are without the ability to obtain shelter, resulting in a threat to their health and safety. (See Government Code Section 8698) DEPENDENT UNIT. Emergency housing not equipped with a kitchen area, toilet, and sewage disposal system. Recreational vehicles that are not self-contained and without utility service connections shall be considered dependent units.

EMERGENCY HOUSING. Housing in a permanent or temporary structure(s), occupied during a declaration of state of emergency, local emergency, or shelter crisis.

Emergency housing may include, but is not limited to, buildings and structures constructed in accordance with the California Building Standards Code; and emergency sleeping cabins, emergency transportable housing units, and tents constructed in accordance with this appendix.

EMERGENCY HOUSING FACILITIES. On-site common use facilities supporting emergency housing. Emergency housing facilities include, but are not limited to, kitchen areas, toilets, showers and bathrooms with running water. The use of emergency housing facilities is limited exclusively to the occupants of the emergency housing, personnel involved in operating the housing, and other emergency personnel.

EMERGENCY HOUSING SITE. A site containing emergency housing and emergency housing facilities supporting the emergency housing.

EMERGENCY SLEEPING CABIN. Relocatable hard-sided structure constructed in accordance with this appendix, which may be occupied only for emergency housing if allowed by the enforcing agency.

EMERGENCY TRANSPORTABLE HOUSING UNIT. A single- or multiple-section prefabricated structure that is transportable by a vehicle and that can be installed on a permanent or temporary site in response to a need for emergency housing. Emergency transportable housing units include, but are not limited to, manufactured homes, mobilehomes, multifamily manufactured homes, recreational vehicles, and park trailers.

For the purposes of this appendix, emergency transportable housing units may also include commercial modulars as defined in the Health and Safety Code Section 18001.8, if approved by the enforcing agency.

Emergency transportable housing units do not include factory-built housing as defined in the Health and Safety Code Section 19971.

LANDING PLATFORM. A landing provided as the top step of a stairway accessing a loft.

LOCAL EMERGENCY. Local Emergency as defined in the Government Code, Section 8558.

LOFT. A floor level located more than 30 inches (762 mm) above the main floor and open to it on at least one side with a ceiling height of less than 6 feet 8 inches (2032 mm), used as a living or sleeping space.

MANUFACTURED HOME. A structure designed to be used as a single-family dwelling, as defined in the Health and Safety Code, Section 18007.

MEMBRANE STRUCTURE. An air-inflated, air-supported, cable or frame-covered structure, not otherwise defined as a tent. (See Chapter 31 of this code.) MOBILEHOME. A structure designed to be used as a single-family dwelling, as defined in the Health and Safety Code, Section 18008.

MULTIFAMILY MANUFACTURED HOME. A structure designed to contain not less than two dwelling units, as defined in the Health and Safety Code, Section 18008.7.

PARK TRAILER. A trailer designed for human habitation that meets all requirements in the Health and Safety Code, Section 18009.3.

RECREATIONAL VEHICLE. A motor home, travel trailer, truck camper, or camping trailer, with or without motive power, designed for human habitation, that meets all requirements in the Health and Safety Code, Section 18010.

STATE OF EMERGENCY. State of Emergency as defined in the Government Code, Section 8558.

TENT. A structure, enclosure or shelter, with or without sidewalls or drops, constructed of fabric or pliable material supported by any manner except by air or the contents that it protects.

SECTION P103

EMERGENCY HOUSING
P103.1 General. Emergency sleeping cabins, emergency transportable housing units including commercial modulars, membrane structures and tents constructed and/or assembled in accordance with this appendix, shall be occupied only during declaration of state of emergency, local emergency, or shelter crisis.

Buildings and structures constructed in accordance with the California Building Standards Code, used as emergency housing, shall be permitted to be permanently occupied.

P103.2 Existing buildings. Existing residential and nonresidential buildings or structures shall be permitted to be used as emergency housing and emergency housing facilities provided such buildings or structures comply with the building code provisions and/or other regulations in effect at the time of original construction and/or alteration. Existing buildings or structures used as emergency housing shall not become or continue to be substandard buildings, as determined by the enforcing agency.

