Agenda packet — Brisbane City Council, July 7, 2022 (part 1 of 2)

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CITYof BRISBANE
Thursday, July 7, 2022 at 7:30 PM ● Virtual Meeting
This meeting is compliant with the Ralph M. Brown act as amended by California Assembly Bill No. 361 effective September 16, 2021 providing for a public health emergency exception to the standard teleconference rules required by the Brown Act. The purpose of this is to provide a safe environment for the public, staff and Councilmembers, while allowing for public participation. The public may address the Council using exclusively remote public comment options. The Council may take action on any item listed in the agenda.

PUBLIC MEETING VIDEOS
Members of the public may view the City Council Meeting by logging into the Zoom Webinar listed below.

City Council Meetings can also be viewed live and/or on-demand via the City’s YouTube Channel, www.youtube.com/brisbaneca, or on Comcast Channel 27. Archived videos can be replayed on the City’s website, http://brisbaneca.org/meetings .

TO ADDRESS THE COUNCIL
The City Council Meeting will be an exclusively virtual meeting. The agenda materials may be viewed online at www.brisbaneca.org at least 24 hours prior to a Special Meeting, and at least 72 hours prior to a Regular Meeting.

Remote Public Comments:

Meeting participants are encouraged to submit public comments in writing in advance of the meeting. Aside from commenting while in the Zoom webinar the following email and text line will be also monitored during the meeting and public comments received will be noted for the record during Oral Communications 1 and 2 or during an Item.

Email: [email protected]
Text: 628-219-2922
Join Zoom Webinar: zoom.us (please use the latest version: zoom.us/download) brisbaneca.org/cc-zoom
Webinar ID: 991 9362 8666
Passcode: 123456
Call In Number: 1 (669) 900 9128

SPECIAL ASSISTANCE
If you need special assistance to participate in this meeting, please contact the City Clerk at (415) 508-2113.

Notification in advance of the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

WRITINGS THAT ARE RECEIVED AFTER THE AGENDA HAS BEEN POSTED Any writings that are received after the agenda has been posted but before 2 p.m. of the day of the meeting will be available for public inspection at the front lobby in City Hall and on the internet (www.brisbaneca.org/meetings). Any writings that are received after the agenda has been posted but after 2 p.m. of the day of the meeting will be available on the internet at the start of the meeting (www.brisbaneca.org/meetings), at which time the materials will be distributed to the Council.

City Council Meeting Agenda
1 July 7, 2022 - 2 - 7:30 PM
7:30 P.M. CALL TO ORDER – PLEDGE OF ALLEGIANCE

ROLL CALL

ADOPTION OF AGENDA
ORAL COMMUNICATIONS NO. 1

AWARDS AND PRESENTATIONS
A. Proclamation Recognizing July as Parks and Recreation Month

CONSENT CALENDAR
B. Accept Investment Report as of April 2022
C. Adopt Resolutions to Appoint Committee Members of the Inclusion, Diversity, Equity, and Accountability Committee, and the Complete Streets Safety Committee D. Adoption of a Resolution Declaring the Continued Need to Conduct City Council, Commission and Committee Meetings Remotely Due to Health and Safety Concerns for the Public
E. Adopt Resolution Establishing the Business License Tax for Liquid Storage Facilities for 2022 as to Kinder Morgan/SFPP
F. Adoption of a Revised Conflict of Interest Code to Include the Assistant City Manager, the Communications Manager, and the Assistant Fire Marshal and Deleting Park and Recreation Commission
G. Adoption of Ordinance to Impose a Business License Tax on Hotels and Resolution Amending the Ballot Question for the Measure/Ordinance to be Submitted to the Voters Imposing a Business License Tax on Hotels
H. Adopt an Ordinance Adding a New Chapter 3.22 to the Brisbane Municipal Code Imposing a Transactions and Use Tax to be Administered by the California Department of Tax and Fee Administration and Resolution Amending the Ballot Question for the Ordinance to be Submitted to the Voters levying a half cent Transaction and Use Tax

AWARDS AND PRESENTATIONS CONTINUED
I. Administer Oath of Office to Newly Appointed Committee Members 2 July 7, 2022 - 3 - 7:30 PM

1. Gregory J. Strecker, Complete Streets Safety Committee for a term through January 2026

2. Christian Allan Bustos, Inclusion, Diversity, Equity and Accountability Committee for an initial term through January 2023

3. Miyoko Nida, Inclusion, Diversity, Equity and Accountability Committee for an initial term through January 2023

PUBLIC HEARING
J. Consideration of Entering into Energy Service Contract Pursuant to the Provisions of the California Government Code Section 4217.10, Et Seq. for the City of Brisbane Community Pool Electrification Project
K. Sierra Point Landscaping and Lighting District

1. Hear Statement of Engineer of Record, Read Mayor’s Statement, Hear City Clerk Statement, Open Public Hearing to hear any testimony, Close Public Hearing

2. Consider adoption of Resolution overruling protests and ordering the improvements and confirming the diagram and assessments for Fiscal Year 22/23 L. City of Brisbane Local Stormwater Program Fees

1. Open the Public Hearing and take public comment. Close the Public Hearing, and if appropriate, overrule any objections to the imposition of fees related to the National Pollutant Discharge Elimination System (NPDES)

2. Consider adoption Resolution, “A Resolution of the City Council of the City of Brisbane Imposing Charges for Funding the Local Brisbane Stormwater Program, Authorizing Placement of Said Charges on the 2022-2023 County Tax Roll, and Authorizing the County Tax Collector to Collect Such Charges.”

CONTINUED PUBLIC HEARING
M. Applicant Appeal of the Planning Commission’s April 4, 2022 Decision Denying the Modification of Interim Use Permit 2021-UP-3 to Allow the Use of a Vacant Site On the Baylands To Be Used For a Google Bus Staging Yard
(This public hearing item was continued from the City Council Meeting of May 19, 2022.

City Council will consider applicant appeal of the Planning Commission’s April 4, 2022 decision denying the modification of Interim Use Permit 2021-Up-3 to allow the use of a 3 July 7, 2022 - 4 - 7:30 PM
vacant site on the Baylands to be used for a Google Bus staging yard (Planning Commission Resolution 2021-UP-3-M) and revoking Interim Use Permit 2021-UP-3 (Planning Commission Resolution 2021-UP-3-R); Eric Aronsohn, applicant; Oyster Point Properties Inc, applicant/owner.)

NEW BUSINESS
N. Authorize the City Manager to Enter into an Agreement with Flock Safety Group for the installation of Automated License Plate Readers within the City of Brisbane (If approved, the agreement with Flock Safety Group will be in the amount of $39,700 for FY 2022-2023. The funding this year and moving forward will be funded from the Police Department’s budget.)

STAFF REPORTS
O. City Manager’s Report on Upcoming Activities

MAYOR/COUNCIL MATTERS
P. Countywide Assignments and Subcommittee Reports
Q. Written Communications
ORAL COMMUNICATIONS NO. 2

ADJOURNMENT
4 File Attachments for Item:

B. Accept Investment Report as of April 2022
5 B.

FACE CARRY MARKET COUPON

INVESTMENT DATE OF VALUE OF VALUE OF VALUE OF INTEREST MATURITY RATING/ NAME OF DEPOSITORY TYPE INVESTMENT INVESTMENT INVESTMENT INVESTMENT RATE % DATE COLLATERAL WELLS FARGO Checking A/C $ 4,653,128 $ 4,653,128 $ 4,653,128 0.000 STATE FUND (LAIF) Deposit on call continuous $ 18,895,436 $ 18,895,436 $ 18,895,436 0.530 on call no rating Other Investments
Sallie Mae Bank 5/9/2019 $ 245,000 $ 245,000 $ 245,123 2.550 05/09/2022 Morgan Stanley 6/6/2019 $ 245,000 $ 245,000 $ 245,468 2.550 06/06/2022 Comenity Capital Bank 4/28/2019 $ 248,000 $ 248,000 $ 248,356 2.650 04/28/2023 Morgan Stanley 5/2/2019 $ 245,000 $ 245,000 $ 245,051 2.650 05/02/2023 FFCB 3/8/2022 $ 1,000,000 $ 1,000,000 $ 982,920 1.670 03/08/2024 FHLB 4/22/2022 $ 1,000,000 $ 1,000,000 $ 994,360 2.400 04/22/2024 Goldman Sachs 5/1/2019 $ 246,000 $ 246,000 $ 244,702 2.750 05/01/2024 FHLB 12/31/2021 $ 1,000,000 $ 1,000,000 $ 962,730 1.000 09/30/2024 FHLB 3/24/2022 $ 1,000,000 $ 1,000,000 $ 979,700 2.000 03/24/2025 FHLB 4/22/2022 $ 1,000,000 $ 1,000,000 $ 992,390 2.750 04/22/2025 FHLB 12/31/2021 $ 1,000,000 $ 1,000,000 $ 951,670 1.300 09/30/2025 FHLB 3/25/2022 $ 1,000,000 $ 1,000,000 $ 973,990 2.600 03/25/2027 BNY Mellon Treasury Obligations continuous $ 1,428,158 $ 1,428,158 $ 1,428,158 0.210 on call 110% collateral Sub-total $ 9,657,158 $ 9,657,158 $ 9,494,619
U.S. Bank 2014 BGPGA Bond (330) Improvements Fed Treas Obl $ - 10031 Reserve Fund Fed Treas Obl $ 1 10032
Revenue Fund Fed Treas Obl $ - 10034
Expense Fund Fed Treas Obl $ - 10035
Principal Fed Treas Obl $ 1 10036
Interest Fund Fed Treas Obl $ 0 10037
U.S. Bank 2015 Utility Capital (545) Improvements Fed Treas Obl $ 0 10031 Reserve Fed Treas Obl $ 1 10032
Expense Fund Fed Treas Obl $ 0 10035
PARS OPEB Trust Trust Cash Investments $ 3,681,218 13050 PARS Retirement Trust Trust Cash Investments $ 1,288,882 13050 Sub-total Cash with Fiscal Agents $ 4,970,102
Total other investments $ 9,657,158 $ 14,627,260 $ 9,494,619 TOTAL INVESTMENTS & CASH BALANCES $ 33,205,723 $ 38,175,825 $ 33,043,184 Outstanding Loans to Department Heads
Date of loan Amount Amount Remaining Interest Rate
Stuart Schillinger 4/1/2002 318,750 $ 318,750 Based on Sales Price Clay Holstine (1) 7/8/2008 300,000 $ - Paid off 12/28/2016 Clay Holstine (2) 9/10/2008 200,000 $ 200,000 Secured by other funds Randy Breault 10/22/2001 320,000 $ 5,376 1.20%
FFCB - Federal Farm Credit Bank
FHLB - Federal Home Loan Bank
FHLM - Federal Home Loan Mortage Corporation
FNMA -Federal National Mortgage Association
Two year Treasury 2.70%
Weighted Interest 0.82%
Weighted maturity 0.71 Years

TREASURER'S CERTIFICATE
These are all the securities in which the city funds, including all trust funds and oversight agencies funds, are invested and that (excluding approved deferred compensation plans) all these investments are in securities as permitted by adopted city policy.

It is also certified that enough liquid resources (including maturities and anticipated revenues) are available to meet the next six months' cash flow.

Carolina Yuen

CITY TREASURER

CITY OF BRISBANE

CASH BALANCES & INVESTMENTS

SOURCE OF FUNDING
April 30, 2022
6 B.

File Attachments for Item:

C. Adopt Resolutions to Appoint Committee Members of the Inclusion, Diversity, Equity, and Accountability Committee, and the Complete Streets Safety Committee 7 C.

CITY COUNCIL AGENDA REPORT
Meeting Date: June 7, 2022
From: Ingrid Padilla, City Clerk
Subject: Adopt Resolutions Appointing Members to the Complete Streets Safety Committee, and the Inclusion, Diversity, Equity and Accountability Committee

COMMUNITY GOAL/RESULT
Community Building

RECOMMENDATION
Adopt Resolutions Appointing Members to the Complete Streets Safety Committee, and the Inclusion, Diversity, Equity and Accountability Committee.

BACKGROUND
Resolutions were drafted to reflect the Council’s direction given to the City Clerk at the City Council Special Meetings of June 23, 2022 which is to appoint the following community members to the following Committees for various lengths of terms:
• Gregory J. Strecker, Complete Streets Safety Committee for a term through January 2026 • Christian Allan Bustos, Inclusion, Diversity, Equity and Accountability Committee for an initial term through January 2023
• Miyoko Nida, Inclusion, Diversity, Equity and Accountability Committee for an initial term through January 2023

DISCUSSION
Resolutions are on this agenda for consideration of adoption.

FISCAL IMPACT
None.

ATTACHMENTS
Resolutions

________________________________ _____________________________ Ingrid Padilla, City Clerk Clayton Holstine, City Manager 8 C.

Attachment 1
RESOLUTION NO. 2022-XX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE MAKING AN APPOINTMENT TO

A VACANT POSITION ON THE COMPLETE STREETS SAFETY COMMITTEE RESOLVED by the City Council of the City of Brisbane that the following citizen is hereby appointed as a Member of the Brisbane Complete Streets Safety Committee for the appointment period July 7, 2022 through January 31, 2026 until their successor is qualified and appointed.

Gregory J. Strecker
Coleen Mackin, Mayor
* * *
ADOPTED at a City Council Meeting held on July 7, 2022, by the City of Brisbane City Council by the following vote:

Ayes:

Noes:

Absent:

Abstain:

ATTEST:

Ingrid Padilla, City Clerk
APPROVED AS TO FORM:

Thomas McMorrow, City Attorney
9 C.

RESOLUTION NO. 2022-XX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE MAKING AN APPOINTMENT TO

A VACANT POSITION ON THE INCLUSION, DIVERSITY, EQUITY AND ACCOUNTABILITY

COMMITTEE
RESOLVED by the City Council of the City of Brisbane that the following citizen is hereby appointed as a Member of the Brisbane Inclusion, Diversity, Equity and Accountability Committee for the initial appointment period July 7, 2022 through January 31, 2023 with an option to request to renew for an additional 2 year term until their successor is qualified and appointed.

Christian Allan Bustos
Coleen Mackin, Mayor
* * *
ADOPTED at a City Council Meeting held on July 7, 2022, by the City of Brisbane City Council by the following vote:

Ayes:

Noes:

Absent:

Abstain:

ATTEST:

Ingrid Padilla, City Clerk
APPROVED AS TO FORM:

Thomas McMorrow, City Attorney
10 C.

RESOLUTION NO. 2022-XX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE MAKING AN APPOINTMENT TO

A VACANT POSITION ON THE INCLUSION, DIVERSITY, EQUITY AND ACCOUNTABILITY

Miyoko Nida
Coleen Mackin, Mayor
* * *
ADOPTED at a City Council Meeting held on July 7, 2022, by the City of Brisbane City Council by the following vote:

Ayes:

Noes:

Absent:

Abstain:

ATTEST:

Ingrid Padilla, City Clerk
APPROVED AS TO FORM:

Thomas McMorrow, City Attorney
11 C.

File Attachments for Item:

D. Adoption of a Resolution Declaring the Continued Need to Conduct City Council, Commission and Committee Meetings Remotely Due to Health and Safety Concerns for the Public 12 D.

Remote Public Meetings Page 1 of 3

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Clay Holstine, City Manager
Subject: Adoption of a Resolution Declaring the Continued Need to Conduct City Council, Commission and Committee Meetings Remotely Due to Health and Safety Concerns for the Public

COMMUNITY GOAL RESULTS
Safe Community
Ensuring Public Meetings Remain Open to the Public

RECOMMENDATION
Staff recommends that the City Council adopt a resolution declaring the need to continue conducting the meetings of the City Council, Commissions, and Committees remotely due to health and safety concerns.

BACKGROUND
In 2020 and 2021, the Governor signed various Executive Orders that allowed meetings of public agencies to be conducted remotely due to the COVID-19 pandemic and the need to protect the public and governmental officials. In additional, County Health Officers issued Health Orders requiring masks indoors in public places, regardless of vaccination status and that social distancing be observed. As a result, the City has been conducting its public meetings via zoom, thereby ensuring the right of the public to participate in public meetings but keeping the public, City Council, Committees, and Commissions, and City staff safe. There have been no cancelled meetings due to technical or related difficulties arising out of conducting meetings remotely. 13 D.

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Notwithstanding the availability of a vaccine and boosters, and the reduction of COVID related cases in the Bay Area and the State, COVID-19 variants (Delta and Omicron) have continued to spread and infect individuals. To address the need to continue to allow public agencies to conduct meetings remotely, in September 2021, AB 361 was enacted. AB 361 amends the Brown Act to permit local legislative bodies to continue to meet remotely until January 1, 2024 provided:
• The local legislative body is meeting during a declared state of emergency • State or local health officials have imposed or recommended measures to promote social distancing
• The local legislative body has determined that there is a need to hold public meetings remotely due to imminent risks to the health or safety of attendees
In September, October and November 2021, and in January, February, March, April, May, and June 2022, the City Council found that the City met the requirements of AB 361, namely, the declared state of emergency proclaimed by the state (as well as one by the City) remained in place; state and local health officials continued to recommend that residents observe social distancing and take other protective measures, including requiring masks to be worn on public transportation and recommending masks be work in confined spaces open to the public; and the City determined that there was a need to hold public meetings remotely due to imminent risks to the health and safety of attendees. The Council therefore adopted Resolutions directing that the City continue to conduct public meetings normally scheduled for City Hall via Zoom to protect the health and safety of the public.

The Brown Act as amended by AB 361 requires that every 30 days the City Council review its decision not to hold in-person public meetings at City Hall and to specifically determine whether holding remote and/or hybrid public meetings continues to meet the requirements of the Brown Act as amended.

City Council last made the necessary findings on June 16, 2022, but after its meeting on July 7, it will not meet again until September. Commissions and Committees, however, will continue to meet during July. Hence, this item is being placed on the Council’s July 7, 2022 agenda for consideration.
14 D.

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DISCUSSION
The state of emergency issued by the Governor remains in place. San Mateo County’s Health Officials have provided guidance to prevent the spread of COVID and keep people safe and have incorporated the Center for Disease Control’s recommendations in that regard, e.g., social distancing is recommended for indoor public meetings where unvaccinated individuals may be present, especially for those who are at a higher risk of getting very sick from COVID. In addition, persons with health conditions may want to attend City Council meetings but would put themselves at risk of getting very sick if they had to attend in person. Therefore, the requirements to allow public meetings to be conducted remotely continue: there is a declared state of emergency; health officials have imposed measures to prevent the spread of the virus and to promote social distancing; and there continues to be a need to hold public meetings remotely due to imminent risks to the health and safety if Council meetings were not conducted remotely.

ACTION
Staff recommends that the City Council adopt the attached Resolution making the findings required under AB 361, to require the public meetings of the City Council, Commissions and Committees normally scheduled for City Hall through August 6, 2022 be held remotely or in a hybrid fashion to protect the health and safety of the public.

FISCAL IMPACT
There is no fiscal impact.

Attachment: 1. Resolution 2022-XX

Clay Holstine, City Manager
15 D.

RESOLUTION NO. 2022-XX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

DECLARING THE NEED FOR THE CITY COUNCIL, COMMISSIONS

AND COMMITTEES TO CONTINUE TO MEET REMOTELY IN ORDER

TO ENSURE THE HEALTH AND SAFETY OF THE PUBLIC
WHEREAS, on March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of COVID-19; and
WHEREAS, on March 19, 2020, the City Council ratified and confirmed the Director of Emergency Service’s proclamation of a local emergency which allowed staff to expeditiously respond to the emergency circumstances caused by the pandemic; and WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M.

Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, as a result of Executive Order N-29-20, staff set up Zoom meetings for all City Council, Committee and Commission meetings; and WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which placed an end date of September 30, 2021, for agencies to meet remotely; and WHEREAS, since issuing Executive Order N-08-21, the Delta and Omicron variant has emerged,causing a spike in COVID-19 cases throughout the state; and WHEREAS, in 2021, in response to the Delta and Omicron variant, the San Mateo County Health Department ordered all individuals to wear masks when inside public spaces and maintain social distancing; and
WHEREAS, on September 16, 2021, Governor Newsom signed Assembly Bill 361 into law, amending the Brown Act to permit local legislative bodies, including the City Council, to meet remotely provided it is meeting during a declared state of emergency, state or local officials have imposed or recommended measures to promote social distancing, and the Council believes there is a need to meet remotely to protect against imminent risks to the health and safety of potential public attendees; and WHEREAS, cases involving COVID 19, including the Delta and Omicron variant continue to exist, the City Council is concerned about and desire to protect the health and safety of individuals who might otherwise attend Council, Committee and Commission meetings;
WHEREAS, the City Council of the City of Brisbane adopted Resolutions in 2021 and in 16 D.

January, February, March, April, May, and June 2022 declaring the need for the City Council, Committees, and Commissions to continue to meet remotely in order to ensure the health and safety of the public; and
WHEREAS, the City Council does hereby find that the above described conditions of serious threat to the public health, safety, and welfare continue at this time; and

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BRISBANE RESOLVES AS FOLLOWS:

1. In compliance with AB 361, the City Council has reviewed and makes the followingfindings:
a. The State, San Mateo County and the City have each proclaimed a state of emergency due to the Coronavirus pandemic;
b. San Mateo County has issued a public health order requiring that individuals in many public spaces wear masks and socially distance and recommending that individuals in enclosed public spaces wear masks, but the City cannot maintain social distancing for the public, staff, councilmembers, commissioners, and committee members in its meeting spaces; and c. The City Council has considered these circumstances and concludes that the City Council, City Commissions and City Committees must meet remotely due to imminent risks to the health and safety of attendees if the Council, Commissions or Committees were to meet in City facilities.

2. Based on the foregoing, the City Council declares that to protect the safety and health of the public, City Council, Commissions and Committees, meetings will continue to be conducted remotely for the next 30 days in compliance with AB 361.

3. The City Council will revisit the need to conduct public meetings remotely as soon as possible after August 6, 2022.

Coleen Mackin, Mayor
17 D.

PASSED, APPROVED AND ADOPTED by the Brisbane City Council at a regular meeting on July 7, 2022.

I hereby certify that the foregoing resolution was adopted by the City Council at a regular meeting held on July 7, 2022 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Ingrid Padilla, City Clerk
Approved as to form:

Thomas McMorrow, City Attorney
18 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
1 ENROLLED SEPTEMBER 15, 2021
PASSED IN SENATE SEPTEMBER 10, 2021
PASSED IN ASSEMBLY SEPTEMBER 10, 2021
AMENDED IN SENATE SEPTEMBER 03, 2021
AMENDED IN SENATE AUGUST 30, 2021
AMENDED IN SENATE JULY 06, 2021
AMENDED IN ASSEMBLY MAY 10, 2021
AMENDED IN ASSEMBLY APRIL 06, 2021
CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

ASSEMBLY BILL
NO. 361
Introduced by Assembly Member Robert Rivas
February 01, 2021
An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately. 19 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
2 LEGISLATIVE COUNSEL'S DIGEST
AB 361, Robert Rivas. Open meetings: state and local agencies: teleconferences. (1) Existing law, the Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act contains specified provisions regarding the timelines for posting an agenda and providing for the ability of the public to directly address the legislative body on any item of interest to the public. The act generally requires all regular and special meetings of the legislative body be held within the boundaries of the territory over which the local agency exercises jurisdiction, subject to certain exceptions. The act allows for meetings to occur via teleconferencing subject to certain requirements, particularly that the legislative body notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, that members of the public be allowed to address the legislative body at each teleconference location, that the legislative body post an agenda at each teleconference location, and that at least a quorum of the legislative body participate from locations within the boundaries of the local agency’s jurisdiction. The act provides an exemption to the jurisdictional requirement for health authorities, as defined. The act authorizes the district attorney or any interested person, subject to certain provisions, to commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that specified actions taken by a legislative body are null and void.

Existing law, the California Emergency Services Act, authorizes the Governor, or the Director of Emergency Services when the governor is inaccessible, to proclaim a state of emergency under specified circumstances.

Executive Order No. N-29-20 suspends the Ralph M. Brown Act’s requirements for teleconferencing during the COVID-19 pandemic provided that notice and accessibility requirements are met, the public members are allowed to observe and address the legislative body at the meeting, and that a legislative body of a local agency has a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, as specified.

This bill, until January 1, 2024, would authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risksto the health orsafety of attendees, as provided.
20 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
3 This bill would require legislative bodies that hold teleconferenced meetings under these abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to accessthe meeting and addressthe legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body. The bill would require the legislative body to take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored. The bill would specify that actions taken during the disruption are subject to challenge proceedings, as specified.

This bill would prohibit the legislative body from requiring public comments to be submitted in advance of the meeting and would specify that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time. The bill would prohibit the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified. When there is a continuing state of emergency, or when state or local officials have imposed or recommended measuresto promote social distancing, the bill would require a legislative body to make specified findings not later than 30 days after the first teleconferenced meeting pursuant to these provisions, and to make those findings every 30 days thereafter, in order to continue to meet under these abbreviated teleconferencing procedures.

Existing law prohibits a legislative body from requiring, as a condition to attend a meeting, a person to register the person’s name, or to provide other information, or to fulfill any condition precedent to the person’s attendance.

