Agenda packet — Orinda City Council, January 11, 2022

IMPORTANT NOTICE REGARDING THIS MEETING: To protect our residents, officials, and staff, and in alignment with AB 361 and Orinda City Council Resolution No. 42-21, in which certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting, this meeting will be held by Teleconference.

TELECONFERENCE
VIA

ZOOM WEBINAR
By PC:

MEETING URL:
https://tinyurl.com/ncusvn4h
MEETING ID: 924 9319 5201
By Telephone:
+1 669-900-9128
MEETING ID: 924 9319 5201

CITY COUNCIL
AGENDA
Tuesday, January 11, 2022
7:00 PM - REGULAR MEETING
City Council
Agenda Page 1 01.11.22
How to follow or participate in the meeting:
 Members of the public may observe and participate in the meeting at the teleconference location highlighted above. To ensure that the City Council receives your comments, we strongly encourage you to submit your comments in writing in advance of the meeting by following instructions below:

Send your e-mail to [email protected] by 3pm on the day of the meeting.

Those e-mails will be forwarded to the City Council. They will also be made a part of the public record and be available to view upon request by contacting the City Clerk at [email protected] or 925-253-4221. In addition, they will be available electronically by 5pm on the day of the meeting by selecting the date of the meeting in this Box link:
https://cityoforinda.box.com/s/aqrelwbwv0wc37m5hkju2o8a0sta7bup  Comments may also be submitted by e-mail during the meeting up until the closure of public comment period on the relevant agenda item. These will be read into the record by staff at their normal cadence and will be limited to a maximum of 3 minutes. To be read into the record, e-mail must contain in the subject line “Public Forum – Not on the Agenda” or “Public Comment – Agenda Item #” with the relevant agenda item indicated.

City Council
Agenda Page 2 01.11.22
 To comment orally in real time during the meeting, you may use the Zoom “raise your hand” function on your computer screen or the *9 function on your phone. 7:00 PM - REGULAR SESSION
A. CALL TO ORDER / ROLL CALL
Councilmembers: Darlene Gee, Nick Kosla, Amy Worth
Mayor Dennis Fay, Vice Mayor Inga Miller
B. PLEDGE OF ALLEGIANCE
C. ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.

D. ITEMS FOR THE GOOD OF THE CITY
D.1. Recognition of Orinda Garden Club for Holiday Wreath Project D.2. Introduction of new Administrative Services Director, Doug Alessio D.3. Introduction of new Associate Planner, Jim Frank
D.4. Annual Comprehensive Annual Financial Report and Audit Overview - Maze & Associates
Recommendation:

Receive presentation by Mr. Katherine Yuen of Maze & Associates and ask any follow-up questions on the audit that was performed for the period ending June 30, 2021.

E. PUBLIC FORUM
The public forum provides an opportunity for members of the public to speak on any item within the jurisdiction of the City Council that is not on the agenda.

Additionally, a speaker has the option of addressing the Council on an item listed on the agenda, if the speaker will not be present when that agenda item is taken up. When an item is not listed on the agenda, State law prohibits Council discussion or action. Councilmembers may only “briefly respond” to statements made and questions posed. For example, State law allows Councilmembers to ask questions for clarification and provide a reference to staff or other resources for factual information. Additionally, consistent with the “Matters Initiated” rule contained in its Policies and Procedures Manual, the Council may also direct staff to report back and/or place a matter on a future agenda for discussion.

F. CONSENT CALENDAR
F.1. City Council Minutes
City Council
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Recommendation:

Approve City Council Minutes:

1. December 14, 2021 Closed Session

2. December 14, 2021 Regular Meeting
F.2. Authorization For Continued Use of Remote Teleconference for City Meetings
Recommendation:

Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of February 19, 2022 to March 18, 2022 Pursuant to the Provisions of Assembly Bill 361.

F.3. Adoption of Ordinance No. 21-8, An Ordinance Updating Section

17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in Response to SB 9, a Housing Law Passed by the State Legislature in 2021
Recommendation:

Adopt Ordinance No. 21-8, waiving second reading, An Ordinance Updating Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in Response to SB 9, a Housing Law Passed by the State Legislature in 2021
F.4. Authorize Contract Amendment No. 2 with Schaaf & Wheeler Consulting Civil Engineers for On-call Civil Engineering Services and Appropriate Funding
Recommendation:

Staff recommends that the City Council approve said Contract Amendment No. 2 to increase the contract limit by an addition of $288,000 to a new total contract amount of $348,000, to extend the term of the agreement to June 30, 2024 and to authorize the City Manager and City Clerk to execute the contract amendment on behalf of the City, subject to approval as to form by the City Attorney.

F.5. Receive Annual Comprehensive Financial Report (ACFR) For June 30, 2021 Including Financial Statements and Audit Reports Recommendation:

Accept the Annual Comprehensive Financial Report (ACFR) for the fiscal year ended June 30, 2021, including audited financial statements, report of balances, and other associated reports; Memorandum of Internal Controls Report; Gann Appropriations Limit Report; and Transportation Development Act Funds Report. (Note an Overview Presentation is scheduled under the agenda section "Items For The Good of the City") G. PUBLIC HEARING
H. POLICY MATTERS
City Council
Agenda Page 4 01.11.22
H.1. Possible Ordinance Restricting Sale of Flavored Tobacco and Vaping Products
Recommendation:

Receive Report, Discuss, and Provide Direction, if any.

H.2. Consider Adoption of Resolution No. 02-22 Approving and Authorizing the Mayor to Execute the First Amendment to Employment Agreement between the City of Orinda and David Biggs Recommendation:

Consider Adoption of Resolution No. 02-22 approving and authorizing the Mayor to execute the First Amendment to Employment Agreement between City of Orinda and David Biggs
H.3. City Council Committee Appointment/Liaison List for 2022 Recommendation:

Review and Approve the recommended City Council Committee Appointment / Liaison List for 2022.

I. COUNCILMEMBERS' REPORTS
J. CITY MANAGER'S REPORT
K. MATTERS INITIATED
L. ADJOURNMENT
The next Regular Meeting of the Orinda City Council will be held on Tuesday, January 18, 2022 at 7:00 PM.

Please visit the City’s website at www.cityoforinda.org to view the City Council Calendar.

I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this special meeting agenda has been posted at least 24 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way. Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org. At least 24 hours in advance of the meeting, this agenda was also delivered to and received by each member of the City Council as well as each local newspaper, radio station and television station requesting written notice of special meetings.

I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this regular meeting agenda has been posted at least 72 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way.

Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org
City Council
Agenda Page 5 01.11.22
~ Notice ~
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders, which require a hearing by law, the receipt of evidence and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you challenge an action taken by the City Council in court, you may be limited by California law, including but not limited to Government Code §65009, to raising only those issues you or someone else raised in the public hearing, or in written correspondence delivered to the City Council prior to or at the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting, regardless of whether it is a regular or special meeting. For information on the next regular or special City Council meeting, please call 925.253.4221 or visit the website at www.cityoforinda.org.
~ Accessible Public Meetings ~
The City of Orinda will provide special assistance for disabled citizens to participate in public meetings upon advance notice. If you need auxiliary hearing aid or sign language assistance at least two (2) working days advanced notice is necessary.

Please contact the City Clerk’s Office, 22 Orinda Way, Orinda, Ca 94563 or 925.253.4221 or [email protected] with the following information: name, mailing address, phone number and type of assistance requested.

City Council
Staff Report
Agenda Item: D.4
Date: January 11, 2022
Department: Finance
AGENDA TITLE: Annual Comprehensive Annual Financial Report and Audit Overview - Maze & Associates
RECOMMENDATION:

Receive presentation by Mr. Katherine Yuen of Maze & Associates and ask any followup questions on the audit that was performed for the period ending June 30, 2021.

BACKGROUND:

Mr. David Alvey is currently the City of Orinda’s audit Partner with the public accounting firm of Maze and Associates. This firm is the City’s independent financial auditor and they have completed their work on the audit of the City financial statements for the period ending June 30, 2021.

Due to an unavoidable scheduling conflict, Mr. Alvey is not available to make this presentation. Instead, Katherine Yuen, Partner with the public accounting firm of Maze and Associates, will present a high-level overview of the reports completed. Ms. Yuen has a depth of Orinda knowledge as she was the City’s audit Partner the previous six years. The City Council formal acceptance of the Annual Comprehensive Financial Report and Audit is included as a separate item on the Consent Calendar for this evenings meeting. The presentation was scheduled to highlight the importance of reviewing the City’s financial position and provide an additional opportunity for City Council review and communication with the independent auditor.

ATTACHMENTS:

A. Annual Comprehensive Financial Report Presentation 2021 Respectfully Submitted by:

Doug Alessio
Administrative Services Director
Prepared By: Sheri Smith, City Clerk
Approved by:

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Independent Auditor Presentation
For fiscal year ended June 30, 2021
City of Orinda
Katherine Yuen, CPA
Partner
1 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report What We Will Cover
BackgroundAudit ResultsFinancial HighlightsMemorandum on Internal Control and Required Communication (MOIC)
2 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Background
3 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Who We Are
In business
since 1979
Municipal
auditor
since
1987
> 150
municipal
entities
> 50 cities/towns
> 40 ACFRs
Independent
of the City
4 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Standards to Follow
5 Audit
Auditing
standards
generally
accepted in the
USA
Government
Auditing
Standards
(issued by the
Comptroller
General of the
United States of
America)
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Audit Timeline
• April 2021• Internal control environment Interim• October 2021• Verification of financial data Final 6 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report New Accounting
Pronouncements Implementation
 Statement No. 98 –The Annual Comprehensive
Financial Report
 Early Implemented  Name and Acronym Change (ACFR)
7 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Current Year Highlights
 Measure R Loan Receivable (Note 5)
 Monteverde Senior Apartments $2,050,000 due December 2069 Memorandum on Internal Controls - #2021-01 8 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Audit Results
9 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report  Completed
Financial Audit
 Unmodified (i.e.. Clean) Opinions
Transportation Development Act Audit
 Unmodified (i.e.. Clean) Opinion
Appropriation Limit calculation AUP
 No exception noted
 In progress
Single Audit
10 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Maze & Associates, CPAs 11
2015
2014
2016
2017
20182019
2020
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Financial Highlights
12 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Entity-wide vs. Fund Financial Statements
13 Entity-wide Level
(pages 20 to 21)
Fund Level
(pages 24 to 31)
Current AssetsLong-Term AssetsCurrent LiabilitiesLong-Term LiabilitiesEquity Net Position Fund Balance D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Entity-wide
Assets $149.6mDeferred outflows $57k
Liabilities $52.7mDeferred inflows $261k
Net position $96.7m-- $5.3m increase
Maze & Associates, CPAs 14
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Fund Level -- General Fund
 Fund Balance $15.3m
 $1.95m increase
15 Nonspendable
$483k
Assigned $5.0m
Unassigned
$9.8m
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Financial Highlights: General Fund
16 Amount # of Months
Average monthly expenditures $1.2mMonths of expenditures that can be covered by Fund Balance • Total minus Nonspendable FB $14.8m 11.9 months• Contingency / Emergency FB $7.4m 6.0 months D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Memorandum on
Internal Control
and Required Communication
17 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Memorandum on Internal Control (MOIC)
and Required Communications
18 MOIC
Control
Deficiency Other Matters
D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Control Deficiency
19 • The design or operation of a What? control
Who? • Management or employees
• In the normal course of
performing their assigned functions
When?
• The prevention, detection or
correction of misstatements on a timely basis
Does not allow
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report Memorandum on Internal Control
20  No Material Weakness One Significant Deficiency
Recording the 2012 Loan
 Required Communication
D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report QUESTIONS?
21 D.4.a
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Attachment: Annual Comprehensive Financial Report Presentation 2021 (2642 : City Audit Report AGENDA TITLE: City Council Minutes
RECOMMENDATION:

Approve City Council Minutes:

1. December 14, 2021 Closed Session

2. December 14, 2021 Regular Meeting
ATTACHMENTS:

A. City Council Minutes of December 14, 2021
B. City Council Closed Session Minutes of December 14, 2021 Respectfully Submitted by:

Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:

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Orinda City Council Minutes Page 1 of 9 12.14.21
December 14, 2021

CITY OF ORINDA

CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed at: http://orindaca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=2079. They are also kept in the City Clerk’s Office as part of the public record and available upon request. 7:00 P.M. – REGULAR MEETING– BY TELECONFERENCE
A. CALL TO ORDER / ROLL CALL:

Mayor Worth called the Regular Meeting to order at approximately 7:00 p.m.

COUNCILMEMBERS PRESENT: Darlene Gee, Nick Kosla, Inga Miller Vice Mayor Dennis Fay, Mayor Amy Worth
COUNCILMEMBERS ABSENT: None
B. PLEDGE OF ALLEGIANCE – Led by Vice Mayor Fay.

C. ADOPTION OF AGENDA
City Manager Biggs announced there are no revisions or deletions to the agenda.

Mayor Worth opened the Public Forum, and there were no speakers or emails.

MOTION by Councilmember Miller and seconded by Councilmember Kosla to adopt the agenda. Said motion carried by unanimous (5-0) roll call vote.

D. ITEMS FOR THE GOOD OF THE CITY
D.1. Mayor's Award of Excellence to Seniors Around Town Mayor Worth presented the Mayor’s Award of Excellence to Seniors Around Town and gave a PowerPoint presentation and background of the program. She then recognized former Mayor Joyce Hawkins who started Seniors Around Town and staff who run the program and read and presented the Mayor’s Award of Excellence.

Joyce Hawkins, Seniors Around Town, thanked the Council for the award, thanked the City for the original grant, spoke of their meaningful non-profit organization and recognized volunteers in the community. She also recognized Kathy, Cindy, and Marie serving the office and said they are honored to have received the award.

D.2. Mayor's Award of Excellence to Lamorinda Village
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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 2 of 9 12.14.21
Mayor Worth presented the Mayor’s Award of Excellence to Lamorinda Village and gave a PowerPoint presentation. She recognized volunteers for their assistance supporting seniors in various ways and read and presented the Mayors Award of Excellence to Joyce Hawkins and other representatives.

Larry Toy, President, Lamorinda Village, introduced Sharon Iversen, Boardmember and new President-elect and original founding members, Joyce Hawkins, Secretary, Jack Hawkins, Treasurer, Kathryn Ishizu, Executive Director, and he recognized the 210 members in Lamorinda and the more than 300 volunteers for their extensive work over the year.

D.3. Mayor's Award of Excellence to Girls Crushing It
Mayor Worth presented the Mayor’s Award of Excellence to Girls Crushing It and gave a PowerPoint presentation and background of the program which helps girls refine their entrepreneurial skills and gain experience and empowerment in terms of preparing them for academic and professional careers.

Roxanne Christophe thanked the Council for their support, for attending events and being a presence to support them as well as for allowing their event in the Arts and Garden Center.

D.4. Mayor's Award of Excellence to Miramonte Environmental Solutions Club
Mayor Worth presented the Mayor’s Award of Excellence to the Miramonte Environmental Solutions Club and gave a PowerPoint presentation and background of the club which developed Orinda’s Styrofoam ban ordinance. She then read and presented the award to Devon Bradley, Joseph Manio, Alexis De Busschere and Sheng Shu.

Devon Bradley, Sheng Shu, Alexis De Busschere and Joseph Manio thanked the Council for the award, spoke of their work with the City Styrofoam ordinance and how much they learned about City governance, about Project Heart, cited the opportunity to hold inperson meetings at school and focusing on school projects such as SB 1383, and said the club will be supporting school energy efficiency projects.

D.5. Proclamation to Eagle Scout Sean Turney
Mayor Worth presented and read a Proclamation recognizing Eagle Scout Sean Turney for his work to build a horse shelter at Xenophon Therapeutic Riding Center in Orinda which incorporates interaction with horses and equestrian skill-building into therapy for those with developmental disabilities. She proclaimed December 15, 2021 as Sean Turney Day in Orinda.

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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 3 of 9 12.14.21
Sean Turney thanked the Council for the proclamation and for recognizing him and scouting in general which allowed him to become an Eagle Scout.

Kenneth Goldman, Scout Master, recognized Sean Turney and Xenophon as a wonderful program which is very local to scouts and he said it is nice to see scouts giving back in their own backyard.

Mayor Worth opened the Public Forum, and there were no public comments or emails.

E. PUBLIC FORUM
Mayor Worth opened the Public Forum.

Mark Cohen, 69 Acacia Drive, referred to the 1997 confirming letter addressed to the former City Manager and City Engineer regarding the City upgrading a culvert across from his home and the City’s agreement to maintain the culvert system. In October 2021 the pipe became clogged, causing the culvert to partially overflow which was also during the significant rain event, and he hopes to resolve the issue with the City.

City Manager Biggs acknowledged receipt of Mr. Cohen’s correspondence, spoke of past practice and property owner responsibility and reported on staff’s response and repairs which are consistent with the Council’s policy direction.

Jill Ray, Field Representative, Supervisor Candace Andersen’s Office, spoke of Supervisor Andersen’s admiration and respect of Mayor Worth for setting an inspiring example as an elected leader and as Orinda Mayor for five times, for serving on the many boards and committees, and her collaboration. She also said she looks forward to working with Vice Mayor Fay as Mayor and wants him to know that her door is always open.

Mayor Worth and Councilmembers thanked Supervisor Andersen for her on-going support of Orinda.

F. CONSENT CALENDAR
Mayor Worth asked and confirmed there were no requests for items to be removed and/or public comments.

F.1. City Council Minutes
Recommendation:

Approve City Council Minutes:

1. November 16, 2021 Closed Session

2. November 16, 2021 Regular Meeting
F.2. Authorization For Continued Use of Remote Teleconference for City Meetings
Recommendation:

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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 4 of 9 12.14.21
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of January 20, 2022 to February 18, 2022 Pursuant to the Provisions of Assembly Bill 361.

F.3. Monthly Report of Receipts and Disbursements for the Period October 1, 2021 through October 31, 2021 and Summary of Revenue, Expenditures, and Preliminary Fund Balances for July 1, 2021 through October 31, 2021
Recommendation:

Staff recommends that the City Council receive and file this report of receipts, disbursements, and preliminary fund balances for the month of October 2021.

F.4. National Opioid Litigation and Authorization to Participate in Settlement Agreements Arising from the Litigation
Recommendation:

Authorize the City Attorney and City Manager to take all necessary steps and execute appropriate documents to participate in the Settlement Agreements with the Distributors and Janssen, agree to the State Subdivision Agreements, and allow direct payment to be made to the County.

F.5. 2021 Annual Report of Development Impact Fee Funds Per AB1600 (Government Code Sections 66000 and Following)
Recommendation:

Staff recommends that the City Council: (1) Receive and file the City of Orinda Annual Report of Development Impact Fee Funds for the year ended June 30, 2021.

F.6. Proposed Adjustment to the Master Fee Schedule (Transportation Impact Fees) Effective January 1, 2022
Recommendation:

Adopt Resolution No. 50-21 modifying the master fee schedule to incorporate the annual automatic increase to Transportation Impact Fee.

F.7. Annual Rankings of Fiscal Health of Cities As Reported By State Auditor (Fiscal Year Ended June 30, 2020)
Recommendation:

Receive and file report which was reviewed by the Finance Advisory Committee on October 27, 2021.

F.8. General Fund Report of Budget To Actual 1st Quarter Fiscal Year 2021- 2022 (July 2021 - September 2021)
Recommendation:

Receive the report and file.

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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 5 of 9 12.14.21
F.9. Consider Resolution No. 48-21 Accepting Offer for Dedication in Fee of Wilder Road with Corrected Grant Deed
Recommendation:

Staff recommends that the City Council adopt Resolution No. 48-21 accepting the dedication of Wilder Road with a corrected grant deed.

F.10. Consideration of Award of a Professional Services Contract for the Design of Storm Drain Repairs / Storm Drain Lining Projects to Harris & Associates, Inc. of Concord, CA
Recommendation:

Staff recommends that City Council: 1) Award an Agreement for Storm Drain Project Design to Harris & Associates, Inc. for the base amount of $ 325,246; 2) Authorize the City Manager to administratively approve contract change orders up to $65,054 based on additional needs, 3) Authorize the City Manager and City Clerk to execute a contract based on the City Standard Professional Services Agreement, subject to approval as to form by the City Attorney and 4) Authorize budget transfer for CIP projects #3101 and #3102, which will reallocate budgeted funds between two fiscal years.

F.11. Accept Work and Approve Record Plans for the Orinda Way Pavement Rehabilitation Project No. 4138, and Authorize the City Clerk to sign and file a Notice of Completion with the Contra Costa County ClerkRecorder Recommendation:

Staff recommends that the City Council: 1) Adopt Resolution No. 51-21 to accept work for the Orinda Way Pavement Rehabilitation Project No. 4138 performed under contract with MCK Services Inc.; 2) Approve record plans for said project; 3) Authorize the City Clerk to sign and file the Notice of Completion for the contract with the Contra Costa County Clerk-Recorder; and 4) Approve the Budget Change accounting for services reimbursed by utility companies.

F.12. Subdivision Improvement Agreement Extension for Wilder Subdivisions 9074, 9222, 9223, and 9224
Recommendation:

Staff recommends Adoption of Resolution 55-21 to extend the time by which OG Property Owner, LLC (OGLLC), the Wilder developer, must complete all development improvements in the Wilder Project to December 31, 2022.

F.13. Authorize City Manager to execute a new Lease between the Pacific Gas and Electric Company and the City of Orinda for use of property for the Crossroads Mini Park
Recommendation:

Authorize the City Manager to execute the Lease Agreement for Park Use between the Pacific Gas and Electric Company and the City of Orinda for the Crossroads Mini Park.

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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 6 of 9 12.14.21
F.14. Approval of Emergency Agreements and Appropriation for City Hall and Community Center Water Leak Damage Clean-Up and Repair Recommendation:

Staff recommends the City Council: 1) Confirm the emergency expenditures and contracts undertaken to date in order to address water leaks which occurred during an October rainstorm and damaged City Hall and the Community Center; 2) Authorize a direct agreement with Restoration Management Company to proceed with Restoration / Repairs at the Community Center not to Exceed $75,000; and 3) Authorize a Budget Change appropriating funds for this emergency work from General Fund reserves.

MOTION by Councilmember Gee and seconded by Councilmember Kosla to approve Consent Calendar Items F.1, F.1.2, F.2, F.3, F.4, F.5, F.6, F.7, F.8, F.9, F.10, F.11, F.12, F.13 and F.14. Said motion carried by unanimous (5-0) roll call vote.

G. PUBLIC HEARING
G.1. Introduction and first reading of Ordinance 21-8 to update Orinda Municipal Code Section 17.3.4 (Accessory Dwelling Units) and Section

17.3.12 (Short-Term Rentals) in response Senate Bill No. 9 (SB 9), a law passed by the State Legislature in 2021. The proposed change would limit accessory dwelling units and junior accessory dwelling units on a parcel that has employed the urban lot-split and ministerial development provisions of the bill. In addition, the new rules would prohibit Short-Term Rentals (rentals with terms of less than 30 consecutive days) at units created under SB 9.

Recommendation:

Conduct a public hearing, consider public input, and introduce Ordinance 21-8, amending Section 17.3.4 (Accessory Dwelling Units) and Section

17.3.12 (Short-Term Rentals) by title only, waiving a full reading.

City Manager Biggs presented the item on behalf of Planning Director Drummond Buckley, described SB 9 and gave an overview of the new legislation and ordinance, spoke of the working group’s goal to ready the City by January 1st when the new law goes into effect and staff’s plans to refine the ordinance after more clarity under implementation, existing code provisions, and existing objective design standards. Staff’s approach is to return to the Council early January to provide additional recommendations and he turned over the presentation to the City Attorney.

City Attorney Osa Wolff described her work with staff on the ordinance and SB 9 issues and generally putting the City in the best position possible to be ready when the bill becomes effective January 1st.

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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) Orinda City Council Minutes Page 7 of 9 12.14.21
The Council received an overview of SB 9 which 1) takes advantage of an option that is created under SB 9 to limit ADUs and JADUs where an applicant has already taken full advantage of the streamlining under SB 9 of the lot split and ministerial review; and 2) prohibit short-term rentals of less than 30 days in a unit created under SB 9. This is mandated under State law and this part of the ordinance would respond to the legislature’s direction and make that prohibition apply.

Councilmembers asked and confirmed that the City will be receiving guidance from HCD on SB 9 units relating to update of the Housing Element. Staff believes the objective aspects of the City’s FAR requirements will continue to be applicable but subjective requirements no longer applicable. Staff is working closely on the high fire severity zone issues where the bill states the City cannot outright prohibit development in such zones but rather the existing home must be brought up to current Fire Codes. Staff also described objective setback requirements where the City must allow up to two 800 square foot units, with the City reducing its standards to an absolute minimum of 4 foot setbacks.

The guidance out is incomplete and potentially confusing, so Ms. Wolff stated she is coordinating with her fellow City Attorneys and the planning community to get as much clarity as they can. Before the Council is a discreet ordinance that needs to come forward as a first step, but not as the last.

Mayor Worth opened the Public Forum.

Matt Fogarty voiced support of SB 9 and the general ADU and JADU laws, cited lack of housing, hopes the City does not try to undermine SB 9 which will help build more affordable housing units.

Ms. Wolff responded that the City is in full compliance and has a compliant ADU ordinance in place now. There is no proposal to change that or any effort to undermine State law with respect to ADUs or JADUs and the proposed ordinance is in direct response to an invitation made by the legislature in SB 9. Up to two 800 square foot units must be allowed through a streamlined approval process, but that is not a maximum but what the City minimally must allow.

Councilmembers voiced their support, thanked staff for their work on the ordinance which they believe fully complies with SB 9, are glad the legislature considered the short-term rental elements, and recognized more discussion will be undertaken in 2022.

MOTION by Councilmember Gee and seconded by Councilmember Kosla to introduce Ordinance 21-8, amending Section 17.3.4 (Accessory Dwelling Units) and Section

17.3.12 (Short-Term Rentals) by title only, waiving a full reading. Said motion carried by unanimous (5-0) roll call vote.

H. POLICY MATTERS
H.1. Selection of Mayor for a Term Beginning December 2021 through December 2022
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Mayor Worth declared the office of Mayor vacant, called for the election of Mayor for the year 2021/2022 and entertained any nominations.

Councilmember Gee nominated Vice Mayor Dennis Fay for the office of Mayor, and there were no other nominations.

MOTION by Councilmember Miller and seconded by Councilmember Kosla to close the nomination for office of Mayor. Said motion carried by unanimous (5-0) roll call vote.