P103.2.1 New additions, alterations, and change of occupancy. New additions, alterations, and change of occupancy to existing buildings shall comply with the requirements of the California Building Standards Code effective at the time of addition, alteration, or change of occupancy. The requirements shall apply only to and/or within the specific area of the addition, alteration, or change of occupancy.

Exceptions:

1. Existing buildings and structures used for emergency housing and emergency housing facilities may not be required to comply with the California Energy Code, as determined by the enforcing agency.

2. Change in occupancy shall not mandate conformance with new construction requirements set forth in the California Building Standards Code, provided such change in occupancy meets the minimum fire and life safety requirements set forth in Section P112 of this appendix.

P103.3 Occupant load. Except as otherwise stated in this appendix, the maximum occupant load allowed in buildings and structures used as emergency housing shall be determined by the enforcing agency, but the interior floor area shall not be less than 70 square feet (6.5 m 2) for one occupant. Where more than one person occupies the building/structure, the required floor area shall be increased at the rate of 50 square feet (4.65 m2) for each occupant in excess of one.

Exceptions:

1. Tents.

2. Recreational vehicles and park trailers designed for human habitation that meet the requirements in the Health and Safety Code, Sections 18009.3 and 18010, as applicable

3. For emergency housing, including emergency sleeping cabins, the minimum interior floor area may be reduced to 53 square feet (4.9 m2) if the enforcing agency determines that 53 square feet (4.9 m2) is adequate space for a single- occupancy sleeping unit.

P103.4 Fire and life safety requirements not addressed in this appendix. If not otherwise addressed in this appendix, fire and life safety measures, including, but not limited to, means of egress, fire separation, fire sprinklers, smoke alarms, and carbon monoxide alarms, shall be determined and enforced by the enforcing agency.

P103.5 Privacy. Emergency housing shall be provided with a privacy lock on each entrance door and all windows for use by the occupants.

P103.6 Heating. All sleeping areas shall be provided with adequate heating as determined by the enforcing agency.

SECTION P104

EMERGENCY SLEEPING CABINS
P104.1 General. Emergency sleeping cabins shall have an interior floor area of not less than 70 square feet (6.5 m2) for one occupant. Where more than one person occupies the cabin, the required floor area shall be increased at the rate of 50 square feet (4.65 m2) for each occupant in excess of one. The interior floor area shall not exceed 400 square feet (37 m2), excluding lofts.

P104.2 Live loads. Emergency sleeping cabins shall be designed to resist intrusion of wind, rain, and to support the following live loads:

1. Floor live loads not less than 40 pounds per square foot (1.92 kPa) of floor area.

2. Horizontal live loads not less than 15 pounds per square foot (718 Pa) of vertical wall and roof area.

3. Roof live loads not less than 20 pounds per square foot (958 Pa) of horizontal roof area.

4. In areas where snow loads are greater than 20 pounds per square foot (958 Pa), the roof shall be designed and constructed to resist these additional loads.

P104.3 Minimum ceiling height. Habitable space and hallways in emergency sleeping cabins shall have a ceiling height of not less than 80 inches (2032 mm). Bathrooms, toilet rooms, and kitchens, if provided, shall have a ceiling height of not less than 76 inches (1930 mm). Obstructions shall not extend below these minimum ceiling heights including beams, girders, ducts, lighting and other obstructions.

Exception: Ceiling heights in lofts constructed in accordance with Section P108 are permitted to be less than 80 inches (2032 mm).

P104.4 Means of egress. Emergency sleeping cabins shall be provided with at least two forms of egress placed remotely from each other. One form of egress may be an egress window complying with Section P104.4.1. When a loft is provided, one form of egress shall be an egress window complying with Section P104.4.1, provided in the loft space.

P104.4.1 Egress window. The bottom of the clear opening of the egress window shall not be more than 44 inches (1118 mm) above the floor. The egress window shall have a minimum net clear opening height of 24 inches (610 mm), and a minimum net clear opening width of 20 inches (508 mm). The egress window shall have a minimum net clear opening area of 5 square feet (0.465 m2).

P104.5 Plumbing and gas service. If an emergency sleeping cabin contains plumbing or gas service, it shall comply with all applicable requirements of the California Plumbing Code and the California Mechanical Code.