This bill would exclude from that prohibition, a registration requirement imposed by a third-party internet website or other online platform not under the control of the legislative body. (2) Existing law, the Bagley-Keene Open Meeting Act, requires, with specified exceptions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body. The act requires at least one member of the state body to be physically present at the location specified in the notice of the meeting.

The Governor’s Executive Order No. N-29-20 suspends the requirements of the Bagley-Keene Open Meeting Act for teleconferencing during the COVID-19 pandemic, provided that notice and accessibility requirements are met, the public members are allowed to observe and address the state body at the meeting, and that a state body has a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, as specified.

This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a state body to hold public meetings through teleconferencing and to make public meetings accessible telephonically, or otherwise electronically, to all members of the public 21 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
4 seeking to observe and to address the state body. With respect to a state body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the state body at each teleconference location.

Under the bill, a state body that holds a meeting through teleconferencing and allows members of the public to observe and addressthe meeting telephonically or otherwise electronically would satisfy any requirement that the state body allow members of the public to attend the meeting and offer public comment. The bill would require that each state body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge state bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(3) Existing law establishes the various campuses of the California State University under the administration of the Trustees of the California State University, and authorizes the establishment of student body organizationsin connection with the operations of California State University campuses.

The Gloria Romero Open Meetings Act of 2000 generally requires a legislative body, as defined, of a student body organization to conduct its business in a meeting that is open and public. The act authorizes the legislative body to use teleconferencing, as defined, for the benefit of the public and the legislative body in connection with any meeting or proceeding authorized by law.

This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a legislative body, as defined for purposes of the act, to hold public meetings through teleconferencing and to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to addressthe legislative body.

With respect to a legislative body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the legislative body at each teleconference location. Under the bill, a legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. The bill would require that each legislative body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge legislative bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(4) This bill would declare the Legislature’sintent, consistent with the Governor’s Executive Order No. N-29-20, to improve and enhance public accessto state and local agency meetings during the COVID-19 pandemic and future emergencies by allowing broader access through teleconferencing options.
22 D.

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5 (5) This bill would incorporate additional changes to Section 54953 of the Government Code proposed by AB 339 to be operative only if this bill and AB 339 are enacted and this bill is enacted last.
(6) The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect. (7) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect. (8) This bill would declare that it is to take effect immediately as an urgency statute.

DIGEST KEY
Vote: 2/3 Appropriation: no Fiscal Committee: yes Local Program: no

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

SECTION 1.

Section 89305.6 is added to the Education Code, to read:
89305.6.
(a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a legislative body may hold public meetings through teleconferencing and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body. (b) (1) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the legislative body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding. (B) Each teleconference location be accessible to the public. 23 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
6 (C) Members of the public may address the legislative body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the legislative body be physically present at the location specified in the notice of the meeting.
(c) A legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. A legislative body need not make available any physical location from which members of the public may observe the meeting and offer public comment. (d) If a legislative body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the legislative body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each legislative body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a legislative body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
7 (f) All legislative bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to legislative body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.

SEC. 2.

Section 11133 is added to the Government Code, to read:
11133.
(a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a state body may hold public meetings through teleconferencing and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body. (b) (1) For a state body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the state body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a state body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding. (B) Each teleconference location be accessible to the public. (C) Members of the public may address the state body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the state body be physically present at the location specified in the notice of the meeting.
(c) A state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the state body allow members of the public to attend the meeting and offer public comment. A state body need not make available any physical location from which members of the public may observe the meeting and offer public comment. (d) If a state body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the state body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal 25 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
8 Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each state body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a state body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time.

Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the state body’s internet website.
(f) Allstate bodies utilizing the teleconferencing proceduresin thissection are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to state body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.

SEC. 3.

REMOTE PUBLIC MEETINGS_ATTACHMENT 3
9 (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public.

During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to addressthe legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final. (2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action. (3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority membersfrom regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
27 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
10 (3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members. (e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing. (B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency.
(D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the 28 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
11 meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to addressthe legislative body and offer comment in real time. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period forthe agenda item, orthe opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment.
(iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed.
(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency. (B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2). 29 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
12 (f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 3.1.

Section 54953 of the Government Code is amended to read:
54953.
(a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency in person, except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations. (b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding. (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
13 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority membersfrom regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members. (e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing. (B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
31 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
14 (B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency.
(D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to addressthe legislative body and offer comment in real time. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period forthe agenda item, orthe opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment.
(iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the 32 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
15 opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed.
(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency. (B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2). (f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 4.

Section 54953 is added to the Government Code, to read:
54953.
(a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding. (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public.

During the teleconference, at least a quorum of the members of the legislative body shall 33 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
16 participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to addressthe legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final. (2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action. (3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority membersfrom regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members. (e) This section shall become operative January 1, 2024. 34 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
17 SEC. 4.1.

Section 54953 is added to the Government Code, to read:
54953.
(a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, in person except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations. (b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding. (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
18 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority membersfrom regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members. (e) This section shall become operative January 1, 2024.

SEC. 5.

Sections 3.1 and 4.1 of this bill incorporate amendments to Section 54953 of the Government Code proposed by both this bill and Assembly Bill 339. Those sections of this billshall only become operative if (1) both bills are enacted and become effective on or before January 1, 2022, but this bill becomes operative first, (2) each bill amends Section 54953 of the Government Code, and (3) this bill is enacted after Assembly Bill 339, in which case Section 54953 of the Government Code, as amended by Sections 3 and 4 of this bill, shall remain operative only until the operative date of Assembly Bill 339, at which time Sections 3.1 and 4.1 of this bill shall become operative.

SEC. 6.

It is the intent of the Legislature in enacting this act to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future applicable emergencies, by allowing broader access through teleconferencing options consistent with the Governor’s Executive Order No. N-29-20 dated March 17, 2020, permitting expanded use of teleconferencing during the COVID-19 pandemic.

SEC. 7.

The Legislature finds and declares that Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, further, within the meaning of paragraph (7) of 36 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
19 subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

This act is necessary to ensure minimum standards for public participation and notice requirements allowing for greater public participation in teleconference meetings during applicable emergencies.

SEC. 8.
(a) The Legislature finds and declaresthat during the COVID-19 public health emergency, certain requirements of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) were suspended by Executive Order N-29-20. Audio and video teleconference were widely used to conduct public meetings in lieu of physical location meetings, and public meetings conducted by teleconference during the COVID-19 public health emergency have been productive, have increased public participation by all members of the public regardless of their location in the state and ability to travel to physical meeting locations, have protected the health and safety of civil servants and the public, and have reduced travel costs incurred by members ofstate bodies and reduced work hours spent traveling to and from meetings.
(b) The Legislature finds and declares that Section 1 of this act, which adds and repeals Section 89305.6 of the Education Code, Section 2 of this act, which adds and repeals Section 11133 of the Government Code, and Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, all increase and potentially limit the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
(1) By removing the requirement that public meetings be conducted at a primary physical location with a quorum of members present, this act protects the health and safety of civil servants and the public and does not preference the experience of members of the public who might be able to attend a meeting in a physical location over members of the public who cannot travel or attend that meeting in a physical location.
(2) By removing the requirement for agendas to be placed at the location of each public official participating in a public meeting remotely, including from the member’s private home or hotel room, this act protectsthe personal, private information of public officials and their families while preserving the public’s right to access information concerning the conduct of the people’s business.
37 D.

REMOTE PUBLIC MEETINGS_ATTACHMENT 1
20 SEC. 9.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to ensure that state and local agencies can continue holding public meetings while providing essential services like water, power, and fire protection to their constituents during public health, wildfire, or other states of emergencies, it is necessary that this act take effect immediately.
38 D.

File Attachments for Item:

E. Adopt Resolution Establishing the Business License Tax for Liquid Storage Facilities for 2022 as to Kinder Morgan/SFPP
39 E.

Resolution Establishing 2022 Liquid Storage Business License Tax Page 1 of 3

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Carolina Yuen
Subject: Resolution Establishing the 2022 Business License Tax for Liquid Storage Facilities as to Kinder Morgan/SFPP
Community Goal/Result
Economic Development – Brisbane will work with the businesses and residents to provide for economic vitality/diversity
Fiscally Prudent - Brisbane's fiscal vitality will reflect sound decisions which also speak to the values of the community
Purpose
To establish for calendar year 2022 the amount of the business license tax charged to Kinder Morgan/SFPP for its liquid storage facilities in Brisbane under Section 5.20.011 of the Brisbane Municipal Code. The City receives revenues from diverse sources in order to provide the necessary high-quality services the community expects.

Recommendation
Adopt the attached resolution imposing a business license tax in the amount of $324,327 as to Kinder Morgan/SFPP for calendar year 2022.

Background
At the general election in November 2013, Brisbane voters approved an annual business license tax on persons engaged in the business of operating, leasing, supplying or providing a liquid storage facility in the City of Brisbane. The ballot measure added Section 5.20.011 to the Brisbane Municipal Code, allowing the City to impose up to a maximum business license tax of $115.28 per year for each 1000 cubic feet of liquid storage capacity.

In 2014 and 2015, the City Council imposed by resolution a business license tax of $38.91 for each 1000 cubic feet of storage capacity. In 2016 and 2017, the Council imposed by resolution a business license tax of $115.28 for each 1000 cubic feet of storage capacity. As to Kinder Morgan/SFPP, LP, the owner of the only liquid storage facility currently in Brisbane, this rate translated to a tax of:
$135,000 in 2014 $135,000 in 2015
$400,000 in 2016 $400,000 in 2017
The company paid the for 2014, 2015, and 2016 under protest. The company did not pay the license tax for 2017 but filed a civil suit against the City in the San Mateo County Superior Court seeking reimbursement for the taxes paid in 2014, 2015, and 2016. 40 E.

Resolution Establishing 2022 Liquid Storage Business License Tax Page 2 of 3 The litigation was settled in 2017. Under the terms of the settlement agreement, the City and Kinder Morgan/SFPP agreed that for 2017, the liquid fuel storage tax rate would be set by the Brisbane City Council at an amount that is equivalent to 3.5 cents per barrel of liquid fuel transported through the Brisbane Terminal for delivery at the terminal (“over the rack”), that for 2018, the tax rate would be equivalent to 4 and 1/3 cents per barrel and for 2019, the tax rate would be 5 and 1/3 centers per barrel. Accordingly, based on the number of barrels “over the rack,” Kinder Morgan/SFPP paid:
$261,093 for 2017 $323,332 for 2018 $356,458 for 2019
The settlement agreement also provided that at the November 2019 municipal election, Council would place before the voters a revision to the then current business license tax concerning liquid storage facilities that would provide that the tax rate will be up to 6 cents per barrel, with the exact rate to be determined annually by the Council. If the voters so approve, that liquid storage tax formula would then be applied for subsequent years, but in no event would the tax be greater than $400,000. The voters approved the revision to the business license tax as described.

Since 2020, the City was able to collect based on the revised rate. Kinder Morgan/SFPP reported the number of over the rack barrels and accordingly paid as follows:
2020 – $400,000 maximum allowed based on 8,326,342 barrels from 2019 2021 – $288,586 based on 4,809,771 barrels from 2020
Discussion
Kinder Morgan/SFPP has provided the City with its bill of lading (“BOL”) reports for 2021. These show that in 2021 there were 5,405,448 barrels “over the rack.” This number is more than the previous year reflecting a recovery from the pandemic year as anticipated, but not yet to prepandemic levels. The ordinance provides the tax rate may be up to 6 cents per barrel, with a cap of $400,000. Adoption of the attached resolution will set the tax rate at 6 cents per barrel and impose for 2022, a business license tax for Kinder Morgan/SFPP at $324,327.

Fiscal Impact
As to Kinder Morgan/SFPP, Council’s adoption of the attached resolution will result in a business license tax of $324,327 for calendar year 2022.

Measure of Success
Kinder Morgan/SFPP to make payment of $324,327 to the City for 2022.

Attachment
Resolution Establishing the Business License Tax to Kinder Morgan/SFPP LLC for Calendar Year 2022
41 E.

Resolution Establishing 2022 Liquid Storage Business License Tax Page 3 of 3 Carolina Yuen ___________________________________
Carolina Yuen, Finance Director Clay Holstine, City Manager 42 E.

RESOLUTION NO. 2022-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

ESTABLISHING THE BUSINESS LICENSE TAX CHARGED TO KINDER MORGAN/SFPP LLC FOR CALENDAR YEAR 2022 UNDER SECTION

5.20.011 OF THE BRISBANE MUNICIPAL CODE
WHEREAS, Section 5.20.011 of the Brisbane Municipal Code imposes an annual business license tax on persons engaged in the business of operating, leasing, supplying or providing a liquid storage facility in the City; and WHEREAS, Kinder Morgan/SFFPP LLC, a business in Brisbane engaged in the business of operating, leasing, supplying or providing a liquid storage facility, and the City have agreed that for calendar year 2022 the liquid fuel storage tax will be set by the City Council based on a formula in an amount of six cents per barrel of liquid fuel transported throughout the Brisbane Terminal for delivery at the terminal (“over the rack”) during calendar year 2021; and WHEREAS, Kinder Morgan/SFPP LLC provided data to the City indicating that the number of barrels “over the rack” for calendar year 2021 was 5,405,448; and
WHEREAS, the Section 5.20.011 provides the City Council may set a tax rate for these facilities up to six cents per barrel, so long as the overall tax amount does not exceed $400,000.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRISBANE AS FOLLOWS:

1. For 2022, the City Council sets the business license tax rate for the Kinder Morgan/SFPP liquid storage facility in Brisbane at 6.00 cents per barrel and the annual business license tax charged to Kinder Morgan/SFPP LLC for 2022 shall be $ 324,327.

2. Payment of the business license taxes for 2022 shall be due and payable in full by July 31, 2022.
________________________
Coleen Mackin, Mayor
Attachment 1
43 E.

I hereby certify that the foregoing Resolution No. 2022-____ was duly and regularly adopted at a regular meeting of the Brisbane City Council on July 7, 2022 by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:
___________________________
Ingrid Padilla, City Clerk
44 E.

File Attachments for Item:

F. Adoption of a Revised Conflict of Interest Code to Include the Assistant City Manager, the Communications Manager, and the Assistant Fire Marshal and Deleting Park and Recreation Commission
45 F.

Conflict of Interest Code Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Ingrid Padilla, City Clerk
Subject: Adoption of a Revised Conflict of Interest Code to Include the Assistant City Manager, the Communications Manager, and the Assistant Fire Marshal and Deleting Park and Recreation Commission
Community Goal/Result
Community Building - Brisbane will honor the rich diversity of our city (residents, organizations, businesses) through community engagement and participation Fiscally Prudent - Brisbane's fiscal vitality will reflect sound decisions which also speak to the values of the community
Recommendation:

Adopt the attached resolution revising the City’s Conflict of Interest Code Background
The State’s Political Reform Act’s conflict of interest prohibitions apply only to certain “public officials” and only to governmental decisions that have a financial effect. The Act applies specifically to members of the City Council and the Planning Commission, city managers, city attorneys and other public officials, such as finance directors and others who manage public investments.

In addition, the Act requires cities to adopt a conflict of interest code and include therein which “other” officials within the a city must comply with the disclosure and disqualification provisions of the Act. The City Council has adopted, via resolution, the City’s Conflict of Interest Code. Currently, the City has identified 37 City staff positions, as well as the Park and Recreation Commission, that are subject to the Act.

On June 2, 2022, staff recommended that the City Council revise the City’s Conflict of Interest Code by adding the recently created classification of Communications Manager as a listed position and consider revising the Code to add three of the Council created Committees.

After discussion, Council concluded that adding the Committees to the Conflict of Interest Code was not warranted and, moreover, that the Park and Recreation Commission should be deleted from the list. Council agreed that the Communications Manager should be added and it was brought to Council’s attention that two other recently created classifications—Assistant City Manager and the Assistant Fire Marshal--should also be added to the list. Staff is now returning this item to the City Council for final action.
46 F.

Conflict of Interest Code Page 2 of 2

Discussion
Attached is a resolution adopting a revised Conflict of Interest Code for designated positions including the Assistant City Manager, Communications Manager, and the Assistant Fire Marshal. The Park and Recreation Commission has been deleted from the list and those members will no longer be required to file Form 700 nor will the conflict of interest rules and regulations apply to that Commission.

Attachment: Resolution adopting a revised Conflict of Interest Code ___________________________________ ___________________________________ Ingrid Padilla, City Clerk Clay Holstine, City Manager
47 F.
1 RESOLUTION NO. 2022-xx

A RESOLUTION OF THE CITY OF BRISBANE ADOPTING A REVISED CONFLICT OF INTEREST CODE

FOR DESIGNATED POSITIONS
Whereas, the Political Reform Act, (Government Code, Section 87100 et seq.) establishes conflict of interest disclosure and disqualification requirements for public officials, including specified employees and decision making bodies; and Whereas, the Political Reform Act requires state and local governmental agencies to adopt and promulgate conflict of interest codes for other employees and other advisory bodies with decision making authority; and
Whereas, the Fair Political Practices Commission has adopted Regulations in Title 2, Section 18730 of the California Administrative Code, to implement the provisions of the Political Reform Act and by incorporating by reference the terms of the Regulations it will save time and money by minimizing the actions required of the City Council to keep its Conflict of Interest Code in conformity with the Political Reform Act; and Whereas, Appendix A to this Resolution sets forth certain designated positions within the City of Brisbane; and
Whereas, employees who are in those designated positions must file conflict of interest statements.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRISBANE AS FOLLOWS:

Section 1. The provisions of Title 2, Section 18730 of the California Administrative Code, attached as Exhibit 1, are hereby incorporated by reference and, together with the attached Appendix A which designated positions along with their disclosure categories, are set forth, are hereby adopted as the Conflict of Interest Code for the City of Brisbane.

Section 2. Employees in the designated position shall file with the City Clerk, the City’s filing officer, statements of economic interests.

Section 3. All of the resolutions of the City of Brisbane that are in conflict with this Resolution are hereby repealed.

Section 4. This resolution shall be in full force and effect immediately upon its adoption.

Coleen Mackin, Mayor
48 F.
2 I hereby certify that the foregoing Resolution No. 2022-XX was duly and regularly adopted at a regular meeting of the Brisbane City Council on July 7, 2022.

AYES:

NOES:

ABSENT:

ABSTAIN:

Ingrid Padilla, City Clerk
Approved as to form:

Thomas McMorrow, City Attorney
49 F.
1 APPENDIX A
Designated Positions Disclosure Category
Administrative Management Analyst All Categories
Administrative Services Director All Categories
Assistant City Manager All Categories
Assistant Fire Marshal All Categories
Assistant to the City Manager All Categories
Associate Civil Engineer All Categories
Associate Planner All Categories
City Clerk All Categories
Community Development Director All Categories
Communications Manager All Categories
Deputy Building Official All Categories
Deputy City Attorney All Categories
Deputy City Clerk/Executive Assistant All Categories
Deputy Finance Director All Categories
Deputy Fire Chief All Categories
Deputy Public Works Director All Categories
Economic Development Director All Categories
Financial Services Manager All Categories
Fire Chief All Categories
Harbormaster All Categories
Information Technology & Systems
Administrator
All Categories
Management Analyst All Categories
Marina Services Director All Categories
Parks and Recreation Commissioners All Categories
Parks and Recreation Director All Categories
Police Chief All Categories
Police Commander All Categories
Principal Analyst All Categories
Principal Planner All Categories
Program Manager (San Mateo
Countywide NPDES)
All Categories
Public Works Director/City Engineer All Categories
Public Works Superintendent All Categories
Public Works Supervisor All Categories
Recreation Manager All Categories
Recreation Supervisor All Categories
Senior Civil Engineer All Categories
Senior Management Analyst All Categories
Senior Planner All Categories
Special Assistant All Categories
Special Counsel All Categories
50 F.

File Attachments for Item:

G. Adoption of Ordinance to Impose a Business License Tax on Hotels and Resolution Amending the Ballot Question for the Measure/Ordinance to be Submitted to the Voters Imposing a Business License Tax on Hotels
51 G.

Business License Tax on Hotels Page 1 of 3

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Michael Roush, Legal Counsel
Clayton Holstine, City Manager
Subject: Adoption of Ordinance to Impose a Business License Tax on Hotels and Resolution Amending the Ballot Question for the Measure/Ordinance to be Submitted to the Voters Imposing a Business License Tax on Hotels

COMMUNITY GOAL/RESULT
Fiscally Prudent - Brisbane's fiscal vitality will reflect sound decisions which also speak to the values of the community
Economic Development - Brisbane will work with the businesses and residents to provide for economic vitality/diversity

RECOMMENDATION
Adopt an Ordinance, to take effect immediately, to impose a business license tax on hotels, as defined, subject to voter approval at the November 8, 2022 election.

Re-adopt Resolution No. 2022-57 with a revised ballot question.

BACKGROUND
At the City Council’s meeting on June 23, 2022, it adopted a resolution calling a special election to submit to the voters a ballot measure concerning a proposed ordinance to impose a business license tax on hotels as that term is defined in the ordinance. In that resolution, the full text of the ordinance was set forth and Section 6 of the Resolution provides:
“If a majority of the voters voting upon the ballot measure vote in its favor, the proposed ordinance shall become a valid and binding ordinance of the City of Brisbane. The ordinance shall be considered as adopted on the date that the vote is declared by the City Council and shall go into effect on that date or such other date as ma be specified by the City Council.” At the meeting, however, Council did not adopt the ordinance itself.

In 2020, there was a change in the Elections Code that now provides that when a proposed measure imposes a tax or raises a rate of tax, the ballot shall include in the statement of the 52 G.

Business License Tax on Hotels Page 2 of 3
measure to be voted on the amount of money to be raised annually and the rate and duration of the tax to be levied.

The ballot question in the resolution that the City Council adopted on June 23, 2022 concerning the proposed business license tax on hotels set forth the rate of the tax to be levied but not the amount of money to be raised annually or the duration of the tax. The ballot question therefore needs to be revised.

This revision does not change the text of the Ordinance itself or other portions of the Resolution.

DISCUSSION
Although the language in the resolution does provide the ordinance would be considered adopted when the City Council declares the vote (assuming there was majority approval), in an abundance of caution, staff recommends Council adopt the attached ordinance which tracks the ordinance in the resolution and the ordinance that the voters will consider at the November 2022 election. As mentioned, the ordinance would not go into effect unless a majority of the voters approve it.

The ordinance may be adopted on July 7 (without a first reading) because ordinances relating to taxes for the usual and current expenses of the City and/or relating to elections take effect immediately. Government Code, section 36937 (a) and (d).

The ballot question is revised to read:

To pay for general municipal expenses, shall an ordinance be adopted imposing on hotels and other places designed for overnight stays by guests a business license tax of $2.50 per room for each day such room is rented, generating approximately $250,000 annually until ended by the voters?
Fiscal Impact
There will be no fiscal impact in adopting this ordinance but the ordinance will be submitted to the voters in November 2022. Since the City will have an election for Councilmembers in November 2022, there will be an additional cost of approximately $5,000 (based on prior years’ experience) to place the measure on the ballot. The measure, if approved by the voters, would impose a business license tax on hotels and staff estimates that the City will receive $250,000 annually from such tax.
53 G.

Business License Tax on Hotels Page 3 of 3
Environmental Review
Adoption of the attached ordinance is not subject to environmental review under the California Environmental Quality Act (CEQA). Imposing the business license tax on hotels is exempt from CEQA under CEQA Guidelines, Section 15378 as it does not constitute a project within the meaning of CEQA because it does not have a potential for resulting in a direct physical change in the environment nor a reasonably foreseeable indirect physical change in the environment. As a separate and independent basis, this action is also exempt under CEQA Guidelines Section 15061 (b)(3) (no significant environmental impact).

Attachment: Ordinance Imposing a Business License Tax on Hotels Resolution 2022-57 with revised ballot question
________________________ _______________________ Michael Roush, Legal Counsel, Clay Holstine, City Manager 54 G.

ORDINANCE NO. 2022-XX

AN ORDINANCE OF THE CITY OF BRISBANE TO ADD
SECTION 5.20.035 TO THE BRISBANE MUNICIPAL CODE

TO IMPOSE A BUSINESS LICENSE TAX ON HOTELS AND

OTHER PLACES DESIGNED FOR OCCUPANCY BY
TRANSIENTS”
The City Council of the City of Brisbane hereby ordain as follows:

Section 1. Section 5.20.035 is added to the Brisbane Municipal Code to read as follows:
“Section 5.20.035 Hotels and Other Places Designed for Occupancy by Transients
A. Definitions. The definitions used in this Section 5.20.035 shall be the same as the definitions in Section 3.24.020 of the Brisbane Municipal Code, as said Section may be amended from time to time.

B. Every Operator shall pay a daily business license tax of two dollars and fifty cents ($2.50) for every room in a Hotel for which a Transient has paid Rent.

C. The business license tax under this Section 5.20.035 shall be paid in four installments, due no later than January 1, April 1, July 1 and October 1 of each year.

D. Beginning January 1, 2024 and on January 1 of each subsequent year (“the adjustment date”), the two dollars and fifty cents ($2.50) referred to in subsection B of this section may be increased my multiplying the two dollars and fifty cents ($2.50) by a fraction, the numerator of which shall be the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, All Items, for the San Francisco-Oakland-Hayward Statistical Area (“CPI”) published nearest to the adjustment date and denominator of which shall be the CPI published nearest to the date the business license tax was set at two dollars and fifty cents ($2.50).