Mayor Worth opened the Public Forum, and there were no speakers.

MOTION by Councilmember Gee and seconded by Councilmember Miller to select Vice Mayor Fay as Mayor for a term beginning December 2021 through December 2022.

Said motion carried by unanimous (5-0) roll call vote.

Councilmember Worth turned over the virtual gavel to Mayor Fay.

H.2. Selection of Vice Mayor for a Term Beginning December 2021 through December 2022
Mayor Fay declared the office of Vice Mayor vacant, called for the election of Vice Mayor for the year 2021/2022 and entertained any nominations.

Councilmember Gee nominated Councilmember Inga Miller for the office of Vice Mayor, and there were no other nominations.

MOTION by Councilmember Kosla and seconded by Councilmember Worth to close the nomination for office of Vice Mayor. Said motion carried by unanimous (5-0) roll call vote.

Mayor Fay opened the Public Forum, and there were no speakers.

MOTION by Councilmember Kosla and seconded by Councilmember Worth to select Vice Mayor Miller as Vice Mayor for a term beginning December 2021 through December 2022. Said motion carried by unanimous (5-0) roll call vote.

City Clerk Sheri Smith then gave the Oath of Office to Mayor Fay and Vice Mayor Miller.

H.3. Acknowledge Service to the Community of Outgoing Mayor Amy Worth
Mayor Fay and Councilmembers presented a Proclamation to outgoing Mayor Amy Worth for her service December 8, 2020 through December 14, 2021.

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Councilmember Worth thanked Mayor Fay and Councilmembers and said it has been an honor to serve as Mayor. She recognized City staff, community organizations, business members and residents for what was a challenging year. She especially thanked her family and recognized local and regional legislators for their support, and wished Mayor Fay and Vice Mayor Miller well in 2022.

Mayor Fay opened the Public Forum.

Joyce Hawkins, former Mayor, recognized outgoing Mayor Worth, added personal comments to the proclamation, congratulated her on a job well done and thanked her for her years of service.

Lastly, Mayor Fay presented outgoing Mayor Worth with a plaque, the City’s resolution, and a proclamation from Supervisor Andersen, which he read.

I. COUNCILMEMBERS’ REPORTS – No reports.

J. CITY MANAGER’S REPORT – City Manager Biggs reported the Mayor signed and sent off the letter to BART providing Council comments and encouraging them to incorporate the City into a new district with the Contra Costa County cities.

Staff is launching a Balancing Act tool which will allow residents to help the City meet its RHNA of 1600 units through a variety of ways and sites, and he recognized Associate Planner Winnie Mui for personalizing this tool.

He introduced new Director of Administrative Services Doug Alessio who comes to the City from Livermore and recognized Paul Rankin, the City current Director of Administrative Services for his contributions to the City of Orinda. Staff will be holding a small in-person holiday event, and Mr. Biggs invited the Council to attend. He lastly wished the Council and residents a bright holiday season.

K. MATTERS INITIATED – None.

L. ADJOURNMENT
The Regular Meeting was adjourned at approximately 9:00 p.m.to the next Regular Meeting on Tuesday, January 11, 2022 at 7:00 p.m.
______________________________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Minutes of December 14, 2021 (2637 : City Council Minutes) DECEMBER 14, 2021

CITY OF ORINDA

CITY COUNCIL CLOSED SESSION MINUTES
6:00 PM - SPECIAL MEETING
A. CALL TO ORDER/ ROLL CALL
Mayor Worth called the meeting to order at 6:00 p.m. City Manager Biggs called the roll and noted that all Councilmembers were present.

B. OPEN SESSION IDENTIFICATION OF CLOSED SESSION MATTERS Mayor Worth identified the Closed Session Matter.

C. PUBLIC COMMENTS REGARDING CLOSED SESSION MATTERS
There were no members of the public wishing to speak.

D. CLOSED SESSION

1. CITY MANAGER SIX-MONTH PERFORMANCE EVALUTION
Pursuant to Government Code Section 54957, 6-month performance evaluation of City Manager David Biggs
E. OPEN SESSION REPORT REGARDING CLOSED SESSION
Mayor Worth announced that there was no reportable action taken.

F. ADJOURNMENT
The meeting adjourned at approximately 7:00 P.M.
_______________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Closed Session Minutes of December 14, 2021 (2637 : City Council Minutes) City Council
Staff Report
Agenda Item: F.2
Date: January 11, 2022
Department: City Clerk
AGENDA TITLE: Authorization For Continued Use of Remote Teleconference for City Meetings
RECOMMENDATION:

BACKGROUND:

On October 5th, 2021 the Orinda City Council adopted Resolution No. 42-21 (see link below) approving the continued use of teleconferencing for the meetings of all City legislative bodies pursuant to the provisions of Assembly Bill 361. The resolution was ratified on October 19th, and at every meeting through the remainder of 2021.

DISCUSSION:

At the time of adoption, the City Council anticipated that the resolution would appear on its consent calendar for review and ratification or update at each regular Council meeting. The State law authorizes the continuation for as long as the Governor’s proclaimed state of emergency relating to the COVID-19 pandemic remains in effect.

On November 10, 2021 Governor Newsom issued an Executive Order which extends the emergency proclamation to March 31, 2022. State law also provides that the City Council determine that they desire to continue remote public meetings and make the necessary findings at least every thirty days. Those findings were contained in Orinda City Council Resolution No. 42-21, which staff recommends the Council vote to ratify based on current conditions.

Approval of this item will allow all public bodies established by the City of Orinda and covered by Resolution No. 42-21 to continue to conduct teleconferencing meetings.

FISCAL IMPACT:

None.

ATTACHMENTS:

A. Weblink to: Staff Report, Adopted Resolution at October 5, 2021 Council Meeting Respectfully Submitted by:

Sheri Smith
City Clerk
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Prepared By: Sheri Smith, City Clerk
Approved by:

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City Council
Staff Report
Agenda Item: F.3
Date: January 11, 2022
Department: City Clerk
AGENDA TITLE: Adoption of Ordinance No. 21-8, An Ordinance Updating Section

17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in Response to SB 9, a Housing Law Passed by the State Legislature in 2021
RECOMMENDATION:

Adopt Ordinance No. 21-8, waiving second reading, An Ordinance Updating Section

17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in Response to SB 9, a Housing Law Passed by the State Legislature in 2021
BACKGROUND:

At the meeting of December 14, 2021, the City Council introduced Ordinance No. 20-8, An Ordinance Updating Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in Response to SB 9, a Housing Law Passed by the State Legislature in 2021
DISCUSSION:

The Staff Report from the December 14, 2021 City Council Meeting is attached to provide an overview.

Ordinance No. 21-8 was introduced without changes and is on this agenda for consideration of adoption.

FISCAL IMPACT:

None.

ATTACHMENTS:

A. Agenda Report from December 14, 2021
Respectfully Submitted by:

Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:

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City Council
Staff Report
Agenda Item: G.1
Date: December 14, 2021
Department: Planning Department
AGENDA TITLE: Introduction and first reading of Ordinance 21-8 to update Orinda Municipal Code Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (ShortTerm Rentals) in response Senate Bill No. 9 (SB 9), a law passed by the State Legislature in 2021. The proposed change would limit accessory dwelling units and junior accessory dwelling units on a parcel that has employed the urban lot-split and ministerial development provisions of the bill. In addition, the new rules would prohibit Short-Term Rentals (rentals with terms of less than 30 consecutive days) at units created under SB 9.

RECOMMENDATION:

Conduct a public hearing, consider public input, and introduce Ordinance 21-8, amending Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) by title only, waiving a full reading.

BACKGROUND:

On September 16, 2021, Governor Newsom signed into law SB 9. Simply stated, the bill requires local jurisdictions in California to ministerially approve qualifying development of up to two units on lots zoned single-family, subject only to objective standards. It also eliminates local discretion over qualifying lot-split subdivisions of existing lots zoned single-family. Staff updated the Council on this new law at its meeting on October 5, 2021 (Attachment D) and has been actively working to prepare for the new law to take effect on January 1, 2022. Proposed Ordinance 21-8 (Attachment A) is one part of that preparation.

The Planning Commission considered Ordinance 21-8 on November 9, 2021 (Draft minutes included as Attachment C). After several questions of staff regarding the implications of SB 9, and testimony by one member of the public in opposition of the ordinance, the all six of the Commission Members present (one member was absent) voted to approve adoption of Planning Commission Resolution 21-04 (Attachment B) recommending that the City Council adopt Ordinance 21-8.

DISCUSSION:

Because the legislature’s drafting of SB 9 is less than clear, there is necessarily some uncertainty as to how the law will be interpreted and applied. That uncertainty may be addressed/clarified in the future by the legislature, the courts, and/or through guidance from the California Department of Housing and Community Development (HCD). The uncertainty need not and cannot be resolved fully by proposed Ordinance 21-8.

Accordingly, the approach taken by the Ordinance is to refer to and quote the applicable SB 9 provisions and text, as opposed to attempting to summarize or clarify the law. Staff took this approach in the interest of efficiency and to avoid building interpretive errors F.3.a
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Attachment: Agenda Report from December 14, 2021 (2647 : SB 9 ADU Second Reading and Adoption) into the ordinance itself, while ensuring the City complies with SB 9 and takes full advantage of the available authority granted to it in the SB 9 context.

Accessory Dwelling Unit (ADUs) and Junior Accessory Dwelling Unit (JADUs): SB 9 authorizes cities to not permit an accessory dwelling unit (ADU) and/or junior accessory dwelling unit (JADU) on a parcel that has employed the urban lot split and ministerial development provisions of the bill. Likewise, the City would not need to permit more than two dwelling units of any kind (including an ADU/JADU) on a lot created under SB

9. In order to take full advantage of this authority, staff recommends adoption of Ordinance 21-8.

Short-Term Rentals: SB 9 requires cities to prohibit short-term rental of any units created pursuant to SB 9. In compliance with this directive, Ordinance 21-8 would amend the City’s short-term rental ordinance to prohibit the short-term rental (for terms of less than 30 consecutive days) of units created pursuant to SB 9.

NEXT STEPS:

Starting shortly after the October 5, 2021 Council update regarding SB 9, City staff has been working through a long list follow-up items in preparation for the January 1, 2022 effective date of SB 9, including identification of existing objective standards that would apply to SB 9 projects, new application forms, checklists, and submittal requirements.

Ordinance 21-8 is just the first of what are likely to be multiple implementing ordinances relating to SB 9. More Council agenda items will likely follow as the implications of SB 9 become clearer and/or as staff resources allow. For example, staff is evaluating the possibility of adopting additional objective design standards for development on lots zoned single-family and/or updating the City’s Subdivision Ordinance, amongst other SB related considerations. These items would be scheduled for consideration in early 2022, perhaps after HCD issues its SB 9 guidance which is expected in February. Given this factor, and the many unknowns, staff also believes the best timing for such items will likely be after Staff have processed a few SB9 projects.

FISCAL IMPACT:

None.

ATTACHMENTS:

A. Draft Ordinance 21-8 regarding SB9 Implementation
B. Planning Commission Resolution 21-04 Recommending Adoption of Ordinance 21-8 C. Draft November 9, 2021 Planning Commission Minutes regarding SB 9 Item D. October 5 City Council Staff Report: SB 9 Overview (weblink) Respectfully Submitted by:

Drummond Buckley
Director of Planning
Prepared By: Drummond Buckley, Director of Planning
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Attachment: Agenda Report from December 14, 2021 (2647 : SB 9 ADU Second Reading and Adoption) Approved by:

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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of: Ordinance 21-8
An Ordinance Updating Section 17.3.4
(Accessory Dwelling Units) and Section

17.3.12 (Short-Term Rentals) of the City’s
Zoning Code in Response to SB 9, a Housing
Law Passed by the State Legislature in 2021
The City Council of the City of Orinda DOES ORDAIN as follows:

SECTION 1.

The City Council of the City of Orinda intends, by adopting this ordinance, to update Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals) of the City’s Zoning Code in response Senate Bill No. 9 (SB 9), a law passed by the State Legislature in 2021.

SECTION 2.

The following portions of the Zoning Code are amended and added as specified below and in Attachment A. Attachment A shows additions with double-underlined text and deletions with strike-out text.

Municipal Code Provision Action
§17.3.4(L) Text added as shown in Attachment A.
§17.3.12(K) Text added as shown in Attachment A.

SECTION 3 – PURPOSE AND INTENT.

A. On September 16, 2021, the Governor signed into law SB 9, which will take effect on January 1, 2022.

B. The purpose of this ordinance is to make certain amendments to the City’s Zoning Code in response to changes in state law effected by SB 9. The Council may adopt further amendments later.

C. The Council wishes to fully exercise the authority reserved to cities by SB 9 to not permit an accessory dwelling unit and/or a junior accessory dwelling unit on parcels that use the authority contained in Government Code Section 65852.21 and Government Code Section 66411.7. Specifically:

1. SB 9 added the following language as Government Code Section 65852.21(f): “(f) Notwithstanding Section 65852.2 or 65852.22, a local agency shall not be required to permit an accessory dwelling unit or a junior accessory dwelling unit on parcels F.3.a
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that use both the authority contained within this section and the authority contained in Section 66411.7.”

2. SB 9 added the following language as Government Code Section 66411.7(j): “(j) (1) Notwithstanding any provision of Section 65852.2, 65852.21, 65852.22, 65915, or this section, a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section. (2) For the purposes of this section, “unit” means any dwelling unit, including, but not limited to, a unit or units created pursuant to Section 65852.21, a primary dwelling, an accessory dwelling unit as defined in Section 65852.2, or a junior accessory dwelling unit as defined in Section 65852.22.” D. The Council wishes to implement the restriction on short-term rentals described in SB

9. Specifically:

1. SB 9 added the following language as Government Code Section 65852.21(e): “(e) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days.”

2. SB 9 added the following language as Government Code Section 66411.7(h): “(h) A local agency shall require that a rental of any unit created pursuant to this section be for a term longer than 30 days.”
SECTION 4.

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase.

SECTION 5.

This ordinance is consistent with the Orinda General Plan.

SECTION 6.

The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines (Title 14 of the California Code of Regulations) Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change in the environment, directly or indirectly. Further, this action is exempt from CEQA under CEQA Guidelines section 15061(b)(3) (the amendments are exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment). Additionally, this action is exempt from CEQA under Government Code section 65852.21, which states: “A local agency may F.3.a
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adopt an ordinance to implement the provisions of this section. An ordinance adopted to implement this section shall not be considered a project under [CEQA].” SECTION 7.

This ordinance becomes effective thirty (30) days after adoption.

SECTION 8.

The City Clerk shall either (a) have this ordinance published once within fifteen (15) days after adoption in a newspaper of general circulation, or (b) have a summary of this ordinance published twice in a newspaper of general circulation, once five (5) days before its adoption and again within fifteen (15) days after adoption.

Following a duly-noticed public hearing, the foregoing ordinance was introduced at a meeting of the City Council of the City of Orinda held on _____ and was adopted and ordered published at a regular meeting held on _____ by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:
_____ , Mayor
ATTEST:

Sheri Marie Smith, City Clerk
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ATTACHMENT A

1. Accessory Dwelling Units.

The following new text is added as Orinda Municipal Code section 17.3.4(L):

Pursuant to Senate Bill 9 (2021), no accessory dwelling unit or junior accessory dwelling unit will be permitted by the City on a parcel that has used both the authority contained in California Government Code Sections 65852.21 and 66411.7. No more than two dwelling units of any kind will be permitted by the City on a parcel created through the exercise of the authority contained in California Government Code Section 66411.7.

2. Short-Term Rentals.

The following new text is added as Orinda Municipal Code section 17.3.12(K):

Pursuant to Senate Bill 9 (2021), short-term rentals are prohibited in units created pursuant the authority contained in California Government Code Sections 65852.21 and/or 66411.7.
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Attachment: Agenda Report from December 14, 2021 (2647 : SB 9 ADU Second Reading and Adoption) Planning Commission (PC) Minutes Page 1 of 5 11.9.2021
TUESDAY, November 9, 2021

CITY OF ORINDA

PLANNING COMMISSION MINUTES

1. CALL TO ORDER
The meeting was called to order at 7:00 PM by Chair Smith.

PLANNING COMMISSIONERS PRESENT: Robert Hubner, Brandyn Iverson, Lina Lee, Willy Mautner, Vice-Chair Ann Parnigoni, and Chair
John Smith
PLANNING COMMISSIONERS ABSENT: Marian Jelinek

2. ADOPTION OF AGENDA
Chair Smith recommended the adoption of the agenda. The motion was seconded by Commissioner Lee. The motion passed by a unanimous (6-0-1; Jelinek absent) vote.

3. PUBLIC FORUM
Chair Smith opened the floor to any member of the public wishing to speak on any item not on the agenda. Seeing none and hearing none the public forum was closed.

4. CONSENT CALENDAR
A. Approval of 2022 Planning Commission meeting calendar.

Vice-Chair Parnigoni stated there was an error on the calendar, and the January meeting should be January 25th.

Chair Smith made a motion to approve the 2022 Planning Commission meeting calendar with the revision to the January meeting; and the motion carried by Commissioner Hubner a unanimous (6-0-1, Jelinek absent) vote.

5. CONTINUED PUBLIC HEARINGS – No report.

6. NEW PUBLIC HEARINGS
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A. Consider a recommendation to the City Council regarding an ordinance to update Orinda Municipal Code Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (ShortTerm Rentals) in response Senate Bill No. 9 (SB 9), a law passed by the State Legislature in 2021. The proposed change would limit accessory dwelling units and junior accessory dwelling units on a parcel that has employed the urban lot-split and ministerial development provisions of the bill. In addition, the new rules would prohibit Short-Term Rentals (rentals with terms of less than 30 consecutive days) at units created under SB 9.

PROJECT SITE: Citywide where Senate Bill 9 applies
APN: Various
APPLICATIONS: City-sponsored
ZONING DESIGNATION: Various
OWNER/APPLICANT: N/A
PROJECT PLANNER: Drummond Buckley, Planning Director
CEQA STATUS: Categorically exempt per CEQA Sec. 15305 - Minor Alterations in Land Use Limitations
STAFF RECOMMENDATION: Adopt Resolution No. 21-04 recommending the Council adopt Ordinance 21-7, amending Section 17.3.4
(Accessory Dwelling Units) and Section 17.3.12 (ShortTerm Rentals).

Planning Director Drummond Buckley provided the Commission with an overview of the project.

Chair Smith asked for questions from the Commission to staff.

Commissioner Huber asked for clarification if the ordinance prohibits ADUs and JADUs in a lot split scenario, and questioned if the ordinance would apply for duplexes for the non-lot spilt scenario since it was shown as prohibited in one of the slides.

Drummond Buckley responded the state statute does not allow us to change the ADU allowance for a parcel which is not being split into two lots, and explained the provision about not allowing ADUs on a SB9 lot only applies if there is a lot spilt.

Commissioner Hubner asked the pictorial showed of the four units on an un-split lot is still enforced by SB9 and not affected by the ordinance. Drummond Buckley responded correct the ordinance does not affect that scenario.

Commissioner Iverson asked for an explanation on how the lot split total density relates to the keeping the lot whole and maxing out the size of the building, and asked why would a person subdivide versus build and just sell the duplexes separately.

Drummond Buckley responded a lot of people have the idea of just going through the process of subdividing their parcel into two parcels, selling the vacant lot, and have the new owners deal with the design review. He added for that parcel it is simpler than proposing to build the unit on that parcel.

Commissioner Iverson asked if you can sell the second home of the duplex as a separate saleable item.

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Drummond Buckley responded you could not sell your second unit as a separate saleable item unless you did the lot spilt since it what allows you to sell that unit separately.

Commissioner Hubner referenced the slide, and thought the picture showed the second unit, not the ADU or the JADU, could be sold separately.

Drummond Buckley replied no.

Commissioner Mautner asked isn't the basic principle that you must sell the property with a building as the building cannot be by itself.

Drummond Buckley explained you can have an ADU or JADU, and it’s part of the same lot. He added that SB9 allows you to add another unit separately.

City Attorney Osa Wolff explained we don't know exactly what the author of that slide was getting at. She added occasionally, people do sell units like this in a TIC arrangement (tenancy in common), as opposed to it being a separate legal lot of record. She added it might be that Mr.

Twu was picking up on some very confusing string language that's in SP9 about separately saleable units.

She explained the typical rule is that if it's not a subdivided, legal interests, not a separate lots, not condos, and it's not separately saleable unless you're using something like a TIC arrangement.

Drummond Buckley explained that's not the point that he was trying to make with this slide, and added he was trying to explain that under SB9 you could have four units on your lot, ADU, JADU and another house essentially.

Commissioner Hubner asked if you're limited to the two duplexes, a duplex on each of the two halves of the parcel, and questioned if you couldn't have any more ADUs.

Drummond Buckley responded you couldn't have any more ADUs but if the owner already had an ADU then we think the owner would be able to split the lot, but the owner wouldn’t be able to have any ADU on the new lot. Osa Wolff clarified that this is true if the city adopts the ordinance.

She added we're waiting for clarity from maybe the courts, and maybe HCD on the other question.

She stated if you've already maxed out one of your two lots, and questioned if that affects the ability to do a split, this is an area of uncertainty at this point.

Commissioner Mautner stated he thought ADUs were used as rental units or family units, and asked if ADUs can be sold as a separate entity.

Drummond Buckley replied no, I was trying to say they can't.

Commissioner Hubner stated the duplex can sold separate. Drummond Buckley responded no, the duplex is the same status as the ADU, and cannot be sold separately.

Vice-Chair Parnigoni asked only if it is subdivided. Drummond Buckley responded correct, only if it is subdivided.

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Chair Smith asked for the explanation on the limitation on the driveway and garage. Drummond Buckley explained SB9 can only be required to have one parking space, and it doesn’t have to be in the garage. He added the current parking requirement for a single family house which is a standard in California that goes back to the beginning of 1950’s zoning era is two spaces in a garage plus two spaces in the driveway in front of the garage.

Chair Smith asked if we know what the purpose of limiting the parking to one space. Drummond Buckley responded that SB9 is trying to make it easier to build units especially in areas that have smaller lots and more urbanized areas than Orinda where the parking will be a limiting factor for a lot of people. He added so by reducing the parking requirement it makes it easier to build another unit.

Chair Smith stated there may be a concern about parking in narrow streets. Drummond Buckley responded absolutely there’s a concern but Planning doesn’t have jurisdiction over that issue.

Commissioner Hubner stated there are certain streets in Orinda that narrow, and the boundaries of parcels in the street widths that are there are going to be widened. He added if there is a situation where there are four units on the lot with ADU and JADU then there will be a lot of We're a lot of cars in the street.

He noted the health and safety limitations that SB9 permits the city to have the building official found against an SB9 construction, and asked how the city would enforce parking or lack of parking for the permitting of a SB9 split or an SB9 duplex.

Osa Wolff responded that's one of the issues on our very long list of issues to try to figure out but the city controls parking in the street by putting in no parking zones and also is not required to allow unsafe encroachments. She explained if someone were to want to put in parking, for their personal use, that's within the public right of way and that would narrow the streets or make the conditions unsafe then that's not something we're required to allow. She added Under SB9 doesn't change the city's basic jurisdiction around the street.

Chair Smith opened the floor for public comment. A summary of public comments (not verbatim) are as follows:

Sean McFeely stated he wanted to share a little bit of disappointment in this Resolution SB9 was written to address our state's housing shortage by legalizing this “missing middle” housing. He added that by passing this Ordinance, the city of Orinda indicating it is not interested in solving our region's housing crisis. He stated as someone who had to move out of Orinda because he couldn't find affordable housing it's really disheartening to me to see that the city of Orinda isn't as interested in solving this problem as other nearby cities might be.

He noted his secondary concern is that studies of displacement show that when cities like Orinda that are close to working spaces like Oakland and San Francisco that don't build housing then we see workers forced to relocate far to suburbs like Tracy and to Pittsburgh. He added those people that have to drive extra far to get to work, because not only exacerbates the traffic on our streets, but it also produces greenhouse gases, which I think we all recognize need to be minimized. He stated he is a bit disheartened to see that the city of Orinda is looking to curtail the amount of accessory dwelling units that could be built under SB9, when in reality we can not only help our neighboring cities but also help reduce the traffic on our roads and help our environment by encouraging this type of missing middle housing within our jurisdiction.

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Attachment: Agenda Report from December 14, 2021 (2647 : SB 9 ADU Second Reading and Adoption) Planning Commission (PC) Minutes Page 5 of 5 11.9.2021
Chair Smith closed the Public Hearing and brought the item back to the Commission for discussion.

ACTION: Commissioner Iverson made a motion to adopt Resolution No. 21-04 recommending the Council adopt Ordinance 21-8, amending Section 17.3.4 (Accessory Dwelling Units) and Section 17.3.12 (Short-Term Rentals).

The motion was seconded by Commissioner Hubner and the motion carried by a (6-0-1, Jelinek absent) vote as follows:

Ayes: Huber, Iverson, Lee, Mautner, Parnigoni and Smith Noes: None
Abstain: None

Absent: Jelinek

7. OTHER COMMISSION MATTERS – No report.

8. PLANNING COMMISSIONER'S REPORTS – No report.

9. PLANNING DIRECTOR'S UPDATE

10. ADJOURNMENT
A motion was made by Chair Smith, seconded by Commissioner Hubner, to adjourn the meeting at 8:40 pm. The motion carried by a unanimous (6-0-1) vote. The next regular Planning Commission meeting will be Tuesday, November 23, 2021 at 7:00 pm by teleconference via zoom webinar.

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Attachment: Agenda Report from December 14, 2021 (2647 : SB 9 ADU Second Reading and Adoption) City Council
Staff Report
Agenda Item: F.4
Date: January 11, 2022
Department:

Public Works and
Engineering Services
AGENDA TITLE: Authorize Contract Amendment No. 2 with Schaaf & Wheeler Consulting Civil Engineers for On-call Civil Engineering Services and Appropriate Funding
RECOMMENDATION:

BACKGROUND:

A 1,300 lineal foot reinforced concrete culvert conveys San Pablo Creek in downtown Orinda, from the Safeway Parking lot to Orinda Way (see map showing approximate location of the culvert, Attachment A). Most of the culvert consists of a double box, each side approximately 10 ft. wide by 9 ft. tall. There are two open channel sections, approximately 20 ft. wide: an 11 foot long segment just north of Camino Sobrante, and an 82 foot long segment just north of Avenida De Orinda. The majority of the culvert is under paved parking areas, except for the open channel sections and the areas under the roadway at Camino Sobrante and the end of Avenida De Orinda.