P104.6 Electrical. Emergency sleeping cabins shall be provided with all of the following installed in compliance with the California Electrical Code:

1. Continuous source of electricity.

Exception: The source of electricity may be an emergency generator or renewable source of power such as solar or wind power.

2. At least one interior lighting fixture.

3. Electrical heating equipment listed for residential use and a dedicated receptacle outlet for the electrical heating equipment.

Exception: Electrical heating equipment and a dedicated receptacle outlet for the electrical heating equipment are not required if a nonelectrical source of heating is provided.

4. At least one GFCI-protected receptacle outlet for use by the occupant(s).

P104.7 Ventilation. Emergency sleeping cabins shall be provided with means of ventilation (natural and/or mechanical) allowing for adequate air replacement, as determined by the enforcing agency.

P104.8 Smoke alarms. Emergency sleeping cabins shall be provided with at least one smoke alarm installed in accordance with the California Residential Code, Section R314.

P104.9 Carbon monoxide alarms. If an emergency sleeping cabin contains a fuel- burning appliance(s) or a fireplace(s), a carbon monoxide alarm shall be installed in accordance with the California Residential Code, Section R315

SECTION P105

EMERGENCY TRANSPORTABLE HOUSING UNITS
P105.1 General. In addition to the requirements in this appendix, manufactured homes, mobilehomes, multifamily manufactured homes, commercial modulars, recreational vehicles, and park trailers used as emergency transportable housing shall comply with all applicable requirements in the Health and Safety Code, Division 13, Part 2; and Title 25, Division 1, Chapter 3, Subchapter 2.

No provisions of Sections P111 through P114 of this appendix shall be deemed to grant authorization for any additional work that may conflict with the standards specified in Section P105 applicable for emergency transportable housing units.

SECTION P106

TENTS AND MEMBRANE STRUCTURES
P106.1 General. Tents shall not be used to house occupants for more than 7 days unless such tents are maintained with tight wooden floors raised at least 4 inches (101.6 mm) above the ground level and are equipped with baseboards on all sides to a height of at least 6 inches (152.4 mm). Tents may be maintained with concrete slabs with the finished surface at least 4 inches (101.6 mm) above grade and equipped with curbs on all sides at least 6 inches (152.4 mm) high.

A tent shall not be considered a suitable sleeping place when it is found necessary to provide heating facilities in order to maintain a minimum temperature of 50 degrees Fahrenheit (10 degrees Celsius) within such tent during the period of occupancy.

Membrane structures installed and/or assembled in accordance with Chapter 31 of this code, may be permitted to be used as emergency housing and emergency housing facilities, as determined by the enforcing agency.

Tents and membrane structures shall comply with Chapter 31 of the California Fire Code and shall not be erected for a period of more than 180 days within a 12 month period.

Tents and membrane structures shall be limited to one level located at the level of Fire Department vehicle access road or lane. Tents and membrane structures complying with Chapter 31 of the California Fire Code shall not be subject to additional provisions of Sections P111 and P112 of this appendix.

Tents and membrane structures used for sleeping purposes shall be equipped with single station battery powered smoke alarms installed in accordance with Section 907.2.11 of the California Fire Code.

SECTION P107

ACCESSIBILITY

P107.1 General. Emergency housing shall comply with the applicable requirements in Chapter 11B and/or the US Access Board Final Guidelines for Emergency Transportable Housing.

Note: The Architectural and Transportation Barriers Compliance Board (US Access Board) issued the Final Guidelines for Emergency Transportable Housing on May 7, 2014. The final guidelines amended the 2004 ADA Accessibility Guidelines (2004 ADAAG) and the 2004 Architectural Barriers Act (ABA) Accessibility Guidelines (2004 ABAAG) to specifically address emergency transportable housing units provided to disaster survivors by entities subject to the ADA or ABA. The final rule ensures that the emergency transportable housing units are readily accessible to and usable by disaster survivors with disabilities.

SECTION P108

LOFTS IN EMERGENCY HOUSING
P108.1 Minimum loft area and dimensions. Lofts used as a sleeping or living space shall meet the minimum area and dimension requirements of Sections P108.1.1 through P108.1.3.

P108.1.1 Minimum area. Lofts shall have a floor area of not less than 35 square feet (3.25 m2).