Section 2. This Ordinance relates to taxes for the usual and current expenses of the City of Brisbane and/or relating to elections and shall take effect immediately, but it shall not become operative until approved by a majority of the voters voting at the general municipal election to be held November 8, 2022.
55 G.

Section 3. The City Clerk shall publish this Ordinance according to law. _____________________________
Coleen Mackin, Mayor
ATTEST:
______________________________
Ingrid Padilla, City Clerk
APPROVED AS TO FORM:
_____________________________
Thomas R. McMorrow, City Attorney
--oOo--
I hereby certify that foregoing Ordinance No. _________ was adopted by the Brisbane City Council at a regular meeting on July 7, 2022 by the following vote:

AYES: Councilmembers:

NOES:

ABSENT:

Ingrid Padilla, City Clerk
56 G.
1 RESOLUTION NO. 2022-57

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

BRISBANE, CALIFORNIA CALLING A SPECIAL

MUNICIPAL ELECTION TO BE CONSOLIDATED WITH
THE GENERAL ELECTION ON NOVEMBER 8, 2022, FOR

SUBMISSION TO THE VOTERS A BALLOT MEASURE

CONCERNING A PROPOSED ORDINANCE TO

IMPOSE/INCREASE A BUSINESS LICENSE TAX ON

HOTELS AND OTHER PLACES DESIGNED FOR

OCCUPANCY BY TRANSIENTS
WHEREAS, the City has established a business license tax, as set forth in Chapter 5.20 of the Brisbane Municipal Code, that imposes a gross receipts business license tax on any person within the City engaged in conducting business in the City, including the operation of hotels and other places designed for occupancy by transients; and
WHEREAS, the City Council desires to place a ballot measure before the voters at the November 8, 2022 election to impose/increase a business license tax specifically on hotels and other places designed for occupancy by transients in order to provide additional revenue for general municipal expenses; and
WHEREAS, the City’s business license tax is a general tax and any increase thereof is subject to approve of a majority of the voters voting upon the proposed tax or tax increase at a regularly-scheduled election at which members of the Brisbane City Council will be elected; and
WHEREAS, November 8, 2022 is the next regularly scheduled election at which members of the Brisbane City Council will be elected and it is desirable to consolidate this special election with that general election.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRISBANE, CALIFORNIA, AS FOLLOWS:

SECTION 1. ELECTION CALLED
The City Council of the City of Brisbane hereby calls a special municipal election, to be consolidated with the general election on Tuesday, November 8, 2022, at which there shall be submitted for approval by the voters of the City of Brisbane a proposed ordinance amending Chapter 5.20 of the Brisbane Municipal Code by adding Section

5.20.035 to the Brisbane Municipal Code to impose and/or increase a business license tax on hotels and other places designed for occupancy by transients.

SECTION 2. FULL TEXT OF PROPOSED ORDINANCE
57 G.
2 The complete text of the propose ordinance shall read as follows:
“AN ORDINANCE OF THE CITY OF BRISBANE TO ADD
SECTION 5.20.035 TO THE BRISBANE MUNICIPAL CODE

TO IMPOSE A BUSINESS LICENSE TAX ON HOTELS AND

OTHER PLACES DESIGNED FOR OCCUPANCY BY
TRANSIENTS”
The People of the City of Brisbane hereby ordain as follows:

B. Every Operator shall pay a daily business license tax of two dollars and fifty cents ($2.50) for every room in a Hotel for which a Transient has paid Rent.

C. The business license tax under this Section 5.20.035 shall be paid in four installments, due no later than January 1, April 1, July 1 and October 1 of each year.

SECTION 3. TEXT OF BALLOT MEASURE
The proposed ordinance to impose and/or increase the business license tax charged to hotels shall be presented for approval by the voters as the following ballot measure:

SECTION 4. REQUEST TO CONSOLIDATE, CONDUCT ELECTION AND

CANVASS RETURNS
The Board of Supervisors of the County of San Mateo is hereby requested to authorize the County Clerk;/Registrar of Voters to render all services necessary and proper for the conduct of the special municipal election called by the Resolution. Pursuant to California Elections Code Section 10403, the City Council hereby requests that the San Mateo County Board of Supervisors consolidate that election with the election to be held on November 8, 2022, and order the special municipal election to be conducted by the Registrar of Voters. The San Mateo County Elections Department is authorized to canvass the returns of the special election.

The City Clerk’s Office shall submit a certified copy of this Resolution to County Elections Division and the City Clerk’s Office is authorized, instructed and directed to work with the County Elections Division as needed in order to properly and lawfully conduct the election. The ballots to be used in the election shall be in the form and content as required by law. In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections.

SECTION 5: PUBLICATION OF MEASURE
The City Clerk’s Office is directed to cause notice of the measure to be published once in accordance with Section 12111 of the State Elections Code.

SECTION 6: REQUIRED VOTER APPROVAL AND EFFECTIVE DATE
If a majority of the voters voting upon the ballot measure vote in its favor, the proposed ordinance shall become a valid and binding ordinance of the City of Brisbane.

The ordinance shall be considered as adopted on the date that the vote is declared by the City Council and shall go into effect on that date or such other date as may be specified by the City Council.

SECTION 7. PROCEDURES FOR ARGUMENTS AND REBUTTALS
The City Council authorizes the following members to draft and then file written arguments not exceeding 300 words in length for or against the measure described above:

Argument In Favor and Rebuttal: Subcommittee of Mayor Mackin and Mayor Pro Tem Lentz 59 G.
4 Argument Against and Rebuttal: Subcommittee of Mayor Mackin and Mayor Pro Tem Lentz If not all of the members of the City Council have been authorized to draft the written arguments for or against the measure, or the rebuttal, other Council members may sign such argument/rebuttal. If not all City Councilmembers have signed the argument/rebuttal, those Councilmembers that have drafted the argument/rebuttal may choose any individual voter who is eligible to vote on the measure or bona fide association of citizens or combination of voters and associations to sign the argument/rebuttal. Any individual voter who is eligible to vote on the measure or bona fide association of citizens or combination of voters and associations may also submit a written argument for or against the measure.

Such argument, whether For or Against, shall not exceed 300 words and be accompanied by the printed name(s) and signature(s) of the person(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers, in accordance with Article 4, Chapter 3, Division 9 of the Election Code of the State of California.

Primary arguments For or Against the measure must be submitted to the City Clerk by 12:00 p.m. on August 19, 2022 and shall not exceed 300 words. The Rebuttal arguments must be submitted to the City Clerk by 12:00 p.m. on August 29, 2022 and shall not exceed 250 words.

SECTION 8: IMPARTIAL ANALYSIS
Pursuant to Elections Code Section 9280, the City Council directs the City Clerk to transmit a copy of the measure to the City Attorney, and directs the City Attorney to prepare an impartial analysis of the measure showing the effect of the measure on existing law and the operation of the measure. The analysis shall be printed preceding the arguments For and Against the measure. The analysis shall not exceed 500 words in length. The impartial analysis shall be filed by the date set by this resolution for the filing of primary arguments.

SECTION 9: FULL TEXT OF ORDINANCE
The full text of the Ordinance shall be printed in the Voter Information Pamphlet.

SECTION 10: CONDUCT OF ELECTION
The election on said ballot measure shall be consolidated with the general municipal election to be held on November 8, 2022.

SECTION 11. CEQA
The approval of this Resolution is exempt from the California Environmental Quality Act (Public Resources Code Sections 21000 et seq., “CEQA,” and 14 Cal Code Reg. Sections 15000 et seq., ”CEQA Guidelines”). The tax to submitted to the voters is a general tax that can be used for any legitimate governmental purpose; it is not a commitment to any particular action or actions. As such, under CEQA Guidelines Section 60 G.
5 15378(b)(4) the tax is not a project within the meaning of CEQA because it creates a government funding mechanism that does not involve any commitment to any specific project that may result in a potentially significant impact on the environment. If revenue from the tax were used for a purpose that would have such effect, the City would undertake the required CEQA review for that particular project. Therefore, Guidelines Section 15060 review under CEQA is not required.

SECTION 12: PASSAGE OF THIS RESOLUTION
This business license tax is a general tax requiring the approval of a majority of qualified electors casting votes. This Resolution must be approved by a two-thirds vote of the Council.

Coleen Mackin, Mayor
I hereby certify that the foregoing Resolution No. 2022-57 was duly and regularly adopted at the meeting of the Brisbane City Council on ___, 2022 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Ingrid Padilla, City Clerk
61 G.

File Attachments for Item:

H. Adopt an Ordinance Adding a New Chapter 3.22 to the Brisbane Municipal Code Imposing a Transactions and Use Tax to be Administered by the California Department of Tax and Fee Administration and Resolution Amending the Ballot Question for the Ordinance to be Submitted to the Voters levying a half cent Transaction and Use Tax 62 H.

Transaction and Use Tax Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Michael Roush, Legal Counsel
Clayton Holstine, City Manager
Subject: Ordinance Adding a New Chapter 3.22 to the Brisbane Municipal Code Imposing a Transactions and Use Tax to be Administered by the California Department of Tax and Fee Administration and Resolution Amending the Ballot Question for the Ordinance to be Submitted to the Voters levying a half cent Transaction and Use Tax

RECOMMENDATION
Adopt by a 2/3 vote the Ordinance and re-adopt Resolution 2022-58 with a revised ballot question.

BACKGROUND
On June 23. 2022 Council introduced an ordinance adding a new Chapter 3.22 to the Brisbane Municipal Code imposing a Transaction and Use Tax (commonly knows as a sales tax) to be administered by the California Department of Tax and Fee Administration. Council also adopted a resolution calling for the ordinance to be submitted to the voters for consideration at the November 8, 2022 election. The resolution, in part, set forth a ballot question to be submitted to the voters.

In 2020, there was a change in the Elections Code that now provides that when a proposed measure imposes a tax or raises a rate of tax, the ballot shall include in the statement of the measure to be voted on the amount of money to be raised annually and the rate and duration of the tax to be levied.

The ballot question in the resolution that the City Council adopted on June 23, 2022 concerning the proposed transaction and use tax set forth the rate of the tax to be levied (1/2 cent) and 63 H.

Transaction and Use Tax Page 2 of 2
the duration of the tax (until ended by the voters) , but not the amount of money to be raised annually.

DISCUSSION
Council should now adopt the ordinance adding Chapter 3.22 to the Brisbane Municipal Code, subject to voter approval.

The ballot question should be revised as follows:

Shall the City of Brisbane’s measure to fund City services/facilities, such as neighborhood police patrols, fire prevention services, urban wildfire protection, crime suppression/investigation, pothole/street repair, parks and other city facilities, and to support other city services, by levying a ½ cent sales tax, generating approximately $2,000,000 annually until ended by the voters, be adopted?
This revision does not change the text of the Ordinance itself nor other portions of the Resolution.

From the City Council meeting of June 23, 2022, staff also wanted to confirm the correct district rate percentage. The proposed tax in this ordinance is a “transactions and use tax” which most people would refer to as a “sales” tax. Technically, it is a “district” tax according to the California Department of Tax and Fee Administration (CDTFA). Transactions and use taxes have similarities and differences when compared to sales tax regulations in California. The combined district rate cannot exceed 9.875%. This limits the combined sales, transactions and use tax rate to 0.5%. A local agency may form more than one district but the total tax levy, including the rate of any countywide districts, must not exceed the 0.5% limit unless special legislation has been enacted to allow a higher limit.

Lastly, Staff deleted a few lines in the introductory words of the Ordinance to make it more concise and applicable to Brisbane.

Attachments Ordinance Adding Chapter 3.22 to the Brisbane Municipal Code Resolution 2022-58, with a revised ballot question
________________________ ___________________________
Michael Roush, Legal Counsel Clayton Holstine, City Manager 64 H.
1 Attachment 1
ORDINANCE NO._________
AN ORDINANCE OF THE CITY OF BRISBANE ADDING A NEW CHAPTER 3.22 TO THE

BRISBANE MUNICIPAL CODE IMPOSING A TRANSACTIONS AND USE TAX TO BE

ADMINISTERED BY THE CALIFORNIA DEPARTMENT OF TAX AND FEE

ADMINISTRATION
Section 1. The City Council of the City of Brisbane hereby makes the following findings in connection with the adoption of this ordinance:

WHEREAS, a local, Brisbane-approved funding measure would provide local control over local funds, for local needs; and
WHEREAS, voter-approved local funding will help to address priorities in the City such as increasing street repair and maintenance, pothole, and hazard repair programs, maintaining police patrols, maintaining and attracting local businesses, upgrading the City’s parks, playgrounds, and play structures for children and youth; and WHEREAS, voter-approved funding will provide funds for Brisbane that by law cannot be taken by Sacramento.

Section 2. The City Council of the City of Brisbane ordains that a new Chapter 3.22 shall be added to Title 3, Revenue and Finance, subject to voter approval as set forth herein, as follows:

Chapter 3.22 Transactions and Use Tax
Section 3.22.010 Title
This ordinance shall be known as the City of Brisbane Transactions and Use Tax Ordinance. The City of Brisbane hereinafter shall be called "City." This ordinance shall be applicable in the incorporated territory of the City.

Section 3.22.020 Operative Date
"Operative Date" means the first day of the first calendar quarter commencing more than 110 days after the adoption of this ordinance, the date of such adoption being as set forth below.

Section 3.22.030 Purpose
This ordinance is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

A. To impose a retail transactions and use tax in accordance with the provisions of Part

1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.

B. To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code.

C. To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the California Department of Tax 65 H.
2 and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes.

D. To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance.

Section 3.22.040 Contract with State
Prior to the operative date, the City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract.

Section 3.22.050 Transactions Tax Rate
For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of one half of one percent (0.50%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this ordinance.

Section 3.22.060 Place of Sale
For the purposes of this ordinance, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or the retailer’s agent to an out-of-state destination or to a common carrier for delivery to an out-ofstate destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration.

Section 3.22.070 Use Tax Rate
An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of this ordinance for storage, use or other consumption in said territory at the rate of one half of one percent (0.50%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made.

Section 3.22.080 Adoption of Provisions of State Law
Except as otherwise provided in this ordinance and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this ordinance as though fully set forth herein.

Section 3.22.090 Limitations on Adoption of State Law and Collection of Use Taxes In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code:

A. Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not be made when:
66 H.
3 1. The word "State" is used as a part of the title of the State Controller, State Treasurer, State Treasury, or the Constitution of the State of California;

2. The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this Ordinance.

3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to:
a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or; b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code.

4. In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.

B. The word "City" shall be substituted for the word "State" in the phrase "retailer engaged in business in this State" in Section 6203 and in the definition of that phrase in Section 6203.

1. A retailer engaged in business in the District” shall also include any retailer that, in the preceding calendar year or the current calendar year, has total combined sales of tangible personal property in this state or for delivery in the State by the retailer and all persons related to the retailer that exceeds five hundred thousand dollars ($500,000). For purposes of this section, a person is related to another person if both persons are related to each other pursuant to Section 267(b) of Title 26 of the United States Code and the regulations thereunder.

Section 3.22.100 Permit not required
If a seller's permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor's permit shall not be required by this ordinance.

Section 3.22.110 Exemptions and Exclusions
A. There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax.

B. There are exempted from the computation of the amount of transactions tax the gross receipts from:

1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons 67 H.
4 or property under the authority of the laws of this State, the United States, or any foreign government.

2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied:
a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and
b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance.

4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this ordinance.

5. For the purposes of subparagraphs (3) and (4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

C. There are exempted from the use tax imposed by this ordinance, the storage, use or other consumption in this City of tangible personal property:

1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance.

2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.

3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance.

4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this ordinance.

5. For the purposes of subparagraphs (3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal 68 H.
5 property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

6. Except as provided in subparagraph (7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer.

7. "A retailer engaged in business in the City" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City.

D. Any person subject to use tax under this ordinance may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.

Section 3.22.120 Amendment
A. All amendments subsequent to the effective date of this ordinance to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this ordinance, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this ordinance.

B. The City Council may amend this chapter without voter approval only to make minor technical adjustments consistent with the purposes set forth in this ordinance and applicable laws or as necessary to comply with the law.

Section 3.22.130 Enjoining Collection Forbidden
No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this ordinance, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected.

Section 3.22.140 Severability
If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby.

Section 3.22.150 Use of Proceeds
The proceeds from the transactions and use tax imposed by this ordinance shall be deposited in the general fund of the City and available for any lawful governmental purpose.

Section 3.22.160 Fiscal Accountability Provisions
69 H.
6 The amount generated by this new general purpose revenue source shall be included in the annual audit of the City’s financial operations by an independent certified public accountant.

Section 3.22.170 Termination
The authority to levy the tax imposed by this Ordinance shall continue until ended by the voters.

Section 3. This Ordinance relates to the levying and collecting of the City transactions and use taxes and shall take effect immediately, but it shall not become operative until approved by a majority of the voters voting at the general municipal election to be held November 8, 2022.

Section 4. The City Clerk shall publish this Ordinance according to law. _____________________________
Coleen Mackin, Mayor
ATTEST:
______________________________
Ingrid Padilla, City Clerk
APPROVED AS TO FORM:
_____________________________
Thomas R. McMorrow, City Attorney
--oOo--
I hereby certify that foregoing Ordinance No. _________ was introduced at a special meeting of the Brisbane City Council on _________, 2022, and adopted by the Brisbane City Council at a regular meeting on __________, 2022 by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
70 H.
1 ATTACHMENT 2
RESOLUTION NO. 2022-58

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE SUBMITTING A TRANSACTIONS AND USE TAX MEASURE TO THE VOTERS AT THE NOVEMBER 8, 2022

GENERAL MUNICIPAL ELECTION AND TAKING CERTAIN RELATED ACTIONS WHEREAS, a local, Brisbane-approved funding measure would provide local control over local funds, for local needs; and
WHEREAS, voter-approved local funding will help to address priorities such as increasing street repair and maintenance, pothole, and hazard repair programs, maintaining neighborhood police patrols, maintaining and attracting local businesses, upgrading Brisbane’s parks, playgrounds, and play structures for children and youth; and
WHEREAS, voter-approved funding will provide funds for Brisbane that by law cannot be taken by Sacramento; and
WHEREAS, the City Council has, by separate resolution, called a general municipal election for Tuesday, November 8, 2022 (the “Election”); and
WHEREAS, the City Council has requested that the Election be consolidated with the statewide election held on that date, and the City Council has requested the assistance of San Mateo County in the conduct of the Election; and
WHEREAS, Revenue & Taxation Code Section 7285.9 authorizes the City Council to levy a transactions and use tax for general purposes if the ordinance proposing that tax is approved by a twothirds vote of all members of the City Council and the tax is approved by a majority vote of the qualified voters of the city voting in an election on the issue; and WHEREAS, the City Council has adopted an Ordinance, entitled, “An Ordinance of the City of Brisbane Adding a new Chapter 3.22 to the Brisbane Municipal Code Imposing a Transactions and Use Tax To Be Administered by the California Department of Tax and Fee Administration” (the “Tax Ordinance”); and
WHEREAS, the City Council desires to submit the Tax Ordinance to electorate at the Election; and WHEREAS, arguments for and against said measure, as well as rebuttals, may be filed in accordance with applicable provisions of the law pursuant to Elections Code and the text of the measure shall be printed on the ballot in the voter information portion of the sample ballot.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brisbane as follows:

1. The City Council hereby orders, pursuant to Section 9222 of the Elections Code, that the Tax Ordinance, which is attached hereto as Exhibit “A” and incorporated herein by reference, be submitted to the voters at the Election. Adoption of the ordinance requires a majority vote of those voting on the matter.

2. The question submitted shall appear on the ballot as follows:
71 H.
2 Shall the City of Brisbane’s measure to fund city
services/facilities, such as neighborhood police patrols, fire prevention services, urban wildfire protection, crime
suppression/investigation, pothole/street repair, parks and other city facilities, and to support other city services, by levying a ½¢ sales tax, generating approximately
$2,000,000 annually until ended by voters, be adopted?
YES
NO

3. The City Clerk is instructed to transmit the Tax Ordinance to the City Attorney along with a request that an impartial analysis be prepared for inclusion in the Voters’ Pamphlet materials.

Pursuant to Elections Code section 9280, the City Attorney shall prepare an impartial analysis, which shall be filed with the City Clerk’s office no later than August 29, 2022 by 12:00 P.M.

4. The City Council authorizes a Subcommittee of Mayor Mackin and Mayor Pro Tem Lentz to draft and then file written arguments not exceeding 300 words in length for or against the measure described above.

5. Arguments for and against the Measure may be submitted to the City Clerk’s office, until 12 p.m. on August 19, 2022. Rebuttal arguments will be permitted and must be received in the City Clerk’s office by 12:00 pm on August 29, 2022.

6. That in all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections.

7. Notice of the time and place of holding of the election is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election in the time, form, and manner as required by law.

8. Pursuant to Section 10400 et seq. of the Elections Code, the Board of Supervisors of San Mateo County is requested to consolidate the election on this ballot measure with other elections held on the same day in the County.

9. The Board of Supervisors is authorized to canvass the returns of the Election pursuant to Section 10411 of the Elections Code.

10. Pursuant to Section 10002 of the Elections Code, the Board of Supervisors is requested to permit the County Clerk to render all services specified by Section 10418 of the Elections Code relating to the election, for which services the City agrees to reimburse the County, in accordance with current County pro-rations and allocation procedures.

11. The City Clerk shall file a certified copy of this Resolution with the County Clerk.

12. The City Clerk is hereby authorized to do all things necessary and proper to implement the provisions of this Resolution, including certifying the passage and adoption of this Resolution and entering it into the book of original Resolutions.
______________________________
Coleen Mackin, Mayor
72 H.
3 I hereby certify that foregoing Resolution No. 2022-58 was adopted by the Brisbane City Council at a special meeting on _______, 2022 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
___________________________
Ingrid Padilla
City Clerk
Approved as to form:

Thomas R. McMorrow, City Attorney
73 H.

File Attachments for Item:

J. Consideration of Entering into Energy Service Contract Pursuant to the Provisions of the California Government Code Section 4217.10, Et Seq. for the City of Brisbane Community Pool Electrification Project
74 J.

Public Hearing - Energy Conservation Contract 1

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Karen Kinser, Deputy Director of Public Works
Subject: Energy Service Contract with Willdan Energy Solutions Community Goal/Result - Ecological Sustainability
Purpose
To complete the process necessary for entering into a sole source energy service contract with Willdan Energy Solutions.

Recommendation

1. Conduct the public hearing required by California Government Code sections 4217.10 et seq. (see Attachment 1 for procedural steps), and if appropriate, adopt a Resolution “Approving an Energy Service Contract with Willdan Energy Solutions.”

2. Transfer $183,394 from the General Fund to pay the city’s share of project funds.

Background
City sustainability staff participated in a Zero Net Energy (ZNE) Study through BayREN (Bay Area Renewable Energy Network) in 2018 for the Community Pool, as it represents one of the City’s largest uses of fossil fuels. The study indicated that pool heating needs could primarily be met with electric heat pump water heaters with an ultimately reduced energy cost.

As the existing gas boiler is near the end of its useful life, Parks & Recreation and Public Works Maintenance staff worked cooperatively on its replacement. Sustainability staff contacted San Mateo County Energy Watch and their partner Willdan Energy Solutions (WES), implementer of the PG&E Government and K-12 program (GK12 Program), for technical assistance.

The team scoped the project, which is described in Attachment 2, Exhibit A. PG&E offered the City a sizeable GK12 Energy Efficiency program incentive and On-Bill Financing (OBF) for the majority of the project costs. Note that California Public Utility Commission’s Energy Division has final approval of the project. Staff is bringing this to Council in advance of that anticipated approval to accommodate Council’s summer recess.

Due to WES’s unique role as the sole implementer of the GK12 Program, its integral role in developing the project, and its ability to provide turnkey design-build services, staff recommends utilizing CA Government Code 4217 to award a contract with WES to undertake the project. In accordance with state law, notice of the public hearing was posted at City Hall, Brisbane Community Center, Brisbane Public Library and Mission Blue Center on June 23, 2022.

This Design-Build Contract with WES is structured in two parts, since WES will not only design the project but thereafter construct the project as the general contractor, after the design is approved. The design phase will commence following Council and CPUC approval. At or near the completion of the design phase, staff and WES will negotiate a Design-Build Amendment which will incorporate detailed specifications and final costs. No further Council action will be required so long as the cost of the design and the construction does not exceed $718,393. 1 75
J.

Public Hearing - Energy Conservation Contract 2
Discussion
Utilizing electric heat pump water heaters for a large outdoor pool is a relatively new endeavor; while several other agencies in the area are also embarking on similar projects, none to staff’s knowledge have been completed in the state. Accordingly, the project team has worked through a variety of challenges to move the project forward, including:
• Receiving special permission to utilize OBF for a fuel-conversion project. • Sizing the equipment to keep the pool at the required temperature (80 degrees) during the coldest times of the year. In the short term, the existing gas boiler will remain as backup. Longer term, City staff hopes to fully electrify the facility, which may require further electrical upgrades. In the interim, staff will evaluate the heat pump units’ operating capabilities and backup needs, especially as climate change results in overall warmer temperatures.
• Managing the noise levels when three heat pump units are running simultaneously through strategic placement of the units to keep levels at nearby residences below allowable levels per City noise ordinance.