According to Caltrans bridge inspection records, the culvert was built in 1955. Caltrans has inspected portions of the culvert since at least 1977. In particular, Caltrans inspects the portion of the culvert under the paved roadway portion of Camino Sobrante, approximately 40 feet, as part of their Bridge Inspection Program.

The Caltrans Bridge Inspection Reports for the subject culvert have indicated that the concrete floor (invert) has abrasion which has led to exposed rebar, with the recommendation to reline the culvert invert. The sufficiency rating has declined to the extent (65% as of October 2020) that this repair has become a high priority. Staff researched the ownership of the culvert on the numerous private properties that it traverses and determined the culvert appears to have been built within easements which the County had accepted, and therefore the city would be responsible for culvert maintenance. Unfortunately, the city does not have plans or drawings for the culvert, so its structural details are unknown and there are no survey records of its precise location. Most of the accepted easements are circa 1959, so they appear to be related to the as-built condition of the culvert, assuming most of it was constructed by that time.

The exception is the open channel section just north of Avenida De Orinda, for which the easement acceptance date is 1969.

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Staff engaged Schaaf & Wheeler Consulting Civil Engineers (under an on-call services contract) to conduct inspections, determine repair methods and permitting requirements, and prepare repair plans and specifications.

DISCUSSION:

Schaaf & Wheeler performed field inspections and provided a report of their findings and recommendations (Attachment B). They found varying degrees of abrasion in the culvert invert and recommended proceeding with repairs as soon as practicable. The repair work may take two or more construction seasons to complete, since the work will be limited to the low flow summer months. It is likely that the soonest the repair work could be done would be summer 2023 due to the permit application process and the need to do concrete coring and other exploratory work (for materials testing and structural section property determination) that cannot be done until the next estimated low flow period in the creek (May or June 2022 at the earliest). After such test and coring data is obtained, the repair materials specification can be determined. The section(s) of culvert with the most deteriorated inverts would be scheduled for work first.

It was also discovered that the west (retaining) wall in the open channel section north of Avenida De Orinda was rotating/leaning inward toward the channel. This condition was not noted in the Caltrans bridge inspection reports, however such reports are primarily limited in scope to the section under Camino Sobrante. The wall rotation should also be considered a priority repair, as the wall indirectly supports the roadway (Camino Pablo). To determine the appropriate repair, testing and analysis will be required.

Monitoring movement of the wall (with survey measurements) is also recommended.

Schaaf & Wheeler Amendment #2
Amendment #1 for this on-call contract was executed 9-28-2021 and increased the value of the contract from $25,000 to $60,000, primarily to accommodate a $57,000 work order to perform the above mentioned investigative and engineering work related to the abrasion in the culvert invert. The work in the first phase consisted of the following tasks:
 Field inspection/observations inside the culvert (completed)  Determination of permitting requirements (completed)
 Prepare Technical Memorandum to report findings, including design considerations (completed)
 Design documents (plans and specs). Not completed
The second phase of the work, proposed for Amendment #2 (Attachment C), is to perform the recommended testing and evaluation work presented in the above Technical Memo. The scope of work is described in the 1-5-2022 proposal letter (Attachment D), summarized below:

San Pablo Creek Culvert
 Prepare and submit regulatory permit applications (for invert repair, and for an estimated wall repair scope)
 Monitor leaning wall with survey measurements
 Perform hydraulic analysis (to determine capacity impacts from the invert repair) F.4
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 Perform testing, coring, evaluation of culvert invert  Perform testing, coring, evaluation of open channel wall (where tilting)  Perform structural design assessment for wall repair (to determine scope of work for repair plans)
 Perform hydraulic analysis (to determine capacity impacts from the wall repair)  Prepare Technical Memo (this will be used to document future work needed to prepare wall repair plans, which would be additional work in a future Amendment #3)
 As shown in Attachment D, the estimated cost of this work (Tasks 1-7) is approximately $258,000
Other tasks (unrelated to the culvert repair work)
 Schaaf & Wheeler perform other analytical work for the city on an as-needed basis under the on-call contract, and it is recommended that $30,000 (Task 8) be allocated for tasks, which may be required during the term of the agreement The combined value of the above work is $288,000 and Amendment #2 increases the contract value by that amount to a new not-to-exceed total value of $348,000. The work will be invoiced on a time and materials, actual cost basis, as is typical for professional services contracts. Since this work will extend beyond the expiration date of the current contract (June 30, 2022), the amendment also extends the term to June 30, 2024.

Overall Cost Estimates
A summary of estimated costs for the engineering and construction work associated with repairing the culverts is shown in Attachment E. The overall estimated cost of the repair project ranges from $3,700,000 to $5,600,000. During the annual CIP review process, a new CIP project will be assigned for the subject work, fund balances will be analyzed and projects priorities will be adjusted to allow for funding for this high priority repair work.

Funding for Amendment #2
Due to the severity of the conditions found in the culvert and the large scope of work that is required, there are insufficient funds in the Public Works/Engineering operating budget and in the annual CIP program budget for drainage facilities maintenance/improvements (Project #4111) to fund the subject amendment. Therefore, Staff recommends utilizing Fund #704, the Road/Drainage Stabilization fund, which has sufficient balance. Attachment F appropriates funding in the amount of $288,000 from Fund #704.

NEXT STEPS:

Upon City Council authorization, Contract Amendment No. 2 will be executed by the parties, subject to review by the City Attorney.

FISCAL IMPACT:

There are sufficient funds in Fund #704 to cover the subject amendment. After this appropriation, the forecast fund balance will be approximately $400,000. City Council F.4
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has set a target balance of $800,000 for this fund, so in the future, transfers to this fund would be needed to maintain such balance. As noted above, funding for the construction has not been programmed and during the annual CIP process, this project’s funding needs will be factored into the overall CIP program for review and consideration by City Council.

ATTACHMENTS:

A. Culvert map
B. San Pablo Creek Culvert Repair Memo_12152021
C. Amendment No 2 S&W
D. Culvert Repair Additional Services Letter Proposal 01-05-2022 E. Project phases and costs
Respectfully Submitted by:

Scott Christie
Acting Public Works Director
Prepared By: Scott Christie, Acting Public Works Director Approved by:

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(E) 36"Ø RCP
INV. 6" ABOVE BOX INV.
(E) 6"X6" CURB
(E) 8"Ø CMP
INV. 62" ABOVE BOX INV.
(E) 8"Ø CMP
INV. 71" ABOVE BOX INV.
(E) 8"Ø CMP
INV. 72" ABOVE BOX INV.
226 LF OF 2-11' WIDE X 9' HIGH

CONCRETE BOX CULVERT
226 LF OF 2-11' WIDE X 9' HIGH CONCRETE

BOX CULVERT W/ STEEL ROOF GIRDERS
(E) 6"Ø CMP (E) 6'x9'-3"± GRATE AT ROOF
INV. 35" ABOVE BOX INV.
(E) CONCRETE APRON
241 LF OF 2-10' WIDE X 9' HIGH

CONCRETE BOX CULVERT
(E) 30"Ø RCP
INV. 103" ABOVE BOX INV.
97 LF OF 20.5' WIDE CONCRETE BOX CULVERT
11 LF OF 20' WIDE OPEN CONCRETE BOX CULVERT
151 LF OF 20' WIDE CONCRETE BOX CULVERT
82 LF OF 19.5' WIDE OPEN CONCRETE BOX CULVERT
(E) 27"Ø CMP
INV. 7' ABOVE BOX INV. 30.5 LF CONCRETE APRON
487 LF OF 10'x10' DOUBLE CONCRETE BOX CULVERT
(E) 18"Ø CMP
INV. 62" ABOVE BOX INV.
(E) 6"Ø CMP
INV. 8" ABOVE BOX INV.
(E) 84"Ø RCP
INV. 9" ABOVE BOX INV.
(E) GRATE AT ROOF

CAMINO PABLO

CAMINO SOBRANTE

ORINDA WAY

CAMINO PABLO
#

$

%
&
'
(

)

(E) 12"Ø CMP OFFSET SD
~58 LF UNDER CAMINO SOBRANTE
(E) 36" Ø CMP OFFSET SD
C:\Users\FSalamanca\Schaaf & Wheeler\ORIN.03.21.001 - CULVERT REPAIR - Documents\Drawings\Culvert_fts.dwg (CULVERT) Plotted on: 12-10-21 4:42pm Plotted by: FSalamanca (415) 433-4848
SAN FRANCISCO, CA 94102
870 MARKET STREET, SUITE 1278

CONSULTING CIVIL ENGINEERS
Schaaf Wheeler

PLAN VIEW
SCALE: 1'=60'
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Attachment: Culvert map (2640 : Amend 2 Schaaf & Wheeler) 11' 11'
10" 9'
(E) CONCRETE
11' 11'
10" 9'
(E) CONCRETE
(E) CMU WALL
(E) 6"X6" CURB
(E) W24X68? @ 56"± O.C. W/ METAL DECKING

TOPPED W/ CONCRETE
10' 10'
10" 9'
(E) CONCRETE
(E) 8"X8" CHAMFER
20'-6"± 10'
(E) CONCRETE 10'
(E) CONCRETE 20'± 10'
(E) CONCRETE 20'± 10'±
(E) CONCRETE 19'-6"±
10' 10'
10" 10'
(E) CONCRETE
C:\Users\FSalamanca\Schaaf & Wheeler\ORIN.03.21.001 - CULVERT REPAIR - Documents\Drawings\Culvert.dwg (SECTIONS) Plotted on: 12-08-21 12:07pm Plotted by: FSalamanca (415) 433-4848
SAN FRANCISCO, CA 94102
870 MARKET STREET, SUITE 1278

CONSULTING CIVIL ENGINEERS
Schaaf Wheeler A2

SECTION
SCALE: 1'=5' B2

SECTION
SCALE: 1'=5' C2

SECTION
SCALE: 1'=5' D2

SECTION
SCALE: 1'=5' E2

SECTION
SCALE: 1'=5' F2

SECTION
SCALE: 1'=5' G2

SECTION
SCALE: 1'=5'
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Attachment: Culvert map (2640 : Amend 2 Schaaf & Wheeler)

MEMORANDUM
TO: Scott Christie, P.E., City of Orinda Public
Works/Engineering
DATE: December 15, 2021
FROM: Fidel Salamanca, P.E. & Ben Shick, P.E. JOB#: ORIN.03.21.01 SUBJECT: San Pablo Creek Culvert Repair
Background
The City of Orinda (City) has contracted with Schaaf & Wheeler to evaluate and provide recommendations for repairing of the San Pablo Creek culvert that is located on the northeast side of Camino Pablo and runs from approximately 31 Orinda Way to the outfall near 104 Camino Pablo. The culvert consists of the following sections:
• Upstream Section: Double box culvert, each box 9’ high x 11’ wide, approximately 580 LF • Middle Section: Single box, portions covered and open, 10’ high x 19.5’ to 20.5’ wide, approximately 340 LF
• Downstream Section: Double box culvert, each box 10’ high x 10’ wide, approximately 500 LF Record drawings for the culvert are not currently available. Caltrans inspection records of the culvert date as far back as 1980. Caltrans list the culvert year built as 1955 (which corresponds to the bridge on Camino Sobrante, just East of Camino Pablo); however, different sections were likely built at different times. The bridge that is located above the outfall headwall (on Orinda Way, just East of Camino Pablo) is dated 1920.

Caltrans inspection records dated January 24, 2001 indicate that the culvert had moderate to severe abrasion and exposed transverse rebars, with a recommendation to reline the invert in both barrels to cover the exposed reinforcement.

Inspection Summary
Schaaf & Wheeler and structural engineering subconsultant Finn Design Group, Inc. inspected the culvert on October 13, 2021. The inspection was limited to visual observation and field measurements. Significant abrasion was observed throughout the box culvert. A summary of the inspection is provided in Table 1 and photos of the culvert are provided in Appendix A. A plan showing the culvert alignment is included as Appendix B.

Schaaf & Wheeler

CONSULTING CIVIL ENGINEERS
870 Market Street, Suite 1278
San Francisco, CA 94102-2906
t. 415-433-4848
f. 415-433-1029
s&[email protected]
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
Schaaf & Wheeler Page 2
Table 1 – Inspection Summary
Section Size
Approx.

Max.

Abrasion
Depth
Exposed
Rebar?
Missing
Rebar?
Estimated
Abrasion
Level
Priority Additional
Notes
Upstream
Apron N/A 6” Yes No 6 High
Upstream
Double Barrel 2-10’Hx11’W 11” Yes Yes 6 Very High
Middle –
Single Barrel
1-
10’Hx19.5’+W 2” No No 5 Medium Walls tilting inward
Downstream
Double Barrel 2-10’Hx10’W 3” Yes Yes 5 High
Heavy
Sediment
approaching
outlet, offset
SD invert
The upstream double barrel culvert section has significant abrasion throughout the culvert length. It was estimated that the entire invert has approximately 1 to 2 inches of erosion in addition to a low flow channel that is eroded an additional 2 to 3 inches. There are isolated locations with erosion depths up to approximately 11 inches from the original culvert invert. The erosion on the Eastern side of the double box culvert is significantly worse than the western side; however, both sides have similar abrasion issues. Both barrels have exposed and missing rebar reinforcement along significant portions of the invert, with the second layer of rebar being exposed at isolated sections (Appendix A – Photo C) The middle section has less abrasion than the upstream or downstream sections based on visual inspection.

The middle section has moderate to significant abrasion, typically about 1-inch depth of erosion, with minimal exposed rebar. The walls of the culvert on downstream end of the middle section are leaning inwards and significant cracking along the walls and invert were observed (Appendix A – Photos E, F, G).

Additionally, there is pavement cracking and subsidence along the adjacent roadway, Camino Pablo. This was discussed with the City, and the City plans to further evaluate the walls as a separate task order.

The Downstream section has erosion depths of approximately 1 to 3-inches along the majority of the culvert. Rebar is exposed, deformed, corroded and missing in isolated locations of the culvert (Appendix A – Photos H, I, J). There is approximately 1-foot of sediment within the last 150 feet of the culvert. Some baffle blocks at the culvert outfall were loose, broken off, and missing (Appendix A – Photo L). An existing 12-inch SD approximately 20-foot from the end of the east barrel has an offset invert (Appendix A – Photo K). The invert of the outfall apron was full of water and sediment; therefore, it the condition was not observed.

Most of the culvert walls have regularly spaced weep holes on the lower portion of the wall. Some weep holes were plugged with sediment, some had a trickle of water flowing from them, while others had a significant stream of water coming out. Water seepage was primarily observed along the northeast side of the culvert. At the time of inspection, the area was in significant drought conditions, without rain occurring for several months prior to inspection.

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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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The Caltrans Highway Design Manual Chapter 850 and the Caltrans Design Information Bulletin No. 83-04 “Caltrans Supplement to FHWA Culvert Repair Practices Manual” was used for quantifying abrasion levels within the existing culverts and channel. Based upon our observed level of abrasion and calculated flow velocity it is estimated that the Abrasion Level of the upstream portion of the culvert is Level 6 and the middle and downstream portions of the culvert are Abrasion Level 5 per the guidelines.

Hydraulic Conditions
The existing culvert and upstream channel do not have sufficient capacity to convey the 100-year runoff without surcharging and flooding. FEMA flood hazard maps indicate surface flows throughout the upstream channel and through the extents of the culvert. Floodplain widths vary along the flow path from approximately 250-ft to 500-ft across as shown in Figure 1.

Figure 1: Existing FEMA Flood Hazard Map
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Based on the existing dimensions and slopes, it is estimated that the existing culverts can convey 4,322 cfs and the 100-year FEMA flow rate through the channel is 5,040 cfs. Therefore, it is assumed that approximately 718 cfs will spill from the culverts and flow through the shopping complex adjacent to the culverts. The proposed improvement would add approximately 5-inches of concrete above the original culvert invert. Therefore, the culvert capacity would be reduced by approximately 325 cfs, increasing the spill to 1043 cfs. When spread across the existing floodplain width, the floodplain depth would increase by approximately 0.2ft. This is based on a preliminary calculation and needs to be verified using the FEMA HEC-RAS hydraulic models.

Estimated flow velocities within the culverts for a 10-year and 100-year flow event were calculated and provided in Table 2.

Table 2 – Culvert Velocities
Section Size
10-Year
Velocity
(fps)
100-Year
Velocity
(fps)
Upstream 2-10’Hx11’W 27-43 22-34
Middle 1-10’Hx19.5’+W 31 24
Downstream 2-10’Hx10’W 26 22
Calculations are based on a 5,270 cfs 100-year storm event, 2,325 cfs 10-year storm event, manning roughness coefficient of n=0.013, and approximate culvert slopes measured to in the field.

Proposed Improvements
The Caltrans Highway Design Manual (HDM) Chapter 850 and the Caltrans Design Information Bulletin No. 83-04 “Caltrans Supplement to FHWA Culvert Repair Practices Manual” provide guidelines and recommendations for culvert repair and rehabilitation. Record drawings of the culvert are not available and material testing has not been performed on the culvert; therefore, the recommendations included herein are intended to repair the eroded and damaged culvert inverts. Structural evaluation of the culvert has not been performed.

Based on field observations and calculated flow velocity it is estimated that the upstream portion of the culvert has an Abrasion Level 6 and the middle and downstream portions of the culvert have Abrasion Level

5. It is recommended to repair the channel of the culvert by re-lining the invert of the culvert. The HDM provides a guide of recommended products and thicknesses for various abrasion levels as shown in Figure

2. F.4.b
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Figure 2 – Table 855.2F HDWA Guide for Minimum Thickness There are several different products and materials that are suitable for lining a culvert, including PVC, HDPE, or Steel liners, concrete, CIPP, grout, and shotcrete. Many of the products are similar but they have different properties that will perform very differently. Due to the severity of the abrasion, the need to minimize conveyance reduction, and to reduce overall costs, it is recommended to use high strength concrete for the middle and downstream sections and abrasion resistant calcium aluminate for the upstream segment. Options, such as Steel Plate, PVC, HDPE, and CIPP are primarily for repair of circular pipes or isolated sections of damage.

For concrete, there is a correlation between decreasing water to cement ratio, increasing compressive strength, and increasing abrasion resistance. Concrete that has high abrasion resistance will typically be F.4.b
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more difficult to pump and have less workability due the lower water to cement ratio and increased compressive strength, although this can be somewhat mitigated by use of water reducing admixtures.

Caltrans recommends that concrete in high abrasion applications have:
• Minimum 28-day compressive strength of 6,000 PSI per ASTM C109, • Less than 6% loss when tested per ASTM C1138 for abrasion resistance • Field water to cement ratio equal or less than 0.35
• Aggregate that is harder than the streambed, has high durability, and a maximum grading of 1.5- inches.
• Concrete lining is only recommended for culverts with an abrasion Level 5 or lower For an abrasion Level 6, Caltrans lists Calcium Aluminate Abrasion Resistant Concrete and Calcium Aluminate mortar. There are several companies that produce Calcium aluminate concrete because of its effectiveness in manhole and tank rehabilitation. However, Caltrans “Authorized materials for cementitious pipe liners and concrete invert paving” only has two products that are approved calcium aluminate concrete.

The limited number of products on Caltrans approved list is likely due to the lack of abrasion testing on many of the products. Wire mesh reinforcement is recommended in all areas where the rebar is not exposed or exposed but not deteriorated. Epoxy coated rebar is recommended in all locations where rebar is either missing or degraded. Epoxy coated rebar is recommended over non-coated rebar because epoxy coated rebar slows the onset of corrosion and allows for reduced cover.

Additionally, the existing concrete and exposed rebar will require significant cleaning and coating prior to installing a new concrete invert.

Cost Estimate
An estimate of probable construction costs based on the recommended repairs for each section of culvert is included in Table 2.

The leaning culvert walls identified during the site visit and discussed herein have not been assessed to determine potential repairs and associated costs. However, repairs could range from installing a bracing system to span the culvert, to full culvert wall replacement. The rough estimated cost for repairs could range from $300,000 to $2,000,000.

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Table 2 – Preliminary Cost Estimate
Schedule and Permitting
The City may want to consider constructing the repairs in phases as funding allows. The upstream segment has the most significant abrasion and should be prioritized. The middle and downstream segments could be completed at a later date; however, the downstream segment has exposed rebar that is corroding, bent or missing. Significant delays in repair of the downstream segment may result in more costly repairs. If the repairs are delayed it is recommended to inspect the culverts on an annual basis.

Schaaf & Wheeler’s subconsultant, WRA, Inc., conducted a site visit along the culvert corridor to identify potentially regulated biological resources and subsequently prepared a list of the anticipated permit requirements for the proposed repairs. A summary memorandum is included as Appendix C. It is anticipated that the permitting process will take between 8 and 24 months to obtain. Prior to the application for these permits the project needs to be well defined and any potential staging areas need to be identified.

It may be beneficial to permit all the work at once. Permits typically have a time limit of 5 years to complete all of the work; however, permits can typically be renewed up to 10 years if the design is unchanged. A breakdown of permitting durations and processes for extensions are summarized below F.4.b
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Army Corps Nationwide Permit (NWPs)
The Corps permit is valid for 5 year periods at national level. If valid NWP work has not been completed when the NWP expires, it is typically easy to process a request under the reissued NWP program. If project details have not changed, a letter request can be submitted and the permit can be validated for the next 5 years.

Regional Water Quality Control Board (RWQCB)
The RWQCB permits are tied to the Corps permit, if the Corps NWP is extended the RWQCB permit is also typically extended by association.

California Department of Fish and Wildlife (CDFW)
The CDWF standard agreement are typically valid for 5 years and if work is not completed, an extension of 5 years maximum can be requested for the portion not completed. This assumes no changes to the project description have occurred. However, CDWF is sometimes willing to allow a longer standard agreement period with a maximum limit of 10 years – this would likely be the best option if the City anticipates all phases to be completed in 10 years instead of 5.

Conclusion
Schaaf & Wheeler recommends completing the repairs identified herein as soon as possible. The repairs include lining the invert with high strength concrete and abrasion resistant calcium aluminate concrete and installation of new steel reinforcement. It is understood that the City may need to complete the project in phases due to funding. The erosion and defects for each culvert section have been documented and the severity of defects have been identified to determine the priority of repairs.

The structural integrity and urgency of repairs cannot be evaluated without performing extensive material testing and structural analysis of each culvert section. The recommended repairs identified herein are intended to repair the eroded and damaged culverts to their original estimated design condition. If a full structural analysis of the existing culverts is desired it will require performing material testing for each culvert section (corings, testing, and ground penetrating radar to evaluate the location of the reinforcing steel). The material testing would need to be performed in the late summer months when the flow in the channel is minimal.

Schaaf & Wheeler also recommends monitoring and evaluating the leaning walls identified on the middle culvert section. The recommended evaluation includes:
• Establishing survey monitoring points along the wall, invert, and adjacent ground/street • Monitor survey points to determine movement, if any
• Perform geotechnical borings adjacent to the culvert to determine subsurface conditions • Take core samples along the culvert walls and inverts to determine concrete thickness and strength (needs to be performed in the summer when the flow in the culvert is minimal) • Use ground penetrating radar to establish rebar spacing • Perform structural analysis on existing walls to evaluate severity of defects and to determine alternatives for repairs and/or replacement.

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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Appendix A: Photos
Photo A – Upstream apron/box culvert with exposed and missing rebar F.4.b
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Photo B – Upstream box culvert looking upstream
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Photo C – Upstream Section, Second Layer of Rebar Exposed F.4.b
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Photo D – Middle Section, looking downstream
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Photo E – Middle Section, wall separating/rotating into culvert, looking upstream F.4.b
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Photo F – Middle Section, wall separating/rotating into culvert, looking upstream F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Photo G – Camino Pablo, pavement cracking above rotated wall, looking south F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
Schaaf & Wheeler Page 16
Photo H – Downstream Section, looking upstream at exposed rebar F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Photo I – Downstream Section, looking downstream
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Photo J – Downstream Section, looking downstream at exposed rebar F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Photo K – Offset Storm Drain Pipe in Downstream Culvert section (East Box) F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
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Photo L – Downstream Headwall
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, P.E., City of Orinda December 15, 2021
Schaaf & Wheeler Page 21
Appendix B: Drawings
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) (E) 36"Ø RCP
INV. 6" ABOVE BOX INV.
(E) 6"X6" CURB
(E) 8"Ø CMP
INV. 62" ABOVE BOX INV.
(E) 8"Ø CMP
INV. 71" ABOVE BOX INV.
(E) 8"Ø CMP
INV. 72" ABOVE BOX INV.
226 LF OF 2-11' WIDE X 9' HIGH

CONCRETE BOX CULVERT
226 LF OF 2-11' WIDE X 9' HIGH CONCRETE

BOX CULVERT W/ STEEL ROOF GIRDERS
(E) 6"Ø CMP (E) 6'x9'-3"± GRATE AT ROOF
INV. 35" ABOVE BOX INV.
(E) CONCRETE APRON
241 LF OF 2-10' WIDE X 9' HIGH

CAMINO PABLO

CAMINO SOBRANTE

ORINDA WAY

CONSULTING CIVIL ENGINEERS
Schaaf Wheeler

PLAN VIEW
SCALE: 1'=60'
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 11' 11'
10" 9'
(E) CONCRETE
11' 11'
10" 9'
(E) CONCRETE
(E) CMU WALL
(E) 6"X6" CURB
(E) W24X68? @ 56"± O.C. W/ METAL DECKING

CONSULTING CIVIL ENGINEERS
Schaaf Wheeler A2

SECTION
SCALE: 1'=5' B2

SECTION
SCALE: 1'=5' C2

SECTION
SCALE: 1'=5' D2

SECTION
SCALE: 1'=5' E2

SECTION
SCALE: 1'=5' F2

SECTION
SCALE: 1'=5' G2

SECTION
SCALE: 1'=5'
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) Appendix C: Environmental Permitting Memorandum
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 4225 Hollis Street, Emeryville, CA 94608 (510) 296-0532 tel www.wra-ca.com

MEMORANDUM
To: Fidel Salamanca
Schaaf & Wheeler From: Patricia Valcarcel, CWBRegulatory Program Director cc:

Date: October 28, 2021
Subject: Biological and Permitting Considerations for the Orinda Culvert Repair Project The purpose of this memorandum is to describe the key regulatory and biological constraints relevant to the Orinda Culvert Repair Project (Project) located in Orinda, Contra Costa County, California and provide a recommended permitting strategy, estimated permitting costs, and an estimated permitting timeline for the proposed Project.