P108.1.2 Minimum dimensions. Lofts shall be not less than 5 feet (1524 mm) in any horizontal dimension.

P108.1.3 Height effect on loft area. Portions of a loft with a sloping ceiling measuring less than 3 feet (914 mm) from the finished floor to the finished ceiling shall not be considered as contributing to the minimum required area for the loft.

Exception: Under gable roofs with a minimum slope of 6:12, portions of a loft with a sloping ceiling measuring less than 16 inches (406 mm) from the finished floor to the finished ceiling shall not be considered as contributing to the minimum required area for the loft.

P108.2 Loft access. The access to and primary egress from lofts shall be any type described in Sections P108.2.1 through P108.2.4.

P108.2.1 Stairways. Stairways accessing lofts shall comply with the California Residential Code or with Sections P108.2.1.1 through P108.2.1.6.

P108.2.1.1 Width. Stairways accessing a loft shall not be less than 17 inches (432 mm) in clear width at or above the handrail. The minimum width below the handrail shall be not less than 20 inches (508 mm).

P108.2.1.2 Headroom. The headroom in stairways accessing a loft shall be not less than 74 inches (1880 mm), as measured vertically, from a sloped line connecting the tread or landing platform nosings in the middle of their width.

P108.2.1.3 Treads and risers. Risers for stairs accessing a loft shall be not less than 7 inches (178 mm) and not more than 12 inches (305 mm) in height. Tread depth and riser height shall be calculated in accordance with one of the following formulas:

1. The tread depth shall be 20 inches (508 mm) minus 4/3 of the riser height, or

2. The riser height shall be 15 inches (381 mm) minus 3/4 of the tread depth.

P108.2.1.4 Landing platforms. The top step of stairways accessing lofts shall be constructed as a landing platform where the loft ceiling height is less than 74 inches (1880 mm). The landing platform shall be 18 inches (457 mm) to 22 inches (559 mm) in depth measured from the nosing of the landing platform to the edge of the loft, and 16 inches (406 mm) to 18 inches (457 mm) in height measured from the landing platform to the loft floor.

P108.2.1.5 Handrails. Handrails shall comply with the California Residential Code, Section R311.7.8.

P108.2.1.6 Stairway guards. Guards at open sides of stairways shall comply with the California Residential Code, Section R312.1.

P108.2.2 Ladders. Ladders accessing lofts shall comply with Sections P108.2.2.1 and P108.2.2.2.

P108.2.2.1 Size and capacity. Ladders accessing lofts shall have a rung width of not less than 12 inches (305 mm), and 10 inches (254 mm) to 14 inches (356 mm) spacing between rungs. Ladders shall be capable of supporting a 200 pound (90.7 kg) load on any rung. Rung spacing shall be uniform within 3/8-inch (9.5 mm).

P108.2.2.2 Incline. Ladders shall be installed at 70 to 80 degrees from horizontal.

P108.2.3 Alternating tread devices. Alternating tread devices are acceptable as allowed by the enforcing agency.

P108.2.4 Loft guards. Loft guards shall be located along the open side of lofts. Loft guards shall not be less than 36 inches (914 mm) in height or one-half of the clear height to the ceiling, whichever is less. Loft guards shall not have openings from the walking surface to the required guard height that allow passage of a sphere 4 inches (102mm) in diameter.

SECTION P109

LOCATION, MAINTENANCE AND IDENTIFICATION
P109.1 Maintenance. Emergency housing and emergency housing facilities shall be maintained in a safe and sanitary condition, and free from vermin, vectors and other matter of an infectious or contagious nature. The grounds within emergency housing sites shall be kept clean and free from accumulation of debris, filth, garbage and deleterious matter. Emergency housing and emergency housing facilities shall not be occupied if a substandard condition exists, as determined by the enforcing agency.

P109.1.1 Fire hazards. Dangerous materials or materials that create a fire hazard, as determined by the enforcing agency, shall not be allowed on the grounds within emergency housing sites.

P109.3 Identification. Emergency housing shall be designated by address numbers, letters, or other suitable means of identification. The identification shall be in a conspicuous location facing the street or driveway fronting the building or structure. Each identification character shall be not less than 4 inches (102 mm) in height and not less than 0.5 inch (12.7 mm) in width, installed/painted on a contrasting background.