Fiscal Impact
The total project cost is estimated at $653,393; the final cost will be detailed in a Design-Build Amendment. Funding sources include:
• $285,000 incentive from PG&E
• $249,999 OBF loan to be paid back to PG&E over 10 years on PG&E bills to the City • $118,394 from City’s General Fund
The recommended transfer from the General Fund is a total of $183,394, which includes a 10% contingency of the total project cost (i.e., $65,000), in the event that final costs in the Design Build Amendment are higher than expected. The completed project will provide estimated energy savings in the first year of $26,036, and payback (in terms of savings) is estimated between 10 - 14 years, depending on utility escalation rates. Subsequently, the City would see significant savings for the remaining life of the unit, which is expected to be 20 years or more.

Measure of Success
Heat pump water heaters installed to provide primary heating for the community pool with a significant reduction of GHG emissions and long-term cost savings.

Attachments

1. Procedural steps for Public Hearing

2. Resolution No. 2022-XX including Exhibit A

3. Design-Build Contract with WES including Schedules A-C and Exhibits 1-3 _______________________________ _______________________________ Adrienne Etherton, Sustainability Manager Karen Kinser, Deputy Director of Public Works _______________________________ _______________________________ Randy Breault, Director of Public Works Clay Holstine, City Manager 2 76
J.

ATTACHMENT 1
Recommended Steps for Public Hearing

1. City staff report.

2. Council clarifying questions.

3. Mayor's declaration that the Public Hearing “On Consideration of Entering into Energy Service Contract Pursuant to the Provisions of the California Government Code Section 4217.10 et seq. for the City of Brisbane Community Pool Electrification Project” is open.

4. Statement by the City Clerk verifying the posting of the Notice of Public Hearing, followed by the reading of any written protests by the City Clerk.

5. Hearing of oral testimony and comments.

6. Closure of Public Hearing.

7. Council deliberation and action.
3 77
J.

RESOLUTION NO. 2022-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE APPROVING

AN ENERGY SERVICE CONTRACT WITH WILLDAN ENERGY SOLUTIONS WHEREAS, the Brisbane City Council has demonstrated its commitment to a sustainable and resilient future through its policy goals and actions, including energy reduction, and clean energy programs; and
WHEREAS, the City of Brisbane is a public agency authorized by California Government Code sections 4217.10-4217.18 to enter into contracts for design, construction, and financing of alternate energy equipment or energy conservation measures; and WHEREAS, in order to enter into an energy service contract or facility financing contract, notice must be given, and the City must make specific findings, consistent with Sections 4217.12; and
WHEREAS, the City Council has held a regularly scheduled public hearing, public notice of which was given at least two (2) weeks in advance; and WHEREAS, the City Council has received and reviewed the information in Exhibit “A” attached hereto, which is sufficient to allow it to make the requisite findings set forth below; and WHEREAS, the City of Brisbane desires to engage Willdan Energy Services (Willdan) in a design-build energy service contract for the installation of an electric heat pump unit (“energy conservation facility”) to serve as the primary water heater for the Community Pool; and WHEREAS, the design-build services are separate from the ongoing energy savings analysis, on-bill financing support incentive acquisition/management and engagement between the City and Pacific Gas & Electric, all provided by Willdan at no cost to the city as the authorized implementer of Pacific Gas & Electric Company’s Government K-12 (GK12) Energy Efficiency Program.

ATTACHMENT 2
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BRISBANE RESOLVES AS FOLLOWS:

Section 1. The anticipated cost to the City for electrical energy services provided by the energy conservation facility under the design-build energy service contract will be less than the anticipated marginal cost to the City for the other energy that would have been consumed in the absence of this energy service contract.

Section 2. The City Manager and designees, and each of them individually, for and in the name of and on behalf of the City, are authorized to do any and all things and to execute and deliver any and all documents that they may deem necessary or advisable in order to complete the execution and delivery of the Energy Service Contract and otherwise to carry out, give effect to, and comply with the terms and intent of this resolution. All actions heretofore taken by such officers and agents that are in conformity with the purposes and intent of this resolution are hereby ratified, confirmed and approved in all respects.

Section 3. The City Manager is authorized to execute the Design-Build Energy Service Contract in an amount not to exceed $653,393.
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Coleen Mackin, Mayor
* * * *
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Brisbane held on the 7th day of July 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:
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Ingrid Padilla, City Clerk
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EXHIBIT A
This energy conservation project will install electric air-source heat pumps as the primary heating system for the City’s community pool, replacing the existing gas-fired pool heater currently in use as the primary heating source. The existing gas-fired pool heater will be retained to provide supplemental heating when outdoor temperatures fall below 50°F.

The outdoor pool is approximately 4,000 square feet, and an average depth of approximately six feet. The pool is in use throughout the year, and a pool cover is in use during non-operating hours.

The pool is heated to approximately 80°F throughout the year.

The existing gas fired hot water boiler is located inside the Mechanical Building. It is rated for 1,826 kBtu/hr input, 1,497 kBtu/hr output, and a rated thermal efficiency of 82%. The system has onboard controls that fire the boiler, as needed, to maintain the pool temperate at the desired 80 degrees Fahrenheit year around. The unit has a fractional HP induced draft fan installed in the flue. The savings from operating this fan less in the proposed measure configuration has been neglected from the savings analysis to be conservative.

The main pool pump is also located in the Mechanical Building and is retrofit with a variable speed drive with pool specific controls. The pool pump operation will not change with the implementation of the project.

The proposed electric heat pump pool heaters have approximately 527 kBtu/hr output ratings each. Three units will be installed in parallel to match the required heat load with a total output capacity of 1,581 kBtu/hr. The three heat pumps will be installed outdoors, adjacent to the Mechanical Building. The proposed heat pumps have a coefficient of performance (COP) that vary with outside air conditions.

The existing gas-fired pool heater will be retained to support the load when daily average outdoor air temperatures are below 50°F. The site location sees average daily outdoor air temperatures below 50°F for about four weeks during a typical meteorological year. During months where lower outside air temperatures are expected, the gas-fired boiler will be enabled, but in a "lag” configuration with the heat pump system as “lead”. During these colder days, the heat pumps will attempt to maintain the pool at the desired temperature of 80F, and the gas-boiler will be configured to come on only if the pool temperature drops to a lower setpoint, e.g., 78F. The existing gas-fired boiler will only be used during these low temperature conditions. At all other times, the newly installed heat pump system is expected to fully support the load. The energy savings calculations account for this operation.

For the purposes of Government Code 4217.12, the effective useful life of the project has been determined to be 20 years and the not to exceed net project cost has been set to $368,000 or the 6 80
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gross cost less the Pacific Gas and Electric Company incentive payable to the City on the successful completion of the work.

Table 1 and Graph 1 below present marginal cost findings where first year energy savings have been calculated at $26,036.25 and where varying utility escalation rate scenarios were examined.

The anticipated cost to the City of Brisbane for energy services under the contract, across all scenarios, will be less than the anticipated marginal energy costs in the absence of the project. 7 81
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DESIGN-BUILD CONTRACT
This Design-Build Contract (the “Contract”) is made and entered into as of this ___ day of July, 2022, between the Design-Builder:

Willdan Energy Solutions (“WES”), and the City of Brisbane, California (“Customer”), for the purpose of installing certain improvements on the Customer’s property and buildings (the “Premises”) described in SCHEDULE A (SCOPE OF WORK).

RECITALS
WHEREAS, Customer desires to retain WES to purchase and install certain equipment of the type or class described in SCHEDULE A (SCOPE OF WORK), attached hereto and made part hereof; and WHEREAS, WES is willing to perform Design and Preconstruction Phase Services as described in SCHEDULE A.2 (DESIGN AND PRECONSTRUCTION SERVICES) but at the conclusion of the Design and Preconstruction Phase, WES, at its sole option, may elect not to proceed with services described in SCHEDULE A.3 (CONSTRUCTION PHASE).

WHEREAS, Customer is authorized under the Constitution and the laws of the State of California to enter into this Contract for the purposes set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, Customer and WES hereto covenant and agree as follows:

SECTION 1 DESIGN-BUILD DOCUMENTS
Section 1.1 The Design-Build Documents consist of this Agreement between Customer and WES and its attached Schedules and Exhibits (hereinafter, the "Contract"); other documents listed in this Agreement; and Modifications issued after execution of this Agreement. A Modification is (1) a written amendment to the Contract signed by both parties, including the Design-Build Amendment, (2) a Change Order, (3) a Change Directive, or (4) a written order for a minor change in the Work issued by the Customer.

Section 1.2 The Design-Build Documents form the Contract. The Contract represents the entire and integrated agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Design-Build Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than the Customer and WES.

Section 1.3 Attachments, Schedules, Exhibits and Appendices: WES has prepared and Customer has approved and accepted the Schedules as set forth below, copies of which are attached hereto and made parts of this Contract by reference.

Schedules
SCHEDULE A. SCOPE OF WORK
SCHEDULE B. COMPENSATION TO WES
SCHEDULE C. ADDITIONAL RESPONSIBILITIES
Exhibits
EXHIBIT 1. DESIGN-BUILD AMENDMENT
EXHIBIT 2. CERTIFICATE OF ACCEPTANCE – PROJECT COMPLETION EXHIBIT 3. SUPPLEMENTAL AND OTHER CONDITIONS OF THE DESIGN AND PRE-CONSTRUCTION

PHASE SERVICES
SECTION 2 THE WORK OF THE DESIGN-BUILD CONTRACT
Section 2.1 The term "Work" means the design, construction and related services required to fulfill WES’s obligations under the Design-Build Documents, whether completed or partially completed, and includes all labor, materials, equipment and services provided or to be provided by WES.

Section 2.2 WES shall fully execute the Work described in the Design-Build Documents, except to the extent specifically indicated in the Design-Build Documents to be the responsibility of others.

Section 2.3 WES shall perform all Work through Contractors or through the WES’s own forces.

Section 2.4 WES shall perform the Work in compliance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities in affect at the time of Contract or Amendment execution as applicable. If WES ATTACHMENT 3
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performs Work contrary to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities, WES shall assume responsibility for such Work and shall bear the costs attributable to correction.

SECTION 3 PHASES OF THE WORK
Section 3.1 Work shall be performed in two phases: The Design and Pre-Construction Phase and the Construction Phase as outlined in SCHEDULE A (SCOPE OF WORK). WES will commence work for the Design Pre-Construction Phase upon execution of this Design-Build Agreement. The Construction Phase will commence at the conclusion of the Design and Pre-Construction Phase upon the execution of EXHIBIT 1 (DESIGN-BUILD AMENDMENT).

Section 3.2 The Scope of Work and Fee for each phase is defined in SCHEDULE A (SCOPE OF WORK) and SCHEDULE B (COMPENSATION TO WES) respectively.

SECTION 4 COMMENCEMENT DATE AND TERMS
Section 4.1 Commencement Date: The effective date of this agreement is the date of agreement’s last signature.

Section 4.2 Construction and Installation Period: The Construction and Installation Period will be a term set forth in the DesignBuild Amendment.

Section 4.3 Weather disruptions, availability of necessary equipment, remediation of hazardous materials, and other delays beyond the control of WES shall not count toward the Construction and Installation Period.

SECTION 5 CONTRACT SUM
Section 5.1 The Contract Sum is the amount to be paid to WES for the performance of the Work. This amount includes a Stipulated Sum for the Design and Pre-Construction Phase services and a Stipulated Sum for the Construction Phase as identified in SCHEDULE B (COMPENSATION TO WES).

SECTION 6 PAYMENTS TO WES
Section 6.1 WES Compensation and Fees: WES’s fees and compensation are set forth in SCHEDULE B (COMPENSATION TO WES).

Section 6.2 Billing Information Procedure: Payments due to WES shall be calculated each month and paid in accordance with SCHEDULE B (COMPENSATION TO WES).

Section 6.3 Payment: Customer shall pay WES within 30 days of receipt of WES’s application for payment.

Section 6.4 Effective Date of Payment Obligation: See SCHEDULE B (COMPENSATION TO WES).

SECTION 7 FISCAL FUNDING
Section 7.1 Non-appropriation of Funds: In the event no Customer or other funds or insufficient Customer or other funds are appropriated and budgeted, and funds are otherwise unavailable by any means whatsoever in any fiscal period for which payments are due WES under this Contract, then the Customer will, not less than 30 days prior to the end of such applicable fiscal period, in writing, notify WES of such occurrence and this Contract shall terminate on the last day of the fiscal period for which appropriations were made without penalty or expense to the Customer of any kind whatsoever, except as to the portions of payments herein agreed upon for which Customer and/or other funds shall have been appropriated and budgeted or are otherwise available.

SECTION 8 CONSTRUCTION SCHEDULE AND EQUIPMENT INSTALLATION; APPROVAL Section 8.1 Construction Schedule: Construction and equipment installation shall proceed in accordance with the construction period in SECTION 4 (COMMENCEMENT DATE AND TERMS). A detailed schedule of construction will be submitted to Customer following Commencement of the Design-Build Amendment. This schedule will be updated regularly to reflect ongoing progress on the Project.

Section 8.2 Systems Startup: WES shall provide startup of the installed equipment in accordance with any procedures specified in SCHEDULE C and prior to acceptance of the project by Customer. WES shall provide notice to the Customer of any scheduled test(s) and the Customer and/or its designees shall have the right to be present at any or all such tests conducted by WES and/or manufacturers of the equipment.

SECTION 9 EQUIPMENT WARRANTIES
Section 9.1 WES covenants and agrees that all equipment installed as part of this Contract is new, in good and proper working condition and protected by appropriate written warranties covering all parts and equipment performance. WES further agrees to deliver warranty documentation to Customer for inspection and approval; to pursue rights and remedies 9 83
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against manufacturer and supplier of the equipment under the warranties in the event of equipment malfunction or improper or defective function, and defects in parts, workmanship and performance, to notify the Customer whenever defects in equipment parts or performance occur which give rise to such rights and remedies and those rights and remedies are exercised by WES. The cost of any risk of damage or damage to the equipment and its performance, including damage to property and equipment of the Customer or the Premises, due to WES’s failure to exercise its warranty rights shall be borne solely by WES.

Section 9.2 All warranties shall be transferable and extend to the Customer. The warranties shall specify that only new, and not reconditioned parts, may be used and installed when repair is necessitated by malfunction.

Section 9.3 All warranties required hereunder shall be in force for a minimum of one year from the commencement date as defined in Section 4.1 hereof.

Section 9.4 Notwithstanding the above, nothing in this Section shall be construed to alleviate/relieve WES from complying with its obligations to perform under all terms and conditions of this Contract and as set forth in all attached Schedules.

SECTION 10 TRAINING BY WES
Section 10.1 Any training provided by WES shall be as described in SCHEDULE C hereto. The training specified in SCHEDULE C must be completed prior to acceptance of the equipment installation.

SECTION 11 PERMITS AND APPROVALS; COORDINATION
Section 11.1 Permits and Approvals: Customer shall use its best efforts to assist WES in obtaining all necessary permits and approvals for installation of the Equipment. In no event shall Customer, however, be responsible for payment of any permit fees. The equipment and the operation of the equipment by WES shall at all times conform to all federal, state and local code requirements. WES shall furnish copies of each permit or license which is required to perform the work to the Customer before WES commences the portion of the work requiring such permit or license.

Section 11.2 Coordination During Installation: The Customer and WES shall coordinate the activities of WES’s equipment installers with those of the Customer, its employees, and agents. WES shall not commit or permit any act which will interfere with the performance of business activities conducted by the Customer or its employees without prior written approval of the Customer. Customer will require a minimum of two weeks’ notice before any shutdown of facilities to facilitate the tie-in of new equipment.

SECTION 12 PERFORMANCE BY WES
Section 12.1 WES shall perform all tasks/phases under the Contract, including construction, and install the Equipment in such a manner so as not to harm the structural integrity of the buildings or their operating systems. WES shall repair and restore to its original condition any area of damage caused by WES’s performance under this Contract. The Customer reserves the right to review the work performed by WES and to direct WES to take certain corrective action if, in the opinion of both parties, the structural integrity of the Premises or its operating system is or will be harmed. All costs associated with such corrective action to damage caused by WES’s performance of the work shall be borne by WES.

Section 12.2 WES shall remain responsible for the professional and technical accuracy of all services performed, whether by WES or its subcontractors or others on its behalf, throughout the term of this Contract.

SECTION 13 OWNERSHIP
Section 13.1 Ownership of Certain Proprietary Property Rights: Customer shall not, by virtue of this Contract, acquire any interest in any formulas, patterns, devices, secret inventions or processes, copyrights, patents, other intellectual or proprietary rights, or similar items of property which are or may be used in connection with the Equipment. WES shall grant to the Customer a perpetual, irrevocable royalty-free license for any and all software or other intellectual property rights necessary for the Customer to continue to operate, maintain, and repair the equipment.

Section 13.2 Ownership of Existing Equipment: Ownership of the equipment and materials presently existing at the Premises at the time of execution of this Contract shall remain the property of the Customer even if it is replaced or its operation made unnecessary by work performed by WES pursuant to this Contract. If applicable, WES shall advise the Customer in writing of all equipment and materials to be replaced at the Premises and the Customer shall within 30 days designate in writing to WES which equipment and materials should not be disposed of off-site by WES. It is understood and agreed to by both Parties that the Customer shall be responsible for and designate the location and storage for any equipment and materials that should not be disposed of off-site. WES shall be responsible for the disposal of all equipment and materials designated by the Customer as disposable off-site in accordance with all applicable laws and regulations regarding such disposal. 10 84
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Section 13.3 New Equipment: All new equipment or materials supplied to the Customer shall become the property of the Customer.

SECTION 14 LOCATION AND ACCESS
Section 14.1 The physical address of the property as related to the scope of work under this contract is:

Brisbane Community Pool Facility
2 Solano Street
Brisbane, CA 94005
Section 14.2 Customer shall provide sufficient space on the Premises for the installation and operation of the Equipment and shall take reasonable steps to protect such Equipment from harm, theft and misuse. Customer shall provide access to the Premises for WES to perform any function related to this Contract during regular business hours, or such other reasonable hours as may be requested by WES and acceptable to the Customer. WES’s access to Premises to make emergency repairs or corrections as it may determine are needed shall not be unreasonably restricted by the Customer.

SECTION 15 INDEMNIFICATION
Section 15.1 WES shall be responsible for (i) any damage to the Equipment or other property on the Premises and (ii) any personal injury where such damage or injury occurs as a result and to the extent of WES’s negligence or other wrongful conduct in its performance under this Contract.

Section 15.2 WES shall save and hold harmless Customer and its officers, agents and employees or any of them from any and all claims, demands, actions or liability of any nature based upon or arising out of WES’s negligence or other wrongful conduct in any services performed by WES, its agents or employees under this Contract.

SECTION 16 CONDITIONS BEYOND CONTROL OF THE PARTIES
Section 16.1 If a party (“performing party”) shall be unable to reasonably perform any of its obligations under this Contract due to acts of Nature, insurrections or riots, or similar events, this Contract shall at the other party’s option (i) remain in effect but said performing party’s obligations shall be suspended until the said events shall have ended; or, (ii) be terminated upon ten (10) days’ notice to the performing party, in which event neither party shall have any further liability to the other.

SECTION 17 EVENTS OF DEFAULT
Section 17.1 Events of Default by Customer: Each of the following events or conditions shall constitute an “Event of Default” by Customer:
(i) any failure by Customer to pay WES any sum due for a service and maintenance period of more than 30 days after written notification by WES that Customer is delinquent in making payment and provided that WES is not in default in its performance under the terms of this Contract; or (ii) any other material failure by Customer to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein, provided that such failure continues for thirty days after notice to Customer demanding that such failures to perform be cured or if such cure cannot be effected in thirty days, Customer shall be deemed to have cured default upon the commencement of a cure within thirty days and diligent subsequent completion thereof;
(iii) any representation or warranty furnished by Customer in this Contract which was false or misleading in any material respect when made.

Section 17.2 Events of Default by WES: Each of the following events or conditions shall constitute an “Event of Default” by WES:
(i) failure to furnish and install the Equipment and make it ready for use within the time specified by this Contract as set forth in SCHEDULE A (SCOPE OF WORK) and SECTION 4 (COMMENCEMENT DATE AND TERMS);
(ii) any failure by WES to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein except that such failure, if corrected or cured within 30 days after written notice by the Customer to WES demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract;
(iii) any lien or encumbrance upon the equipment by any subcontractor, laborer or material man of WES; 11 85
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(iv) the filing of a bankruptcy petition whether by WES or its creditors against WES which proceeding shall not have been dismissed within 30 days of its filing, or an involuntary assignment for the benefit of all creditors or the liquidation of WES;
SECTION 18 REMEDIES UPON DEFAULT
Section 18.1 Remedies upon Default: All disputes shall be submitted to the individuals listed in SECTION 29 (NOTICE) for resolution. In the event that a remedy acceptable to both Customer and WES cannot be found, either party may seek remedy as outlined in SECTION 19 (MEDIATION).

SECTION 19 MEDIATION
Section 19.1 Any Claim arising out of or related to the Contract shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.

Section 19.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

Section 19.3 The parties shall share the mediator's fee and any filing fees equally.

Section 19.4 The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon.

Section 19.5 Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

SECTION 20 REPRESENTATIONS AND WARRANTIES
Section 20.1 Each party warrants and represents to the other that:
(i) it has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Contract and perform its obligations hereunder; (ii) its execution, delivery, and performance of this Contract have been duly authorized by, or are in accordance with, its organic instruments, and this Contract has been duly executed and delivered for it by the signatories so authorized, and it constitutes its legal, valid, and binding obligation; (iii) its execution, delivery, and performance of this Contract will not breach or violate, or constitute a default under any Contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected; or
(iv) it has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially and adversely affect its ability to perform hereunder.

SECTION 21 ADDITIONAL REPRESENTATIONS OF THE PARTIES
Section 21.1 WES hereby warrants, represents and promises that:
(i) it shall use qualified subcontractors and delegates, licensed and bonded in this state to perform the work so subcontracted or delegated pursuant to the terms hereof; (ii) that it is financially solvent, able to pay its debts as they mature and possessed of sufficient working capital to complete the Work and perform its obligations under this Contract.

SECTION 22 COMPLIANCE WITH LAW AND STANDARD PRACTICES
Section 22.1 WES shall perform its obligations hereunder in compliance with any and all applicable federal, state, and local laws, rules, and regulations, in accordance with sound engineering and safety practices, and in compliance with any and all reasonable rules of Customer relative to the Premises. WES shall be responsible for obtaining all governmental permits, consents, and authorizations as may be required to perform its obligations hereunder. 12 86
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SECTION 23 INDEPENDENT CAPACITY OF THE CONTRACTOR
Section 23.1 The parties hereto agree that WES, and any agents and employees of WES, in the performance of this Contract, shall act in an independent capacity and not as officers, employees, or agents of the Customer.

SECTION 24 NO WAIVER
Section 24.1 The failure of WES or Customer to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either party’s right to thereafter enforce the same in accordance with this Contract in the event of a continuing or subsequent default on the part of WES or Customer.

SECTION 25 SEVERABILITY
Section 25.1 In the event that any clause or provision of this Contract or any part thereof shall be declared invalid, void, or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Contract unless the result would be manifestly inequitable or unconscionable.

SECTION 26 COMPLETE CONTRACT
Section 26.1 This Contract, when executed, together with all Schedules attached hereto or to be attached hereto, as provided for by this Contract shall constitute the entire Contract between both parties and this Contract may not be amended, modified, or terminated except by a written Contract signed by the parties hereto.

SECTION 27 FURTHER DOCUMENTS
Section 27.1 The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Contract.

SECTION 28 APPLICABLE LAW
Section 28.1 This Contract and the construction and enforceability thereof shall be interpreted under the laws of the State of California.

SECTION 29 NOTICE
Section 29.1 Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or delivered to a nationally recognized express mail service, charges prepaid, receipt obtained, to the address shown below or to such other persons or addresses as are specified by similar notice.

TO WES: TO CUSTOMER:

Willdan Energy Solutions City of Brisbane
Attention: Micah Chen Attention: Tom McMorrow
2401 E. Katella Ave, #300 50 Park Place
Anaheim, CA 92806 Brisbane, CA 94005
SECTION 30 HEADINGS
Section 30.1 Headings and subtitles used throughout this Contract are for the purpose of convenience only, and no heading or subtitle shall modify or be used to interpret the text of any section.

SECTION 31 BONDS
Section 31.1 Any and all bonds obtained by WES for this project shall specifically exclude coverage for those portions of the Contract or the Work pertaining to design services and any other part of this Contract and the Contract Documents which do not relate specifically to construction management and supervision of Work for purchasing and installing of Equipment, or for work to be accomplished by the Customer.