The proposed Project involves the repair of one 800 linear-foot twin box culvert and one 400 linear-foot twin box culvert within San Pablo Creek (Creek) along Orinda Way and Camino Pablo in the City of Orinda.

San Pablo Creek flows northwest from the proposed Project to San Pablo Reservoir. The Creek has an unlined, natural bottom immediately upstream and downstream of the proposed Project where the Creek daylights. Riparian vegetation occurs along the daylighted portions of the Creek. The proposed Project is anticipated to need regulatory approval for the proposed culvert repairs and for potential impacts to riparian vegetation necessary for construction access and staging.

Table 1, below, identifies regulatory agencies whose approvals would likely be required if work will affect any potentially regulated biological resources observed within or adjacent to the proposed Project during a site visit conducted by WRA, Inc. on October 13, 2021. This site visit does not qualify as a protocol-level survey for any of the potential regulated resources observed within or adjacent to the proposed Project site; therefore, a more comprehensive site visit that includes protocol-level methods and techniques may be required to confirm the presence or absence of these potentially regulated resources. Table 2, below, provides a summary of the anticipated permit requirements by agency, estimated permitting timelines, and information on costs to obtain the permits.

Table 1. Anticipated Regulatory Agencies Applicable to the Orinda Culvert Repair Project

REGULATORY AGENCY REGULATORY AUTHORITY JURISDICTIONAL LIMIT U.S. Army Corps of Engineers
(Corps)
Section 404 Clean Water Act Ordinary High Water Mark
(OHWM)
San Francisco Bay Regional
Water Quality Control Board
Porter-Cologne Water Quality Control Act
Section 401 Clean Water Act
Top of Bank (TOB)
+ riparian vegetation
California Department of Fish
and Wildlife
Section 1600 California Fish and Game Code Top of Bank (TOB) + riparian vegetation
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 2 Table 2. Summary of Anticipated Permitting Process and Estimated Timeline

AGENCY ANTICIPATED PERMIT TYPE

ANTICIPATED PERMIT

MECHANISM

PERMIT TRIGGERS

POTENTIAL JURISDICTIONAL LIMITS AT

THE PROJECT SITE

ANTICIPATED TIMELINE, COSTS ESTIMATES, AND POTENTIAL RISKS U.S. Army Corps of Engineers
(Corps)
Clean Water Act Section 404
Nationwide Permit 3 -
Maintenance
Any project activity occurring
within jurisdictional wetlands or
below the ordinary high water
mark (OHWM) of Waters of the
U.S.

The limits of Corps jurisdiction
are areas below the OHWM of
San Pablo Creek.
• 6-12 months
• $20,000 to prepare applications and obtain permit, including SHPO consultation documentation
• Risk Corps will require an additional document for endangered species consultation. Cost to prepare consultation document estimated at $8,000.
• No application fee
San Francisco Bay Regional Water
Quality Control Board (RWQCB)
Porter Cologne Water
Quality Control Act
401 Water Quality
Certification
Any work within RWQCB
jurisdictional wetlands, riparian
habitat, or up to top of bank
within Waters of the State (i.e.,
San Pablo Creek).

San Pablo Creek to top of bank
or edge of riparian habitat
(whichever is greater).
• 8-18 months
• $10,000 to prepare applications and obtain permit
• $2,066-$40,000 application and project fee depending on size of impact • Risk agency will require mitigation for temporary and permanent impacts to San Pablo Creek and riparian vegetation. Cost to obtain agency approval of compensatory habitat mitigation estimated at $15,000. If required, mitigation would need to be implemented in the same year as the first impacts. Implementation costs vary greatly depending upon final impacts and agency requirements and are not included in this estimate. • Certified CEQA documentation is needed for application Clean Water Act Section 401
California Department of Fish and
Wildlife (CDFW)
California Fish and Game
Code – Sections 1600-1616
Section 1602 Lake or
Streambed Alteration
Agreement
Work at or below top of bank or
removal of associated riparian
trees or habitat.

San Pablo Creek to top of bank
or edge of riparian habitat
(whichever is greater).
• 6-12 months
• $8,000 to prepare applications and obtain permit
• $5,596 application fee
• Risk agency will require mitigation for temporary and permanent impacts to San Pablo Creek and riparian vegetation. The CWA 401 mitigation plan should also satisfy CDFW, and can be used for both; however additional costs for agency coordination may add $5,000 to $8,000 to the above costs.
• Certified CEQA documentation is needed for application City of Orinda California Environmental
Quality Act (CEQA) approval
Project application
submittal/acceptance Discretionary approval of Project Entire Project Area Categorical Exclusion, if feasible
• 1-2 months
• Costs range between $35,000-$50,000 include supporting documentation and fees Or Initial Study/Mitigated Negative Declaration
• 12-18 months
• CEQA process may involve developing supplemental documentation including biological resource and hydrology reports and potentially public hearings. Cultural report prepared for Corps SHPO consultation can be guided to also support CEQA consultations. No additional cost for cultural is anticipated.
• Likely between $50,000 and $100,000 including biological and hydrological reports and fees
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 3 Regulatory Permitting Process and Recommended Strategy Information on the regulatory authority for each agency applicable to the proposed Project is provided below. In addition, a summary of the permit requirements for each of these agencies, estimated permitting timelines, and information on permit application costs are provided in Table 2, above.

U.S. Army Corps of Engineers (Corps)
The Corps issues aquatic resources regulatory permits under two authorities:
• Clean Water Act Section 404: generally, permits required for construction or other placement of earth or building materials in “waters of the U.S.”
“Waters of the U.S.” is defined specifically in 33 CFR Part 328, but generally include lakes, ponds, streams, rivers, wetlands, bays, tidal waters, and similar bodies of water. For the proposed Project, the Creek is the only waters of the U.S. present on site. Areas below the Creek’s ordinary high water mark (OHWM) are within Corps jurisdiction. Culvert repair activities proposed for below the OHWM including any proposed dewatering would require a permit from the Corps under Section 404 of the Clean Water Act.

The Corps issues permits through a variety of vehicles, but those potentially applicable to the proposed Project are a “Nationwide Permit” (NWP) and an “Individual Permit” (IP). NWPs are programmatic permits that can be processed under relatively short time frames and do not require independent public notice or project-specific National Environmental Policy Act (NEPA) review. To be authorized by a NWP, a project must meet the General and Regional Conditions of the permit. Individual Permits are permits issued to an individual project by the local Corps District. Individual Permits require much more detailed analysis than Nationwide Permits, including an alternatives analysis based on guidelines established in Clean Water Act Section 404(b)(1) and 40 CFR Part 230, and project-specific NEPA review.

WRA expects the proposed Project will qualify under NWP 3 – Maintenance. This NWP authorizes the following activities:

The repair, rehabilitation, or replacement of any previously authorized, currently serviceable structure or fill, or of any currently serviceable structure or fill authorized by 33 CFR 330.3, provided that the structure or fill is not to be put to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification. Minor deviations in the structure's configuration or filled area, including those due to changes in materials, construction techniques, requirements of other regulatory agencies, or current construction codes or safety standards that are necessary to make the repair, rehabilitation, or replacement are authorized.

NWP 3 also allows for the removal of accumulated sediment and debris within an existing structure or in the structure’s immediate vicinity and the use of temporary fills, such as cofferdams, during maintenance activities. In addition, this NWP does not include any restrictions on the size of the maintenance activities it covers. This NWP is expected to be applicable to the entire Project; no additional NWPs or an Individual Permit are expected to be needed to authorize the proposed Project. There is no fee required to file an application for a Corps NWP.

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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 4 Prior to issuing a permit, the Corps is required to ensure the action they are permitting is consistent with requirements of other federal laws and regulations including:
• Section 7 of the federal Endangered Species Act
• The Magnuson-Stevens Fishery Conservation and Management Act • The National Historic Preservation Act
Based on the site visit conducted by WRA, Inc. on October 13, 2021, the proposed Project is not expected to affect any federal-listed threatened or endangered species or any critical or essential fish habitat; therefore, the Corps is not expected to need to consult with the National Marine Fisheries Service (NMFS) under Section 7 of the Endangered Species Act or the Magnuson-Stevens Fishery Conservation and Management Act. Informal consultation with U.S. Fish and Wildlife Service (USFWS) to confirm that the proposed Project is not likely to adversely affect listed species may be necessary, but formal consultation and receipt of a Biological Opinion is not anticipated. Due to their obligations under the National Historic Preservation Act (NHPA), the Corps may undergo Section 106 consultation with the State Historical Preservation Office (SHPO). The Corps may require the Project proponent to provide a cultural resources study to support their consultation.

Regional Water Quality Control Board (RWQCB)
The proposed Project is located within the regional boundary of the San Francisco Bay Regional Water Quality Control Board (RWQCB). Each RWQCB is responsible for administering two laws related to the placement of fill within jurisdictional waters:
• Clean Water Act Section 401: federal law requiring the RWQCB to issue a Water Quality Certification (WQC) before the Corps can authorize the discharge of dredge or fill material into waters of the U.S. under Section 404 of the Clean Water Act. • Porter-Cologne Water Quality Control Act: state law regulating all discharges that could affect the quality of waters of the state.

Under Section 401 of the Clean Water Act, the RWQCB’s jurisdiction is the same as that of the Corps.

However, under the state Porter-Cologne Water Quality Control Act, “waters of the state” are defined broadly as:
“…any surface water or groundwater, including saline waters, within the boundaries of the state.”
For the proposed Project, the RWQCB’s jurisdiction under Porter-Cologne would extend to top of bank (TOB) along with any riparian vegetation associated with waters of the state.

Compliance with both Section 401 of the Clean Water Act and the Porter-Cologne Water Quality Control Act can be obtained for the proposed Project through a Water Quality Certification (WQC). Under the federal 2020 Clean Water Act Section 401 Certification Rule (2020 Clean Water Rule), all projects applying for a WQC must request a pre-application meeting with the RWQCB before an application can be submitted. The RWQCB has 30 days to respond to the pre-application meeting request, after which time the proposed Project may submit application materials to the RWQCB. A certified California Environmental Quality Act (CEQA) document will be necessary to include for a complete application submittal. The RWQCB may require mitigation for temporary or permanent impacts, and a mitigation plan would need to be submitted along with the application.

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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 5 The RWQCB requires payment of an application fee, a project fee, and an annual fee. The application fee is due when an application is submitted and the project fee is due prior to receipt of the WQC. For the 2020-2021 fiscal year, the RWQCB’s application fee is $2,066. The project fee is based on the total size of temporary and permanent impacts in acres, multiplied by $18,414, up to $179,245. The RWQCB charges a $1,736 annual fee for the first five fiscal years following issuance of a Water Quality Certification until they receive a Notice of Completion from a project.

California Department of Fish and Wildlife (CDFW)
Under Section 1602 of the California Fish and Game Code (CFGC), the California Department of Fish and Wildlife (CDFW) must be notified of projects that would do one or more of the following:
• Divert or obstruct the natural flow of any river, stream, or lake; • Change the bed, channel, or bank of any river, stream, or lake; • Use material from any river, stream, or lake; or
• Deposit or dispose of material into any river, stream, or lake.

Under the CFGC, CDFW has jurisdiction over all actions below a stream’s top of bank as well as any streamassociated (riparian) vegetation located on the stream’s banks. Streams are defined in the California Code of Regulations and can include ephemeral streams, dry washes, watercourses with subsurface flows, canals, aqueducts, irrigation ditches, and other means of water conveyance if they support aquatic life, riparian vegetation, or stream-dependent terrestrial wildlife. Riparian generally includes vegetation growing on the banks of a stream or lake. Projects that will alter or work within or adjacent to streambeds or lakes, including riparian vegetation, must obtain a 1602 Lake and Streambed Alteration Agreement (LSAA).

The proposed Project would involve work within a stream and has the potential to affect riparian vegetation; therefore, the Project would need to submit a Notification of Lake or Streambed Alteration to the CDFW. The proposed Project would occur within the boundaries of CDFW’s Region 3 – Bay and Delta Region. As of September 1, 2020, the CDFW requires all Notifications of Lake or Streambed Alteration be submitted via the Environmental Permit Information Management System (EPIMS), their online application portal. A certified California Environmental Quality Act (CEQA) documentation will be necessary to include for a complete application submittal. The CDFW may require mitigation for temporary or permanent impacts, and a mitigation plan would need to be submitted along with the notification.

The CDFW charges application fees based on a total project cost. The CDFW’s 2021 Fee Schedule for Standard LSAA’s is summarized in Table 2, below. These fees may increase in 2022:

Table 3. Summary of CDFW Fees
“TOTAL PROJECT COST” CDFW 2021 STANDARD LSAA FEES
$25,000 but less than $100,000 $2,360.25
$100,000 but less than $200,000 $3,464.00
$200,000 but less than $350,000 $4,698.25
> $350,000 $5,596.00
The CDFW is also responsible for administering California Endangered Species Act (CESA; California Fish and Game Code §§2050, et seq.). Under CESA, the “take” of any species listed or are considered for listing F.4.b
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 6 (candidate species) as threatened or endangered species is prohibited within the State of California. No state-listed or candidate species are anticipated to be impacted by the proposed Project, and no CESA permit applications are anticipated to be necessary. Under CFGC, the CDFW is also responsible for the protection of all nesting birds and roosting bats. While these protections are not expected to be a key constraint to the proposed Project, pre-construction surveys and potential work buffers may be required.

California Environmental Quality Act (CEQA)
Approval of the proposed Project by the City of Orinda qualifies as a “discretionary” action under the California Environmental Quality Act (CEQA), and thus cannot occur without a certified CEQA document.

Because the Project involves the repair of an existing component of the City’s infrastructure, it may qualify for either a Class 1 or Class 2 Categorical Exemption (CE) under CEQA. A determination would first need to be made that (1) the Project represents either no or a negligible expansion of the existing use; (2) there is no reasonable possibility that the Project could have a significant effect on the environment; and (3) the Project would not cause a substantial adverse change in the significance of a historical resource.

If it is determined that neither a Class 1 nor Class 2 CE is applicable to the proposed Project, an Initial Study/Mitigated Negative Declaration (IS/MND) would need to be prepared to address the environmental impacts of the Project. The IS/MND would cover the full range of environmental categories under CEQA and would identify mitigation necessary to reduce the Project’s impacts to a less-than-significant level. If mitigation is not available to reduce one or more Project impacts to below applicable thresholds of significance, then preparation of an Environmental Impact Report (EIR) would become necessary. Based upon WRA’s initial review of the proposed Project, it appears likely that any potential significant impacts of the Project could be mitigated to a less-than-significant level.

The City of Orinda would serve as the lead agency under CEQA and would be responsible for publishing and ultimately certifying the CEQA document. If a CE is prepared, there are no applicable public review or noticing requirements; however, the City may choose to file a Notice of Exemption following Project approval. With the filing of a Notice of Exemption, the statute of limitations period on legal challenges to the CE is reduced from 180 days to 35 days. If an IS/MND is prepared, a Notice of Intent must be published, starting a public review period of at least 20 days during which other agencies and the public can submit comments to the City. While responses to submitted comments are not required of the City for IS/MNDs, if a project proves controversial, it is generally advisable to prepare and publish them. If the City decides to adopt the MND and approve the Project, it must also adopt a mitigation monitoring and reporting program for the Project. The City must also pay the CDFW CEQA fee (currently $2,480 for MNDs) and file a Notice of Determination within 5 days of Project approval. Contra Costa County also requires payment of a filing fee for CEQA documents (currently $50) alongside payment of the CDFW fee. These fees do not apply to CEs. The City of Orinda typically adds a fee of 30% of the contracted cost to prepare an IS/MND for staff time involved in the review, processing, and adoption of the document.

Summary
WRA recommends the following approach to obtaining regulatory approval for the proposed Project:
• Prepare CEQA documentation with schedule for approval and Notice of Determination (NOD) prior to submittal of RWQCB CWA 401 application or CDFW LSA Notification • Submittal of a draft Water Quality Certification (WQC) application to the San Francisco Bay RWQCB
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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 7 • Once all Water Board comments on the draft WQC application are addressed, submittal of a final WQC application
• Submittal of Pre-Construction Notification (PCN) to the Corps for coverage under Nationwide Permit (NWP) 3 – Maintenance concurrently with submittal of the final WQC application • Submittal of a Notification of Lake or Streambed Alteration (LSA) to the CDFW Regulatory agency input is required to confirm this approach and could be obtained either by reaching out to each individual agency or through the attendance of an Interagency Meeting (recommended approach). At the RWQCB’s discretion, the Interagency Meeting may be considered sufficient for meeting the RWQCB’s pre-application meeting requirement.

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Attachment: San Pablo Creek Culvert Repair Memo_12152021 (2640 : Amend 2 Schaaf & Wheeler) 1 CITY OF ORINDA
AMENDMENT No. 2 TO SERVICES CONTRACT
Schaaf & Wheeler Consulting Civil Engineers (“Provider”) and the City of Orinda (“City”), a municipal corporation, previously entered into a contract with an effective date of June 19, 2019 relating to a professional services contract for on-call civil engineering. Section 18 of that agreement provides that “No waiver, modification or termination of this agreement is valid unless made in writing.”
City and Provider mutually agree to amend the agreement as follows:

1. Replace Section 3.c “Time of Performance” as follows:
c. The services of Provider shall begin no sooner than the effective date and shall continue until all work is approved by City. All work shall be completed no later than June 30, 2024.

2. Replace Section 4.a “Compensation” as follows:
c. City agrees to pay Provider at the rates described in Exhibit A, not to exceed a maximum contract price of $348,000 for all services performed under this agreement.

In all other respects, the agreement shall remain unchanged and in full force and effect.

City of Orinda
________________ ________________
City Manager Date
Attest
___________________________________
City Clerk
Approved as to form
___________________________________
City Attorney
Schaaf & Wheeler Consulting Civil
Engineers
___________________ _______________
Date
__________________________________
Printed Title
__________________________________
Printed Name
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Attachment: Amendment No 2 S&W (2640 : Amend 2 Schaaf & Wheeler) Santa Clara ● San Francisco ● Santa Rosa ● Salinas
January 5, 2022
Scott Christie, PE
Public Works/Engineering
City of Orinda
22 Orinda Way
Orinda, CA 94563
Subject: San Pablo Creek Culvert Repair Additional Services - Letter Proposal Dear Scott,
Schaaf & Wheeler is pleased to provide you with this scope and fee to provide additional services for the City of Orinda, San Pablo Creek Culvert Repair Project. The additional services include regulatory permitting, hydraulic analysis, and additional coordination for permitting of the Culvert repairs. The additional scope also includes concrete channel wall monitoring, geotechnical investigations, materials testing, structural analysis, hydraulic analysis, and preliminary design of the retrofit alternatives to address the leaning wall.

This work will be performed in conjunction with the previous approved task to evaluate and prepare construction documents for the invert repair of the San Pablo Creek Culvert. Preparation of construction documents for the leaning wall repair is not included in this scope of services; however, a proposal can be provided once the preferred alternative for the wall repairs has been identified.

Task 1: Project Management/Coordination
Schaaf & Wheeler will coordinate with the City, sub-consultants and necessary permitting agencies via email and phone throughout the duration of the design and permitting process.

Three in-person or site meetings are included as part of this scope, including one site visit as part of the permitting process, one site visit as part of the survey monitoring, and one site visit during the materials testing portion of work.

Task 2: Culvert Repair Permitting
Schaaf & Wheeler’s subconsultant, WRA Environmental Consultants, will prepare the necessary documentation and applications for the environmental permitting for the proposed San Pablo Creek Culvert Repair Improvements. As part of the permitting process, WRA will prepare the following:
• Biological Resources Report
• California Department of Fish and Wildlife Permit Application • US Army Corps Permit Application
• Regional Water Quality Control Board Permit Application • CEQA Documentation
Schaaf & Wheeler

CONSULTING CIVIL ENGINEERS
2200 Range Avenue, Ste. 201
Santa Rosa, CA 95403
707-528-4848
FAX 707-528-0248
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Attachment: Culvert Repair Additional Services Letter Proposal 01-05-2022 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, PE, City of Orinda January 5, 2022
Schaaf & Wheeler Page 2
• Cultural Resources Report
At this time it is assumed the Project will qualify for a Categorical Exemption (CatEx); therefore, preparation of CEQA Initial Study and Mitigated Negative Declaration are not included in this scope but can be added for an additional fee if required. It is also assumed that the culvert repairs and leaning wall retrofit will be permitted together as a single project. If the City would like to proceed with the permitting process prior to evaluating the leaning wall, the repair methods and impacts will need to be estimated. If the actual repairs and impacts are greatly different than what was assumed this may result in delays to the permitting process and additional budget to modify the permit applications. Schaaf & Wheeler will work with the City and WRA to prepare a Project Description necessary to initiate the permit process with various regulatory agencies. Schaaf & Wheeler will also assist WRA with project specific data as required to complete the permit applications.

Task 3: Hydraulic Analysis
Schaaf & Wheeler will conduct a hydraulic analysis to determine the potential impacts of the proposed improvements. Schaaf & Wheeler will obtain the existing effective FEMA hydraulic HECRAS models to model the existing and proposed conditions. Potential impacts will be identified and summarized in the Final Design Considerations Memorandum for the City’s considerations.

Task 4: Leaning Wall Survey Monitoring
Schaaf & Wheeler’s subconsultant, Kier & Wright Civil Engineers and Land Surveyors, Inc. (K&W), to perform survey monitoring of the San Pablo Creek concrete channel walls located approximately 490’ to 570’ upstream of the culvert outfall. The concrete walls are leaning into the channel, and cracks were identified on the adjacent roadway on Camino Pablo. K&W will mobilize and set initial survey monitoring control points on the concrete walls and on the asphalt curb along Camino Pablo.

K&W will monitoring the control points two separate times following establishing the initial control points. Additional monitoring can be completed for an additional fee if deemed necessary.

Task 5: Geotechnical Investigations for Leaning Wall
Schaaf & Wheeler’s subconsultant, BSK Engineers, will perform the geotechnical investigations to identify and evaluate the existing conditions behind the walls on both sides of the channel. BSK will conduct three (3) hollow-stem auger borings to a maximum depth of 40 feet below the existing surface, or to practical refusal (whichever occurs first). BSK assumes the City will assist with access for the locations of the borings. Traffic control will be provided for drilling operations along Camino Pablo, work hours on Camino Pablo are anticipated to be between 9:00am and 3:00pm.

Laboratory tests will be performed on the selected soil samples to evaluate engineering properties.

Testing will include measuring moisture content, dry density, Atterberg limits, unconsolidatedundrained triaxial compression testing, and corrosivity. BSK will prepare a Draft and Final geotechnical report summarizing findings and providing recommendations for stabilizing soils behind the leaning wall. Post-report consultation during the design phase is included with this scope of work.

Task 6: Material Sampling and Testing
Schaaf & Wheeler’s subconsultant, BSK Engineers, will perform materials testing of the existing culvert invert, open channel invert, and leaning wall to determine concrete compressive strength properties as well as rebar spacing, size and steel properties. BSK proposes to use ground penetrating radar (GPR) to determine the rebar spacing and size for up to 12 locations along the F.4.d
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Attachment: Culvert Repair Additional Services Letter Proposal 01-05-2022 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, PE, City of Orinda January 5, 2022
Schaaf & Wheeler Page 3
culvert, channel and leaning wall. Up to 6 rebar samples will be taken from locations where rebar it is exposed, the samples will be used for testing the material properties of the steel reinforcement.

Laboratory test results will be summarized by BSK and provided to the design team as a technical report.

Task 7: Leaning Wall Structural Analysis and Recommendations Schaaf & Wheeler’s subconsultant, Finn Design Group, will analyze the existing leaning walls to determine their capacity to resist loads under current conditions. Results from the materials testing will be used to determine recommended improvement retrofit alternatives. Alternatives and recommendations will be summarized in a technical memorandum. Finn Design Group will perform structural analysis of up to three retrofit strategies alternatives and develop preliminary construction details for the retrofit alternatives to facilitate cost estimating.

In conjunction with the Structural Analysis, Schaaf & Wheeler will develop up to three hydraulic model alternatives to assess hydraulic impacts from the proposed retrofits identified as part of the structural analysis. Additional alternatives can be assessed for an additional fee if required. Schaaf & Wheeler will prepare a Preliminary Design Memorandum summarizing the retrofit alternatives.

Preliminary Design will include preparing a rough order of magnitude Cost Estimate for up to three alternatives, and preliminary plans for up to three retrofit alternatives.

Task 8: Miscellaneous Tasks
The City anticipates additional items will be required. This task is included to address any miscellaneous unforeseen items under the current On-Call contract.

Assumptions
The tasks, approach, schedule, and proposed fees included within this proposal assumes the following:
• Easement research, identification, and acquisition is not necessary • Structural Analysis is limited to determine appropriate improvement alternatives for the repair of the leaning wall.
• Preparation of Design Documents for the San Pablo Creek Leaning Wall Repair is not included, a proposal for developing design documents can be provided once the preferred improvement alternative has been determined through discussions with City staff. • Materials Investigations will occur in the dry season when flows in San Pablo Creek are minimal and culverts can be safely accessed for obtaining core samples. • All submittals will be provided electronically
• Construction Support Services are not included but can be added for an additional fee • Detailed structural analysis of load-carrying capacity of existing culvert is not included • Caltrans coordination & permitting is not anticipated and included • CEQA Initial Study/Mitigated negative Declaration are not required, should they be required it can be prepared under an additional task
• Habitat Mitigation and Monitoring Plan is not required, should they be required it can be prepared under an additional task
• Permit coordination during construction is not included with this scope of services • All meetings (except for site investigations) will be held via video or teleconference • City will provide access to the culvert
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Attachment: Culvert Repair Additional Services Letter Proposal 01-05-2022 (2640 : Amend 2 Schaaf & Wheeler) Scott Christie, PE, City of Orinda January 5, 2022
Schaaf & Wheeler Page 4
The proposed fee estimate is included below.

Schaaf & Wheeler will perform the services outlined herein under the Consulting Services Agreement between the City of Orinda and Schaaf & Wheeler Consulting Civil Engineers, dated June 6, 2019 (Attachment B). The estimated Project duration is 18-months from when we receive Notice-to-Proceed, project duration may vary based on findings from the Site Investigations.

Services will be billed on a time and materials basis with a not-to exceed amount of $288,043. If you have questions about this proposal, please contact Fidel Salamanca at [email protected] or (415) 410-3369.