SECTION P110

EMERGENCY HOUSING FACILITIES SANITATION REQUIREMENTS
P110.1 Drinking water. Potable drinking water shall be provided for all occupants of emergency housing.

P110.2 Kitchens and food facilities. Where provided, kitchens and food facilities, as defined in Section 113789 of the California Health and Safety Code, which support emergency housing sites, shall comply with applicable food safety provisions of Sections 113980 – 114094.5 of the California Health and Safety Code.

Where occupants of dependent units are permitted or required to cook for themselves, a separate area shall be equipped and maintained as a common use kitchen.

Refrigerated storage shall be provided for safe storage of food.

P110.3 Toilet and bathing facilities. When dependent units are used as emergency housing, the emergency housing site shall be provided with one toilet and one bathing facility for every 15 occupants of each gender. The enforcing agency may permit different types and ratios of toilet and bathing facilities. The approval shall be based upon a finding that the type and ratio of toilet and bathing facilities are sufficient to process the anticipated volume of sewage and waste water, while maintaining sanitary conditions for the occupants of the emergency housing.

Bathing facilities shall be provided with heating equipment which shall be capable of maintaining a temperature of 70 degrees F (21.0 degrees Celsius) within such facilities.

Lavatories with running water shall be installed and maintained in the toilet facilities or adjacent to the toilet facilities.

P110.4 Garbage, waste and rubbish disposal. All garbage, kitchen waste and rubbish shall be deposited in approved covered receptacles, which shall be emptied when filled and the contents shall be disposed of in a sanitary manner acceptable to the enforcing agency.

SECTION P111

EMERGENCY HOUSING LIGHTING AND VENTILATION REQUIREMENTS P111.1 Lighting. Buildings or structures used for emergency housing shall be provided with natural light by means of exterior glazed openings in accordance with Section 1204.2 of the California Building Code, or shall be provided with artificial light in accordance with Section 1204.3 of the California Building Code.

P111.2 Ventilation. Buildings or structures used for emergency housing shall be provided with natural ventilation in accordance with Section 1202.5 of the California Building Code, or mechanical ventilation in accordance with the California Mechanical Code.

SECTION P112

EMERGENCY HOUSING FIRE AND LIFE SAFETY REQUIREMENTS
P112.1 Location on property. Buildings or structures used for emergency housing, including sleeping cabins, shall be located in accordance with the requirements of Section 705 and Table 705.5 of the California Building Code, based on their type of construction and fire-resistance ratings of the exterior walls. During a shelter crisis, the fire separation distances are permitted to be measured to the existing buildings on the adjacent parcels rather than to the interior lot lines, provided the open spaces are to remain unobstructed for the duration of the shelter crisis.

P112.2 Buildings on same lot. Buildings or structures used for emergency housing, including sleeping cabins, shall be separated from each other and from other buildings on the same lot as set forth in Section 705.3 of the California Building Code. The Building Official and Fire Marshal may accept reasonable alternatives to these requirements provided reasonably equivalent fire and life safety is achieved.

P112.3 Means of egress. Buildings or structures used for emergency housing shall be provided with means of egress complying with Chapter 10 of the California Building Code, unless modified elsewhere in this appendix.

P112.4 Emergency escape and rescue. Each area of a building or structure used for sleeping purposes in emergency housing shall be provided with an emergency escape

and rescue opening in accordance with Section 1031 of the California Building Code, unless modified elsewhere in this appendix.

P112.5 Smoke alarms. Buildings or structures used for emergency housing, which provide sleeping accommodations, shall be equipped with single station battery powered smoke alarms installed in accordance with the location requirements of Section 907.2.11 of the California Fire Code, unless modified elsewhere in this appendix.

P112.6 Carbon monoxide alarms. Buildings or structures used for emergency housing, which provide sleeping accommodations, and equipped with fuel-burning appliances shall be provided with carbon monoxide detection in accordance with Section 915 of the California Fire Code, unless modified elsewhere in this appendix.

P112.7 Fire alarm. A manual fire alarm system capable of arousing sleeping occupants in accordance with Section 907.2.9.1 of the California Fire Code shall be installed in buildings, structures, or groups of buildings or structures used for emergency housing and having a gross floor area of more than 2,500 square feet or having more than 49 sleeping occupants.