SECTION 32 INSURANCE
Section 32.1 WES shall procure and maintain in effect insurance coverage in amounts not less than the following. (i) Workers' Compensation and Employer's Liability Insurance with limits of not less than $1,000,000 per occurrence.
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(ii) Commercial General Liability Insurance for personal and bodily injury, including death, and property damage with limits not less than $2,000,000 combined single limit each occurrence and $4,000,000 general aggregate. (iii) Automobile Liability Insurance for personal and bodily injury, including death and property damage in the amount of not less than $1,000,000 per occurrence.
(iv) Professional Liability Insurance for damages incurred by reason of any negligent act, error or omission committed by WES in performing professional services with limits of not less than $1,000,000 per claim and $2,000,000 annual aggregate.
(v) Builders All-Risk Insurance: WES, at Customer’s expense, shall maintain "All Risk Insurance" for all equipment, and property obtained by or for WES which is to become a part of the work while such equipment and property is stored at the jobsite, at temporary locations, or while in transit to the project from such temporary locations.

WES shall also be responsible for insuring Subcontractor's owned, rented, or borrowed equipment.

Section 32.2 WES will provide Customer with certificates of insurance evidencing coverage required above. Each certificate shall provide that the coverage shall not be canceled except with at least thirty days prior written notice to Customer, ten days’ notice if cancellation is due to nonpayment of premium. Should this occur, WES shall procure and furnish to Customer prior to such effective date new certificates conforming to the above coverage requirement.

SECTION 33 TERMINATION
Section 33.1 WES shall have the right at any time by written notice to the Customer, to terminate this Agreement with or without cause. In the event of such a termination for convenience, WES shall be entitled to full payment pursuant to the terms of SCHEDULE A.2 (DESIGN AND PRECONSTRUCTION SERVICES) for all Design and Preconstruction Services performed as of the date of termination. CUSTOMER waives any claim for costs, fees, losses directly or indirectly related to services described in SCHEDULE A.3 (CONSTRUCTION PHASE) in the event WES exercises this clause. CUSTOMER shall have the right to terminate for cause by written notice to WES.

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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto subscribe their names to this Contract by their duly authorized officers on the date last below written.

Willdan Energy Solutions (WES) City of Brisbane (Customer) Signed Signed
Name Anthony Sclafani Name
Title Vice President of Engineering Title City Manager
Date Date
California Contractors License No. 1065713
Willdan Energy Solutions City of Brisbane
2401 E. Katella Ave, #300 50 Park Place
Anaheim, CA 92806 Brisbane, CA 94005
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SCHEDULE A. SCOPE OF WORK

1. DESIGN-BUILD PROGRAM REQUIREMENTS:
a) General Scope and Intent:
(1) Electrify the City of Brisbane’s Community Pool (“Pool”) heating system by installing heat pump heating equipment including site electrical upgrades (“new equipment”) that may be required to accommodate the new equipment. The new equipment will be the primary heating source for the Pool, while the existing natural gas hot water heater will remain for supplemental heat when needed.
(2) Provide grading, paving and excavation services that may be required to install a new electrical system to accommodate the new equipment. Coordinate with PG&E, including for example preparation of a new service application, engineering field meetings, and installation of upgraded service. Provide a new concrete pad for new heat pump heating equipment. Excavation scope includes excavation with standard soil conditions, free of rock, debris, water, or any other item which would prolong or complicate the excavation process. (3) Provide electrical and plumbing equipment, materials, and installation as required to install the new equipment as an operational system.
(4) Furnish and install an operable heat pump water heating system that achieves a level of service comparable to the existing natural gas heating system. It is understood and acknowledged by both Customer and WES that usage of the existing natural gas heating system may still be required after installation of the heat pump units; particularly during cold weather extremes (defined as times when the outdoor air temperature is 52°F or lower) or if the pool temperature setpoint exceeds 80°F.
(5) The target budget for the work is $653,000. This includes the WES Contract Sum as well as any other costs or fees paid by Customer to entities other than WES.
b) Scope Exclusions:
(1) Hazardous Materials Removal.
(2) Any work related to the Wading Pool.
(3) Environmental impact studies of any kind; including noise studies. (4) Trenching by any means other than backhoe; for example, if excavation of hard rock is required.

2. DESIGN AND PRE-CONSTRUCTION PHASE SERVICES:
a) General:
(1) WES shall progress the design and engineering of the proposed new equipment consistent with the Design-Build Program Requirements. WES shall also provide the Customer with recommendations, consistent with the DesignBuild Program Requirements, on constructability; availability of materials and labor; time requirements for procurement, installation and construction; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, and possible cost reductions. b) Engineering and Design: During the Design and Pre-Construction Phase Services phase, WES shall perform:
(1) Conceptual design required to develop the scope and project solution that meets Design-Build Program Requirements as identified in SCHEDULE A.1. Conceptual design is to be reviewed and accepted by Customer, as with material submittals
(2) Develop design that is sufficient to procure subcontractors and materials and develop the Contract Sum to be included in the Design-Build Amendment. Customer to review conceptual design before WES requests bids. c) Preparation of the Design-Build Amendment:
(1) When the Drawings and Specifications are sufficiently complete, WES shall prepare a Design-Build Amendment as outlined in Exhibit 1. This Amendment shall include:
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(a) Contract Sum
(b) Contract Time
(c) Construction Schedule
(d) Information Upon Which Amendment is Based, including:
(i) Scope of Work
(ii) Drawings
(iii) Specifications
(iv) Supplementary and other Conditions of the Contract (v) Deviations from the Design-Build Program Requirements as identified in SCHEDULE A.1. d) Supplemental and other Conditions of the Design and Pre-Construction Phase Services are attached as Exhibit 3. As used in that Exhibit, "City" is "Customer" and "WES" is "Consultant". If there are conflicts between the terms and conditions of the Design-Build Contract and the terms and conditions in Exhibit 3, the terms and conditions of Exhibit 3 shall prevail.

3. CONSTRUCTION PHASE:
a) Construction Documents:
(1) As the Drawings and Specifications, while developed as described in Section 2 b) (2) above, may not be finished at the time the Design-Build Amendment is prepared, WES may provide, in the amendment, for further development of the Drawings and Specifications for construction. Such further development does not include such things as changes in scope, systems, kinds, and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.
b) Design-Builder’s Responsibility:
(1) WES shall supervise and direct the Work, using the WES’s best skill and attention. WES shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract, unless the Design-Build Documents give other specific instructions concerning these matters.
(2) WES shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work.
c) Labor and Materials
(1) Unless otherwise provided in the Design-Build Documents, WES shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated into the Work.
d) Project Implementation Scope of Work:
(1) Final, more detailed scope of work will be specified in the Design-Build Amendment.

4. TIME:
a) WES and Customer will work together to develop construction schedules that minimize disruption to Customer operations while allowing for completion of Scope of Work in a timely fashion. All construction will be completed in accordance with SECTION 4 (COMMENCEMENT DATE AND TERMS).
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SCHEDULE B. COMPENSATION TO WES
The Customer shall compensate and make payments to WES for both Design and Preconstruction Phase services and Construction Phase Services as follows:

1. DESIGN AND PRECONSTRUCTION PHASE SERVICES. The Customer shall compensate and make payments to WES for Design and Preconstruction Phase services as follows:
a) Sum of $66,785.00.

2. CONSTRUCTION PHASE SERVICES. For WES’s performance of Construction, Customer shall pay WES the Contract Sum after the execution of the Design-Build Amendment. The Contract Sum shall be identified in the Design-Build Amendment.

3. PAYMENT PROCEDURES
a) Design and Pre-construction Phase Payments:
(1) WES shall provide a monthly Application for Payment to Customer for Design and Preconstruction Phase services completed during the previous month. The Customer shall make payment in the manner and within the time provided in Section 6.3.
b) Construction Phase Payments:
(1) Progress Payments: WES shall provide a monthly Application for Payment to Customer for work completed during the previous month. The Customer shall make payment in the manner and within the time provided in Section 6.3.

Until the total cumulative amount paid from Customer to WES equals $118,394, less any other costs or fees paid by Customer to entities other than WES, Customer will pay one hundred percent (100%) of the amount due to WES on account of progress payments for each line item. After the total cumulative amount paid from Customer to WES equals $118,394, less any other costs or fees paid by Customer to entities other than WES, Customer may cease making progress payments and WES will receive the balance of the Contract Sum as the payee of the PG&E On-Bill Finance disbursement check.
(2) Schedule of Values: WES will prepare and submit a complete schedule of values in advance of the initial Application for Payment. Projects listed as line items in the Schedule of Values will be treated as individual projects for the purposes of Progress Payments and Project Completion.
(3) Final payment application: After completing all project closeout requirements, Customer and WES shall execute the Certificate of Acceptance – Project Completion as presented in Exhibit 2; which shall not be unreasonably withheld.

WES will then submit a final Application for Payment. Final payment to WES shall come from PG&E in the form of the On-Bill Financing (OBF) check disbursement. WES shall be the sole payee of the check.

Failure of Payment: If the Customer does not pay WES within seven days after the date established in Section 6.3, then WES may, upon written notice to the Customer, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the WES's reasonable costs of shut-down, delay and start-up, plus interest.
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SCHEDULE C. ADDITIONAL RESPONSIBILITIES

1. Customer Responsibilities
a) PG&E On-Bill Financing Program
(1) Customer shall promptly comply with all PG&E On-Bill Financing (OBF) program requirements including, but not limited to:
(a) Sign and return the Loan Agreement to PG&E.
(b) Sign and return the Loan Modification Agreement (if necessary) to PG&E. (c) Designate WES as the payee for the OBF check disbursement. b) Equipment Noise Levels
(1) WES shall provide equipment data sheets indicating operational noise levels of proposed equipment. WES shall make commercially reasonable efforts to facilitate physical inspection of similar equipment, operating in similar conditions to the proposed project, by Customer.
(2) Customer shall be responsible for approving the use of the proposed equipment or alternatives via submittal. By providing this approval:
(a) Customer confirms that the proposed equipment is acceptable for use in the proposed location. (b) Customer confirms that the proposed equipment complies with Brisbane Municipal Code Chapter 8.28 – Noise Control and related sections; or
(c) Customer agrees that the work is exempt per Brisbane Municipal Code 8.28.050.C; or (d) Customer assumes full responsibility for any and all noise related issues associated with new equipment. Under no circumstances will WES be responsible for additional engineering or construction required to document or abate any noise related issues without receiving compensation. c) Data and Records
(1) Customer hereby warrants, represents and promises that it has provided or shall provide timely to WES, all records relating to energy usage and energy-related maintenance of Premises requested by WES and the information set forth therein is, and all information in other records to be subsequently provided pursuant to this Contract will be true and accurate in all material respects.
(2) Providing descriptions of property boundaries and existing service and utility lines. This includes any existing surveys describing underground utilities or concealed conditions at the project site. (3) As-built and record drawings of existing structures at the project site. (4) Existing environmental requirements or studies applicable to the project site. d) Retained Equipment
(1) Customer shall be responsible for, and designate the location and storage for, any equipment and materials that should not be disposed of off-site.
e) Differing Site Conditions
(1) The conditions at the site are the property of the Customer regardless of whether or not they could be identified by an investigation or exploration conducted according to the professional standard of care. A “Differing Site Condition” is a subsurface, hidden, latent, or physical condition at a project site/building not revealed by the site exploration, site investigation, or other information provided to the Customer and which cannot be reasonably anticipated. Special risks occur whenever engineering is applied to identifying site/building conditions. Even a comprehensive investigation according to the professional standard of care may not detect all subsurface or site/building conditions.

WES shall not be liable for site/building conditions which could not be identified by such an investigation or exploration. Accordingly, the Customer agrees to indemnify, including all costs and fees, and hold WES harmless from all claims for Differing Site Conditions.
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f) Site Preparation
(1) Customer is responsible for removal and relocation of the shipping container currently being used as temporary storage that is currently located within the proposed project footprint. (2) Providing for scheduling and shutdown of affected areas. g) Customer Information Technology Responsibilities
(1) Customer is responsible for providing network connection(s) for wireless connection of proposed demand-response capable controllers/controls and required internet accessibility. (2) Customer shall engage its IT representative familiar with the Customer’s network to work with WES and its subcontractors to establish internet connectivity, at no cost to the project, to assure proper operation of the proposed demand-response capable controllers/controls
h) Maintenance
(1) Customer is responsible for performing all maintenance on new work as recommended in the manufacturer’s written instructions. This includes maintaining water chemistry within acceptable parameters and maintaining adequate records to pursue any warranty claims if required.
(2) Customer is responsible for maintaining groundskeeping around the new equipment to ensure proper operation. (3) WES is not responsible for performance of any maintenance on equipment or premises. (4) Pursuing repairs or replacement of new equipment covered by manufacturer warranty after the warranty period of this agreement expires (refer to SECTION 9). After this period, WES is not obligated to provide for repair or replacement of work under warranty. Customer shall seek repair or replacement from manufacturer and arrange for installation labor.

2. WES Responsibilities
a) System Start-up
(1) WES will perform start-up of new equipment in accordance with manufacturer’s written instructions. b) Operating parameters of installed equipment
(1) WES will provide operating parameters in the Operation and Maintenance Manuals. These manuals will be provided to Customer prior to Project Completion.
(2) Operation and Maintenance Manuals will include as-built drawings of all new equipment. As-builts will also be included in digital format.
c) Training Requirements
(1) WES will provide four (4) hours of dedicated training to City maintenance staff prior to Project Completion to ensure proper understanding of installed systems. The training may be provided in-person and on-premises, or remotely via Webex, Microsoft Teams, or equivalent.
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EXHIBIT 1. DESIGN-BUILD AMENDMENT (DRAFT, TO BE PROVIDED AT THE CONCLUSION OF

THE DESIGN AND PRECONSTRUCTION PHASE)
This Amendment is incorporated into the accompanying Design-Build Contract dated the ____ day of July, 2022, (the “Agreement”) for the following:

PROJECT: Brisbane Community Pool Heating System Electrification, 2 Solano St., Brisbane, CA 94005 THE CUSTOMER: City of Brisbane, 50 Park Place, Brisbane, CA 94005 THE DESIGN-BUILDER: Willdan Energy Solutions, Inc.

Customer and Design-Builder hereby amend the Agreement as follows.

TABLE OF ARTICLES

1. CONTRACT SUM

2. CHANGES IN THE CONTRACT SUM

3. CONTRACT TIME

4. CONSTRUCTION SCHEDULE

5. INFORMATION UPON WHICH AMENDMENT IS BASED

1. CONTRACT SUM
a) Stipulated Sum:
(1) The Stipulated Sum for Construction Phase Services shall be ($XXX,XXX), subject to authorized adjustments as provided in the Design-Build Documents.

2. CHANGES IN THE CONTRACT SUM:
a) Any overage in the cost of the Scope of Work in SCHEDULE A (SCOPE OF WORK) shall be the responsibility of WES.
b) Changes to the contract sum are warranted for, but are not limited to: Hazardous materials, additions or modifications to the Scope of Work, and Differing Site Conditions as defined in SCHEDULE C. All additional costs associated with these items shall be the responsibility of Customer.

3. CONTRACT TIME
a) The date of Substantial Completion upon which this proposal is based is [TBD]. b) The date of Final Completion is [TBD].
c) Weather disruptions, documented availability of necessary equipment, remediation of hazardous materials, and other delays beyond the control of WES shall not count toward the construction timeframe in SECTION 4 (COMMENCEMENT DATE AND TERMS).

4. CONSTRUCTION SCHEDULE
d) [TBD]

5. INFORMATION UPON WHICH AMENDMENT IS BASED
a) Scope of Work
(1) [TBD]
b) Drawings
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(1) [TBD]
c) Specifications
(1) [TBD]
b) Supplementary and other Conditions of the Contract
(1) [TBD]
c) Deviations from the Design-Build Program Requirements as identified in SCHEDULE A.3:
(1) [TBD]
This Amendment to the Agreement entered into as of the day and the year last written below.

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EXHIBIT 2. CERTIFICATE OF ACCEPTANCE – PROJECT COMPLETION This is to certify that a final inspection of the Project has been conducted jointly by WES and the City of Brisbane, California, and that the parties have determined that the Project has been fully completed in accordance with the Contract Documents. All guarantees and warranties that have not commenced previously shall commence as of the date last written below.

Customer accepts the Project as being fully completed and assumes responsibility for maintenance, custodial care, and utilities for the premises. WES remains responsible to correct errors and omissions discovered subsequent to the execution of this document and to respond to claims made under applicable warranties.

Willdan Energy Solutions (WES) City of Brisbane (Customer) Signed Signed
Name Anthony Sclafani Name
Title Vice President of Engineering Title Public Works Director/City Engineer Date Date
California Contractors License No. 1065713
Willdan Energy Solutions City of Brisbane
2401 E. Katella Ave, #300 50 Park Place
Anaheim, CA 92806 Brisbane, CA 94005

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EXHIBIT 3. SUPPLEMENTAL AND OTHER CONDITIONS OF THE DESIGN AND PRECONSTRUCTION PHASE SERVICES 24 98
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2 5. Maintenance and Inspection of Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, timecards, and other records or documents relating to charges for services or expenditures charged to City solely and exclusively related to this Agreement, for a minimum of three years from the date of the City’s final payment to Consultant for the Park Place Project and for a minimum of three years from the date of any payment for Other Projects. Consultant shall make the same available to City or its authorized representatives for inspection and audit, at any time during regular business hours, upon written request by City. The right of inspection shall include the right to make extracts and copies of the documents solely and exclusively related to this Agreement.

7. Correction of Work. Consultant shall promptly correct any defective, inaccurate or incomplete tasks, deliverables, services or other work, without additional cost to the City. The City’s acceptance of Consultant’s services shall not relieve Consultant from the obligation to correct subsequently discovered defective, inaccurate or incomplete services.

8. Ownership of Documents. All plans, studies, documents, and other written materials that Consultant prepares in the course of providing services, except working notes and internal documents, shall become the City’s property upon the City’s payment for the services/work associated with such materials. City shall have the right to use such materials in its sole discretion without further compensation to Consultant or to any other party.

Consultant shall provide, at Consultant’s sole expense, such written materials upon City’s written request. Consultant shall not be responsible for any reuse of such documents by City which is unrelated to the Project and City agrees to indemnify, defend, and hold Consultant and subcontractors harmless against any claims of liability arising from such reuse or modification made to the documents by City

9. Independent Contractor. Consultant is, and at all times shall remain, an independent contractor, and not agent, officer or employee of City. As such an independent contractor, neither Consultant nor any of Consultant’s agents or employees shall be entitled 25 99
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3 to any salary, fringe benefits, worker's compensation, retirement contributions, sick leave, insurance or other benefit or right connected with employment by City, or any compensation other than as provided in this Agreement. Consultant shall have no power or authority to bind City to any contract or otherwise to incur any obligation or liability for, or on behalf, or in the name of City.

10. Licenses. Consultant represents and warrants to City that Consultant has all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant shall, at its sole cost and expense, keep and maintain such licenses, permits, qualifications, insurance and approvals in full force and effect at all times during the term of this Agreement. Consultant shall maintain a City of Brisbane business license.

11. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations in connection with providing its services under this Agreement.

12. Indemnity. Consultant shall indemnify, defend, and hold City, its officers, officials, employees and volunteers, harmless from and against any and all direct claims, losses, damages, injuries, expenses and liabilities, including the reimbursement of attorney's fees, to the extent caused by the negligent performance or willful misconduct by Consultant of its services under this Agreement or its failure to comply with any of the its obligations contained in this Agreement, and City shall not be liable for any negligent acts or omissions or willful misconduct of Consultant. The duty to defend obligation of the Consultant shall be limited to the proportionate percentage of any claim arising directly from Services performed by the Consultant under this Agreement.

13. Insurance. Consultant, at its own expense, shall procure and maintain, for the duration of this Agreement, insurance policies, which satisfy the following requirements:

(a) Type of policies and coverage:

(1) General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury and property damage.
(2) Automobile Liability Coverage. Consultant shall maintain automobile liability insurance in an amount not less than $1,000,000 combined single limit for each occurrence, for bodily injury and property damage.

(3) Workers' Compensation and Employer's Liability Coverage. Consultant shall maintain workers' compensation insurance as required by the State of California and employer's liability insurance in an amount not less than $1,000,000 per occurrence, for any and all persons employed by Consultant in connection with the performance of services under this Agreement. (4) Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability coverage in an amount not less than $1,000,000 per claim, covering negligent acts and errors or omissions.

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4 b) Endorsements: Each general liability policy shall contain the following provisions:

(1) The City, its officers, officials, employees, agents and volunteers are to be included as additional insureds as respects: liability arising out of activities performed by Consultant solely and exclusively under this Agreements; products and completed operations of Consultant solely and exclusively provided under this Agreement; premises owned, occupied or used by Consultant; or automobiles, leased, hired or borrowed by Consultant.

(2) For any claims related to the services being provided by Consultant solely and exclusively under this Agreement, Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, agents or volunteers shall be excess of Consultants’ insurance and shall not contribute with it.

(3) Consultant shall provide City with thirty (30) days prior written notice by email in the event any of the insurance coverage is canceled.. c) Acceptability of Insurers. Insurance is to be placed with insurers having a current A.M. Best rating of no less than A:VII, unless otherwise approved by City in writing.
d) Verification of coverage. Consultant shall provide certificates of insurance including the City as additional insured as evidence of the insurance coverage required by this Agreement. Certificates of such insurance shall be filed with City before commencement of work by Consultant. At the request of City, Consultant shall provide complete, certified copies of all required insurance policies required by this Agreement.

Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be either personally delivered or sent by certified mail, return receipt requested, addressed to the other party as follows:

To City City of Brisbane
50 Park Place
Brisbane, CA 94005
Attn.: Public Works Director
To Consultant
. Resolution of Disputes. If any dispute between the parties concerning this Agreement arises, the parties shall in good faith attempt to resolve it through mediation before commencing any legal action.
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5 Termination of Agreement. This Agreement may be terminated immediately by either party, effective upon written notice, should the other party commit any material default in the performance of its obligations hereunder. This Agreement may be terminated by either party, for any reason, upon thirty (30) day's prior written notice to the other party. In the event this Agreement is terminated by City, Consultant shall be compensated for all services performed to the date of termination. . Equal Opportunity Employment. Consultant warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal opportunity employment.
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File Attachments for Item:

K. Sierra Point Landscaping and Lighting District

1. Hear Statement of Engineer of Record, Read Mayor’s Statement, Hear City Clerk Statement, Open Public Hearing to hear any testimony, Close Public Hearing2. Consider adoption of Resolution overruling protests and ordering the improvements and confirming the diagram and assessments for Fiscal Year 22/23
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1 Public Hearing on Imposition of FY 22-23 Tax Roll Charges for the Sierra Point Landscaping and Lighting District

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: Karen Kinser, Deputy Director of Public Works
Subject: Public Hearing on Imposition of Fiscal Year 2022-2023 Tax Roll Charges for the Sierra Point Landscaping and Lighting District Community Goal/Result - Economic Development
Purpose - To complete the process via a public hearing for the imposition of annual tax roll charges that fund Sierra Point's Landscape and Lighting Assessment District, which provides for maintenance of the landscaping, irrigation and lighting installed in 1989.

Recommendation - The following procedures and actions are recommended:

1. Statement of the Engineer of Record as to the nature of the project.

2. Mayor's statement and declaration that the Public Hearing is open (see Attachment 1).

3. Statement by the City Clerk verifying that the Certificate of Posting and the Resolution of Intention is on file (see Attachment 2), followed by the reading of any written protests by the City Clerk.

4. Hearing of oral testimony and comments.

5. Closure of Public Hearing.

6. By motion, adoption of the proposed Resolution Addressing Objections and Ordering the Improvements and Confirming the Diagrams and Assessment for Fiscal Year 2022- 2023 for the Sierra Point Landscaping and Lighting District.

Background
At its June 16th meeting, the City Council adopted Resolution No. 2022-52, a Resolution of Preliminary Approval of Engineer's Report, and Resolution No. 2022-53, a Resolution of Intention to Order the Levy and Collection of Assessments Pursuant to the Landscaping and Lighting Act of 1972, pertaining to the Sierra Point Landscaping and Lighting District, Fiscal Year 2022-2023. The fiscal year 2022–2023 Engineer’s Report maintains the previous year’s total assessment amount.

In accordance with state law, joint notice of both the public meeting and the public hearing was mailed to all affected property owners and was posted at City Hall, Brisbane Community 1 104
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2 Public Hearing on Imposition of FY 22-23 Tax Roll Charges for the Sierra Point Landscaping and Lighting District
Center, Brisbane Public Library and Mission Blue Center. The preliminarily approved Engineer's Report is attached. As of June 29, 2022, no written protests had been received.

Discussion
In addition to the routine maintenance provided within the district, the revenue funds nonannual projects such as deep root watering trees in drought years. In the coming fiscal year, aging and rusting street light poles will be replaced and/or repaired and treated with rust inhibitor as needed.

Minor corrections to the Engineer’s Report may be made by staff after adoption of the resolution if final county assessor data received after this action differs from draft data.

Fiscal Impact
This is an annually occurring process that provides the funding mechanism for the work completed within the landscaping and lighting district. If the Council declines to order and levy the collection of assessments, there will be no identified revenue source for the work scheduled in this District. The FY 22-23 budget adopted by Council for Department 6035 (Sierra Point Landscaping and Lighting District) is in the amount of $577,137. The assessments to be collected via the recommended action are $591,719. The collected amount includes a $14,582 addition to fund reserves.

Measure of Success
Continuing acceptable maintenance levels in the Sierra Point Landscape and Lighting District.