Best regards,
Schaaf & Wheeler
Benjamin L. Shick, PE
Vice President
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Attachment: Culvert Repair Additional Services Letter Proposal 01-05-2022 (2640 : Amend 2 Schaaf & Wheeler) San Pablo Creek Culvert Repair - Cost Estimate/phasing summary 12-21-2021 Project phase Priority FY 21/22 FY 22/23 FY 23/24 FY 24/25 FY 25/26 Total Engineering & Permitting
Scope study (including
permit reqts.),
S&W Amd. #1
$57,000
Culvert structural slab
repair plans (abrasion,
exposed rebar in slab)
Included above
Environmental/obtain
permits, etc. (slabs and
wall) S&W Amd. #2
$137,000
Section 2 wall evaluation
S&W Amd. #2
$121,000
Section 2 wall repair plans
Future -S&W Amd. #3
(scope TBD)
~$50,000
Construction
Section 1 slab repair
construction * Very High
$1,700,000
Section 3 slab repair
construction
High $600,000
Section 2 wall repair
construction (scope TBD)
High to
Very High
$300,000 -
$2,000,000
Section 2 slab repair
construction
Medium $500,000
Construction Mgmt. (8%) $140,000 $70,000-
$210,000
$40,000
Forecast Expenditures $315,000 $50,000 $1,840,000 $970,000- $2,810,000
$540,000 $3,700,000 -
$5,600,000
* Section under Camino Sobrante is considered a bridge and may be eligible for Highway Bridge Program funding; however the net cost savings to the project would likely be negligible (or negative) as it would federalize the entire phase of the project.

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Attachment: Project phases and costs (2640 : Amend 2 Schaaf & Wheeler) City Council
Staff Report
Agenda Item: F.5
Date: January 11, 2022
Department: City Council
AGENDA TITLE: Receive Annual Comprehensive Financial Report (ACFR) For June 30, 2021 Including Financial Statements and Audit Reports RECOMMENDATION:

An overview of this item is being presented to the City Council under the “Items For The Good of The City” section of the City Council agenda for this meeting. The formal acceptance of the reports will be by action on the Consent Calendar.

In December 2018 when the City Council updated its listing of Council-Member Subcommittees, the City Council Audit Committee was not formed. The importance of the City’s financial condition and opportunity to receive the Auditor presentation was considered to be of a high relevance for the full City Council.

Audit Background
An annual audit of the City’s financial records is completed by an independent auditor and the results are presented to the City Council. The report for Fiscal Year 2020-2021 represents the ninth consecutive year that the City has prepared the report in the format of an Annual Comprehensive Financial Report (ACFR), which goes above and beyond the minimum reporting required for audited financial statements. The ACFR format allows the City to apply for the Certificate Achievement for Excellence in Financial Reporting, awarded by the Government Finance Officers Association (GFOA). The City has received this recognition for the past six years. A web-link to a pdf version of the ACFR document is noted as Attachment A (The ACFR is a 163 page Report).

The audit was performed by Maze Associates Accountancy Corporation (Maze), which has extensive experience auditing local government agencies. This is the seventh consecutive year that the audit was performed by Maze. In accordance with AB1345, which requires a change in audit partner after six years, David Alvey was the new audit partner assigned to the engagement for the first time this year.

The preparation of the financial statements remains the responsibility of City Staff. The Auditors review and test for presentation in accordance with audit standards as well as conducting testing to assess that there are not material misrepresentations or omissions F.5
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and that they fairly represent the financial position of the City. An opinion letter from the Auditors is included in the ACFR on page 1.

The timeline for the completion and issuance of the ACFR is by December 31st following the close of the fiscal year. This is also a program deadline for the City participation in the GFOA Excellence in Financial Reporting Program. The City must also file the ACFR in accordance with disclosure agreements that were included in debt financing transactions. The deadline for submittal of debt financing disclosures is March 31st. The City will meet all the required legal deadlines. The report was issued with a date of December 14, 2021 and posted to the City website by December 31, 2021. Staff filed the necessary application with the GFOA Award Program based on the Final Report.

The Finance Advisory Committee is scheduled to review the ACFR at its next regular meeting on January 26, 2022.

DISCUSSION:

The City’s Fiscal Year begins on July 1st and ends on June 30th. The comprehensive report provides financial information for all funds. As shown on pages 1-3 of the ACFR (Attachment A - Weblink), for the fiscal year ending June 30, 2021, Maze and Associates has issued a “clean” opinion. This opinion states that based on their independent review and testing, the financial statements are fairly presented in all material respects, and the respective financial position of the governmental activities, each major fund, and the aggregate remaining fund information of the City of Orinda.

This is the highest opinion an agency can receive.

To assist in interpreting the information contained in the Annual Comprehensive Financial Report (ACFR) it may be helpful to understand how the document is organized. The format is consistent with what is required by the GFOA recognition program and industry best practices. The following are key elements of the report:
a. Transmittal Letter (beginning pages i-vi): This serves as an introduction to the report and provides a general overview of economic and budgetary factors that impact the City. This includes long-term outlooks for the City finances. b. Independent Auditor Opinion (pages 1-3) issued by the Auditor in accordance with professional standards.
c. Management Discussion and Analysis (MD&A) (pages 5 – 16): provides an overview of the financial activities, with a focus on significant trends, as well as major changes associated with the City's major funds.
d. Financial Statements: (Pages 20-39 and 76-136) a significant portion of the ACFR is comprised of financial statements and schedules for the various funds used to account for the City’s revenue and expenditures. Pages 20-36 present a GovernmentWide Statement of Net Position which is similar to financial statements presented by private corporations. The City is now serving as the Treasurer for the Orinda Geologic Hazard Abatement District (GHAD) and this is included as a Fiduciary/Custodial fund on pages 38-39. The GHAD is discussed in greater detail later in this report. Pages 76 – F.5
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131 provide additional supplementary information regarding individual governmental funds.

Notes related to the Financial Statements are provided on pages 41 – 73. These include mandatory and discretionary disclosures related to the financial statements. The Financial Section also includes substantial information related to Other Post Employment Benefit (OPEB) liabilities and their funding. For the City of Orinda the OPEB liability is the result of a very limited retiree medical benefit. In addition to Note 11 on pages 69-71, a required schedule showing the progress of funding the liability is included on pages 74-75.
e. Statistical Section (pages 137-163): the unaudited statistical section of the ACFR includes relevant historical information. Although this section appears at the back of the report, it does provide a reader with a helpful snapshot of a variety of indicators over time. The summarized information may also be easier to comprehend for a layperson, who is not accustomed to reading financial statements.

For several of the statistical section historical comparisons, the GFOA reporting requires 10 years of comparative data, once the City has issued an ACFR for ten consecutive years. In some cases the current comparisons only include eight fiscal years of comparative data and the City will continue to add years in the future.

Financial Overview – Net Assets [Increase of $5.3 Million (5.8%)] A detailed accounting of the Net Position is presented on page 20 of the ACFR. The Table below is a Summary and it is also included on page 6 of the Management Discussion and Analysis. A key assessment of the overall City’s financial position is to look at the change in net position from the previous year. The primary reasons for the change was an increase in capital assets as street improvement and other projects were completed and a decrease in liabilities due primarily to annual debt service payments reducing the amount owed.

Table 1: Summary of Net Position (June 30th 2021 vs. 2020) Governmental Activities
June 30, 2021 June 30, 2020 $ Change
%
Change
Current and other assets $38,074,053 $37,571,118 $502,935 1.3% Capital assets 111,490,924 108,702,945 2,787,979 2.6%
Total Assets 149,564,977 146,274,063 3,290,914 2.2%
Deferred Outflow of
Resources 56,703 27,666 29,037 105.0%
(Related to OPEB - Note 12)
Current liabilities 6,130,611 6,545,187 (414,576) -6.3% Noncurrent liabilities 46,559,081 48,178,504 (1,619,423) -3.4% F.5
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Total Liabilities 52,689,692 54,723,691 (2,033,999) -3.7% Deferred Inflow of Resources 261,050 249,626 11,424 4.6% (Related to OPEB - Note 12)
Net Position:

Invested in capital assets 63,759,559 62,775,273 984,286 1.6% Restricted for:

Capital projects 3,496,524 3,611,710 (115,186) -3.2%
Special purpose projects 11,278,372 11,115,831 162,541 1.5% Unrestricted 18,136,483 13,825,598 4,310,885 31.2%
Total Net Position $96,670,938 $91,328,412 $5,342,526 5.8% As of June 30, 2021 the assets net of liabilities (“Net Position”) of the City totaled $ 97.7 million. This was an increase from the previous year of approximately $5.3 million (5.8%). A detailed explanation is included on pages 6-7 of the ACFR. As previously mentioned the presentation of the net position is similar to accounting used by private businesses.

While an increase in net position is positive, it is helpful to keep in mind there are unique aspects of a government agency when interpreting the Net Position, including the following items:
$63.8 million (66.0% of net assets) is in the category “invested in capital assets” (e.g. land, infrastructure, buildings, and equipment). These are not assets that are easily liquidated and that value would not be available for future spending. $11.3 million (15.3% of net assets) are subject to restrictions on how they can be used, such as special State Gas Tax funds; bond proceeds; etc.. $18.1 million (18.8% of net assets) are unrestricted.

Financial Overview Fund Balance – Governmental Funds [Total = $30.0 million] A review of Fund Balance in the governmental funds can also be a useful gauge of financial position. The previous section discussed Government-Wide Net Assets which included proprietary (Internal Service Funds). These are excluded from the more focused view of just governmental funds.

As defined by GFOA; “fund balance in any given fund is essentially what is left over after the fund’s assets have been used to meet its liabilities”. The total fund balance for all governmental funds is $30.0 million. The financial statements provide a summary of this information broken out between “Major Funds” and “All Other Governmental Funds.” Compared to the previous year the total Governmental Fund Balances decreased by $1.3 million, with the most significant factor being the expenditure of 2016 GO Bond monies on the completion of road improvement projects.

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For the City of Orinda the seven Major Funds represent 72.7% of the governmental funds fund balance, and total $21.8 million. The individual funds that are presented as “Major Funds” are: General Fund (#100); City General Capital Projects Fund (#700); Community Facility Maintenance Endowment (#340); CCTA (Funds #330, #331, #332); 2016 GO Road Bonds Capital Funds (#741); 2014 GO Bond Debt Service (#540); 2016 GO Bond Debt Service (#541) and Affordable Housing (#390). “Other Governmental Funds” (Non-Major Funds) [ Balance = $8.2 million] The “Other Governmental Funds” are shown as a consolidated number. (See Governmental Funds Balance Sheet (pages 23-25) and the Statement of Revenues, Expenditures and Changes, in Fund Balance (pages 28-31).

The consolidated amount reported as “All Other Governmental Funds” has a combined fund balance of $8.2 million and represents 27.3% of the combined total fund balance (Major Funds + Other Governmental Funds). This includes 24 separate funds including Special Revenue Funds, Debt Service Funds, and Capital Project funds. Supplemental information on these funds is displayed as part of the ACFR pages 93-130.

As described in the ACFR notes on page 51 the 2021 ACFR includes reporting of one new Special Revenue fund for the first time. The Add-On Sales Tax special revenue fund accounts for all the revenue received from Measure R, which was approved by voters in November 2020 with collections beginning in April of 2021. Also noted on page 51 is the closure of the Road Bond 2014 Capital Fund, as all of the proceeds have now been expended.

General Fund (General Purpose) Income Statement
The ACFR also provides an opportunity to examine the performance of General Fund revenues and expenditures compared to the budget. The General Fund represents the most significant source of discretionary funding. The “General Purpose” General Fund excludes the “Add-On Sales Tax”. The City General Fund detailed comparison of budget to actual can be found on page 90 of the ACFR.

For the year ending June 30, 2021 the General Fund showed positive results with reported revenue of $14.7 million and $13.2 million in expenditures. Overall, total revenue was approximately $0.7 million above projections.

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In terms of revenue, the Rent and Interest revenue had the largest variance being over $300,000 under budget due primarily to the accounting requirement to report investments at market value even though the adopted investment policy focuses on holding investments until maturity. This negative variance is the result of our unrealized gain reducing from approximately $412,000 at the end of Fiscal Year 2019-20 to roughly $121,000 at the end of Fiscal Year 2020-21. This was offset by Planning and Building fees which were approximately $270,000 above projections as well as Parks and Recreation fees also exceeding projections by approximately $227,000. It should be noted that the total is a positive revenue variance of $720,278.

Savings of $1.3 million were realized in terms of actual General Fund expenditures compared to the budget. The largest variance was for Police Services which were approximately $831,000 less than the budget. This resulted from vacant positions which were covered with overtime as well as other operating savings. Another significant factor was that capital outlay expenses were approximately $167,000 less than the amount budgeted. There were savings across all General Fund department expenditures which also contributed to the overall positive results.

As will be discussed in the next section the City achieved its emergency reserve target in the General Fund. The City will need to carefully monitor Fiscal Year 2021-2022 results as the pandemic continues to significantly impact the economy and City operations.

Fund Balance Detail – General Fund Emergency Reserve Target Achieved In the Notes section of the ACFR pages 64-66 is a discussion of the Fund Balance as well as information related to the City Council adopted Reserve Policy. To facilitate the discussion in this section of the report the Table showing Fund Balances as of June 30, 2021 has been included as a separate attachment (see Attachment B which presents the Table as an excerpt from the ACFR).

The categories for Fund Balance follow an established hierarchy which includes:

Nonspendable, Restricted, Committed, Assigned, and Unassigned. The City has met the General Fund target for year-end fund balance as of June 30, 2021. The following items are particularly worth noting:
 The City Council policy established a target goal of $800,000 for Road and Slope Stabilization. The City has exceeded the target since 2019 and as of June 30, 2021 the balance for future capital projects was $825,527. This is shown in the “Committed” category for Streets and Roads under the “Other Governmental Funds” column. The fund financial statement is presented separately on page 122.
 The Council policy has a target goal of $1 million for General and Long Term Plans. In the General Fund as of June 30, 2021 the City has an assigned balance towards this goal of $766,391. The City is in the process of using these F.5
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funds combined with grant funds to undertake long term plans such as the Downtown Precise Plan.
 The General Fund “Assigned” amount of $3,646,087 is the Measure L voter approved Add-On Sales Tax which is a General Fund revenue, assigned for Capital Outlay (Streets and Drains).
 The General Fund “Assigned” amount of $587,348 is the Measure R voter approved Add-On Sales Tax which is a General Fund revenue, assigned for Capital Outlay (Streets and Drains).
 The General Fund $7.4 million contingency reserve, shown as “Unassigned” was calculated based on the adopted City Council policy to target 50% of General Fund budgeted expenditures as an emergency reserve.
 Unassigned $121,160 reserve to offset unrealized investment gains recorded as an asset. The City is required to report investments at market value on the financial statements. Because the market value as of June 30, 2021 was higher than the purchase cost, the revenue on the income statement is increased even though the City did not sell the investments and realize the gain. The City investments are managed in accordance with an adopted policy. The practice is to hold most investments until maturity. An unassigned reserve is established to offset the cumulative unrealized gain recorded as part of the General Fund assets.
 A separate unassigned $300,000 of the General Fund fund balance has been labeled as Fleet Replacement Contingency. This is in addition to amounts accounted for in the Fleet Replacement Internal Service Fund. Analysis of the Fleet Replacement Fund indicates that additional funding may be necessary based upon a number of factors, including the change in the automobile market and limited availability of vehicles
 There is an additional unassigned amount of $1,833,102 which is an amount that exceeds the current targets discussed in this section. The Finance Advisory Committee is charged with annually reviewing any excess amounts and making a recommendation to the City Council regarding the allocation.  A separate unassigned $80,000 of the General Fund fund balance has been labeled as OPEB Retiree Medical reserve. This is in addition to the amount placed into the Trust in 2020. The source of these funds were one-time revenue from retirement plans distributed to the City. The Finance Advisory Committee reviewed in November 2020 whether to recommend that the funds be added to the Trust. At this time have they recommended that they be retained as a General Fund reserve. Because they are not in the Trust these funds do not reduce the calculation of the OPEB liability that is recorded on the financial statements.

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The City Council has assigned as part of the regular duties of the Finance Advisory Committee to review after the Audit the designation of General Fund reserves (Resolution 77-18). The Finance Advisory Committee is scheduled to review the Audit at their meeting on January 26, 2021. A report on any recommendations will be forthcoming to the City Council.

Inclusion of Orinda Geologic Hazard Abatement District (GHAD) Funds In ACFR In fiscal year 2019-20 the Orinda Geologic Hazard Abatement District (GHAD) contracted with the City of Orinda to provide accounting/treasurer services for the GHAD. The GHAD is an agency established under California Public Resources Code 26570 which explicitly states “A district is a political subdivision of the state. A district is not an agency or instrumentality of a local agency.” The funds are to only benefit the District.

These funds are now publicly reported in the City ACFR as a fiduciary fund and they have been included as part of the funds audited. The Custodial Funds report resources, not in a trust that are held by the City for other parties outside of the City’s reporting entity. The GHAD Custodial Fund accounts for monies held for the GHAD. As shown on page 39 of the ACFR as of June 30, 2021 the GHAD had a fund balance of $1,920,402.

The goal of the District is to build up reserves to be adequate to address on-going maintenance and repairs to facilities maintained by the GHAD.

Special Voter Approved Funding Reports
Certain voter approved taxes require that the City report annually regarding funds collected and expended as well as remaining balances. Schedules contained within the ACFR formally serve that purpose.
 Add-On Sales Tax Reporting
The Add-On Sales Tax is reported as part of the General Fund in the Government–wide financial statements. The ACFR includes a presentation of the combining of the General Fund with the City Measure L Fund (#105) and City Measure R Fund (#106) on ACFR pages 87-92 (Attachment A). During Fiscal Year 2020-2021 the revenue collected was $1.4 million and approximately $785,000 respectively, including interest and reimbursements from utility companies. Expenditures from these Funds were $1,452,894 and $198,438 respectively. As of June 30, 2021 fund balances of $3,646,087 and $587,348 respectively, were remaining.
 General Obligation Bond Reporting
The City has issued 2014 General Obligation Bonds and 2016 General Obligation Bonds as approved by the voters. All authorized bonds have been issued. The 2014 GO Bond proceeds were previously expended as of June 30, 2019 and no fund balance remains to be reported.

As of June 30, 2021, the 2016 GO Bond proceeds have been fully expended and no fund balance currently remains. This fund was reported as a Major Fund. A schedule of Revenues, Expenditures, and Changes In Fund Balance can be found on page 31 of the ACFR.

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 Library Parcel Tax Fund
Information related to the Library Parcel Tax Fund (#520) can be reviewed on pages 96 and 102. The total revenue collected was $524,746 including interest. Expenditures for the year were $390,213. The balance remaining as of June 30, 2021 in this fund is $302,123. The increase in the fund balance will be used to address critical capital projects to maintain the provision of library services and results from a successful parcel tax in 2018. A portion of the Library facility operations are paid for by the General Fund.

The General Fund Library operations costs are broken out in the schedule on page 89.

Report - Memorandum on Internal Control And Required Communications The auditor’s Memorandum on Internal Control and Required Communications (Attachment C) provides professional observations and recommendation by the Auditors on opportunities to strengthen internal control practices. The Auditors identified one item which they categorized as a significant deficiency. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance. Staff concurs with the Auditor’s recommendation and have developed a process that appropriately addresses the issue going forward.

In addition to recommendations the Auditors also highlight various upcoming changes in Accounting Standards that will need to be accounted for in future reports. Staff will be reviewing with the Auditors the new items for the next fiscal year and their applicability to the City of Orinda financial statements. This document also makes certain disclosures related to the Auditors work.

Report Gann Appropriations Limit Calculations
Included in the State law related to adoption of an annual appropriations limit, is a requirement for a review of the calculation. The Auditors were requested to review the calculation for the 2020-2021 Limit as adopted by the City Council in June 2020 (See Attachment D). The auditors conducted an agreed upon procedures review and confirmed the calculations.

Transportation Development Act Financial Statements (TDA) The City expended $44,192 in TDA funds administered by the Metropolitan Transportation Commission (MTC). The funding was used for the Camino Pablo Bicycle Route Corridor Improvement Project. Receipt of these grant funds results in the need for the Auditors to prepare a separate report that is filed with MTC (See Attachment E).

Staff has filed the report with MTC by the December 31, 2021 deadline.

NEXT STEPS:

The ACFR will be submitted as part of the Continuing Disclosure information required for outstanding debt issued.

FISCAL IMPACT:

Summarized information on the fiscal impact is addressed as part of this report. The full Annual Comprehensive Financial Report (ACFR) is available on the City website or a F.5
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hard copy may be reviewed during business hours at City Offices located at 22 Orinda Way.

ATTACHMENTS:

A. Annual Comprehensive Financial Report Web Link
B. Fund Balance Table
C. Memorandum and Internal Control
D. Appropriations Limit (GANN) Report
E. Transportation Development Act (TDA) Financial Statements Respectfully Submitted by:

Doug Alessio
Administrative Services Director
Prepared By: Doug Alessio, Administrative Services Director Approved by:

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City of Orinda
Annual Comprehensive Financial Report
Fiscal Year 2020-21
Web link:

The Annual Comprehensive Financial Report is a 168 page document, therefore the following link to the entire document is being provided below:
https://www.cityoforinda.org/436/Most-Recent-Audited-Financial-Statements F.5.a
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Excerpt from Audited Financial Statements
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CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL
AND

REQUIRED COMMUNICATIONS
FOR THE YEAR ENDED JUNE 30, 2021
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CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL
AND

REQUIRED COMMUNICATIONS
For The Year Ended June 30, 2021
Table of Contents
Page
Memorandum on Internal Control .................................................................................................. 1 Schedule of Significant Deficiencies ...................................................................................... 3 Schedule of Other Matters ...................................................................................................... 5 Required Communications ............................................................................................................... 9 Significant Audit Matters .............................................................................................................. 9 Accounting Policies ................................................................................................................ 9 Unusual Transactions, Controversial or Emerging Areas .................................................. 10 Accounting Estimates ........................................................................................................... 10 Disclosures ............................................................................................................................ 11 Difficulties Encountered in Performing the Audit .............................................................. 11 Corrected and Uncorrected Misstatements .......................................................................... 11 Disagreements with Management ........................................................................................ 11 Management Representations ............................................................................................... 11 Management Consultations with Other Independent Accountants .................................... 11 Other Audit Findings or Issues ............................................................................................. 11 Other Information Accompanying the Financial Statements ..................................................... 12 F.5.c
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MEMORANDUM ON INTERNAL CONTROL
To the City Council of
the City of Orinda, California
In planning and performing our audit of the basic financial statements of the City of Orinda as of and for the year ended June 30, 2021, in accordance with auditing standards generally accepted in the United States of America, we considered the City’s internal control over financial reporting (internal control) as a basis for designing audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the City’s internal control. Accordingly, we do not express an opinion on the effectiveness of the City’s internal control.

Our consideration of internal control was for the limited purpose described in the preceding paragraph and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies and therefore material weaknesses or significant deficiencies may exist that were not identified. In addition, because of inherent limitations in internal control, including the possibility of management override of controls, misstatements due to error or fraud may occur and not be detected by such controls. However, as discussed below, we identified certain deficiencies in internal control that we consider to be significant deficiencies.

A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the City’s financial statements will not be prevented, or detected and corrected on a timely basis. We did not identify any deficiencies in internal control that we consider to be material weaknesses.

A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance. We consider the deficiencies in internal control included on the Schedule of Significant Deficiencies to be significant deficiencies.

Included in the Schedule of Other Matters are recommendations not meeting the above definitions that we believe are opportunities for strengthening internal controls and operating efficiency.

Management’s written responses included in this report have not been subjected to the audit procedures applied in the audit of the financial statements and, accordingly, we express no opinion on them.

This communication is intended solely for the information and use of management, City Council, others within the organization, and agencies and pass-through entities requiring compliance with Government Auditing Standards, and is not intended to be and should not be used by anyone other than these specified parties.

Pleasant Hill, California
December 14, 2021
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CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL

SCHEDULE OF SIGNIFICANT DEFICIENCIES
2021-01: Recording Loans Receivable
Criteria: All loans must be recorded in the City’s general ledger when the monies have been disbursed in relation to an executed loan agreement to a third party.

Condition: A 2012 Development and Loan Agreement included a loan made by the City Affordable Housing Fund. The City failed to record the loan in the amount of $2,050,000. The loan provides for no interest and a single payment of the full balance in December 2069. In fiscal year 2021 the City recorded receivables for this loan receivable hat should have been recorded in fiscal year ended June 30, 2013.

Cause: According to City staff, the loan was identified as staff were researching information related to the affordable housing project development. The loan was created upon the City dedicating a piece of property to Eden Housing, a non-profit affordable housing developer, in exchange for the payment of $2,050,000 in 55 years.

Potential Effect: The City’s loans receivable balances were understated in prior years. Also, when loan balances are not maintained on the general ledger, there is a risk that payments will not be tracked appropriately.

Recommendation: In order to ensure loan balances are properly recorded and all executed loans are being tracked, the City should record all loans on its general ledger as soon as the agreements have been executed and an asset is transferred to the borrower. Management should design and implement a formal procedure to communicate, on at least an annual basis, any loans distributed during the year.

Management’s Response:

Staff agree with the Auditor conclusion that there must be timely recording of loan transactions in the City financial records. None of the current staff who have financial recording responsibilities worked for the City in 2012.

The City Annual Comprehensive Financial Report will include in the footnotes the description of the current loan. Staff have added to that disclosure a statement identifying any additional loans made during the fiscal year covered by the report. This will prompt staff to insure that all loans have been recorded.
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Packet Pg. 118 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance)

CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL

SCHEDULE OF OTHER MATTERS

NEW GASB PRONOUNCEMENTS OR PRONOUNCEMENTS NOT YET EFFECTIVE The following comment represents new pronouncements taking affect in the next few years. We cite them here to keep you informed of developments:

EFFECTIVE FISCAL YEAR 2021/22:

GASB 87 – Leases
The objective of this Statement is to better meet the information needs of financial statement users by improving accounting and financial reporting for leases by governments. This Statement increases the usefulness of governments’ financial statements by requiring recognition of certain lease assets and liabilities for leases that previously were classified as operating leases and recognized as inflows of resources or outflows of resources based on the payment provisions of the contract. It establishes a single model for lease accounting based on the foundational principle that leases are financings of the right to use an underlying asset. Under this Statement, a lessee is required to recognize a lease liability and an intangible right-to-use lease asset, and a lessor is required to recognize a lease receivable and a deferred inflow of resources, thereby enhancing the relevance and consistency of information about governments’ leasing activities.