Exception: Individual buildings or structures in a group of buildings or structures with sufficient separation distances to allow each building or structure to function independently in case of a fire, as approved by the Fire Marshal.

P112.8 Automatic sprinkler systems. Fire sprinklers shall be provided for new and existing buildings or structures used for emergency housing, including sleeping cabins, which provide sleeping facilities, as required by Section 903.3 of the California Fire Code. Strict compliance with the requirements of Section 903.3 may not be required when approved by the Fire Marshal. The Fire Marshal is authorized to accept reasonably equivalent alternatives to the installation provisions of Section 903.3 when dealing with buildings or structures used for emergency housing.

P112.9 Fire extinguishers. Portable fire extinguishers shall be provided in accordance with Section 906.1 of the California Fire Code.

P112.10 Flammable or combustible liquids. The possession or storage of any flammable or combustible liquids or gases shall not be permitted (intact cigarette lighters excepted). The use of any type of open flame indoors is prohibited unless conditionally approved by the Fire Chief.

P112.11 Storage in attics, under-floor and concealed spaces. Combustible materials, including but not limited to the possessions of occupants, users and staff shall not be stored in attics, under-floor spaces, or within other concealed spaces of buildings or structures used for emergency housing with sleeping accommodations.

P112.12 Fire department access. Fire Department access to building and premises used for emergency housing shall be in compliance with Section 503, Section 504 and Appendix D of the California Fire Code, as approved by the Fire Chief.

P112.13 Water supply. An approved fire protection water supply complying with Section 507 of the California Fire Code, or as approved by the Fire Chief, shall be provided for each structure, group of structures or premises used for emergency housing.

SECTION P113

ADDITIONAL REQUIREMENTS
P113.1 Operating procedures. Operating procedures including a security plan and service requirements shall be developed by the professional service provider and shown to be consistent with the shelter standards imposed by the Alameda County Social Services Agency. These procedures shall be designed to maintain order and safety within the buildings or structures used for emergency housing.

SECTION P114

ALTERNATIVES AND MODIFICATIONS
P114.1 Alternatives and modifications. Alternative compliance and/or modifications that are reasonably equivalent to the requirements in this appendix may be granted by the Local Administrative Authority in individual cases when dealing with buildings or structures used for emergency housing.

NOTE:

Authority Cited: Health and Safety Code Sections 17040, 17050, 17920.9, 17921, 17921.5, 17921.6, 17921.10, 17922, 17922.6, 17922.12, 17922.14, 17927, 17928, 18300, 18552, 18554, 18620, 18630, 18640, 18670, 18690, 18691, 18865, 18871.3, 18871.4, 18873, 18873.1 through 18873.5, 18938.3, 18944.11, and 19990; and Government Code Section 12955.1.

Reference: Health and Safety Code Sections 17000 through 17062.5, 17910 through 17995.5, 18200 through 18700, 18860 through 18874, and 19960 through 19997; Civil Code Sections 1101.4 and 1101.5; and Government Code Sections 12955.1 and 12955.1.1. (Ord. 7613-NS § 3, 2018)

Section 2. That Berkeley Municipal Code Chapter 19.29 is hereby repealed and reenacted to read as follows:

Chapter 19.29

BERKELEY RESIDENTIAL CODE
Sections:

19.29.010 Adoption of California Residential Code.

19.29.020 Title.

19.29.030 Administrative Provisions.

19.29.040 Subsection R301.2 Climatic and Geographic Design Criteria.

19.29.050 Section R337 Materials and Construction Methods for Exterior Wildlife Exposure.

19.29.060 Technical Amendments to Structural Standards.

19.29.010 Adoption of California Residential Code.

The California Residential Code with Mid-Cycle Supplement, 2022 Edition, as adopted in Title 24 Part 2.5 of the California Code of Regulations, including Appendices AH, AQ, AR, AS, AU and AX is hereby adopted and made a part of this Chapter as though fully set forth herein, subject to the modifications thereto which are set forth in this Chapter. A copy of this Code is on file for use and examination by the public in the office of the City Clerk of the City of Berkeley.