Attachments

1. Opening Statement by the Mayor of the City of Brisbane

2. Clerk’s Statement

3. Proposed Resolution Addressing Objections, Ordering the Improvements and Confirming the Diagrams and Assessment for Fiscal Year 2022-23

4. Engineer’s Report, including Zone 1 and Zone 2 Assessment Diagrams __________________________
Karen Kinser, Deputy Director of Public Works
__________________________ _________________________
Randy Breault, Director of Public Works Clay Holstine, City Manager 2 105
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1 Opening Statement

OPENING STATEMENT BY THE MAYOR

OF THE CITY OF BRISBANE
JULY 7, 2022

SIERRA POINT LANDSCAPING AND LIGHTING DISTRICT
This is the time and place set for hearing on the Engineer’s Report and the levy and collection of the proposed assessment for Fiscal Year 2022-2023 for the Sierra Point Landscaping and Lighting District. These proceedings were undertaken pursuant to the Landscaping and Lighting Act of 1972.

The Engineer’s Report prepared by the Engineer of Work consists of the proposed improvements, the boundaries of the Assessment District and any zones therein, the proposed diagram, the estimate of cost thereof and the proposed assessments upon assessable lots and parcels of land within the District. Any one of these items may be the subject of protests or endorsements.

You are asked to clearly identify yourself and the property owned by you so that your statements may be correctly recorded.

The hearing is declared open and I will ask the City Clerk to report on the various notices given in connection with the hearing.
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1 Clerk’s Statement
CLERK’S STATEMENT
JULY 7, 2022

SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT
Notices have been mailed and posted as required by the Landscaping and Lighting Act of 1972. Proofs of mailing and posting are on file in my office. A copy of the Engineer’s Report prepared by the Engineer of Work was filed in my office on June 6, 2022 and has been open to public inspection since that time.
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1 Resolution 2022-XX
RESOLUTION NO. 2022-XX

A RESOLUTION OVERRULING PROTESTS AND ORDERING THE IMPROVEMENTS

AND CONFIRMING THE DIAGRAM AND ASSESSMENTS
FISCAL YEAR 2022-2023

SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT
RESOLVED, by the City Council of the City of Brisbane, California, as follows:

WHEREAS, the Engineer’s Report for Fiscal Year 2022-2023 for the Sierra Point Landscaping and Lighting District Pursuant to the Landscaping and Lighting Act of 1972 was duly made and filed with the Clerk of said City, whereupon said Clerk presented it to the City Council for its consideration;
WHEREAS, said Council thereupon duly considered said report and each and every part thereof and found that it contained all the matters and things called for by the provisions of said Act, including (1) plans and specifications of the existing improvements and the proposed new improvements; (2) estimate of costs; (3) diagram of the District; and (4) an assessment according to benefits; all of which were done in the form and manner required by said Act;
WHEREAS, said Council found that said report and each and every part thereof was sufficient in every particular detail and determined that it should stand as the report for all subsequent proceedings under said Act, and thereby Preliminarily Approved said report via Resolution 2022-52; whereupon said Council, pursuant to the requirements of said Act, appointed Thursday, the 7th day of July, 2022, at the hour of 7:30 p.m. of said day in the Brisbane Community Meeting Room, 50 Park Place, Brisbane, California, 94005 as the time and place for hearing protests in relation to the levy and collection of the proposed assessments for said improvements, including the maintenance or servicing, or both, thereof, for Fiscal Year 2022-2023 and directing said Clerk to give notice of said hearing as required by said Act;
WHEREAS, it appears that notices of said hearing were duly and regularly mailed, published and posted in the time, form and manner required by said Act, as evidenced by the Affidavits and Certificates on file with said Clerk, whereupon said hearing was duly and regularly held at the time and place stated in said notice; WHEREAS, persons interested, objecting to said improvements, including the maintenance or servicing, or both, thereof, or to the extent of the assessment district, or any zones therein, or to the proposed assessment or diagram or to the Engineer's estimate of costs thereof, filed written protests with the Clerk of said City at or before the conclusion of said hearing, and all persons interested desiring to be heard were given an opportunity to be heard, and all matters and things were pertaining to the levy and 5 108
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collection of the assessments for said improvements, including the maintenance or servicing, or both, thereof, were fully heard and considered by said Council; and NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED and ORDERED, as follows:

1. That protests against said improvements, including the maintenance or servicing, or both, thereof, or to the extent of the assessment district or any zones therein, or to the proposed assessment or diagram, or to the Engineer's estimate of costs thereof, for Fiscal Year 2022-2023 be, and each of them are, hereby overruled.

2. That the public interest, convenience and necessity require and said Council does hereby order the levy and collection of assessments pursuant to said Act, for the construction or installation of the improvements, including the maintenance or servicing, or both, thereof, more particularly described in said Engineer's Report and made a part hereof by reference thereto.

3. That the Sierra Point Landscaping and Lighting District and the boundaries thereof benefited and to be assessed for said costs for the construction or installation of the improvements, including the maintenance or servicing, or both, thereof, are more particularly described by reference to a map thereof on file in the Office of the Clerk of said City. Said map indicates by a boundary line the extent of the territory included in said district and of any zone thereof and the general location of said District.

4. That the plans and specifications for the existing improvements and for the proposed improvements to be made within the assessment district or within any zone thereof contained in said report, be, and they are, hereby finally adopted and approved.

5. That the Engineer's estimate of the itemized and total costs and expenses of said improvements, maintenance and servicing thereof, and of the incidental expenses in connection therewith, contained in said report, be, and it is hereby, finally adopted and approved.

6. That the public interest and convenience require, and said Council does hereby order, the improvements to be made as described in and in accordance with said Engineer's Report, reference to which is hereby made for a more particular description of said improvements.

7. That the diagram showing the exterior boundaries of the assessment district referred to and described in said Resolution No. 2022-53, and also the boundaries of any zones therein and the lines and dimensions of each lot or parcel of land within said District as such lot or parcel of land is shown on the County Assessor's maps for the fiscal year to which it applies, each of which lot or parcel of land has been given a separate number upon said diagram, as contained in said report, be, and it is hereby, finally approved and confirmed.
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8. That the assessment of the total amount of the costs and expenses of the said improvements upon the several lots or parcels of land in said District in proportion to the estimated benefits to be received by such lots or parcels, respectively, from said improvements, and the maintenance or servicing, or both, thereof and of the expenses incidental thereto contained in said report be, and the same is hereby, finally approved and confirmed.

9. That said Engineer's Report for Fiscal Year 2022-2023 be, and the same is, hereby finally adopted and approved as a whole.

10. That the City Clerk shall forthwith file with the Auditor of San Mateo County the said assessment, together with said diagram thereto attached and made a part thereof, as confirmed by the City Council, with the certificate of such confirmation thereto attached and of the date thereof.

11. That the order for the levy and collection of assessment for the improvements and the final adoption and approval of the Engineer's Report as a whole, and of the plans and specifications, estimate of the costs and expenses, the diagram and the assessment, as contained in said Report, as modified, as hereinabove determined and ordered, is intended to and shall refer and apply to said Report, or any portion thereof, as amended, modified, revised or corrected by, or pursuant to and in accordance with any resolution or order, if any, heretofore duly adopted or made by this Council.

12. That the San Mateo County Controller and the San Mateo County Tax Collector apply the Sierra Point Landscaping and Lighting District assessments to the tax roll and have the San Mateo County Tax Collector collect said assessments in the manner and form as with all other such assessments collected by the San Mateo County Tax Collector.

7 110
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4 Resolution 2022-XX
_____________________________
Coleen Mackin, Mayor
City of Brisbane
* * * *
I, the undersigned, hereby certify that the foregoing Resolution No. 2022-XX was adopted at a regular meeting of the City Council of the City of Brisbane on the 7th day of July, 2022 by the following vote:

AYES:

NOES:

ABSENT:
______________________________
Ingrid Padilla, City Clerk
City of Brisbane
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1 Engineer’s Report

CITY OF BRISBANE

SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT

ENGINEER'S REPORT
on the
Levy of an Assessment
for the
2022 - 2023 Fiscal Year
Prepared by
Karen Kinser, P.E.

Deputy Director of Public Works
June 6, 2022
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2 Engineer’s Report
I. BACKGROUND
In 1983, the Brisbane City Council determined to undertake proceedings under the provisions of Division 15, Part 2, of the California Streets and Highways Code, entitled “Landscaping and Lighting Act of 1972”, for the formation of an assessment district for the purpose of constructing, installing, maintaining and servicing the following facilities within said district:
a) Public landscaping, including trees, shrubs, grass, other vegetation, and irrigation facilities.
b) Public lighting facilities, including standards, poles, and electric current or energy.

The proposed district was designated the “Sierra Point Landscaping and Lighting District”.

This report was prepared as part of an annually occurring process to detail the assessment charges and district expenses covering the 2022 - 2023 fiscal year.

II. PLANS AND SPECIFICATIONS
The original plans and specifications for this assessment district have been separately bound but are incorporated herein by this reference thereto.

III. ESTIMATE OF COSTS
The costs of this assessment district for the 2022 - 2023 fiscal year are estimated to be as follows:

ZONE l & 2 CONSTRUCTION & MAINTENANCE COSTS

FY 22/22
Employee costs 53,124
Supplies and services 401,931
Administrative costs 122,082
TOTAL ZONE 1 & 2 $577,137
Supplies and services includes safety clothing, maintenance of vehicles and equipment, small tools and supplies, landscape and irrigation maintenance including materials, electricity, and water.

Administrative charges are indirect, overhead costs to manage the district. 10 113
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3 Engineer’s Report
A detailed breakdown of these costs is available to assessees upon request.

Costs associated with this assessment district for the 2022 - 2023 fiscal year are to be paid as follows:

ZONE l & 2 FUNDING SOURCES

FY 21/22
Assessment charges 591,719
Addition to Reserves -14,582
TOTAL ZONE 1 & 2 $577,137

IV. DIAGRAM
The assessment diagrams for Zones 1 and 2 are attached hereto and are a part of this report.

V. ASSESSMENT
The assessments to be made against the assessable lots and parcels of land within this assessment district are attached hereto and are a part of this report.

Respectfully submitted,
Dated ____________________ __________________________
Karen Kinser, P.E.

Deputy Director of Public Works

06/29/22
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4 Engineer’s Report
Filed in the office of the City Clerk of the City of Brisbane, San Mateo County, California, this __________ day of _________, 2022.
_____________________________
Ingrid Padilla
City Clerk
Filed in the office of the County Controller-Auditor of the County of San Mateo, California, this _________ day of ____________________, 2022.
_____________________________
Juan Raigoza
County Controller
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5 Engineer’s Report

ASSESSMENT ROLL

ASSESSMENT ASSESSOR'S PARCEL PARCEL
NUMBER NUMBER AREA, AC. ASSESSMENT
ZONE l
A 1 007—165—210 4.41 $23,117
A 2 007—165—230 8.97 51,477
A 3 007—165—110 3.44 19,164
A 4 007—165—050 6.13 34,148
A 5 007—164—020 5.66 31,530
A 6 007—164—010 10.20 56,823
A 7 007—165—130 9.78 54,483
A 8 007—165—140 7.13 39,720
A 9 007—165—150 5.93 33,035
A 10 007—163—030 3.52 19,609
A 11 007—163—040 3.08 17,158
A 12 007—165—120 4.56 25,404
C l 015—011—090 Note1 0
C 2 015—011—100 6.92 38,551
C 3 015—011—110 8.57 47,742
C 4 015—011—120 8.56 47,686
C 5 015—011—140 2.41 13,427
Subtotal Zone 1 99.28 $553,074
1 Although previously assessed, this parcel is owned by California State Lands Commission, which is exempt from local assessments.
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6 Engineer’s Report
ZONE 2
B l None (placeholder only) -0-
B 2 005—162—430 (Ptn) 15.2 7,189
B 3 005—162—300 66.5 31,456
B 4 005—162—400 (Ptn) Note2 -0-
B 5 005—162—410 (Ptn) 0.23 -0-
B 6 005—162—390 Note4 -0-
B 7 005—162—420 (Ptn) Note4 -0-
Subtotal Zone 2 81.7 $ 38,645
Total 180.99 $591,719

METHOD OF ASSESSMENT SPREAD
The amounts to be assessed against the parcels of property to pay the costs and expenses of the work and improvements shall be based on the estimated benefits to be derived by the various properties within the assessment district.

Construction and maintenance costs shall be segregated by zone, and then spread to the parcels within each zone in proportion to the area of the benefited parcels within the zone.

Incidental expenses shall be spread proportional to the area of benefited parcels within the assessment district.

Due to the County Auditor's requirement that individual parcel assessments be rounded to the nearest even cent, the total of said individual assessments may not exactly equal the total estimate of costs.
2 This portion of this parcel is private land over which the public has been granted access for use as the street, Tunnel Avenue. 3 No assessment has been imposed for a value less than $100. 4 B6 and B7 are publicly owned portions of Tunnel Avenue. 14 117
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7 Engineer’s Report

NAMES AND ADDRESSES OF OWNERS

ASSESSMENT
NUMBER
APN

NUMBER ASSESSEE
A-1 007-165-210 BP3 SF4 1000 Marina LLC
4380 La Jolla Village Dr. Suite 230
San Diego, CA 92122
A-2 007-165-230 BP3 SF5 3000 3500 Marina LLC
4380 La Jolla Village Dr. Suite 230
San Diego, CA 92122
A-3 007-165-110 SNH Brisbane Ca LLC
255 Washington St
Newton, MA 02458
A-12 007-165-120 PPF OFF 7000 Marina Blvd LP
C/O Morgan Stanley Real Estate Advisor
555 California St. 21st Floor
San Francisco, CA 94101
A-4 007-165-050 Grand Sierra Properties, Inc.
150 Executive Park Blvd. #4000
San Francisco, CA 94134
A-5
A-6
007-164-020
007-164-010
HCP Life Science REIT, Inc.
1920 Main St, Suite 1200
Irvine, CA 92614
A-7
A-8
A-9
007-165-130
007-165-140
007-165-150
Slough Brisbane LLC
1920 Main St. Suite 1200
Irvine, CA 92614
A-10 007-163-030 Summit Hospitality 114 LLC
12600 Hill Country Blvd., #R-100
Austin, TX 78738
A-11 007-163-040 Bre Sh Brisbane Owner LLC
PO Box A-3956
Chicago, IL 60690-3956
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8 Engineer’s Report
B-2
B-3
B-4
B-5
005-162-430
005-162-300
005-162-400
005-162-410
Oyster Point Properties, Inc.
150 Executive Park Blvd. #4200
San Francisco, CA 94134-3332
B-6
B-7
005-162-390
005-162-420
City of Brisbane
50 Park Place
Brisbane, CA 94005
C-1 015-011-090 State of California
C/O State Lands Commission
Attn: Title Unit
100 Howe Ave., Ste. 100
Sacramento, CA 95825
C-2 015-011-100 HCP Life Sciences REIT, Inc.
3000 Meridian Boulevard #200
Franklin, TN 37067
C-3 015-011-110 ARE San Francisco No. 17 LLC
C/O Deloitte & Touche
Attn: Shanna Lehman
PO Box 847
Carlsbad, CA 92018
C-4 015-011-120 DW LSP 5000 Shoreline LLC
301 Howard St, Ste. 2100
San Francisco, CA 94105
C-5 015-011-140 GNS Shoreline LP
500 N Hurstbourne Pkwy Ste 200
Louisville, KY 40222
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8.97 Ac
007-165-230
007-165-110

3.44 Ac
007-165-050
007-164-020 6.13 Ac

5.66 Ac
007-164-010

10.20 Ac
007-165-210

4.41 Ac
007-165-130

9.78 Ac
007-165-140

7.13 Ac
007-165-150

5.93 Ac

3.08 Ac
007-163-040
007-163-030

3.52Ac
015-011-140

2.41 Ac

6.92 Ac
015-011-100

8.57 Ac
015-011-110

3.09 Ac
015-011-090

8.56 Ac
015-011-120

STATE OF CALIFORNIA

SOUTHERN PACIFIC
007-165-120

4.56 Ac
ZONE 1

ASSESSMENT DIAGRAM

SIERRA POINT

LANDSCAPING & LIGHTING DISTRICT

CITY OF BRISBANE SAN MATEO COUNTY CALIFORNIA

FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF
BRISBANE, CALIFORNIA, THIS ______ DAY OF
_________________________ OF 2022. ____________________________________ CITY CLERK, CITY OF BRISBANE

AN ASSESSMENT WAS LEVIED BY THE CITY COUNCIL OF THE

CITY OF BRISBANE, CALIFORNIA, ON LOTS, PIECES AND

PARCELS OF LAND SHOWN ON THIS DIAGRAM ON THE
________ DAY OF__________________ OF 2022, BY ITS
RESOLUTION NO. 2022 -____.

CITY CLERK, CITY OF BRISBANE ____________________________________ LEGEND

DISTRICT BOUNDARYPARCEL BOUNDARY

ASSESSMENT NUMBER

SPECIFICATIONS
The construction or installation, including the maintenance or servicing, or both, of publiclandscaping trees, shrubs, grass or other vegetation.The construction or installation, including the maintenance or servicing, or both, of publiclighting facilities, including standards, poles and electric current or energy.

ASSESSORS PARCEL

NUMBER AS OF MAP DATE
FOR FISCAL YEAR 22-23
Sheet 1 of 2
COUNTY RECORDER’S STATEMENT
Filed this ____ day of ________, 2022 at ___ a.m./p.m. in Book ______ of Assessment Maps, at page (s) _________, at the request of Ingrid Padilla, City Clerk of the City of Brisbane.

Mark Church, San Mateo County Recorder
File No.:_____________ By: ____________________Fee: ________________ Deputy Recorder 17 120K.

PARCEL "B"

GUADALUPE CANAL
A

BRISBANE LAGOON
R/W
BAYSHORE FREEWAY ROUTE 101
LAGOON WAY SBE8724123U49
SBE 872 41 23U 51
SBE 872 41 23U 50
B3
B1
B2
B4
B5
B7
B6
005-162-400
(PTN.)
005-162-300
005-162-430 (PTN.) 005-162-420
(PTN.)
005-162-410
(PTN.)
005-162-390 ZONE 2 ASSESSMENT DIAGRAM SIERRA POINT LANDSCAPING & LIGHTING DISTRICT CITY OF BRISBANE SAN MATEO COUNTY CALIFORNIA FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF BRISBANE, CALIFORNIA, THIS ______ DAY OF _________________________ OF 2022. ____________________________________ CITY CLERK, CITY OF BRISBANE AN ASSESSMENT WAS LEVIED BY THE CITY COUNCIL OF THE CITY OF BRISBANE, CALIFORNIA, ON LOTS, PIECES AND PARCELS OF LAND SHOWN ON THIS DIAGRAM ON THE ________ DAY OF__________________ OF 2022, BY ITS RESOLUTION NO. 2022 -____.

CITY CLERK, CITY OF BRISBANE ____________________________________ FOR FISCAL YEAR 22-23 Sheet 2 of 2 LEGEND DISTRICT BOUNDARY PARCEL BOUNDARY ASSESSMENT NUMBER SPECIFICATIONS The construction or installation, including the maintenance or servicing, or both, of public landscaping trees, shrubs, grass or other vegetation. The construction or installation, including the maintenance or servicing, or both, of public lighting facilities, including standards, poles and electric current or energy. ASSESSORS PARCEL NUMBER AS OF MAP DATE COUNTY RECORDER’S STATEMENT Filed this ____ day of ________, 2022 at a.m./p.m. in Book ______ of Assessment Maps, at page (s) _________, at the request of Ingrid Padilla, City Clerk of the City of Brisbane. Mark Church, San Mateo County Recorder File No.:_____________ By: ____________________ Fee: ________________ Deputy Recorder 18 121K.

File Attachments for Item:

L. City of Brisbane Local Stormwater Program Fees

CITY COUNCIL AGENDA REPORT
Meeting Date: June 7, 2022
From: Keegan Black, Regional Compliance Program Manager Subject: City of Brisbane Local Stormwater Program Fees Community Goal/Result
Ecological Sustainability
Purpose
To provide a public hearing and consider imposition of annual tax roll charges that fund Brisbane's Local Stormwater Program, which minimizes discharge of pollutants to San Francisco Bay in accordance with federally mandated permit requirements.

Recommendation

1. Open the Public Hearing and take public comment. Close the Public Hearing, and if appropriate, address any objections to the imposition of fees related to the NPDES Program.

2. Adopt Resolution No. 2022-XX, “A Resolution of the City Council of the City of Brisbane Imposing Charges for Funding the Local Brisbane Stormwater Program, Authorizing Placement of Said Charges on the 2022-2023 County Tax Roll, and Authorizing the County Tax Collector to Collect Such Charges.”
Background
In 1987, the Environmental Protection Agency, under amendments to the 1972 Clean Water Act, imposed regulations that mandate control and reduction of pollutants in stormwater runoff through the National Pollutant Discharge Elimination System (NPDES) permitting program. In the Bay Area, under the authority of the Porter-Cologne Water Quality Control Act, the San Francisco Bay Regional Water Quality Control Board (Water Board) issues and enforces municipal stormwater NPDES permits.

A revised Municipal Regional Stormwater Permit (MRP 2.0), which applies to all municipalities throughout San Mateo, Santa Clara, Alameda, and Contra Costa counties, as well as the cities of Fairfield, Suisun City, and Vallejo, was approved by the Water Board in late 2015. This permit mandates specific actions, implementation levels, and reporting requirements that each municipality must meet. Failure by municipalities to comply with these new permit requirements may result in significant enforcement action by the Water Board. 1 123
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Discussion
There are two programs that provide stormwater management locally; the Countywide Stormwater General Program (which assesses Basic Fees and Additional Fees) overseen by the City/County Association of Governments of San Mateo County (C/CAG), and the City of Brisbane's own Local Stormwater Program.

The proposed Resolution imposes charges only for the City of Brisbane Local Stormwater Program, and authorizes the County Tax Collector to place such charges on the property tax roll.

City Council Resolution 2005-29 previously authorized the San Mateo County Flood Control District to collect the Basic Fees of the Countywide Stormwater General Program directly from property owners in Brisbane. These charges are also placed on the property tax roll.

The City Council elected to pay the Additional Fees of the Countywide Stormwater General Program directly to C/CAG when these fees were first imposed, rather than placing these charges on the property tax roll. (Since its inception, the Additional Fee amount increases annually based on the Consumer Price Index; this year’s amount is expected to be approximately $10,588) The total fee assessment (charges) per the 2022 Engineer’s Report is approximately $52,000. The annual charge per parcel is not changed from previous years. Based on previous years’ actual collections, the estimate of fees that will be collected is $52,000.

For detailed information on both of these overall programs, including the calculation of charges, please see the 2022 Engineer's Report, included as Attachment B.

Fiscal Impact
The city’s recommended local NPDES program budget for 2022-2023 is: $461,600 The 2022 Engineer's Report for Stormwater Management Fees estimated a previous years’ actual property tax revenue for the City's Local Stormwater Program of approximately: $52,000
Revenues from solid waste franchise fees $100,000
(designated for trash capture activities, both increased street cleaning and sweeping and maintenance of trash capture devices)
Anticipated revenues from Measure M ($10 vehicle registration fee) $22,000 The budget shortfall for this program is therefore: $309,578 The City’s costs to maintain compliance with the various clean water requirements (frequently referred to as NPDES) have increased significantly since the Water Board’s 2015 issuance of the Municipal Regional Permit (MRP 2.0).
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The following general description indicates the large number of city employees who participate both in daily/weekly activities to comply with the MRP, and who also attend regular meetings with C/CAG to address permit requirements:
• Director of Public Works/City Engineer – overall permit compliance, illicit discharge control, construction controls, serves as Chairperson of C/CAG Stormwater Committee • Regional Compliance/Maintenance Program Manager – facilities inspections, trash capture program, corporation yard site controls, and new MRP 2.0 requirements such as PCB and mercury regulations and green infrastructure requirements • Senior Planner – new development controls, copper controls • Deputy Director of Public Works (Utilities) – monitoring potable water discharges, storm drain maintenance
• Deputy Director of Public Works – street sweeping
• Team Leader (Buildings & Grounds) – pesticides toxicity control • Team Leader (Utilities) – storm drain cleaning, potable water discharge monitoring • Public Works Inspector – construction controls
• Administrative Assistant – assists with overall permit compliance, public information and outreach, compiles annual report
Pending implementation of the recently passed SB231 Stormwater Capture bill (D- Herzberg), Council may wish to pursue increasing assessments to begin to address the above listed shortfall.

Measure of Success
Approval of the Engineer’s Report will allow for the ongoing compliance with the California State Water Resources Control Boards Municipal Regional Permit.