GASB 89 – Accounting for Interest Cost Incurred before the End of a Construction Period The objectives of this Statement are (1) to enhance the relevance and comparability of information about capital assets and the cost of borrowing for a reporting period and (2) to simplify accounting for interest cost incurred before the end of a construction period.

This Statement establishes accounting requirements for interest cost incurred before the end of a construction period. Such interest cost includes all interest that previously was accounted for in accordance with the requirements of paragraphs 5–22 of Statement No. 62, Codification of Accounting and Financial Reporting Guidance Contained in Pre-November 30, 1989 FASB and AICPA Pronouncements, which are superseded by this Statement. This Statement requires that interest cost incurred before the end of a construction period be recognized as an expense in the period in which the cost is incurred for financial statements prepared using the economic resources measurement focus. As a result, interest cost incurred before the end of a construction period will not be included in the historical cost of a capital asset reported in a business-type activity or enterprise fund.

This Statement also reiterates that in financial statements prepared using the current financial resources measurement focus, interest cost incurred before the end of a construction period should be recognized as an expenditure on a basis consistent with governmental fund accounting principles.

GASB 92 – Omnibus 2020
The objectives of this Statement are to enhance comparability in accounting and financial reporting and to improve the consistency of authoritative literature by addressing practice issues that have been identified during implementation and application of certain GASB Statements. This Statement addresses a variety of topics and includes specific provisions about the following:
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Packet Pg. 119 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance)

CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL

SCHEDULE OF OTHER MATTERS
GASB 93 – Replacement of Interbank Offered Rates
Some governments have entered into agreements in which variable payments made or received depend on an interbank offered rate (IBOR)—most notably, the London Interbank Offered Rate (LIBOR). As a result of global reference rate reform, LIBOR is expected to cease to exist in its current form at the end of 2021, prompting governments to amend or replace financial instruments for the purpose of replacing LIBOR with other reference rates, by either changing the reference rate or adding or changing fallback provisions related to the reference rate.

Statement No. 53, Accounting and Financial Reporting for Derivative Instruments, as amended, requires a government to terminate hedge accounting when it renegotiates or amends a critical term of a hedging derivative instrument, such as the reference rate of a hedging derivative instrument’s variable payment. In addition, in accordance with Statement No. 87, Leases, as amended, replacement of the rate on which variable payments depend in a lease contract would require a government to apply the provisions for lease modifications, including remeasurement of the lease liability or lease receivable.

The objective of this Statement is to address those and other accounting and financial reporting implications that result from the replacement of an IBOR.

GASB 97 – Certain Component Unit Criteria, and Accounting for and Financial Reporting for Internal Revenue Code Section 457 Deferred Compensation Plans The primary objectives of this Statement are to (1) increase consistency and comparability related to the reporting of fiduciary component units in circumstances in which a potential component unit does not have a governing board and the primary government performs the duties that a governing board typically would perform; (2) mitigate costs associated with the reporting of certain defined contribution pension plans, defined contribution other postemployment benefit (OPEB) plans, and employee benefit plans other than pension plans or OPEB plans (other employee benefit plans) as fiduciary component units in fiduciary fund financial statements; and (3) enhance the relevance, consistency, and comparability of the accounting and financial reporting for Internal Revenue Code (IRC) Section 457 deferred compensation plans (Section 457 plans) that meet the definition of a pension plan and for benefits provided through those plans.

EFFECTIVE FISCAL YEAR 2022/23:

GASB 91 – Conduit Debt Obligations
The primary objectives of this Statement are to provide a single method of reporting conduit debt obligations by issuers and eliminate diversity in practice associated with (1) commitments extended by issuers, (2) arrangements associated with conduit debt obligations, and (3) related note disclosures. This Statement achieves those objectives by clarifying the existing definition of a conduit debt obligation; establishing that a conduit debt obligation is not a liability of the issuer; establishing standards for accounting and financial reporting of additional commitments and voluntary commitments extended by issuers and arrangements associated with conduit debt obligations; and improving required note disclosures.
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Packet Pg. 120 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance)

CITY OF ORINDA

MEMORANDUM ON INTERNAL CONTROL

SCHEDULE OF OTHER MATTERS
GASB 94 – Public-Private and Public-Public Partnerships and Availability Payment Arrangements The primary objective of this Statement is to improve financial reporting by addressing issues related to public-private and public-public partnership arrangements (PPPs). As used in this Statement, a PPP is an arrangement in which a government (the transferor) contracts with an operator (a governmental or nongovernmental entity) to provide public services by conveying control of the right to operate or use a nonfinancial asset, such as infrastructure or other capital asset (the underlying PPP asset), for a period of time in an exchange or exchange-like transaction. Some PPPs meet the definition of a service concession arrangement (SCA), which the Board defines in this Statement as a PPP in which (1) the operator collects and is compensated by fees from third parties; (2) the transferor determines or has the ability to modify or approve which services the operator is required to provide, to whom the operator is required to provide the services, and the prices or rates that can be charged for the services; and (3) the transferor is entitled to significant residual interest in the service utility of the underlying PPP asset at the end of the arrangement.

This Statement also provides guidance for accounting and financial reporting for availability payment arrangements (APAs). As defined in this Statement, an APA is an arrangement in which a government compensates an operator for services that may include designing, constructing, financing, maintaining, or operating an underlying nonfinancial asset for a period of time in an exchange or exchange-like transaction.

GASB 96 – Subscription-Based Information Technology Arrangements This Statement provides guidance on the accounting and financial reporting for subscription-based information technology arrangements (SBITAs) for government end users (governments). This Statement (1) defines a SBITA; (2) establishes that a SBITA results in a right-to-use subscription asset—an intangible asset—and a corresponding subscription liability; (3) provides the capitalization criteria for outlays other than subscription payments, including implementation costs of a SBITA; and (4) requires note disclosures regarding a SBITA. To the extent relevant, the standards for SBITAs are based on the standards established in Statement No. 87, Leases, as amended. 7 F.5.c
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Packet Pg. 122 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance)

REQUIRED COMMUNICATIONS
To the City Council of
the City of Orinda
Orinda, California
We have audited the basic financial statements of the City of Orinda for the year ended June 30, 2021.

Professional standards require that we communicate to you the following information related to our audit under generally accepted auditing standards, Government Auditing Standards, and Uniform Guidance.

Significant Audit Matters
Accounting Policies
Management is responsible for the selection and use of appropriate accounting policies. The significant accounting policies used by the City are described in Note 1 to the financial statements. No new accounting policies were adopted and the application of existing policies was not changed during the year, except as follows:

GASB 90 – Majority Equity Interests (an amendment of GASB Statements No. 14 and No. 61)
The primary objectives of this Statement are to improve the consistency and comparability of reporting a government’s majority equity interest in a legally separate organization and to improve the relevance of financial statement information for certain component units. It defines a majority equity interest and specifies that a majority equity interest in a legally separate organization should be reported as an investment if a government’s holding of the equity interest meets the definition of an investment. A majority equity interest that meets the definition of an investment should be measured using the equity method, unless it is held by a special-purpose government engaged only in fiduciary activities, a fiduciary fund, or an endowment (including permanent and term endowments) or permanent fund. Those governments and funds should measure the majority equity interest at fair value.

For all other holdings of a majority equity interest in a legally separate organization, a government should report the legally separate organization as a component unit, and the government or fund that holds the equity interest should report an asset related to the majority equity interest using the equity method. This Statement establishes that ownership of a majority equity interest in a legally separate organization results in the government being financially accountable for the legally separate organization and, therefore, the government should report that organization as a component unit.

This Statement also requires that a component unit in which a government has a 100 percent equity interest account for its assets, deferred outflows of resources, liabilities, and deferred inflows of resources at acquisition value at the date the government acquired a 100 percent equity interest in the component unit. Transactions presented in flows statements of the component unit in that circumstance should include only transactions that occurred subsequent to the acquisition.

The pronouncement became effective, but did not have a material effect on the financial statements.
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Packet Pg. 123 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance) GASB 98 – The Annual Comprehensive Financial Report
This Statement establishes the term annual comprehensive financial report and its acronym ACFR. That new term and acronym replace instances of comprehensive annual financial report and its acronym in generally accepted accounting principles for state and local governments.

This Statement was developed in response to concerns raised by stakeholders that the common pronunciation of the acronym for comprehensive annual financial report sounds like a profoundly objectionable racial slur. This Statement’s introduction of the new term is founded on a commitment to promoting inclusiveness.

The pronouncement is not effective until June 30, 2022, but management has early implemented it. This statement did not have a material effect on the financial statements.

Unusual Transactions, Controversial or Emerging Areas
We noted no transactions entered into by the City during the year for which there is a lack of authoritative guidance or consensus. All significant transactions have been recognized in the financial statements in the proper period.

Accounting Estimates
Accounting estimates are an integral part of the financial statements prepared by management and are based on management’s knowledge and experience about past and current events and assumptions about future events. Certain accounting estimates are particularly sensitive because of their significance to the financial statements and because of the possibility that future events affecting them may differ significantly from those expected. The most sensitive estimates affecting the City’s financial statements were:

Estimated Fair Value of Investments: Cash and investments held by the City at June 30, 2021 were measured by fair value as disclosed in Note 3 to the financial statements. Fair value is essentially market pricing in effect as of June 30, 2021. These fair values are not required to be adjusted for changes in general market conditions occurring subsequent to June 30, 2021.

Estimate of Depreciation: Management’s estimate of the depreciation is based on useful lives determined by management. These lives have been determined by management based on the expected useful life of assets as disclosed in Note 1 to the financial statements. We evaluated the key factors and assumptions used to develop the depreciation estimate and determined that it is reasonable in relation to the basic financial statements taken as a whole.

Estimate of Compensated Absences: Accrued compensated absences which are comprised of accrued vacation, holiday, and certain other compensating time is estimated using accumulated unpaid leave hours and hourly pay rates in effect at the end of the fiscal year as disclosed in Note 1 to the financial statements. We evaluated the key factors and assumptions used to develop the accrued compensated absences and determined that it is reasonable in relation to the basic financial statements taken as a whole.

Estimated Net OPEB Liabilities and OPEB-related Deferred Outflow and Inflow of Resources:

Management’s estimates of the net OPEB liabilities and OPEB-related deferred outflow and inflow of resources are disclosed in Note 12 to the financial statements and are based on accounting valuations determined by a consultant, which are based on the experience of the City. 10 F.5.c
Packet Pg. 124 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance) We evaluated the key factors and assumptions used to develop the estimates and determined that they are reasonable in relation to the basic financial statements taken as a whole.

Disclosures
The financial statement disclosures are neutral, consistent, and clear.

Difficulties Encountered in Performing the Audit
We encountered no significant difficulties in dealing with management in performing and completing our audit.

Corrected and Uncorrected Misstatements
Professional standards require us to accumulate all known and likely misstatements identified during the audit, other than those that are clearly trivial, and communicate them to the appropriate level of management. Management has corrected all such misstatements. In addition, none of the misstatements detected as a result of audit procedures and corrected by management were material, either individually or in the aggregate, to each opinion unit’s financial statements taken as a whole.

Professional standards require us to accumulate all known and likely uncorrected misstatements identified during the audit, other than those that are trivial, and communicate them to the appropriate level of management. We have no such misstatements to report to the City Council.

Disagreements with Management
For purposes of this letter, a disagreement with management is a financial accounting, reporting, or auditing matter, whether or not resolved to our satisfaction, that could be significant to the financial statements or the auditor’s report. We are pleased to report that no such disagreements arose during the course of our audit.

Management Representations
We have requested certain representations from management that are included in a management representation letter dated December 14, 2021.

Management Consultations with Other Independent Accountants In some cases, management may decide to consult with other accountants about auditing and accounting matters, similar to obtaining a “second opinion” on certain situations. If a consultation involves application of an accounting principle to the City’s financial statements or a determination of the type of auditor’s opinion that may be expressed on those statements, our professional standards require the consulting accountant to check with us to determine that the consultant has all the relevant facts. To our knowledge, there were no such consultations with other accountants.

Other Audit Findings or Issues
We generally discuss a variety of matters, including the application of accounting principles and auditing standards, with management each year prior to retention as the City’s auditors. However, these discussions occurred in the normal course of our professional relationship and our responses were not a condition to our retention.
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Packet Pg. 125 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance) Other Information Accompanying the Financial Statements We applied certain limited procedures to the required supplementary information that accompanies and supplements the basic financial statements. Our procedures consisted of inquiries of management regarding the methods of preparing the information and comparing the information for consistency with management’s responses to our inquiries, the basic financial statements, and other knowledge we obtained during our audit of the basic financial statements. We did not audit the required supplementary information and do not express an opinion or provide any assurance on the required supplementary information.

We were engaged to report on the supplementary information which accompany the financial statements, but are not required supplementary information. With respect to this supplementary information, we made certain inquiries of management and evaluated the form, content, and methods of preparing the information to determine that the information complies with accounting principles generally accepted in the United States of America, the method of preparing it has not changed from the prior period, and the information is appropriate and complete in relation to our audit of the financial statements. We compared and reconciled the supplementary information to the underlying accounting records used to prepare the financial statements or to the financial statements themselves.

We were not engaged to report on the Introductory and Statistical Sections which accompany the financial statements, but are not required supplementary information. Such information has not been subjected to the auditing procedures applied in the audit of the basic financial statements, and accordingly, we do not express an opinion or provide any assurance on them.
******
This information is intended solely for the use of City Council and management and is not intended to be, and should not be, used by anyone other than these specified parties.

Pleasant Hill, California
December 14, 2021
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Packet Pg. 126 Attachment: Memorandum and Internal Control (2644 : ACFR Acceptance)

INDEPENDENT ACCOUNTANT'S REPORT ON

APPLYING AGREED-UPON PROCEDURES FOR
COMPLIANCE WITH THE PROPOSITION 111
2020-2021 APPROPRIATIONS LIMIT INCREMENT
Honorable Mayor and Members of the City Council
City of Orinda, California
We have performed the procedures below, which were agreed to by the City of Orinda, on the Appropriations Limit Worksheet (Worksheet) for the year ended June 30, 2021. The City’s management is responsible for the Worksheet. These procedures, which were suggested by the League of California Cities and presented in their Article XIIIB Appropriations Limitation Uniform Guidelines, were performed solely to assist you in meeting the requirements of Section 1.5 of Article XIIIB of the California Constitution. The sufficiency of these procedures is solely the responsibility of the City. Consequently, we make no representation regarding the sufficiency of the procedures described below either for the purpose for which this report has been requested or for any other purpose.

The procedures and associated findings were as follows:

A. We obtained the Worksheet and determined that the 2020-2021 limit of $21,843,975 and annual adjustment factors were adopted by Resolution of the City Council. We also determined that the population and inflation options were selected by a recorded vote of the City Council.

B. We recomputed the 2020-2021 Appropriations Limit by multiplying the 2019-2020 Prior Year Appropriations Limit by the Total Growth Factor. We recomputed the Total Growth Factor by multiplying the population factor option by the inflation factor option.

C. For the Worksheet, we agreed the Per Capita Income, County and City Population Factors to California State Department of Finance Worksheets.

This agreed-upon procedures engagement was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review, the objective of which would be the expression of an opinion or conclusion, respectively, on the Worksheet. Accordingly, we do not express such an opinion or conclusion.

Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.

This report is intended solely for the information and use of management and the City Council and is not intended to be and should not be used by anyone other than those specified parties; however, this restriction is not intended to limit the distribution of this report, which is a matter of public record.

Pleasant Hill, California
April 30, 2021
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Packet Pg. 127 Attachment: Appropriations Limit (GANN) Report (2644 : ACFR Acceptance)

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT

ACT ARTICLE III FUND

FINANCIAL STATEMENTS

FOR THE YEAR ENDED
JUNE 30, 2021

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Packet Pg. 128 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) This Page Left Intentionally Blank
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Packet Pg. 129 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance)

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT ACT ARTICLE III FUND

FINANCIAL STATEMENTS
For the Year Ended June 30, 2021
Table of Contents
Page
Independent Auditors’ Report ................................................................................................................... 1 Financial Statements:

Balance Sheet ..................................................................................................................................... 3 Statement of Revenues and Expenditures and Changes in Fund Balance .......................................... 4 Notes to Financial Statements ............................................................................................................ 5 Independent Auditor’s Report on Internal Control Over Financial Reporting, on Compliance with the Transportation Development Act and Other Matters Based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards ....................................................................................................... 7 F.5.e
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Packet Pg. 131 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance)

INDEPENDENT AUDITOR'S REPORT
To the Honorable Mayor and Members of the City Council
City of Orinda, California
Report on Financial Statements
We have audited the accompanying financial statements of the City of Orinda (City) Transportation Development Act Article III Fund (TDA Fund), as of and for the year ended June 30, 2021 and the related notes to the financial statements as listed in the table of contents.

Management’s Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of the financial statements that are free from material misstatement, whether due to fraud or error.

Auditor’s Responsibility
Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor’s judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error.

In making those risk assessments, the auditor considers internal control relevant to the TDA Fund’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the TDA Fund’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.

We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
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Packet Pg. 132 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the respective financial position of the TDA Fund as of June 30, 2021, and the changes in financial position for the year then ended in accordance with accounting principles generally accepted in the United States of America.

Emphasis of Matter
As discussed in Note 1, the financial statements present only the TDA Fund and do not purport to, and do not present fairly the financial positions of the City as of June 30, 2021, the changes in its financial positions for the year then ended in accordance with accounting principles generally accepted in the United States of America. Our opinion is not modified with respect to this matter.

Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we have also issued our report dated December 14, 2021 on our consideration of the TDA Fund’s internal control over financial reporting and on our tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters. The purpose of that report is to describe the scope of our testing of internal control over financial reporting and compliance and the results of that testing, and not to provide an opinion on internal control over financial reporting or on compliance. That report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the TDA Fund’s internal control over financial reporting and compliance.

Pleasant Hill, California
December 14, 2021
2 F.5.e
Packet Pg. 133 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) 2021
ASSETS
Due from MTC $90,062
Total Assets $90,062

LIABILITIES
Accounts payable $4,258
Due to the City 83,032
Total Liabilities 87,290

FUND BALANCES
Restricted 2,772
Total Fund balances 2,772
Total liabilities and fund balances $90,062
See accompanying notes to financial statements

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT ACT

ARTICLE III FUND

BALANCE SHEET
JUNE 30, 2021
3 F.5.e
Packet Pg. 134 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) 2021

REVENUES
TDA Article 3.0 (Note 2) $44,192
Total Revenues 44,192

EXPENDITURES
Camino Pablo Bicycle Route Corridor Improvement 44,192
Total Expenditures 44,192
Net change in fund balances -

FUND BALANCES
Fund balance at beginning of period 2,772
Fund balance at end of period $2,772
See accompanying notes to financial statements
FOR THE YEAR ENDED JUNE 30, 2021

AND CHANGES IN FUND BALANCE

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT ACT

ARTICLE III FUND

STATEMENT OF REVENUES, EXPENDITURES
4 F.5.e
Packet Pg. 135 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance)

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT ACT ARTICLE III FUND

NOTES TO FINANCIAL STATEMENTS
For The Years Ended June 30, 2021
NOTE 1 – DESCRIPTION OF REPORTING ENTITY
The City of Orinda, California (City), Transportation Development Act Article III Fund (TDA Fund) includes the financial activities associated with projects funded by the State of California Transportation Development Act (TDA). The State of California created a local transportation fund for each County funded by a portion of the State sales tax.

The TDA Fund is distributed through the Metropolitan Transportation Commission (MTC) which is the agency responsible for allocation of funds to eligible claimants within the greater San Francisco Bay Area.

Fund Accounting –The operations of the TDA Fund are accounted for with a separate set of selfbalancing accounts that comprise its assets, liabilities, fund equity, revenues and expenditures or expenses, as appropriate. Government resources are allocated to and accounted for in the fund based upon the purpose for which they are to be spent and the means by which spending activities are controlled. TDA Fund is presented as a separate Special Revenue Fund in the comprehensive annual financial report of the City.

Basis of Accounting – The accounting and reporting treatment applied to a fund is determined by its measurements focus. All governmental funds are accounted for on a spending or “current financial resources” measurement focus. Accordingly, only current asset and current liabilities generally are included on the balance sheet. Operating statements of governmental funds present increases (revenues and other financing sources) and decreases (expenditures and other financing uses) in fund balance.

All governmental fund types are accounted for using the modified accrual basis of accounting wherein revenues are recognized in the accounting period in which they become measurable and available to pay liabilities of the current period. Expenditures are recognized in the accounting period in which the fund liability is incurred.

Revenue Recognition – Under the terms of the various grant agreements, the TDA Fund generally recognize revenues when approved expenditures are incurred. Accordingly, the accompanying financial statements present grants receivable and the corresponding intergovernmental revenues.

Use of Estimates – The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect certain reported amounts and disclosures. Accordingly, actual results could differ from those estimates.

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Packet Pg. 136 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance)

CITY OF ORINDA

TRANSPORTATION DEVELOPMENT ACT ARTICLE III FUND

NOTES TO FINANCIAL STATEMENTS
For The Years Ended June 30, 2021
NOTE 2 – TDA ARTICLE 3.0 REVENUE
For the year ended June 30, 2021 the City recorded revenues in accordance with the allocation instructions from the Metropolitan Transportation Commission for the following projects:

Instruction # Project Name
Grant
Award
For the year ended
2021
20001110 Camino Pablo Bicycle Route
Corridor Improvement $150,000 $44,192
19001023 Moraga Way Crosswalk at
Brookside Road 35,000 -
20001092 Moraga Way Crosswalk at
Brookside Road 30,000 -
21001014 Moraga Way Pathway 85,800 -
Totals $215,000 $44,192
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Packet Pg. 137 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) INDEPENDENT AUDITOR’S REPORT ON

INTERNAL CONTROL OVER FINANCIAL REPORTING,

ON COMPLIANCE WITH THE TRANSPORTATION

DEVELOPMENT ACT AND OTHER MATTERS

BASED ON AN AUDIT OF FINANCIAL STATEMENTS PERFORMED IN

ACCORDANCE WITH GOVERNMENT AUDITING STANDARDS
To the Honorable Mayor and Members of the City Council of the City of Orinda, California
We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the City of Orinda (City) Transportation Development Act Article III Fund (TDA Fund) as of and for the year ended June 30, 2021, and the related notes to the financial statements, and have issued our report thereon dated December 14, 2021.

Internal Control Over Financial Reporting
In planning and performing our audit of the financial statements, we considered the TDA Fund’s internal control over financial reporting (internal control) to determine the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the TDA Fund’s internal control. Accordingly, we do not express an opinion on the effectiveness of the TDA Fund’s internal control.

A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the TDA Fund’s financial statements will not be prevented, or detected and corrected on a timely basis.

Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies and therefore, material weaknesses or significant deficiencies may exist that were not identified. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified.
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Packet Pg. 138 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) Compliance and Other Matters
As part of obtaining reasonable assurance about whether the TDA Fund’s financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the determination of financial statement amounts. Our procedures included the applicable audit procedures contained in §6666 of Title 21 of California Code of Regulations and tests of compliance with the applicable provisions of the Transportation Development Act and the allocation instructions and resolutions of the Metropolitan Transportation Commission. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.

Purpose of this Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the TDA Fund’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the TDA Fund’s internal control and compliance.

Accordingly, this communication is not suitable for any other purpose.

This report is intended solely for the information and use of the Metropolitan Transportation Commission, management, City Council, others within the City, and federal awarding agencies and pass-through entities and is not intended to be and should not be used by anyone other than these specified parties; however, this restriction is not intended to limit the distribution of this report, which is a matter of public record.

Pleasant Hill, California
December 14, 2021
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Packet Pg. 139 Attachment: Transportation Development Act (TDA) Financial Statements (2644 : ACFR Acceptance) City Council
Staff Report
Agenda Item: H.1
Date: January 11, 2022
Department: Administration
AGENDA TITLE: Possible Ordinance Restricting Sale of Flavored Tobacco and Vaping Products
RECOMMENDATION:

Receive Report, Discuss, and Provide Direction, if any.

BACKGROUND:

On October 22, 2020, as a Matter Initiated, the City Council requested a future agenda item to discuss the possibility of regulating the sale of flavored tobacco and vaping products in Orinda. This item is being presented in response to that request.

DISCUSSION:

The State of California and many organizations have encouraged local jurisdictions to consider bans on the sale of flavored tobacco and vaping products targeted to or attractive to youth. This subject was raised at a City Council meeting at the time the County was considering such a ban which they ultimately adopted for the County unincorporated areas. Most recently, the City of Walnut Creek, in November, 2021, considered and adopted a ban. Attached (Attachment 1) is the staff report and ordinance from Walnut Creek which provide background information which may be of interest to the City Council. As discussed in the Walnut Creek Staff report, the State has approved legislation which was signed by the Governor implementing a statewide ban, but that will be the subject of an initiative referendum in November 2022, and under the State legislation if it remains in effect, cities are able to still implement local bans. In addition, Attachment 2 is the current lists of cities and counties throughout the State that have adopted such a ban from the State’s Tobacco Free California website - https://tobaccofreeca.com.

NEXT STEPS:

The City Council could provide direction to staff and the City Attorney to prepare an ordinance for future City Council consideration if so desired.

FISCAL IMPACT:

None as result of this item. There would be staff time and City Attorney costs to develop and present an ordinance for future consideration.