19.29.020 Title.

This Code shall be known as the "Berkeley Residential Code" and may be cited as "this Code".

19.29.030 Administrative provisions.

All of the administrative provisions contained in Article 1 of Chapter 19.28, the Berkeley Building Code, shall apply to this Code as well and take precedence over any California Residential Code (CRC) administrative provisions that may conflict.

For regulations governing wood burning appliances see BMC 19.28.040.

19.29.040 CRC Subsection R301.2 Climatic and geographic design criteria.

TABLE R301.2

CLIMATIC AND GEOGRAPHIC DESIGN CRITERIA

WIND DESIGN SUBJECT TO DAMAGE FROM
GROUND
SNOW
LOADo
Speedd
(mph)
Topographic
effectsk
Special
wind
regionl
Wind-
borne
debris
zonem

SEISMIC
DESIGN
CATEGORYf Weatheringa Frost line
depthb Termitec

ICE BARRIER

UNDERLAYMENT
REQUIREDh
FLOOD
HAZARDSg

AIR FREEZING
INDEXi MEAN ANNUAL TEMPj
NO See
Footnote ‘p’ ZERO 57.2◦F
MANUAL J DESIGN CRITERIAn
Elevation
Altitude
correction
factor e

Coincident
wet bulb
Indoor
winter
design
relative
humidity
Indoor
winter
design
dry-bulb
temperature
Outdoor
winter design
dry-bulb
temperature
Heating
temperature
difference
345 N/A 63 N/A 70 40 30
Latitude Daily
range
Indoor
summer
design
relative
humidity
Summer
Design
Grains
Indoor
summer
design
dry-bulb
temperature
Outdoor
summer
design
dry-bulb
temperature
Cooling
temperature
difference
38 16 50 -6 75 80 5
For SI: 1 pound per square foot = 0.0479 kPa, 1 mile per hour = 0.447 m/s. a. Where weathering requires a higher strength concrete or grade of masonry than necessary to satisfy the structural requirements of this Code, the frost line depth strength required for weathering shall govern. The weathering column shall be filled in with the weathering index, “negligible,” “moderate” or “severe” for concrete as determined from Figure R301.2.(1).The grade of masonry units shall be determined from ASTM C34, ASTM C55, ASTM C62, ASTM C73, ASTM C90, ASTM C129, ASTM C145, ASTM C216 or ASTM C652.
b. Where the frost line depth requires deeper footings than indicated in Figure R403.1(1), the frost line depth strength required for weathering shall govern. The jurisdiction shall fill in the frost line depth column with the minimum depth of footing below finish grade. c. The jurisdiction shall fill in this part of the table to indicate the need for protection depending on whether there has been a history of local subterranean termite damage. d. The jurisdiction shall fill in this part of the table with the wind speed from the basic wind speed map Figure R301.2(2). Wind exposure category shall be determined on a site- specific basis in accordance with Section R301.2.1.4.
e. The jurisdiction shall fill in this section of the table to establish the design criteria using Table 10A from ACCA Manual J or established criteria determined by the jurisdiction. f. The jurisdiction shall fill in this part of the table with the seismic design category determined from Section R301.2.2.1.