Attachments

1. Resolution No. 2022-XX

2. 2022 Engineer’s Report for Stormwater Management Fees __________________________
Keegan Black, Regional Compliance Program Manager
__________________________ __________________________
Randy Breault, Director of Public Works/City Engineer Clay Holstine, City Manager 3 125
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ATTACHMENT 1
RESOLUTION NO. 2022-XX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE IMPOSING

CHARGES FOR FUNDING THE LOCAL BRISBANE STORMWATER PROGRAM, AUTHORIZING PLACEMENT OF SAID CHARGES ON THE 2022-2023 COUNTY

TAX ROLL, AND AUTHORIZING THE COUNTY TAX COLLECTOR TO COLLECT

SUCH CHARGES
WHEREAS, the Environmental Protection Agency, under the 1987 amendments to the Federal Clean Water Act, imposed regulations that mandate local governments to control and reduce the amount of storm water pollutant runoff into receiving waters; and WHEREAS, under the authority of the California Porter-Cologne Water Quality Control Act, the State Water Resources Control Board has delegated authority to its Regional Water Quality Control Boards to invoke permitting requirements upon counties and cities; and WHEREAS, in 1993 and 1999, the San Francisco Bay Regional Water Quality Control Board issued countywide National Pollutant Discharge Elimination System (NPDES) stormwater permits to all municipalities within San Mateo County; and
WHEREAS, in fall of 2015, the San Francisco Bay Regional Water Quality Control Board issued a new NPDES stormwater permit, the Municipal Regional Stormwater Permit MRP 2.0 that applies to all municipalities within San Mateo County and other portions of the Bay Area; and WHEREAS, the efforts for the control of stormwater pollution under the Municipal Regional Stormwater Permit require a Local Brisbane Stormwater Program; and WHEREAS, Section 5471 of the California Health and Safety Code and Section 13.06.060 of the City’s Storm Water Ordinance authorize imposition of charges for a Local Brisbane Stormwater Program; and
WHEREAS, said Local Brisbane Stormwater Program has been submitted to the City Council pursuant to the 2021 Engineer's Report for Stormwater Management Fees, which includes mandated tasks and associated costs, and an estimated amount to be collected of $52,000; and WHEREAS, the City held a public hearing to consider imposition of annual tax roll charges that fund the Local Brisbane Stormwater Program; and
WHEREAS, the San Mateo County Tax Collector has agreed to place such charges on the 2021- 2022 County Tax Roll.

NOW, THEREFORE, BE IT RESOLVED THAT

1. The City Council of the City of Brisbane hereby adopts the 2022 Engineer’s Report for Stormwater Management Fees as filed with the City Clerk and overrules any objections or protests to the Engineer’s estimate of costs and user fee structure, or to the implementation of the stormwater management program described therein. 4 126
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2. The County Controller is hereby authorized to place the City of Brisbane Local Stormwater Management Fees on the fiscal year 2022-2023 County Tax Roll, and that the County Tax Collector be and hereby is authorized to collect such charges in the same manner, by the same person, and at the same time as, together with and not separately from, the general taxes applicable to real property in the City of Brisbane, as follows:

Single Family (R-1&2) $9.48
Multi Family (R-3) $21.64
Commercial/Industrial (1) $19.94
Commercial/Industrial (2) $254.20
Vacant Land (3) $18.34
Vacant Land (4) $55.16
Vacant Land (5) $212.18
Vacant Land (6) $927.80
(1) Land use designation generally within Central Brisbane and Southwest Bayshore. (2) Land use designation generally within all other areas except areas included in (1). (3) Vacant land with an area less than 1 acre.
(4) Vacant land with an area greater than 1 acre but less than 5 acres. (5) Vacant land with an area greater than 5 acres but less than 20 acres. (6) Vacant land with an area greater than 20 acres.

3. The cost for such service, $1.35 per parcel, is hereby authorized to be retained by the County from such collections, the balance of which is to be remitted to the City of Brisbane.

BE IT FURTHER RESOLVED that the City Clerk is hereby directed to forward a copy of this Resolution to the San Mateo County Board of Supervisors.

Regularly passed and adopted this 7th day of July, 2022.

Coleen Mackin
Mayor
I hereby certify that the foregoing Resolution No. 2022-XX was duly and regularly adopted at a regular meeting of the Brisbane City Council on July 7, 2022, by the following vote:

AYES:

NOES:

ABSENT:

Ingrid Padilla
City Clerk
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ATTACHMENT 2
2022 ENGINEER'S REPORT
for

STORMWATER MANAGEMENT FEES
Purpose
The purpose of this report is to define the City of Brisbane stormwater management program and the method utilized in determining the user fee structure to be applied by Assessor's Parcel Number (APN) and to appear on the County Tax Roll for Fiscal Year 2022-2023.

History
The Environmental Protection Agency, under the 1987 amendments to Section 402(p) of the Clean Water Act, imposed regulations mandating local governments manage stormwater discharges as a means of reducing pollution in public bodies of water. The California State Water Resources Control Board delegated enforcement authority to the Regional Water Quality Control Boards (RWQCB) to ensure compliance with the Clean Water Act. The San Francisco Bay RWQCB, under Section 13370 et seq of the California Water Code, requires the City of Brisbane and all other municipal stormwater dischargers in San Mateo, Santa Clara, Alameda, and Contra Costa counties, as well as the cities of Fairfield, Vallejo, and Suisun City to control significant sources of stormwater pollution as co-permittees under a Municipal Regional Stormwater Permit 2.0, referenced as Order R2-2015-0049 and National Pollutant Discharge Elimination System (NPDES) Permit No. CAS612008.

As a condition of the Municipal Regional Stormwater Permit, the City of Brisbane and other municipal stormwater dischargers are required to meet specific requirements in a variety of program areas that address the multiple potential pollutant sources that can impact a municipal storm drain system. Compliance efforts in San Mateo County are implemented in two ways:
those that have countywide benefit or significance are implemented by the City/County Association of Governments of San Mateo County (C/CAG) through its San Mateo Countywide Water Pollution Prevention Program (Countywide Program), and those that are specific to a local jurisdiction are implemented through municipality-specific programs. Administration of Brisbane's local program is primarily managed by the City's Public Works Department.

STORMWATER MANAGEMENT PROGRAM
Background Information
The process of urbanization increases rainwater runoff. As trees and grass are cleared, pervious ground cover is frequently replaced by impervious concrete, asphalt, or brick. Rainwater can no longer seep into the ground. If this stormwater is not properly managed, flooding may result.

Often, municipal drainage systems are designed for flows resulting from pre-development runoff, and become undersized when impervious area is increased by building structures, driveways, and parking lots. Further, increased stormwater runoff makes areas not covered by impervious materials more susceptible to erosion, and as a result, sediment may discharge to the storm drain system.
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Stormwater runoff flowing over man-made surfaces such as roads and parking lots can also contribute to water quality degradation. The natural purification that occurs when water flows through the subsurface is lost. As rainwater flows over impervious surfaces, it can pick up pollutants such as engine oils, pesticides, fertilizers, and trace metals like lead, copper, or zinc.

These contaminants are frequently toxic to humans and aquatic life.

Stormwater pollution can come from point and non-point sources. Point sources are attributable to a distinct point of discharge, such as a pipe into a water body. Point source pollution can include illegal storm drain connections at industrial facilities or cross connections between sanitary and storm sewer systems. Non-point source pollution, such as overland flow or sheet runoff, is not attributable to a distinct point of discharge, and is a major contributor to water quality degradation in California. Problems that magnify non-point source pollution include channel erosion, sedimentation due to construction and land development, hydrologic modification, physical habitat alteration, excessive or poorly timed application of pesticides and fertilizers, natural or engineered agricultural subsurface drainage, septic systems, livestock grazing, and urban runoff. Oil and grease from parking lots and driveways, nutrients, littering, animal waste, accidental spills, soil erosion and air pollution all contribute to non-point source discharges in urban areas. Urban runoff is the focus of stormwater pollution prevention regulations in Brisbane.

Program Structure
The Municipal Regional Permit requirements implemented at both the Countywide Program and municipality-specific levels fall into seven main program areas, the central focus of each being summarized as follows:

1. Municipal Government Maintenance Activities - Ensure development and implementation of appropriate Best Management Practices by all municipalities to control and reduce nonstormwater discharges and polluted stormwater to storm drains and watercourses during operation, inspection, and routine repair and maintenance activities of municipal facilities and infrastructure.

2. New Development and Construction Controls – Use planning authorities to include appropriate source control, site design, and stormwater treatment measures in new development and redevelopment projects to address both soluble and insoluble stormwater runoff pollutant discharges and prevent increases in runoff flows from new development and redevelopment projects. This goal is to be accomplished primarily through the implementation of low impact development techniques. Municipalities also implement a construction site inspection and control program at all construction sites, with follow-up and enforcement consistent with an enforcement response plan, to prevent construction site discharges of pollutants and impacts on beneficial uses of receiving waters.

3. Industrial, Commercial, and Illicit Discharge Controls A. Industrial and Commercial Site Controls – Implement an industrial and commercial site control program at all sites which could reasonably be considered to cause or 7 129
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contribute to pollution of stormwater runoff, with inspections and effective follow-up and enforcement to abate actual or potential pollution sources consistent with an enforcement response plan to prevent discharge of pollutants and impacts on beneficial uses of receiving waters.

B. Illicit Discharge Detection and Elimination – Implement illicit discharge prohibitions and ensure illicit discharges are detected and controlled. Municipalities shall develop and implement an illicit discharge program that includes an active surveillance component and a centralized complaint collection and follow-up component to target illicit discharge and non-stormwater sources.

4. Public Information and Outreach – Increase the knowledge of the target audiences regarding the impacts of stormwater pollution on receiving water and potential solutions to mitigate the problems caused, change the waste disposal and runoff pollution generation behavior of the target audiences by encouraging implementation of appropriate solutions, and involve various citizens in mitigating the impacts of stormwater pollution.

5. Water Quality Monitoring – Perform water quality monitoring activities to address specific management questions related to the health of San Francisco Bay and local receiving waters, including status and trends monitoring and pollutants of concern/long-term trends monitoring. Additional specific monitoring projects are required, including projects addressing water quality stressor/source identification, Best Management Practices effectiveness evaluations for stormwater treatment or hydrograph modification control, and geomorphic analyses to identify how and where creeks can be restored or protected to costeffectively reduce the impacts of pollutants, increased flow rates, and increased durations of urban runoff.

6. Pollutants of Concern
A. Pesticides Toxicity Control – Implement control programs to prevent the impairment of urban streams by pesticide-related toxicity. The control programs addresses municipalities' and others' use of pesticides within municipal jurisdictions that pose a threat to water quality and have the potential to enter the municipal storm drain system. Pesticides of concern include organophosphorous pesticides, pyrethroids, carbamates, and fipronil.

B. Trash Load Reduction – Implement control measures and other actions to reduce trash loads from municipal storm sewers by 70% by 2017, and 100% or no adverse impacts to receiving waters from trash by 2022. This includes developing and implementing Short-Term Trash Load Reduction Plans, which includes installation and maintenance of trash capture devices within the storm drain system and cleanup and abatement progress on trash hot spots.

C. Mercury and Polychlorinated Biphenyls (PCBs) – Initiate control programs for mercury and PCBs to implement the urban runoff requirements of the San Francisco Bay mercury and PCBs Total Maximum Daily Loads (TMDLs) and reduce mercury and PCB loads to make substantial progress toward achieving the urban runoff load allocations established in the mercury and PCBs TMDLs. These programs include 8 130
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pilot projects to investigate and abate mercury and PCB sources in drainages, including public rights-of-way, and stormwater conveyances with accumulated sediment that contain elevated mercury and PCB concentrations, to evaluate and enhance municipal sediment removal and management practices, to evaluate on-site stormwater treatment via retrofit, and diversion of dry weather and first flush flows to publicly owned treatment works.

D. Copper Controls – Implement control measures identified in the Regional Water Quality Control Board's Basin Plan to support approved copper site-specific objectives for San Francisco Bay. Control measures include managing waste generated from cleaning and treating copper architectural features, managing discharges from pools, spas, and fountains that contain copper-based chemicals, engage in efforts to reduce copper discharged from automobile brake pads to surface waters via urban runoff, and ensuring proper management of copper by industrial sources.

E. Polybrominated Diphenyl Ethers (PBDEs), Legacy Pesticides, and Selenium – Implement programs to gather concentration and loading information for PBDEs, legacy pesticides, and selenium to identify, assess, and manage controllable sources of these pollutants in urban runoff, if any.

7. Exempted and Conditionally Exempted Discharges – Implement programs to ensure discharges to the storm drain system with minimal pollutant concern, such as uncontaminated groundwater, diverted stream flows, and pumped groundwater from foundation drains are properly managed and monitored to eliminate adverse impacts to receiving waters.

COUNTYWIDE PROGRAM
The Countywide Program centrally manages the efforts that provide overall benefits to the County and all cities and towns within the county involved with implementation of the Municipal Regional Permit requirements. The seven permit components described above delineate work tasks to be undertaken and completed during the 2022-2023 fiscal year.

The 2022-2023 NPDES Countywide Program Budget was adopted by C/CAG on June 9, 2022 in the amount of $3,444,216. The City of Brisbane is required to contribute proportionate funding to the Countywide Program. This funding is divided into two categories, the Basic and the Additional Fees. The Basic Fee was established to fund the original Countywide Program activities when the NPDES permit was first adopted. The Additional Fees were established to fund additional Countywide Program activities required by the Regional Board subsequent to establishment of the Basic Fees.

The Basic and Additional Fees are calculated as follows:

Basic Annual Charges:
• Single Family Residence: $3.9527/parcel
• Miscellaneous, Agriculture, Vacant and Condominium: $1.9763/parcel • All Other Land Uses: $3.44/parcel for the first 11,000 square feet plus $0.3593 per 1,000 additional square feet of parcel area
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Additional Annual Charge (Adjusted Annually by Consumer Price Index):
• Single Family Resident: $3.9527/parcel
• Miscellaneous, Agriculture, Vacant and Condominium: $1.9763/parcel • All Other Land Uses: $3.6530/parcel for the first 11,000 square feet plus $0.3593 per 1,000 additional square feet of parcel area
The Countywide Program’s Basic and Additional Fees for 2022-2023 that will be charged to the City of Brisbane are estimated at approximately $9,115 and $11,281, respectively. The City of Brisbane has historically authorized the Countywide Program to assess and collect the Basic Fees directly through separate property tax assessments, whereas the Additional Fees are paid to C/CAG out of the City’s General Fund. This approach prevents the Additional Fees from being billed to property owners.

CITY OF BRISBANE LOCAL PROGRAM
City Facilities
The City of Brisbane is responsible for all public drainage facilities within its jurisdiction that collect stormwater and convey it to San Francisco Bay. Brisbane’s facilities include the City's streets, curbs and gutters, catch basins, pipelines, culverts, and open channels.

Stormwater is collected from private property and public streets in two open channels; the Guadalupe Valley Municipal Improvement District (GVMID) Basin Channel and the Bayshore Storm Drain Basin Channel. This stormwater is generally conveyed through these channels to underground box culverts which ultimately outfall to the Bay. The GVMID Basin Channel outfall delivers stormwater via the Lagoon box culvert. This outfall receives water from most of Central Brisbane as well as the Guadalupe Valley and discharges this water into the Lagoon.

Stormwater that enters the Lagoon eventually flows to the Bay through two box culverts under US 101. The Bayshore Storm Drain Basin Channel receives stormwater mainly from the undeveloped land in northern Brisbane as well as portions of Daly City and discharges this water to the Bay through a single box culvert under US 101. Stormwater from Sierra Point generally outfalls to the Bay through multiple culverts located along the perimeter of the Sierra Point Peninsula.

During normal rainfall, flooding potential in Brisbane is low. During heavy rains, however, localized flooding can and has occurred in some areas. Some trunk lines, drain pipes, catch basins and other structures are undersized, and additional catch basins are needed. The City’s 2003 Storm Drainage Master Plan proposed Capital Improvement Projects to address these issues.

Local Program Elements
The following is a description of City-specific actions that will be implemented to meet the Municipal Regional Stormwater Permit requirements that were generally described previously in this report. These descriptions detail the City-specific efforts that will be performed to address these requirements. Following this description is a summary of the City's stormwater budget for 2022-2023.
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1. Municipal Government Maintenance Activities - This program is intended to prevent pollution of stormwater runoff through improvements in municipal government maintenance activities and associated programs. This program focuses on preventing nonstormwater discharges or polluted stormwater associated with street and road repair and maintenance activities, sidewalk/plaza maintenance and pavement washing, bridge and structure maintenance and graffiti removal, and implementing management measures at the City corporation yard. This program includes contractual street sweeping services, development and implementation of a Stormwater Pollution Prevention Plan for the corporation yard, management of the City's maintenance contractors, and participation in Countywide Program subcommittees and activities related to municipal maintenance.

2. New Development and Construction Controls – This program focuses on controlling stormwater pollution from construction sites, new developments, and redevelopment areas. Tasks include developing and implementing planning, inspection, and enforcement procedures, developing and implementing requirements for post-construction controls, inspecting stormwater treatment measures to ensure proper operation and maintenance, and providing education and training to construction site operators. The Municipal Regional Stormwater Permit require municipalities to ensure applicable new and redevelopment projects manage stormwater runoff using Low Impact Development techniques, primarily focused on harvesting and use, evapotranspiration, and infiltration to groundwater. This program includes implementation of planning procedures to ensure all applicable projects incorporate appropriate site design, source control, and stormwater treatment measures.

3. Industrial, Commercial, and Illicit Discharge Controls a. Industrial and Commercial Site Controls – This element of the program is designed to control pollutants discharged to municipal storm drains from commercial and industrial facilities. Specific focus is placed upon facility inspection, providing information and assistance to facility managers about reducing pollutants in stormwater from these facilities, and implementing escalating enforcement responses for instances of non-compliance. This program includes staff participation in Countywide Program subcommittees and compliance with the requirements to develop and implement an information/inspection program, in coordination with existing County Health department commercial/industrial inspection programs.
b. Illicit Discharge Detection and Elimination – This program element focuses on identifying and eliminating illicit discharges to the storm drain system by identifying major outfalls, conducting inspections of the storm drain system, identifying and eliminating illicit connections, inspecting for evidence of illegal dumping and tracking illicit discharges to their sources, providing information to the public about proper disposal alternatives, and implementing an effective enforcement response plan. This program includes staff participation in Countywide Program activities, City staff monitoring of illicit discharges in coordination with County Hazardous Waste Inspectors, and compliance with inspection procedures and enforcement activities.
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4. Public Information and Outreach – This program is intended to inform the public about sources of stormwater pollution, how it reaches local waterways, types of common activities that contribute to stormwater pollution, its effects on receiving waters, and to encourage public involvement in reducing the amount of pollutants entering the City's storm drain system. The public information component of this program overlaps with other program elements described below. This program includes participation in Countywide Program activities, dissemination of educational materials, including the preparation of periodic notices to be placed in the local media, and the planning and implementation of local community volunteer activities.

5. Water Quality Monitoring – This element of the program on the City level is to support Countywide Program staff in performing required monitoring activities as part of a Regional Monitoring Collaborative with other Bay Area stormwater permittees. This program element includes participation in Countywide Program activities and providing input to Countywide Program staff on proposed monitoring activities and programs.

6. Pollutants of Concern
a. Pesticides Toxicity Control – This element of the program includes implementation of the City's adopted Integrated Pest Management resolution and ensuring less toxic methods of pest control in all City operations, including activities performed through contractors. City staff also provides outreach materials on less-toxic methods of pest control to the public. This program element includes participation in Countywide Program activities and supporting the Our Water Our World program implementation in local retailers selling pest control materials.
b. Trash Load Reduction – This element of the program includes developing and implementing Short and Long-Term Trash Load Reduction plans, identification and annual cleanup/assessment of one trash hot spot, and implementation of various control measures to reduce trash loadings in the City's storm drain system.

This program also includes participation in Countywide Program's trash control subcommittee.
c. Mercury and Polychlorinated Biphenyls (PCBs) – This program element includes providing support to Countywide Program staff on implementation of the required programs and pilot projects for addressing mercury and PCBs. These program elements are primarily managed at the Countywide Program level; however this program element includes funding for City staff participation in relevant Pollutant of Concern subcommittees and activities. The City will investigate opportunities for Green Infrastructure installations to meet our portion of San Mateo County’s mercury reduction goals.
d. Copper Controls – This program element includes participation and support of Countywide Program efforts directed at regional copper management issues, such as the statewide Brake Pad Partnership, and implementation of local planning, inspection, education, and enforcement efforts to address stormwater discharges from any permitted architectural copper installations or pool, spa, and fountain 12 134
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discharges containing copper algaecides. This program includes City participation in Countywide Program subcommittees and activities related to copper controls.
e. Polybrominated Diphenyl Ethers (PBDEs), Legacy Pesticides, and Selenium – This program is primarily managed at the Countywide Program level and includes City staff participation in relevant Countywide Program subcommittees and activities.

7. Exempted and Conditionally Exempted Discharges – This program element includes management and oversight of exempted and conditionally exempted discharges to the City's storm drain system to ensure compliance with permit conditions. This includes City staff implementing management measures for potable water discharges to the storm drain system and ensuring appropriate conditions of approval on new and redevelopment projects to properly manage any exempted or conditionally exempted discharges. This program includes City participation in Countywide Program subcommittees and activities related to exempted and conditionally exempted discharges.

8. Establish Program and Collect Fees – Implementation of the program requires the City’s Finance Department to manage the NPDES Fund and the County Flood Control District to collect the City's Local Program fee in the same manner as the Countywide Program fee.

This program includes the Additional Annual Fee collected by C/CAG and funded from the City’s General Fund.

Summary of Budget Department 6140 (NPDES)

1. Salaries and Benefits $ 243,583

2. Services and Supplies (excluding anticipated Additional Fees) $ 78,601

3. Annual C/CAG NPDES Additional Fees (from General Fund) $ 11,281

4. Indirect Costs $ 128,135
TOTAL $ 461,600
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USER FEE FORMULA
Method
The City of Brisbane developed a formula for calculating stormwater fees that remains unchanged since it was first utilized after stormwater fees were authorized by the Council in July 1994. The user fee formula is based on two distinct concepts: (1) an administrative fee should be shared equally by all parcels to cover program administration costs; and (2) an assessment fee should be charged in proportion to the storm drainage service utilized and the amount of pollutants or sediment generated by each type of parcel. Average parcel square footage and assumptions explained below regarding the types of land uses for each zone were used to develop an equitable assessment fee structure.

Generally speaking, residential properties contribute equal amounts of water to the storm drain system. For this reason, the formula charges single-family residential properties a uniform user fee based on estimated runoff from an average single-family property. This practice is common in other cities and is equitable because these properties benefit equally from City-wide services such as public streets, sidewalks and parking.

On average, 50% impervious cover per parcel is generally accepted as the typical impervious area for a single-family residential dwelling. Using an average single-family parcel area of 4,823 square feet and 50% impervious cover, a standard impervious area of 2,411 square feet was defined as an Equivalent Single-family Unit (ESU). In determining the assessment portion of the stormwater user fee for the various parcels in the City, the following formula is used:

User Fee = Single Family Fee x (Number of ESUs)
The impervious area for non-residential properties and vacant land was devised by use of runoff area and general land characteristics and use. As shown on Exhibit A, entitled “Storm Drain Program Rate Analysis,” small commercial and industrial land uses are estimated to have approximately 100% runoff area, large commercial and industrial land uses are estimated to have approximately 80% runoff area, and vacant land is estimated to have 20-50% runoff area, as opposed to single family residential properties, which are estimated to have approximately 50% impervious area. These estimates, along with the other land use runoff area estimates on the attachment, are all consistent with the general runoff coefficients used in standard engineering practices.

For the storm drain user fee formula, current land use classifications are generally consolidated into the following four categories and further broken down to group commercial/industrial and vacant land by average lot size:

1. Single-Family Residential (R-1 and R-2) - This classification is based upon 50% impervious area which equate to a runoff coefficient of 0.5.

2. Multi-Family High Density (R-3) - All the remaining residential classifications are based upon the assumption that the higher density properties, which generally consist of the apartments along San Bruno and Visitacion Avenues and the trailer park, have approximately 100% 14 136
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impervious surface area, as opposed to 50% for single-family properties. This 100% impervious surface area equates to a runoff coefficient of 1.0.

3. Commercial/Industrial (1) & (2) - These classifications are based upon the assumption that most small commercial/industrial land uses in Brisbane (Commercial (1)) have a 100% impervious surface area and larger commercial/industrial land uses, (Commercial (2)) have an 80% impervious surface area, as opposed to 50% for single-family properties. These impervious surface areas equate to runoff coefficients of 1.0 for Commercial (1) and 0.8 for Commercial (2).

4. Vacant Land (3), (4), (5) & (6) - Vacant Land (3) accounts for smaller lots with an area less than 1 acre and with increased runoff coefficients. Vacant Land (4) accounts for mid-sized lots with an area greater than 1 acre but less than 5 acres. Vacant Land (5) accounts for larger lots with an area greater than 5 acres but less than 20 acres. Vacant Land (6) accounts for larger lots with an area greater than 20 acres. These classifications are based upon the assumptions that the smaller parcels have higher runoff coefficients based upon their size and proximity and the larger parcels have little or no impervious surfaces and a typical runoff coefficient of 0.2 to 0.5, as opposed to 0.5 for single-family properties.

In developing the total ESUs, the following uses were designated exempt from fee collection:

City Government Activities, Federal and State Government Activities, and Unclassified.