ATTACHMENTS:

A. Walnut Creek Staff Report w Ordinance
B. Flavored-Tobacco-Bans-and-Menthol-Exemptions-List_11.22.21 H.1
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Respectfully Submitted by:

David Biggs
City Manager
Prepared By: Sheri Smith, City Clerk
Approved by:

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Agenda Item No. 5a
Agenda Report
DATE: NOVEMBER 2, 2021
TO: CITY COUNCIL
FROM: POLICE DEPARTMENT AND CITY ATTORNEY’S OFFICE
SUBJECT: CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WALNUT CREEK AMENDING TITLE 5, CHAPTER 4, OF THE WALNUT CREEK MUNICIPAL CODE AND ADDING TITLE 4,
CHAPTER 15, PROHIBITING THE SALE OF FLAVORED TOBACCO

PRODUCTS AND ELECTRONIC SMOKING DEVICES
STATEMENT OF ISSUE:

The United States Centers for Disease Control and Prevention (CDC) estimates that tobacco use is the leading preventable cause of death in the United States (over 480,000 per year), and is a major cause of other chronic smoking-related illness.
1 Further, nearly 9 out of 10 adults who smoke
cigarettes daily first try smoking by age 18.
2 According to the California Department of Public
Health, approximately 80% of young people (12 - 17 years old) who have used a tobacco product began with a flavored tobacco product. Further, 1 in 8 California high school students currently use a tobacco product. Of those that currently use tobacco, an overwhelming majority use electronic smoking devices (84.3%) and flavored tobacco products (86.4%).3 The Contra Costa County Board of Supervisors adopted an ordinance in 2019 restricting the sale of flavored tobacco products and electronic smoking devices that have not obtained federal pre-market review. That ordinance pertains solely to the unincorporated areas of the County, and the County has encouraged cities within its boundaries to adopt their own ordinances imposing a similar ban. At that time, the City Council directed City staff to conduct research and present options to the Council regarding next steps. However, this task was placed on hold when the Covid-19 pandemic occurred.

Recently in 2020, the Mount Diablo School District Board adopted a resolution likewise urging cities within the district to adopt a flavored tobacco and e-cigarette ban. Staff has reviewed the issue and 1 https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortality/index.htm#death 2 https://www.cdc.gov/tobacco/data_statistics/sgr/2012/index.htm 3 https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/ FactsandFigures/CATobaccoFactsandFigures2019.pdf
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Packet Pg. 142 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance) Walnut Creek City Council
Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Smoking Devices November 2, 2021 Page 2
prepared an ordinance that would prohibit flavored tobacco and electronic smoking devices within Walnut Creek.

RECOMMENDED ACTION:

Introduce and waive reading of an ordinance amending Title 5, Chapter 4, of the Walnut Creek Municipal Code and adding Title 4, Chapter, 15, prohibiting the sale of flavored tobacco products and electronic smoking devices.

DISCUSSION:

Flavored E-Cigarettes
Most commonly used among youth, e-cigarettes deliver flavorings, nicotine and other additives via an inhaled aerosol. E-cigarettes entered the marketplace in 2007, and since 2014 have been the most commonly used tobacco product among youth. Federal data suggests that e-cigarette use among middle and high school students more than doubled between 2017 and 2019, with five million youths reportedly having used e-cigarettes in 2019.

Federal Guidance and Regulation
The U.S. Surgeon General warns that flavored tobacco products help new users establish habits that lead to long-term addiction. Flavors like menthol in tobacco products make it more difficult for users to quit. All nicotine products are addictive and increase the risk of developing serious health problems including cancer, heart disease, and emphysema.

In 2009, the Federal Government passed the Family Smoking Prevention and Tobacco Control Act that banned the manufacture of cigarettes with characterizing flavors (e.g. cherry, chocolate).

Menthol cigarettes are exempt from this ban. The ban did not restrict non-cigarette tobacco products such as cigars, smokeless tobacco, hookahs, and e-cigarettes. In January 2020, the FDA prohibited sales of certain flavored e-cigarettes, but again exempted menthol and applied the restrictions to some devices (cartridges and pre-filled pods) while exempting others (disposable vaping devices and eliquids designed for customizable, refillable e-cigarette pods - referred to as “tank systems” or “mod systems”). In April 2021, the FDA announced it would be proposing additional tobacco product standards to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors (including menthol) in cigars. To date, the FDA has not issued these proposed new rules.

State Regulation
In August 2020, the California legislature enacted SB 793, which broadly prohibits all flavored tobacco products, including many of those not covered by the federal ban (e.g. pods for vape pens, tank-based systems, and smokeless chewing tobacco). Unlike federal regulations, SB 793 also includes a ban on menthol. The new law includes three exemptions from its blanket ban on flavored tobacco products:
• Non-electronic hookah and shisha if sold by a licensed hookah tobacco retailer that limits entry to those aged 21 and over;
• Premium cigars (handmade with a wholesale price of at least $12); and • Pipe tobacco (not otherwise suitable for making cigarettes).

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Packet Pg. 143 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance) Walnut Creek City Council
Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Smoking Devices November 2, 2021 Page 3
Although SB 793 has been placed on the November 8, 2022 ballot through a qualifying referendum, municipalities continue to retain the authority to adopt local ordinances restricting the sale of flavored tobacco and/or electronic smoking devices.

Contra Costa County
In 2019, Contra Costa County adopted Ordinance No. 2019-34, which prohibits the sale of (1) any e-liquid or electronic smoking device that is required to obtain, but has not yet obtained, a premarket review order from the FDA pursuant to the federal Family Smoking Prevention and Tobacco Control Act, and (2) any flavored tobacco product or menthol cigarette. However, the County’s ordinance is only applicable in unincorporated areas of the County (and not within the City of Walnut Creek).

Mt. Diablo Unified School District
In January 2020, the Mt. Diablo Unified School District Board adopted Resolution No. 19/20-32 opposing the use and sale of e-cigarettes and electronic vaping devices, agreeing to adopt district policies and take other actions to prohibit such devices, and urging cities within the school district to prohibit the sale, manufacture, and distribution of flavored tobacco products and electronic vaping devices due to the harmful impacts on public health including on both youth and adult smokers.

Other Jurisdictions
City staff looked into practices from other municipalities imposing similar flavored tobacco and electronic smoking device bans. The City of Dublin enacted such an ordinance in February 2020 prohibiting the sale of electronic smoking devices and all flavored tobacco products except for those currently approved by the FDA (such as menthol cigarettes and cigars) The City of Lafayette also adopted a similar ordinance in 2019 imposing the same type of prohibition as Dublin. Also in 2019, the City of South San Francisco likewise adopted an ordinance that prohibits electronic smoking devices and flavored tobacco. The South San Francisco ordinance includes menthol flavors and noncigarette products, but exempts tobacco products approved by the FDA as a “tobacco cessation product” or for other therapeutic purposes. In addition, the South San Francisco ordinance “grandfathers” existing significant tobacco retailers with a large percentage of floor area devoted to and gross receipts derived from the sale or exchange to tobacco products, and on-site hookah bar/smoking lounges, provided that those businesses only permit persons over the age of 21 to enter their premises.

Proposed City Ordinance
The proposed ordinance would make the following amendments to the WCMC:
• Amend Section 5-4.101 “Smoking Prohibitions - Definitions” o Amendments to this section are intended to provide internally consistent definitions between the City’s general smoking regulations and the proposed flavored tobacco/ecigarette regulations. • Amend Section 5-4.201 “Tobacco Retailer License – License Requirement” o Amendments to this section would require individuals or retailers with a tobacco retailer’s license to comply with the proposed flavored tobacco/e-cigarette ordinance in order to maintain their licenses. Currently, the City requires any person or retailer selling tobacco products to obtain a tobacco retailer’s license. The license is required H.1.a
Packet Pg. 144 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance) Walnut Creek City Council
Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Smoking Devices November 2, 2021 Page 4
to be obtained from the County’s Health Services Department and the County may suspend such license if the licensee is found to have violated any City ordinance regulating the sale or distribution of tobacco. The proposed amendments would add the flavored tobacco/electronic smoking device ordinance to the list of ordinances that regulate the sale or distribution of tobacco, and any violation thereof would constitute grounds for revocation of a tobacco retailer’s license. • Add Title 4, Chapter 15 “Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited”
o This new chapter to the Walnut Creek Municipal Code will:
 Ban the sale of all flavored tobacco products, including those not currently covered under federal regulations (e.g. menthol generally and flavors connected with non-cigarette tobacco products such as cigars, smokeless tobacco, and e-cigarettes). The proposed ordinance is more restrictive than current state law insofar as it includes all flavored cigars and pipe tobacco.  Ban the sale of all electronic smoking devices, including those not covered under current federal law (e.g. not just cartridges and pre-filled pods, but also disposable vaping devices and e-liquids designed for “tank systems” or “mod systems”).
 The City’s proposed ordinance does provide an exemption similar to state law for an “adult-only” hookah tobacco business (prohibiting minors from entering the premises).

Finally, it is worth noting that the ordinance, as proposed by staff, contains a 5-month enforcement delay in order to provide adequate time to encourage retailers to voluntarily comply with the new restrictions.

FINANCIAL IMPACTS:

Negligible. There may be some additional costs associated with enforcement of the new provisions.

However, it is anticipated that existing police and/or code enforcement staff could absorb the additional work.

ALTERNATIVE ACTION:

The City Council may decline to introduce the proposed ordinance, leaving the regulation of flavored tobacco and electronic smoking devices to existing federal and state laws. In the event SB 793 is repealed pursuant to the referendum process in November 2022, only the current federal regulations would continue to apply in the event the City declines to adopt its own ordinance.

DOCUMENTS:

Attachment: Proposed Ordinance
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Packet Pg. 145 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance) Walnut Creek City Council
Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Smoking Devices November 2, 2021 Page 5
COUNCIL ACTION RECOMMENDED:

Move to introduce and waive further reading of the ordinance amending Title 5, Chapter 4, of the Walnut Creek Municipal Code and adding Title 4, Chapter, 15, prohibiting the sale of flavored tobacco products and electronic smoking devices.

STAFF CONTACT: Brian Hickey, Assistant City Attorney
(925) 943-5813
[email protected]
Andy Brown, Police Captain
(925) 256-3553
[email protected]
5005946.1
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CITY OF WALNUT CREEK
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WALNUT CREEK AMENDING CHAPTER 4 OF TITLE 5 (SANITATION AND HEALTH), AND ADDING CHAPTER 15 TO TITLE 4 (PUBLIC WELFARE, MORALS, AND CONDUCT), OF THE

MUNICIPAL CODE PROHIBITING THE SALE OF FLAVORED TOBACCO PRODUCTS

AND ELECTRONIC SMOKING DEVICES
WHEREAS, the U.S. Center for Disease Control and Prevention estimates that approximately 480,000 people die each year in the United States due to smoking, and more than 16 million people are living with disease caused by smoking;1 and
WHEREAS e-cigarette use among youth in the United States has skyrocketed to what the U.S.

Surgeon General and the U.S. Food & Drug Administration have called “epidemic” levels; and WHEREAS, studies have shown that electronic smoking devices contain high levels of toxic chemicals; and
WHEREAS, the Surgeon General has reported a more than an 900% increase in the use of electronic smoking devices among middle school and high school students between 2011 and 2015;2 and WHEREAS federal data shows that e-cigarette use among middle and high school students more than doubled from 2017 to 2019, with five million youths reportedly having used e-cigarettes in 2019; and
WHEREAS state data shows that one in eight California high school students currently use tobacco products, with the most used product among all students being electronic smoking devices and flavored products; and
WHEREAS, the liquid nicotine solutions consumed in electronic smoking devices are marketed in a variety of flavors that appeal to youth including cotton candy, bubble gum, and fruit; and WHEREAS, the U.S. Food and Drug Administration (“FDA”) and the U.S. Surgeon General have stated that flavored tobacco products in electronic smoking devices help establish smoking habits in youth that can lead to long-term addiction;3 and
WHEREAS, traditional tobacco products including cigarettes, cigarillos, and chewing tobacco are also sold in flavors (such as menthol and wintergreen) that appeal to young people, with data from the National Youth Tobacco survey indicating that over two-fifths of U.S. middle school and high school smokers report using flavored cigarillos or flavored cigarettes; and 1 U.S. Department of Health and Human Services. “The Health Consequences of Smoking—50 Years of Progress. A Report of the Surgeon General” (2014). https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf 2 Office of the Surgeon General. “Surgeon General’s Advisory on E-cigarette Use Among Youth” (2018). https://ecigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-among-youth-2018.pdf 3 Id.

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WHEREAS, the smoking of tobacco and the use of electronic cigarettes are forms of air pollution and area danger to public health as well as a material public nuisance; and WHEREAS, a local prohibition against the sale of flavored tobacco products and against the sale of all electronic smoking devices is an effective means to reduce the availability of these products to youth, thereby protecting the public health by discouraging tobacco initiation and continued use; and WHEREAS, the federal Family Smoking Prevention Tobacco Control Act, enacted in 2009, prohibited candy and fruit-flavored cigarettes, largely because these flavored products were marketed to youth and young adults, and younger smokers were more likely to have tried these products than older smokers; and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority; and WHEREAS, State law contains various tobacco control laws including: the prohibition against the sale or furnishing of tobacco products and smoking paraphernalia to minors (Cal. Pen. Code, § 308); the sale or furnishing of electronic smoking devices to minors (Cal. Health & Safety Code, § 119405); and the sale of loose or single cigarettes; and
WHEREAS, State law requires tobacco retailers check the identification of tobacco purchasers who appear to be under 21 years of age (Cal. Bus. & Prof. Code, § 22956); and WHEREAS, State law prohibits the sale or distribution of free or nominal-cost cigarettes or smokeless tobacco products (or coupons, coupon offers, or rebate offers for such products) on public grounds or on private grounds that are open to the public (Cal. Health & Safety Code, §118950); and WHEREAS, most recently in August 2020, the California Legislature passed and Governor Newsom signed into law Senate Bill 793 (SB 793), a broad legislation prohibiting the sale of most flavored tobacco products (codified at Cal. Health & Safety Code, §104559.5); and WHEREAS, Section 104559.5(g) also specifically allows adoption of a local ordinance that imposes greater restrictions on the access to tobacco products than the restrictions imposed by state law, and provides that a stricter local ordinance shall govern in the case of any inconsistency between the local ordinance and state law; and
WHEREAS, while SB 793 has been placed on the November 8, 2022 ballot through a qualifying referendum, municipalities continue to retain the authority to adopt local ordinances restricting the sale of flavored tobacco and/or electronic cigarettes; and
WHEREAS, the FDA and federal law also expressly grants state and local governments the right to enact measures that are more restrictive than those in the federal law4 ; and
WHEREAS, despite local, state, and federal efforts to limit youth access to tobacco, flavored tobacco products and electronic smoking devices, minors are still able to access these products; and 4 21 U.S.C. § 387p(a)(1) (2009).

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WHEREAS, the failure of retailers to comply with tobacco control laws and other smoking laws, particularly laws prohibiting sale to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Walnut Creek; and
WHEREAS, flavored tobacco products, including liquid solutions for electronic smoking devices and traditional flavored products, are commonly sold to young people by California retailers. For example, statewide, California retailers violate the federal prohibition against underage tobacco sales at a rate of 19.1%.5
Convenience stores have a violation rate of 25.3%, while small markets have a rate of

24.8%6; and
WHEREAS, the accessibility of these products in retailers such as vape shops, pharmacies, and convenience stores, and lower costs of some of the products relative to conventional cigarettes made possible by social media promotion from retailers and coupons, discounts, and other promotional materials make these products more easily available to youth; and WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and WHEREAS, the City of Walnut Creek (“City”) has a substantial interest in promoting compliance with federal, state, and local laws prohibiting the sale or furnishing tobacco products and electronic cigarette products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and in protecting children from being lured into illegal activity through adult misconduct; and
WHEREAS, in 2019, Contra Costa County adopted Ordinance No. 2019-34 prohibiting, in unincorporated county areas, the sale of (1) any e-liquid or electronic smoking device that is required to obtain, but has not yet obtained, a premarket review order from the FDA pursuant to the federal Family Smoking Prevention and Tobacco Control Act, and (2) any flavored tobacco product or menthol cigarette; and
WHEREAS, in January 2020, the Governing Board of the Mt. Diablo Unified School District adopted Resolution No. 19/20-32 opposing the use and sale of e-cigarettes and electronic vaping devices, agreeing to adopt district policies and take other actions to prohibit such devices, and urging cities within the school district to prohibit the sale, manufacture, and distribution of flavored tobacco products and electronic vaping devices due to the harmful impacts on public health including on both youth and adult smokers; and
WHEREAS, the City seeks to ensure compliance with state laws relating to tobacco retailing and discourage violations of tobacco-related laws, particularly those that prohibit the sale or distribution of smoking and tobacco products to minors; and WHEREAS, based upon the recitals above, the City Council finds that the proposed amendments are necessary for the protection of the public health, safety, and welfare. 5 California Department of Public Health, California Tobacco Control Program. “California Tobacco Facts and Figures 2019” (2019).
6 Id.

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NOW, THEREFORE, the City Council of the City of Walnut Creek, California, does ordain as follows:

SECTION 1. FINDINGS.

The City Council finds that all the facts, findings, and conclusions set forth above in this Ordinance are true and correct.

SECTION 2. CEQA EXEMPTION.

The City Council hereby finds and determines that there is no possibility the adoption of an ordinance amending Titles 4 and 5 of the Walnut Creek Municipal Code prohibiting the sale of flavored tobacco products and electronic smoking devices will have a significant effect on the environment.

Accordingly, under the CEQA Guidelines and specifically provisions of § 15061(b)(3) and § 15378(b)(5) of Division 6 of Title 14 of the California Code of Regulations, the adoption of this ordinance is not subject to the requirements of the California Environmental Quality Act.

SECTION 3. AMENDMENT TO TITLES 4 AND 5 OF THE MUNICIPAL CODE A. Amending Title 5, Chapter 4, Articles 1 and 2
Articles 1 and 2 of Chapter 4, Title 5 are amended to read as follows, with additions in double underline and deletions in strikethrough. Sections, subsections, terms and text not amended by this Ordinance are not included below, and shall remain in full force and effect.

CHAPTER 4. REGULATION OF TOBACCO-RELATED PRODUCTS AND DISTRIBUTION Article 1. Smoking Prohibitions
5-4.101 Definitions.
. . .
(p) Smoke means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, marijuana, or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "smoke" includes, but is not limited to, tobacco and marijuana smoke and gases, particles, e-liquids, and vapors from electronic cigarettes smoking devices as defined in Title 4, Chapter 15. Any vapor produced during vaporization of marijuana for medical purposes in a multifamily unit residence is not included within this definition. (q) Smoking means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette. inhaling, exhaling, burning, igniting, operating, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation. . . .

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Article 2. Tobacco Retailer License
5-4.201 License Requirement.
. . .
b. For the purposes of this article, any City of Walnut Creek ordinance regulating the sale or distribution of tobacco shall include Article 2 of Chapter 4 of Title 4 of the Municipal Code (Commencing with Section 4-4.100), Chapter 15 of Title 4 of the Municipal Code (Commencing with Section 4-15.01), Chapter 4 of Title 5 of the Municipal Code (Commencing with Section 5-4.101) and Municipal Code Section 10-8.107.

B. Adding Title 4, Chapter 15
Chapter 15 is hereby added to Title 4 of the Walnut Creek Municipal Code to read as follows. Sections and subsections that are not amended by this Ordinance are not included below, and shall remain in full force and effect.

Chapter 15
Sales of Flavored Tobacco Products
and Sales of Electronic Smoking Devices Prohibited
4-15.01 Definitions.
4-15.02 Sale or offer for sale of flavored tobacco products prohibited. 4-15.03 Sale or offer for sale of electronic smoking devices prohibited. 4-15.04 Exemption.
4-15.05 Public Nuisance.
4-15.06 No conflict with federal or state law.
4-15.07 Violation and Enforcement.
4-15.08 Severability.
4-15.01 Definitions.

For the purposes of this chapter, the following words and phrases have the following meanings:
(a) “Adult” means, for the purposes of this chapter, an individual twenty-one years of age or older.
(b) “Adult-only business” is any retailer or business that allows entry only by adults onto the entire premises of the business or retailer, or that requires minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an “adult-only retailer” does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that is marked or otherwise restricted as adult-only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult. (c) "Characterizing flavor" means a distinguishable taste or aroma imparted by a tobacco product or any byproduct produced by the tobacco product that is perceivable by an ordinary consumer H.1.a
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by either the sense of taste or smell, other than the taste or aroma of tobacco. A "characterizing flavor" includes, but is not limited to, a taste or aroma relating to a fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. (d) "Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand. (e) "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product. (f) "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.
(g) "E-liquid " means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance. (h) “Electronic smoking device” means any device or delivery system that can be used to deliver to a person, in aerosolized or vaporized form, nicotine, tetrahydrocannabinol, or any other cannabinoid, including but not limited to an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vape pen. “Electronic smoking device” includes any component, part, or accessory of such a device, including but not limited to a cartridge, that is used during the operation of the device.
(i) "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor. Menthol cigarettes are included in the definition of a flavored tobacco product for the purposes of this chapter. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.
(j) “Hookah” means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
(k) “Hookah tobacco business” means a tobacco retailer, a smoking lounge or bar that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories, or the serving of those products and accessories for onsite smoking. (l) “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
(m) "Little cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. "Little cigar" includes, but is not limited to, any tobacco product known or labeled as "small cigar" or "little cigar."
(n) "Package" or "packaging" means a pack, box, carton, or container of any kind, or any wrapping, in which a tobacco product is sold or offered for sale to a consumer.

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(o) "Menthol cigarettes" means cigarettes as defined by federal law that have a characterizing flavor of menthol, mint, or wintergreen, including cigarettes advertised, labeled, or described by the manufacturer as possessing a menthol characterizing flavor. (p) “Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah. “Shisha tobacco product” includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. “Shisha tobacco product” does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
(q) "Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, marijuana, or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "smoke" includes, but is not limited to, tobacco and marijuana smoke and gases, particles, e-liquids, and vapors from electronic smoking devices as defined in this Chapter 15. (r) "Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.
(s) "Tobacco product" means any of the following:
(1) Any product containing, made from, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff. (2) Any electronic smoking device that contains nicotine or can be used to deliver nicotine in aerosolized or vaporized form.
(3) Any component, part, or accessory of a tobacco product, whether or not it is sold separately.
(4) "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for that approved purpose.
(t) "Tobacco retailer" means any individual or entity who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" means the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

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4-15.02 Sale or offer for sale of flavored tobacco products prohibited. (a) No person or tobacco retailer as defined in this chapter, including any person or retailer that has obtained a Tobacco Retailer License pursuant to Article 2, Chapter 4 of Title 5 this Code, shall sell, or offer to sell, any flavored tobacco product.
(b) There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
(c) There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has:
(i) made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor; or
(ii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. 4-15.03 Sale or offer for sale of electronic smoking devices prohibited.

No person or tobacco retailer as defined in this chapter, including any person or retailer that has obtained a Tobacco Retailer License pursuant to Article 2, Chapter 4 of Title 5 this Code, shall sell, or offer to sell, any electronic smoking device.
4-15.04 Exemption.

Notwithstanding any other provision of this section, hookah tobacco businesses with valid Tobacco Retailer Licenses issued pursuant to this Code shall be exempt from the requirements of this chapter provided that such businesses qualify as an adult-only business and operate in accordance with all relevant state and local laws relating to the sale of tobacco products and tobacco paraphernalia. 4-15.05 Public nuisance.

Any violation of this ordinance is hereby declared a public nuisance. 4-15.06 No conflict with federal or state law.

Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.
4-15.07 Violation and Enforcement.

H.1.a
Packet Pg. 154 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance) Agenda Item No. 2c

Page 9 of 9 ends

(a) Each incident of violation of this chapter is an infraction subject to a one hundred dollar ($100.00) fine or otherwise punishable pursuant to Section 1-2.01. (b) In addition, the violation of, or noncompliance with, any of the requirements of this chapter shall be subject to any administrative, civil, or criminal enforcement remedies available under the law and/or this Code. Further, the City may enforce the violation of this chapter by means of civil enforcement through a restraining order, a preliminary or permanent injunction or by any other means authorized by the law. 4-15.08 Severability
If any provision, section, subsection, sentence, clause, phrase, or word of this chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the chapter. The city council hereby declares that it would have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional.

SECTION 4. EFFECTIVE DATE.

Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk’s Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk’s Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective on the 31st day after its adoption. However, until (five months after the effective date) the City will not enforce those portions of the Ordinance prohibiting the sale of flavored tobacco products or electronic smoking devices. 3885167.7
H.1.a
Packet Pg. 155 Attachment: Walnut Creek Staff Report w Ordinance (2645 : Flavored Tabacco Ordinance)

LOCATIONS OF FLAVORED TOBACCO POLICIES IN CALIFORNIA
AS OF NOVEMBER22,2021
California Department of Public Health
California Tobacco Control Program
tobaccofreeca.com

1. Adelanto

2. Alameda

3. Alameda County

4. Albany

5. Alhambra

6. Alturas*

7. Anderson*

8. Arroyo Grande***

9. Auburn**

10. Baldwin Park

11. Benicia

12. Berkeley

13. Beverly Hills

14. Buena Park

15. Burbank

16. Burlingame

17. Calabasas***

18. Capitola

19. Carpinteria

20. Carson

21. Cloverdale*

22. Compton*

23. Contra Costa County

24. Corte Madera

25. Culver City

26. Cupertino

27. Danville***

28. Davis

29. Delano***

30. Dublin

31. East Palo Alto

32. El Cerrito**

33. El Monte

34. Encinitas

35. Fairfax

36. Fremont

37. Glendale

38. Goleta

39. Guadalupe

40. Half Moon Bay

41. Hayward

42. Hermosa Beach

43. Imperial Beach

44. Lafayette

45. Laguna Niguel***

46. Larkspur

47. Livermore

48. Long Beach

49. Loomis***

50. Los Altos

51. Los Angeles County

52. Los Gatos

53. Mammoth Lakes

54. Manhattan Beach

55. Marin County

56. Maywood

57. Mendocino County

58. Menlo Park

59. Mill Valley

60. Mono County

61. Morgan Hill

62. Morro Bay*

63. Napa

64. Novato*

65. Oakland

66. Oroville

67. Oxnard

68. Pacific Grove

69. Palmdale***

70. Palo Alto

71. Paradise

72. Pasadena

73. Pinole

74. Pleasanton

75. Portola Valley

76. Redondo Beach

77. Richmond

78. Sacramento

79. San Anselmo

80. San Carlos

81. San Diego County

82. San Francisco

83. San Jose

84. San Leandro**

85. San Luis Obispo***

86. San Luis Obispo County***

87. San Mateo

88. San Mateo County
H.1.b
Packet Pg. 156 Attachment: Flavored-Tobacco-Bans-and-Menthol-Exemptions-List_11.22.21 (2645 : Flavored Tabacco Ordinance)

LOCATIONS OF FLAVORED TOBACCO POLICIES IN CALIFORNIA
AS OF NOVEMBER22,2021
California Department of Public Health
California Tobacco Control Program
tobaccofreeca.com

89. San Pablo

90. San Rafael

91. Santa Barbra County

92. Santa Clara County

93. Santa Clarita

94. Santa Cruz

95. Santa Cruz County

96. Santa Maria

97. Saratoga*

98. Sausalito

99. Sebastopol
100. Solana Beach
101. Sonoma*
102. South San Francisco
103. Stanton
104. Sunnyvale
105. Tiburon
106. Ventura
107. Ventura County***
108. Walnut Creek
109. Watsonville
110. West Hollywood
111. West Sacramento
112. Windsor*
113. Woodland
114. Yolo County
*Exempts all menthol tobacco products.
**Exempts menthol cigarettes.
***Exempts all menthol tobacco products, except menthol-flavored e-cigarettes.