ZERO 85 NO NO NO D2 or E NEGLIGIBLE N/A VERY
HEAVY

g. The jurisdiction shall fill in this part of the table with: the date of the jurisdiction’s entry into the National Flood Insurance Program (date of adoption of the first code or ordinance for management of flood hazard areas); and the title and date of the currently effective Flood Insurance Study or other flood hazard study and maps adopted by the authority having jurisdiction, as amended.
h. In accordance with Sections R905.1.2, R905.4.3.1, R905.5.3.1, R905.6.3.1, R905.7.3.1 and R905.8.3.1, where there has been a history of local damage from the effects of ice damming, the jurisdiction shall fill in this part of the table with “YES.” Otherwise, the jurisdiction shall fill in this part of the table with “NO.” i. The jurisdiction shall fill in this part of the table with the 100-year return period air freezing index (BF-days) from Figure R403.3(2) or from the 100-year (99 percent) value on the National Climatic Data Center data table “Air Freezing Index-USA Method (Base 32°F).”
j. The jurisdiction shall fill in this part of the table with the mean annual temperature from the National Climatic Data Center data table “Air Freezing Index-USA Method (Base 32°F).”
k. In accordance with Section R301.2.1.5, where there is local historical data documenting structural damage to buildings due to topographic wind speed-up effects, the jurisdiction shall fill in this part of the table with “YES.” Otherwise, the jurisdiction shall indicate “NO” in this part of the table.
l. In accordance with Figure R301.2(2), where there is local historical data documenting unusual wind conditions, the jurisdiction shall fill in this part of the table with “YES” and identify any specific requirements. Otherwise, the jurisdiction shall indicate “NO” in this part of the table.
m.In accordance with Section R301.2.1.2 the jurisdiction shall indicate the wind-borne debris wind zone(s). Otherwise, the jurisdiction shall indicate “NO” in this part of the table.
n. The jurisdiction shall fill in these sections of the table to establish the design criteria using Table 1a or 1b from ACCA Manual J or established criteria determined by the jurisdiction.
o. The jurisdiction shall fill in this section of the table using the Ground Snow Loads in Figures R301.2(3) and R301.2(4).
p. Flood Hazard Data for the City of Berkeley:

Date of Jurisdiction’s Entry into the NFIP: December 7, 1973; Date of adoption of the first code or ordinance for management of flood hazards:

Ordinance No. 5085-N.S., July 25, 1978;
Date of Flood Insurance study: Aug 3, 2009;
Panel numbers and dates of all currently effective maps adopted by the AHJ (Ordinance 7108-NS 9/29/09):
 FEMA’s “Use of Digital Flood Hazard Data” establishes that paper and digital maps are equivalent. Policy and related information are available from FEMA.

The policy implements section 107 of Public Law 108-264, 118 Stat. 724 (2004)  Panel 13 (not available in printed form)
 Panel 14 of 725, Map Number 06001C0014G, August 3, 2009  Panel 18 of 725, Map Number 06001C0018G, August 3, 2009  Panel 19 of 725, Map Number 06001C0019G, August 3, 2009

 Panel 38 (not available in printed form)
 Panel 51 (not available in printed form)
 Panel 52 of 725, Map Number 06001C0052G, August 3, 2009  Panel 53 (not available in printed form)
 Panel 54 of 725, Map Number 06001C0054G, August 3, 2009  Panel 56 of 725, Map Number 06001C0056G, August 3, 2009  Panel 57 of 725, Map Number 06001C0057G, August 3, 2009  Panel 80 of 725, Map Number 06001C0080G, August 3, 2009

19.29.050 CRC Section R337 Materials and Construction Methods for Exterior Wildlife Exposure.

Chapter 3 of the 2022 California Residential Code with Mid-Cycle Supplement is adopted in its entirety subject to the modifications thereto which are set forth below.

R337.1 – SCOPE, PURPOSE AND APPLICATION
R337.1.1 Scope. Section R337 and all subsections apply to building materials, systems and/or assemblies used in the exterior design and construction of new buildings and structures, additions, alterations, repairs and re-roofs located within a Wildland-Urban Interface (WUI) area as defined in Section R337.2.

R337.1.2 Purpose. The purpose of Section R337 is to establish minimum standards for the protection of life and property by increasing the ability of a building or structure located in any Fire Hazard Severity Zone within State Responsibility Area (SRA) or Local Responsibility Area (LRA) or any building or structure in the Wildland-Urban Interface (WUI) area as specified in Section R337.1.3.1 to resist the intrusion of flame or burning embers projected by a vegetation fire and contributes to a systematic reduction in conflagration losses.

R337.1.3 Application. New buildings and structures, additions, alterations, repairs and re-roofs located in any Fire Hazard Severity Zone or any new buildings and structures, additions, alterations, repairs and re-roofs located in Wildland-Urban Interface (WUI) area designated by the enforcing agency constructed after the application date shall comply with the provisions of this section. This shall include all new buildings and structures with residential, commercial, educational, institutional or similar occupancy type use, which shall be referred to in this section as “applicable building” (see definition in Section R337.2), as well as new buildings and structures accessory to those applicable buildings (see Exceptions 1 and 4).

Exceptions:

1. Group U occupancy accessory buildings or structures of any size located at least 50 feet (15 m) from an applicable building on the same lot.