As previously indicated, the City’s user fee formula remains unchanged from inception. The charges per parcel include an administrative fee of $4.50 and the additional fee per ESU of $4.98. The following table details the total annual charges per parcel based on land use type, which remain unchanged from previous years:

ESU Annual Charge
Per Parcel**
Single Family Residential 1.00 $9.48
Multi-Family High Density Residential 3.44 $21.64
Commercial/Industrial (1) 3.10 $19.94
Commercial/Industrial (2) 50.14 $254.20
Vacant Land (3)* 2.78 $18.34
Vacant Land (4)* 10.17 $55.16
Vacant Land (5)* 41.70 $212.18
Vacant Land (6)* 185.40 $927.80
(1) Land use designation generally within Central Brisbane and Southwest Bayshore (2) Land use designation generally within all other areas except areas included in (1) (3) Vacant land with an area less than 1 acre.
(4) Vacant land with an area greater than 1 acre but less than 5 acres. (5) Vacant land with an area greater than 5 acres but less than 20 acres. (6) Vacant land with an area greater than 20 acres.
* Additional vacant land designations were added to equally distribute charges based upon land area and runoff generated. The vacant land areas were divided into groups so that the average parcel size more closely reflected the parcel area and distribution within that designation.

This was done by creating new limits as identified in notes 3 through 6 inclusive so that a 15 137
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parcel in the “Acres” was not charged the same as a parcel in the Baylands or in Northwest Bayshore sub-areas.
** Annual charge includes an administrative fee of $4.50 per parcel.

Please note annual charges have been rounded by $0.01 in some cases to allow fees to be evenly divided into semi-annual tax bills received by property owners.

Fee Summary
Exhibit A, entitled "User Classification Fee Summary," presents the anticipated fees to be collected for fiscal year 2022-2023. These fees remain unchanged from previous years. As shown, the anticipated income from special assessments is $52,003.78 which funds more than half of the services and supplies category of the 2022-2023 NPDES budget. 16 138
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CATEGORY # OF TOT. AREA AVG. AREA RUNOFF RUNOFF ESU PER PARCELS (ACRES) (SF) COEFF. AREA (SF) CATEGORY
SINGLE FAMILY 1,562 109.15 3,044 0.5 1,522 1.00
RESIDENTIAL (R-1)
MULTI-FAMILY 45 6.48 6,273 1.0 6,273 3.44
RESIDENTIAL (R-3)
COMMERCIAL/ 172 23.46 5,941 1.0 5,941 3.10
INDUSTRIAL (1)
COMMERCIAL/ 74 238.45 140,363 0.8 112,291 50.14
INDUSTRIAL (2)
VACANT LAND (3) 108 24.29 9,797 0.5 4,898 2.78
VACANT LAND (4) 33 37.76 49,843 0.4 19,937 10.17
VACANT LAND (5) 13 71.73 240,351 0.3 72,105 41.70
VACANT LAND (6) 8 277.95 1,513,438 0.2 302,688 185.40
TOTALS 2,015 789.27
CATEGORY # OF ADMIN. ESU TOTAL ASSMT/ ASSMT. TOT. FEE/ TOTAL PARCELS FEE ESUs PARCEL FEE TOT. PARCEL FEES
SINGLE FAMILY 1,562 $7,029.00 1.00 1562.00 $4.98 $7,778.76 $9.48 $14,807.76 RESIDENTIAL (R-1)
MULTI-FAMILY 45 $202.50 3.44 154.80 $17.14 $771.30 $21.64 $973.80 RESIDENTIAL (R-3)
COMMERCIAL/ 172 $774.00 3.10 533.20 $15.44 $2,655.68 $19.94 $3,429.68 INDUSTRIAL (1)
COMMERCIAL/ 74 $333.00 50.14 3710.36 $249.70 $18,477.80 $254.20 $18,810.80 INDUSTRIAL (2)
VACANT LAND (3) 108 $486.00 2.78 300.24 $13.84 $1,494.72 $18.34 $1,980.72 VACANT LAND (4) 33 $148.50 10.17 335.61 $50.66 $1,671.78 $55.16 $1,820.28 VACANT LAND (5) 13 $58.50 41.70 542.10 $207.68 $2,699.84 $212.18 $2,758.34 VACANT LAND (6) 8 $36.00 185.40 1483.20 $923.30 $7,386.40 $927.80 $7,422.40 TOTALS 2,015 $9,067.50 $42,936.28 $52,003.78
TOTAL FEES = $52,003.78
CARRY OVER (estimated) = $0.00
ADMIN. FEE / PARCEL = $4.50
ASSMT. FEE / ESU = $4.98
(5) VACANT LAND WITH AN AREA GREATER THAN 5 ACRES BUT LESS THAN 20 ACRES (6) VACANT LAND WITH AN AREA GREATER THAN 20 ACRES
EXHIBIT A to 2022 ENGINEER'S REPORT FOR STORMWATER MANAGEMENT FEES

STORM DRAIN PROGRAM RATE ANALYSIS
(1) LAND USE DESIGNATION GENERALLY WITHIN CENTRAL BRISBANE, AND SOUTHWEST BAYSHORE (2) LAND USE DESIGNATION GENERALLY WITHIN ALL OTHER AREAS EXCEPT AREAS INCLUDED IN (1) (3) VACANT LAND WITH AN AREA LESS THAN 1 ACRE
(4) VACANT LAND WITH AN AREA GREATER THAN 1 ACRE BUT LESS THAN 5 ACRES 17 139
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File Attachments for Item:

M. Applicant Appeal of the Planning Commission’s April 4, 2022 Decision Denying the Modification of Interim Use Permit 2021-UP-3 to Allow the Use of a Vacant Site On the Baylands To Be Used For a Google Bus Staging Yard
(This public hearing item was continued from the City Council Meeting of May 19, 2022. City Council will consider applicant appeal of the Planning Commission’s April 4, 2022 decision denying the modification of Interim Use Permit 2021-Up-3 to allow the use of a vacant site on the Baylands to be used for a Google Bus staging yard (Planning Commission Resolution 2021- UP-3-M) and revoking Interim Use Permit 2021-UP-3 (Planning Commission Resolution 2021- UP-3-R); Eric Aronsohn, applicant; Oyster Point Properties Inc, applicant/owner.) 140
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600 Tunnel Avenue; Google Bus Appeals

CITY COUNCIL AGENDA REPORT
Meeting Date: July 7, 2022
From: John Swiecki, Community Development Director
Subject: 600 Tunnel Avenue; Appeal of the Planning Commission’s Decision to revoke Interim Use Permit 2021-UP-3 and to deny the requested modification for continued staging of up to 90 Google Commuter buses on an approximately 3-acre vacant site on the Baylands.

SUPPLEMENTAL REPORT
Community Goal/Result
Safe Community - Residents and visitors will experience a sense of safety.

Purpose
Continued public hearing on the appeal by BDI, on behalf of Google Inc., of the Planning Commission’s decision to revoke Interim Use Permit 2021-UP-3 and to deny the requested modification for continued staging of up to 90 Google Commuter buses on an approximately 3- acre vacant site on the Baylands.

Recommendation
That the City Council make a decision on the appeal. Two draft resolutions are provided for Council’s reference, one granting the applicant’s appeal and modifying the permit conditions of approval (Attachment 2), or alternatively affirming the Planning Commission’s decision to revoke the interim use permit (Attachment 3).

Background
On May 19, 2022, City Council held a public hearing on the appeal of the Planning Commission’s decision to revoke the above referenced permit and deny the applicant’s requested modification. Following the public hearing, Council continued the matter to allow BDI time to address safety concerns that were raised regarding Tunnel Ave’s narrow roadway conditions and the risks that errant buses travelling south of the site may pose, especially to bicyclists.

Further background details may be referenced from the May 19th minutes and agenda report (Attachments 4 and 5).

On June 28th, BDI provided a proposal set forth in Attachment 1 in an effort to address Council’s concerns.
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Discussion
In response to the concerns raised at the previous City Council meeting, BDI has proposed the following measures and Tunnel Ave improvements (see further detail in Attachment 1):

1. Removal or relocation of the concrete barricades that are currently located along Tunnel Ave.

2. Improvement of the existing roadway shoulder on the east side of Tunnel Ave to include an 8 ft wide approximately 4,500 ft long compacted, decomposed granite (“DG”) path, to improve the existing bicycle/pedestrian access.

3. Provide crossings at the Tunnel Ave and Lagoon Way intersection.

4. Installation of plastic delineators along the east side of Tunnel Avenue. These would provide separation between the roadway and the new DG bike path.

5. Add 4 new “no dumping” signs along Tunnel Ave.

6. BDI will routinely patrol the area and commit to removing any trash dumped within 24- hours when identified by BDI, City or members of the public.

7. For dust mitigation, the yard surface would be treated with a calcium-based binder, which would binder the surface gravel while allowing the surface to remain pervious to rainwater.

8. BDI has proposed to implement fines on Google for drivers violating the prohibition on using Tunnel Ave south of the site.

The applicant has provided a map and cross section depicting the proposed DG path and plastic delineators relative to the existing roadway. Given the capital investment to complete the proposed improvements, BDI is also requesting a 5-year term be granted from the date of City Council approval. This would be consistent with the maximum term allowed for interim use permits on the Baylands, per BMC Section 17.41.080.A. Otherwise, if the appeal were granted without an extension of the date, it would be set to expire in November of this year. Note that BDI has committed to completing the improvements within 180 days.

The City Engineer and Planning staff have reviewed the proposed measures and believe they would improve vehicular and bicycle safety along Tunnel Ave. They have been included as draft conditions of approval in the event the City Council chooses to grant the appeal. Staff further recommends an additional condition of approval requiring plastic bollards on the west side of Tunnel Ave, to discourage dumping Staff further recommends a condition of approval requiring that the on-site dust mitigation binder to be applied to the site within 30 days of City Council approval.

As noted previously staff has prepared alternate draft resolutions for the City Council’s consideration to either approve the interim use permit revision (including extended term) with 142
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revised conditions of approval (Attachment 2), or to uphold the Planning Commission’s decision for permit revocation (Attachment 3).

Fiscal Impact
None.

Measure of Success
Processing of an appeal application consistent with Brisbane’s Municipal Code.

Attachments

1. Applicant’s Proposal, dated June 28, 2022

2. Draft City Council Resolution Granting the Appeals and Conditionally Approving 2021- UP-3-M (Modified)

3. Draft City Council Resolution Affirming the Planning Commission Revocation of Interim Use Permit 2021-UP-3 and Denying the Applicant’s Requested Modification

4. City Council Minutes, May 19, 2022

5. City Council Agenda Report, May 19, 2022
___________________________________ _____________________________ John Swiecki, Community Development Director Clay Holstine, City Manager 143
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ATTACHMENT 1

BDI PROPOSAL
For Google Bus Yard
Interim Use Permit 2021-UP-3: Appeal and Request for Extension Date: 6/28/22
Attn: Ken Johnson – Senior Planner, City of Brisbane
Summary
Baylands Development Inc (“BDI”) and its tenant Google are requesting a 5-year extension to the current use permit currently under appeal and otherwise set to expire in November, 2022. In response to City Council’s and Brisbane community members, we are proposing enhancements to Tunnel Avenue intended to improve safety for both cyclists and drivers, and enhance the area as a means of reducing illegal dumping. Along with these efforts, BDI and Google commit to complying with the conditions of the current use permit including but not limited to hours of operation, bus routing, and dust mitigation.

In consultation with traffic consultant Fehr & Peers and City staff, a list of improvements for implementation are described below. While we think these measures are appropriate and can be implemented in a short period of time, we remain open to further comments and suggestions from Council.

Tunnel Ave

1. Concrete barricades will be removed or reconfigured

2. Construct an 8’ wide and approximately 4,500’ long decomposed granite (“DG”) path on east side of Tunnel Ave (from Lagoon to Beatty)

3. Add crosswalks at north end of the path and also crossing Tunnel Ave and crossing Lagoon Rd at the intersection of those two roads (see Exhibit A. Exhibit 1, Plan view of crosswalks and path length)

4. Add 4 new “no dumping” signs along Tunnel Ave

5. Install vertical delineators along the east side of Tunnel, protecting the DG path from vehicles and illegal dumping (See Exhibit A. Figure 1, Cross sections of Tunnel Road with path) Parking Surface
For dust mitigation purposes, a calcium-based additive can be applied via water truck. The additive is designed to bind the fine materials while drawing in moisture from the surrounding air to the existing surface cover thereby reducing or eliminating dust.

Route Violation Fine Program
While our goal remains to eliminate the violations all together, we recognize the mitigating incentive a fine provides. BDI is proposing a sizable fine per violation to the tenant based on the monthly, self-reporting routing data from Google. All fines will go towards maintaining and enhancing the traffic safety improvements proposed for Tunnel Ave.

Additional Measures to Prevent Dumping
Moving the concrete barricades from the road may lead to illegal dumping issues. By all accounts, the barricades were effective in mitigating this issue. In order to keep this issue at bay, BDI will routinely patrol the area and commit to removing any trash dumped in the area within 24-hours when identified by BDI, City, or members of the public.

Implementation
BDI is working expeditiously to find a set of solution that are sufficient, economically viable, and environmentally responsible. We believe within 90-180 days of approval the above recommended measures can be completed 144
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pending grading permit and other steps deemed necessary by stakeholders including the City of Brisbane, the DTSC, and the Water Board.

Conclusion
BDI and Google have spent significant time evaluating the conditions at the site and addressing the concerns of the community. Providing a 5-year use permit allows BDI and Google to make enhancements to the operation and improvements to Tunnel Ave and demonstrate our commitment to the Brisbane community. 145
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EXHIBIT A
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ATTACHMENT 2
Draft - RESOLUTION 2022-XX

A RESOLUTION OF THE CITY COUNCIL OF BRISBANE

GRANTING THE APPEALS AND
CONDITIONALLY APPROVING INTERIM USE PERMIT 2021-UP-3-M (MODIFIED)

TO ALLOW FOR THE CONTINUATION OF THE
GOOGLE BUS STAGING YARD AT 600 TUNNEL AVE
WHEREAS, on November 16, 2021, following a duly noticed public hearing, the Planning Commission conditionally approved Interim Use Permit 2021-UP-3, which allowed for continuation of Google’s staging of commuter buses at 600 Tunnel Ave for a period of one year; and
WHEREAS, following a report to the Commission on March 10, 2022 detailing Google’s bus movements, the Commission requested that the application be placed on an agenda for a public hearing for potential revocation; and
WHEREAS, Eric Aronsohn of BDI, on behalf of Google, applied to the City of Brisbane for Modification to Interim Use Permit 2021-UP-3 to allow continued outdoor staging of Google buses with a revised schedule for bus trips, with operations generally 4 am to 10 pm, versus the previous schedule of 3 to 7 am and 3 to 9 pm; and
WHEREAS, on April 14th, 2022, the Planning Commission conducted a hearing to consider both revocation and the applicant’s requested modification of Interim Use Permit 2021- UP-3, at which time any person interested in the matter was given an opportunity to be heard; and WHEREAS, following the public hearing, the Planning Commission denied the requested modification and revoked the interim use permit on the finding that Google had violated condition of approval #4 which states, “Routing of Google buses shall be to and from the north along Tunnel Ave and Beatty Ave to connect to U.S. 101. Buses shall not use Tunnel Avenue south of the site”; and
WHEREAS, Eric Aronsohn appealed the Planning Commission’s decisions to deny the requested modification and to revoke the permit to the City Council; and WHEREAS, City Council held duly noticed public hearings on May 19th, 2022 and July 7 th, 2022 on the appeals, at which time any person interested in the matter was given an opportunity to be heard; and
WHEREAS, the City Council of the City of Brisbane hereby makes the findings attached herein as Exhibit A in connection with the Interim Use Permit.

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

Section 1.
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A. The above recitals are true and correct and incorporated herein by reference as if set forth in full.

B. The City Council hereby overturns the Planning Commission’s decision to revoke the permit and approves Use Permit 2021-UP-2-M based on the findings and with the conditions of approval attached herein as Exhibit A.

Section 2.

This Resolution shall take effect immediately upon its adoption. _______________
COLEEN MACKIN, Mayor
I hereby certify that the foregoing Resolution No. 2022-XX was duly and regularly adopted at the regular meeting of the Brisbane City Council on July 7th, 2022 by the following vote:

AYES:

NOES:

ABSENT:
_______________
INGRID PADILLA, City Clerk
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Draft - EXHIBIT A
Action Taken: Conditionally approve Use Permit 2021-UP-3-M per the staff memorandum with attachments, via adoption of Resolution 2022-XX.

Findings:

1. The proposed interim use and the conditions under which it would be operated will not be detrimental to the public health, safety or welfare, or injurious to properties or improvements in the vicinity.

2. The proposed interim use and conditions related to roadway improvements are categorically exempt from environmental review pursuant to Section 15301 of the California Environmental Quality Act (CEQA) Guidelines and will not result in any significant adverse environmental impacts.

3. The proposed interim use will not obstruct, interfere with, or delay the intended redevelopment of the property in accordance with the uses anticipated in the General Plan or any adopted specific plan applicable to the site, inasmuch as there are no permanent structures proposed.

4. There are no required public utilities since the use is for bus staging only. The infrastructure of Tunnel Avenue provide for roadway access and lavatories and recycling are contained on the buses, so that the interim use will operate in a safe, sanitary, and lawful manner.

5. The use will benefit the property and/or the public in that it would be used to facilitate bus ridership for Google employees thereby reducing greenhouse gas emissions that will benefit the public throughout the region.

6. The use would encourage the employment of Brisbane residents to the extent it is reasonably possible to do, inasmuch as Google utilizes vendor partners for bus driver services and has indicated that they will encourage those vendors to post job openings in the City’s Chamber of Commerce publication, the Luminary. 150
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Conditions of Approval:

1. Lighting shall be programmed to turn on no earlier than 4 am and to turn off no later than 9 pm.

2. Routine hours of bus arrivals and departures shall generally be between 4 am to 10 pm, Monday through Friday. While circumstances outside the drivers’ control may necessitate occasional trips outside these hours, or other occasional trips may occur as needed, such as sending buses for maintenance, changes to the routine hours are to be requested in writing to the Planning Director in advance of such change. The Director may approve the request as a minor modification or refer the matter for public hearing per BMC 17.41.090.

3. The yard’s ground surface shall be maintained to prevent airborne dust generation to the satisfaction of the City. Within 30 days of this permit being granted (by August 6th, 2022), a calcium-based binder shall be applied to treat the yard surface to prevent airborne dust, to the satisfaction of the City Engineer.

4. Routing of Google buses shall be to and from the north along Tunnel Ave and Beatty Ave to connect to U.S. 101. Buses shall not use Tunnel Avenue south of the site. Google shall provide reliable, daily bus movement data to the Planning Director on a monthly basis.

Data shall be provided in a form to the satisfaction of the Planning Director.

5. Within 180 days of the date of this approval (by January 3rd, 2023) the following improvements shall be made along Tunnel Ave, to the satisfaction of the City Engineer, subject to Department of Public Works Issued Encroachment and Grading permits:
a. Removal or relocation of the concrete barricades that are currently located along Tunnel Ave.
b. Improvement of the existing roadway shoulder on the east side of Tunnel Ave to include an 8 ft wide approximately 4,500 ft long compacted, decomposed granite (“DG”), to improve the existing bicycle access, consistent with the exhibits provided in the July 7
th, 2022 City Council report and included in this condition by reference.
c. Provide crossings at the Tunnel Ave and Lagoon Way intersection. d. Installation of plastic delineators along both the east and west sides of Tunnel Avenue, to provide separation between the roadway and the new DG bike path and to help to deter vehicles from pulling off the roadway to dump trash. e. Add 4 new “no dumping” signs along Tunnel Ave.
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6. BDI will routinely patrol the above referenced section of Tunnel Ave and remove any trash dumped within 24-hours when identified by BDI, City or members of the public.

7. No storage is permitted on site other than the Google bus parking and parking of the drivers’ vehicles used to retrieve buses.

8. The site shall be maintained free of trash and debris. Trash and recycling shall be contained on the buses for disposal at an authorized off-site location.

9. Per the City Engineer, all vehicles utilizing the yard shall be in compliance with vehicle weight requirements specified in California Vehicle Code Sections 35550-35558.

Storage of any vehicles over these weight requirements shall be subject to approval by the City Engineer, who may impose additional conditions.

10. The site and surrounding area shall be maintained for the duration of the use in compliance with North County Fire Authority requirements. This includes, flammable vegetation must be kept a minimum of 30 feet away from the property line, around the exterior of the lot being used, to provide a fuel break from the Baylands vegetation, except that vegetation within the nearby wetlands areas shall not be removed without approval by the project biologist.

11. Maintenance of vehicles is not permitted on the site.

12. Per the Bayshore Sanitary District requirements:
• No onsite wastewater facilities, other than those on the buses are permitted. • No SFPUC water connection is permitted without prior approval. • No wastes from the buses into the District’s wastewater collection system shall be permitted.

13. If the City determines that the interim use would interfere or obstruct planned public improvements, within a 90-day written notice by the City the permittee shall abandon the interim use and remove improvements at its own expense.

14. The operator shall maintain a business license through the City’s Finance Dept. 152
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Mandatory Conditions, per BMC Section 17.41.070:

15. Since the use is being operated by a person other than the owner of the property, the owner and the operator are furnish the city with an agreement (or a copy of a lease containing such agreement) that: (i) the operator's right to possession of the premises for the purpose of conducting the interim use is dependent upon the interim use permit having been granted and maintained in full force and effect; and (ii) the operator's right to possession of the premises for the purpose of conducting the interim use will terminate upon any expiration or revocation of the interim use permit; and (iii) it shall be the responsibility of the owner to terminate the operator's possession of the premises upon any expiration or revocation of the interim use permit if the operator continues to utilize the premises for the conduct of such interim use.

16. The permittee shall be jointly and severally liable for all costs and expenses, including attorneys' fees, the city may incur to enforce the conditions of the interim use permit upon any breach thereof by the permittee, or to abate and remove the interim use upon any failure by the permittee to discontinue such use, or to evict the operator of such use, upon the expiration or revocation of the interim use permit.

Other Conditions and Project Close Out:

17. Vehicles, fencing and lighting shall be removed from the site by the close of the interim use permit period or upon other vacation of the use.

18. This Use Permit is subject to the revocation procedures established in Brisbane Municipal Code Chapter 17.41.100.

19. Minor modifications to this use permit may be approved by the Planning Director upon written request.

20. This Interim Use Permit shall expire five years from the date of City Council’s approval.

That expiration date is July 7th, 2027.
.
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ATTACHMENT 3
Draft - RESOLUTION 2022-XX

A RESOLUTION OF THE CITY COUNCIL OF BRISBANE
UPHOLDING THE PLANNING COMMISSION’S DECISIONS TO

DENY THE REQUESTED MODIFICATION AND TO REVOKE
INTERIM USE PERMIT 2021-UP-3-M
FOR GOOGLE BUS STAGING YARD AT 600 TUNNEL AVE
WHEREAS, on November 16, 2021, following a duly noticed public hearing, the Planning Commission conditionally approved Interim Use Permit 2021-UP-3, which allowed for continuation of Google’s staging of commuter buses at 600 Tunnel Ave for a period of one year; and
WHEREAS, following a report to the Commission on March 10, 2022 detailing Google’s bus movements, the Commission requested that the application be placed on an agenda for a public hearing for potential revocation; and
WHEREAS, Eric Aronsohn of BDI, on behalf of Google, applied to the City of Brisbane for Modification to Interim Use Permit 2021-UP-3 to allow continued outdoor staging of Google buses with a revised schedule for bus trips, with operations generally 4 am to 10 pm, versus the previous schedule of 3 to 7 am and 3 to 9 pm; and
WHEREAS, on April 14th, 2022, the Planning Commission conducted a hearing to consider both revocation and the applicant’s requested modification of Interim Use Permit 2021- UP-3, at which time any person interested in the matter was given an opportunity to be heard; and WHEREAS, following the public hearing, the Planning Commission denied the requested modification and revoked the interim use permit on the finding that Google had violated condition of approval #4 which states, “Routing of Google buses shall be to and from the north along Tunnel Ave and Beatty Ave to connect to U.S. 101. Buses shall not use Tunnel Avenue south of the site”; and
WHEREAS, Eric Aronsohn appealed the Planning Commission’s decisions to deny the requested modification and to revoke the permit to the City Council; and WHEREAS, City Council held duly noticed public hearings on May 19th, 2022 and July 7 th, 2022 on the appeals, at which time any person interested in the matter was given an opportunity to be heard; and
WHEREAS, the City Council of the City of Brisbane hereby makes the findings attached herein as Exhibit A in connection with the Interim Use Permit.

NOW THEREFORE, BE IT RESOLVED by the City Council that:
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Section 1.

C. The above recitals are true and correct and incorporated herein by reference as if set forth in full.

D. The City Council hereby affirms the Planning Commission’s decisions to revoke Interim Use Permit 2021-UP-2 and deny the requested modification, given violation of Condition #4, as indicated by the Planning Commission and traffic safety concerns that this raises.

Section 2.

This Resolution shall take effect within 30 days of its adoption. That effective date being August 6 th, 2022.
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COLEEN MACKIN, Mayor
I hereby certify that the foregoing Resolution No. 2022-XX was duly and regularly adopted at the regular meeting of the Brisbane City Council on July 7th, 2022 by the following vote:

AYES:

NOES:

ABSENT:
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INGRID PADILLA, City Clerk
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City Council Minutes
May 19, 2022

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Brisbane City CouncilJuly 7, 2022

Brisbane City Council
July 7, 2022