H.1.b
Packet Pg. 157 Attachment: Flavored-Tobacco-Bans-and-Menthol-Exemptions-List_11.22.21 (2645 : Flavored Tabacco Ordinance) City Council
Staff Report
Agenda Item: H.2
Date: January 11, 2022
Department: Human Resources
AGENDA TITLE: Consider Adoption of Resolution No. 02-22 Approving and Authorizing the Mayor to Execute the First Amendment to Employment Agreement between the City of Orinda and David Biggs
RECOMMENDATION:

Consider Adoption of Resolution No. 02-22 approving and authorizing the Mayor to execute the First Amendment to Employment Agreement between City of Orinda and David Biggs
BACKGROUND:

California Government Code section 54953(c)(3) establishes requirements for the adoption of salary and compensation adjustments for local agency executives. The information in this report conforms with the requirements of the Government Code.

Prior to taking final action, the City Council must orally report a summary of a recommendation for a final action. This must be made during the open meeting in which the final action is to be taken.

DISCUSSION:

The City Council approved an Employment Agreement with David Biggs on February 2, 2021 by Resolution 06-21 to serve as the City of Orinda’s City Manager beginning April 5, 2021 (see Exhibit C). The Employment Agreement specifies in Section 3 A that the employee’s salary will be reviewed not later than November 1, 2021 to determine whether a salary adjustment is warranted based on market comparability and performance.

The performance review of the City Manager has occurred and market comparability has been considered. The recommendation from a temporary advisory subcommittee consisting solely of two City Council members, which is less than a quorum, is for a 3% salary increase for the City Manager, which is equal to the last increase received by the Unrepresented Employees, which was effective on July 3, 2022.

FISCAL IMPACT:

The base salary for the City Manager would be $250,290.00 per year. The annualized cost to the City is $8,457.97. This includes:
3% salary adjustment $7,290.00
Increased contributions to MissionSquare 401(a) Plan $1,166.40 Increased Medicare payroll taxes of $ 105.71
TOTAL ANNUAL INCREASE IN COSTS: $8,457.97
H.2
Packet Pg. 158
The adjustment is proposed to be effective January 3, 2022 which means the impact on the current fiscal year expenditures are estimated to be $4,228.99.

The FY 2021-2022 budget for the City Manager salary is sufficient to cover the proposed adjustment. The increase in future costs resulting from this amendment will be incorporated into future operating budgets as appropriate.

ATTACHMENTS:

A. Resolution 02-22 Authorizing Execution of First Amendment to CM Employment Agreement
B. Employment Agreement City Manager David Biggs
C. First Amendment to Employment Agreement City Manager David Biggs Respectfully Submitted by:

Ginger Staton
Human Resources Manager
Prepared By: Ginger Staton, Human Resources Manager
Approved by:

H.2
Packet Pg. 159
EMPLOYMENT AGREEMENT FOR DAVID BIGGS 1

EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into, with an effective date of April 5, 2021, by and between the City of Orinda (“City”) and DAVID BIGGS (“Employee”). This Agreement is authorized by City Council Resolution No. 06-21 after Council passes that Resolution.

RECITALS
WHEREAS, the City desires to employ the services of DAVID BIGGS as City Manager; and
WHEREAS, on February 2, 2021, the City Council will consider approving this Employment Agreement by Resolution 06-21, with employment to begin on the effective date of April 5, 2021; and
WHEREAS, the City desires to provide certain benefits, establish certain conditions of employment, and to set working conditions of Employee; and WHEREAS, the City desires to secure and retain the services of Employee and to provide inducement for him to remain in such employment; and WHEREAS, Employee desires to be employed as City Manager of the City of Orinda; and
NOW, THEREFORE, in consideration of the mutual covenants contained in this document, the City and Employee agree as follows:

1. TERM
This Agreement shall be in full force and effective from the effective date stated in the Agreement’s first paragraph through June 30, 2024, unless terminated earlier by the City or Employee as provided herein. (See Paragraphs 5 and 7). Employee and City may agree to extensions of this Agreement in one-year increments or as otherwise mutually agreed.

H.2.b
Packet Pg. 160 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 2

2. DUTIES
The City agrees to employ DAVID BIGGS as the City Manager of the City of Orinda to perform the functions and duties as currently in effect or as may later be established by ordinance, resolution or action of the City Council.

3. COMPENSATION AND HOURS
The City agrees to compensate Employee for his services as City Manager as follows:

A. As of the effective date, Employee’s base salary will be $243,000.00 per year, which will be paid according to the City’s regular payroll periods, policies, and practices, except as modified by the specific terms of the Agreement. The City will review Employee’s salary not later than November 1, 2021 to determine whether a salary adjustment is warranted based on market comparability and performance. Employee shall assure that this review item is placed on an open session agenda for Council consideration.
i. Employee will perform 40 or more hours of work per week, or Employee will otherwise account for at least 40 hours per week as non-work time. More specifically, Employee will account for 40 hours a week as one of the following:

1. Hours worked, or

2. Hours not worked but paid, such as general leave, holiday, jury duty service, or other paid time off category, or

3. Hours not paid (or unpaid leave), with Employee’s salary to be accordingly reduced by the amount of unpaid leave taken. (29 C.F.R. 541.710).
ii. Employee will be exempt from overtime pay because Employee will be paid a salary and will perform exempt services as an exempt executive and/or administrative employee.

B. Periodically, City Council will set performance objectives for Employee.

Periodically, Employee and City Council shall hold a work plan review or performance review with Employee, and such a review shall occur within the 12- month period after the Agreement’s effective date. Employee shall assure that this H.2.b
Packet Pg. 161 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 3
review item is placed on the closed session agenda for Council consideration. City Council shall evaluate the effectiveness of Employee, and the parties will review the effectiveness of the Agreement.

C. If Employee's performance is satisfactory when reviewed, Employee shall timely cause the City Council’s consideration of a salary increase to be placed on the City Council’s regular meeting open session agenda in or around Spring or Summer of each year, beginning in 2022. A salary increase, if any is granted, will be effective on the date Council specifies. The total salary increase to be considered at that time shall not exceed three percent (3%), unless Council determines a higher increase is both fiscally responsible and is warranted in recognition of the City Manager’s accomplishments.

D. The Agreement terminates on June 30, 2024, or on the effective date of a termination or resignation, whichever is earliest. (See Paragraphs 5 and 7). There is no automatic increase in the level of compensation, so the Agreement complies with Cal. Gov't Code § 3511.2(a).

4. BENEFITS
In addition to the compensation set forth in Section 3 of this Agreement, Employee shall receive benefits to which Employee is entitled, including the following benefits:

A. General Leave.

Employee shall receive general leave annually of 25 days or 200 hours (which is 7.69 hours per pay period for 26 payroll periods).
i. Accrued general leave may be used for vacation or for sick leave. Up to 24 hours per year of accrued general leave may be used for the purposes for which Paid Sick Leave (PSL) is allowed to be used under the California Healthy Workplaces, Healthy Families Act of 2014. PSL may be used for the diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee’s family member. The definition of “family member” is broad and includes, for instance, children, parents, parents-in-law, spouses, registered domestic partners, grandparents, grandchildren, and siblings. PSL may also be used by victims of crimes.

H.2.b
Packet Pg. 162 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 4
ii. General Leave is accrued throughout the year based on time worked, as described above in 4.A. of this Agreement, and will not accrue during any period of an unpaid leave of absence of a week or more. iii. When Employee takes a full day off, Employee will be paid 8 hours from his accrued general leave account.
iv. Employee’s use of general leave for vacation, if two or more workdays off, will be scheduled with at least two weeks’ prior notice to Council, and Employee will make every reasonable effort to schedule vacation at a time when there is no regularly scheduled Council meeting. If Employee will miss a regularly scheduled Council meeting because of vacation, Employee will obtain the Mayor’s prior approval before scheduling that vacation. Such approval will not be unreasonably withheld. For missed Council meetings, Employee will name an Acting City Manager and prepare staff to cover the meeting. Council is already aware of Employee’s time off for several days for the following dates, so no further notice or approval is required: August 13 to September 5, 2021.
v. Once during each fiscal year, if Employee has accrued more than 240 hours of general leave, he may elect to cash out a maximum of 80 hours of accrued general leave. A balance of no less than 160 hours must remain after cash out. vi. Upon termination, including death, Employee or his estate shall be paid for all accrued unused general leave at the Employee’s base rate at the time of termination.
vii. The Employee has a pre-planned vacation beginning in August of 2021, so the City will advance Employee 90 hours of general leave, which can be used to receive pay during that vacation or to receive pay during an illness, but those 90 hours of advanced general leave must be earned or accrued in the future months of employment to pay back to the City the advance of 90 hours. If Employee’s employment were to end before the Employee has earned back the 90 advanced general leave hours, Employee agrees that the monetary value of the advanced general leave hours that are not earned before employment ends will be deducted from his final paycheck.

H.2.b
Packet Pg. 163 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 5
B. Holidays. The City observes the following holidays and will provide Employee time off with pay of 8 hours for each holiday unless otherwise provided in this Agreement.

Holiday Day Observed
New Years Day January 1
MLK Jr. Birthday Third Monday in January
President’s Day Third Monday in February
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veterans' Day November 11
Thanksgiving Day Fourth Thursday in November
The Day After Thanksgiving Fourth Friday in November
Christmas Eve (1/2 day or 4 hours) December 24
Christmas December 25
If the observed holiday falls on a Saturday, the City shall observe it on the Friday immediately preceding the holiday. If the observed holiday falls on a Sunday, the City shall observe it on the Monday immediately following the holiday.

Employee also shall be granted two floating holidays of 8 hours each day for each calendar year. If an observed City holiday occurs while Employee is taking general leave, no deduction from such accrued leave will be made for the holiday period.

C. Bereavement Leave. If Employee experiences a death in Employee’s immediate family, Employee shall be granted up to 3 working days of 8 hours each day of paid leave for the purpose of arranging and attending the funeral or memorial service. “Immediate family” is limited to spouse or domestic partner, mother, father, sister, brother, child, grandmother, grandfather, aunt, uncle, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandchild or dependent.

D. Jury Duty & Subpoena Leave. If Employee is called or required to serve as a juror, he shall be entitled to be absent with pay (8 hours each day) from his duties with the City during the period of such service and while necessarily being present in court as a result of such call. Employee is required to be present at work when not serving as a juror or as a member of a jury selection panel.

H.2.b
Packet Pg. 164 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 6
Employee must surrender to the City any payment received for jury service, excluding mileage reimbursement. If Employee is called to testify pursuant to a subpoena in litigation not involving the City, he may use accrued general leave during that time. If Employee is subpoenaed for litigation involving the City, leave with pay will be given.

E. Group Medical/Dental/Vision Insurance Benefits. Employee may participate in the City’s group medical and dental benefits with the City that are available to Employee, with City paying the “Total City Medical Contribution” premium costs of the applicable plan, and Employee paying the balance for the plan chosen. The City’s “Total City Medical Contribution” is the maximum contribution amount the City pays for an unrepresented employee’s health insurance coverage or “cap,” as such maximum “Total City Medical Contribution” amount may be increased or decreased. Any increase above the “Total City Medical Contribution” shall be paid by the Employee. The City will also pay 100% of the family premium for dental and vision plans for Employee and eligible dependents, including a domestic partner, with rate increases up to 10% annually. If Employee is required to partially pay premiums, he shall be allowed to make these payments with pre-tax deductions. The medical and dental benefit coverage for dependent children extends to the date of their 26th birthday, providing they meet the Internal Revenue Service definition of “dependent”. If Employee chooses to complete and submit an Affidavit of Domestic Partnership and sign up for medical benefits and/or dental benefits for a domestic partner, Employee shall be subject to federal and state income tax withholding on the imputed income (City’s contribution toward the domestic partner’s benefits) if the domestic partner is not a dependent as defined by the IRS. Employee may also choose the cash-in-lieu of benefits if Employee waives medical insurance coverage and meets the requirements for the cash-in-lieu payment. Upon termination of Employee’s employment, to the extent allowed by COBRA, Employee and dependents may remain in the same City group medical, dental, and/or vision plan for the time allowed under COBRA if immediately before Employee’s separation, H.2.b
Packet Pg. 165 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 7
each is an active subscriber. Under COBRA, Employee pays the full premium costs.

F. Retirement Plan. The City will make annual contributions to the International City Management Association Retirement Corporation (ICMA-RC) Money Purchase Plan (401(a)) in the amount of 13% of Employee’s base salary identified in 3.A. of the Agreement. Additionally, if Employee contributes 3% of Employee’s base salary identified in 3.A. of the Agreement to this 401(a) plan, the City shall contribute a 3% match. Employee may contribute more than 3% to this 401(a) plan, up to a maximum of 10% of Employee’s base salary, if elected within the plan’s time requirement when hired. Employee is also eligible to participate in the City’s Deferred Compensation Plan (457) deferred compensation plan through voluntary payroll deductions from Employee's salary.

Employee may contribute, by payroll deduction, an amount up to the maximum allowed by law.

G. Flexible Benefits Plan. Employee may participate in the City’s standard flexible benefits plan, a full description of which is available from the Human Resources Manager.

H. Vehicle, Technology/Cell, and Work from Home Allowance. Employee shall receive an allowance of $500.00 per month for use of Employee’s personal vehicle, technology/cell phone, and working from home. This allowance covers the use of Employee’s vehicle for City business, any incidental use of Employee’s personal cell phone or technology, and any incidental use of items if Employee works from home on certain days because of the COVID-19 pandemic.

I. Administrative Leave. Employee receives administrative leave of 80 hours each fiscal year, which is prorated for FY 20-21 (20 hours for use in FY 20-21).

J. Professional Development Costs. The City shall pay standard professional development costs and membership fees for Employee.

K. Disability Insurance. The City shall provide and pay for coverage for Employee under its standard long-term disability insurance, a full description of which is available from the Human Resources Manager.

H.2.b
Packet Pg. 166 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 8
L. Accidental Death and Dismemberment Insurance. The City shall provide and pay for coverage for Employee under its standard accidental death and dismemberment insurance, a full description of which is available from the Human Resources Manager.

M. Life Insurance. The City shall provide and pay for life insurance for Employee in the same amount and program as received by other employees, which is currently a life insurance benefit in the amount of each employee’s annual salary, up to a maximum of $150,000.00, if that program is available to add Employee, or if not available, at least in the amount of one hundred thousand dollars ($100,000.00).

N. Technical Equipment. The City shall provide necessary technical equipment as Employee and the City reasonably deems appropriate.

5. TERMINATION BY CITY
The Agreement is for employment at will. Without cause and without stating a reason, the City may terminate the Agreement with two weeks' advance written notice to Employee with the termination effective two weeks after the notice, unless the parties otherwise agree to a shorter notice period and effective date. The City may pay two weeks’ salary in lieu of having Employee work the two-week notice period, in which case the termination may be made effective on the date of the notice.

6. SEPARATION, ACCRUED LEAVE, AND SEVERANCE
If Employee’s employment is ended, City shall compensate Employee for all accrued but unused general leave.

If Employee’s employment is terminated without cause during the first year of employment, the City will not offer a severance package.

If Employee’s employment is terminated without cause after the first full year of employment, the City will offer a severance package, which will be three months’ salary, if Employee signs and agrees to be bound by a written general release agreeing not to sue and waiving claims and recovery against the City and all City representatives and agents.

After the first full year of employment, if Employee’s employment is terminated without cause, the severance will be increased by one (1) month's salary for each additional full year of H.2.b
Packet Pg. 167 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 9
work completed up to a maximum of six (6) months’ salary, if Employee signs and agrees to be bound by a written general release agreeing not to sue and waiving claims and recovery against the City and all City representatives and agents.

The City may choose to offer certain benefits as part of the severance and release agreement.

Under no circumstances shall the maximum cash settlement and any non-cash benefit provided to Employee exceed the statutory maximum amounts set forth in Government Code Sections 53260 and 53261 or other law.

7. RESIGNATION BY EMPLOYEE
In the event that Employee voluntarily resigns his position with the City, Employee shall give the City two months’ written notice in advance, if feasible, with the resignation effective two months after the notice, unless the parties otherwise agree to a shorter or longer notice period and effective date.

8. INDEMNIFICATION
Beyond that required under federal, state or local law, City shall defend, save harmless and indemnify Employee against any third party tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope of employment and in the performance of Employee’s duties as City Manager or resulting from the exercise of judgment or discretion in connection with the performance of program duties or responsibilities, except if the act or omission involved willful or wanton misconduct, actual fraud, corruption or actual malice, and/or except if applicable law prohibits the save harmless and indemnification. These exceptions apply to all paragraphs in this Section 8.

Employee may request and the City shall not unreasonably refuse to provide independent legal representation at City’s expense if independent legal counsel for Employee is required under applicable law. Legal representation selected by City and provided by City for Employee shall extend until a final determination of the legal action, including any appeals brought by any party.

H.2.b
Packet Pg. 168 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 10
The City shall indemnify Employee against any and all losses, damages, judgments, interest, settlements, fines, court costs and other reasonable costs and expenses of legal proceedings including but not limited to attorneys’ fees, and any other liabilities incurred by, imposed upon, or suffered by Employee in connection with or resulting from any claim, action, suit, or other proceedings, actual or threatened, arising out of or in connection with the performance of his duties which the City is required to defend under the previous paragraphs.

Any settlement of any claim requires prior approval of City in order for indemnification, as provided in this Section, to be available.

Further, City agrees to pay all reasonable litigation expenses of Employee throughout the pendency of any litigation that the City is required to defend under the previous paragraphs.

Such expense payments shall continue beyond Employee’s service to City as long as litigation is pending.

Further, City agrees to pay Employee reasonable consulting fees not to exceed the Employee’s last salary rate calculated as a per-hour rate (based on dividing the last weekly salary by 40 hours) and travel expenses when, during a period when Employee is no longer employed by City, Employee serves as a witness, advisor or consultant to City regarding pending litigation.

9. BOND
The City shall bear the full cost of any fidelity or other bonds required of Employee under any law or ordinance.

10. PROVISIONS REQUIRED BY ASSEMBLY BILL 1344 (2011)
As required by Government Code section 53243, to the extent this Agreement provides paid leave salary pending an investigation, any such salary provided for that purpose shall be fully reimbursed if Employee is convicted of a crime involving an abuse of his office or position.

As required by Government Code section 53243.1, to the extent this Agreement provides funds for the legal criminal defense of Employee, any such funds provided for that purpose shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his office or position. As required by Government Code section 53243.2, regardless of the term of this Agreement, if it is terminated, any cash settlement related to the termination that Employee may receive shall be fully reimbursed to the City if Employee is convicted of a crime involving an H.2.b
Packet Pg. 169 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 11
abuse of his office or position. As required by Government Code section 53243.3, if City provides, in the absence of a contractual obligation, for any of these payments mentioned in this paragraph, then Employee, if Employee receives any payments provided for those purposes, shall fully reimburse City if Employee is convicted of a crime involving an abuse of his office or position. The phase “abuse of office or position” is defined by Government Code section 53243.4 to mean either: (a) An abuse of public authority, including, but not limited to, waste, fraud, and violation of the law under color of authority, or (b) A crime against public justice, including, but not limited to, a crime described in Title 5 (commencing with Section 67), Title 6 (commencing with Section 85), or Title 7 (commencing with Section 92) of Part 1 of the Penal Code.

11. GENERAL PROVISIONS
A. This Agreement shall constitute the entire Agreement between the parties, and this Agreement supersedes all prior agreements, documents, understandings, and discussions between the parties.

B. This Agreement shall be binding upon and inure to the benefit of the successors in interest of Employee, including but not limited to heirs, devisees, assigns, fiduciaries and personal representatives of Employee.

C. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they were executed by both parties subsequent to the expungement or judicial modification of the invalid provision.

D. This Agreement shall be construed in accordance with the laws of the State of California, and the parties agree that venue shall be in Contra Costa County, California.

E. Some sections of this Agreement are intended, by their terms, to survive termination of Employee’s employment with the City. Those sections shall survive termination of employment and/or this Agreement.

H.2.b
Packet Pg. 170 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 12
F. This Agreement may be amended from time to time by mutual written agreement of the parties. This Agreement cannot be modified by the parties except in a writing that is signed by both parties and that is approved by City Council.

G. Employee shall be subject to and comply with all federal, state and local laws regarding conflicts of interest.

H. All documents provided to Employee by the City and all reports and supporting data prepared by Employee for the City are the sole property of the City and shall be delivered to the City upon termination of this Agreement or at the City’s written request. All confidential reports, information, exhibits and data, including but not limited to electronic data, prepared or assembled by Employee while he serves as City Manager are confidential until released by the City to the public, and Employee shall not make any of these unreleased documents or information available to any individual or organization, other than the City Attorney without prior written consent signed by the City Council.

I. The parties agree that any ambiguity in this Agreement shall not be construed or interpreted against, or in favor of, either party. The parties agree that ambiguities concerning matters addressed in this Agreement should be resolved in a manner consistent with the City Council’s approved Manual governing the employment of mid-managers and directors, to the extent those provisions are not inconsistent with this Agreement.

AUTHORIZED SIGNATURES:
___________________________ ________________________
Amy R. Worth, Mayor David Biggs, Employee
City of Orinda
ATTEST:
__________________________
Sheri Marie Smith
City Clerk
H.2.b
Packet Pg. 171 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) EMPLOYMENT AGREEMENT FOR DAVID BIGGS 13
APPROVED AS TO FORM:
__________________________
Deanna Mouser
Employment Counsel for City
H.2.b
Packet Pg. 172 Attachment: Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) FIRST AMENDMENT TO EMPLOYMENT AGREEMENT FOR DAVID BIGGS 1

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT
between

CITY OF ORINDA AND DAVID BIGGS
(Effective January 3, 2022)

1. PARTIES AND EFFECTIVE DATE.

The parties to this First Amendment to Employment Agreement (“First Amendment”) are the City of Orinda (“CITY”) and DAVID BIGGS (“Employee”), and the effective date of this First Amendment shall be January 3, 2022 (“Effective Date”). CITY and EMPLOYEE shall be collectively referred to as “parties”.

2. PURPOSE
The parties have previously entered into an Employment Agreement between CITY and EMPLOYEE (“Employment Agreement”) effective beginning April 5, 2021. The parties now wish to amend the Employment Agreement to modify EMPLOYEE’s compensation as follows:

3. AMENDMENT
Section 3.A. of the Employment Agreement entitled “COMPENSATION AND HOURS” is hereby amended as follows:

3. COMPENSATION AND HOURS
The City agrees to compensate Employee for his services as City Manager as follows:

A. “As of the effective date, Employee’s base salary will be $250,290.00 per year, which will be paid according to the City’s regular payroll periods, policies, and practices, except as modified by the specific terms of the Agreement.”
Except as otherwise specifically set forth in this First Amendment, the remaining terms and obligations set forth in the Employment Agreement between the CITY and EMPLOYEE shall remain in full force and effect.

H.2.c
Packet Pg. 173 Attachment: First Amendment to Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) FIRST AMENDMENT TO EMPLOYMENT AGREEMENT FOR DAVID BIGGS 2 This First Amendment shall be effective as of January 3, 2022, regardless of when executed by the parties.

AUTHORIZED SIGNATURES:
___________________________ ________________________
Dennis Fay, Mayor David Biggs, Employee
City of Orinda
ATTEST:
__________________________
Sheri Marie Smith
City Clerk
APPROVED AS TO FORM:
__________________________
Deanna Mouser
Employment Counsel for City
H.2.c
Packet Pg. 174 Attachment: First Amendment to Employment Agreement City Manager David Biggs (2643 : CM First Amendment Employment Contract) City Council
Staff Report
Agenda Item: H.3
Date: January 11, 2022
Department: City Clerk
AGENDA TITLE: City Council Committee Appointment/Liaison List for 2022 RECOMMENDATION:

Review and Approve the recommended City Council Committee Appointment / Liaison List for 2022.

BACKGROUND:

The Council's Policy and Procedures Manual Section 9.1 states that:
"As soon as practicable following the annual December reorganization meeting, the Mayor shall announce nominations of Council members to serve in various roles requiring a Council representative; the nominations are subject to the review and approval of the City Council.”
In accordance with the above, Mayor Fay has developed nominations for the City Council’s review and consideration as shown in the attachment.

DISCUSSION:

The attached list shows this year’s changes (shown in red) made to the following positions which have been updated to show the current Mayor, Dennis Fay.  Mayors Community Liaison Group
 Lamorinda Mayors Meeting
 Mayors Conference
The attached list also shows whom Mayor Fay is recommending to serve, either as a Subcommittee Member or Liaison to each Commission or Committee.

There are two proposed changes (shown in red) as the liaison to the:
 Finance Advisory Committee – Changed from Dennis Fay to Darlene Gee  Traffic Safety Advisory Committee - Changed from Dennis Fay to Darlene Gee ATTACHMENTS:

A. City Council Appointment List 2022 Comparative
H.3
Packet Pg. 175
Respectfully Submitted by:

Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:

H.3
Packet Pg. 176
ORGANIZATION 2021 Appointment
2022
Recommendation COUNCIL RESPONSIBILITY MEETINGS
Mayors' Community Liaison Group Amy Worth Dennis Fay Mayor facilitates meeting w/ community leaders 2nd Wednesday, 8:30am Lamorinda Mayors' Meeting Amy Worth Dennis Fay Mayor serves as Council representative bimonthly breakfast meeting Mayors' Conference (Contra Costa County) Amy Worth Dennis Fay Mayor serves as conference delegate; all Council
invited to attend 1st Thursday, 6:30 pm
COMMISSION and COMMITTEE Liaisons: Attend Some Meetings and Report to Council.

Art in Public Places Committee (APPC) Amy Worth Amy Worth See Commission Charge 3rd Monday, 3:30pm Finance Advisory Committee (FAC) Dennis Fay Darlene Gee See Commission Charge 4th Wednesday, 6pm Historic Landmarks Committee (HLC) Inga Miller Inga Miller See Commission Charge 4th Tuesday, 3pm Parks and Recreation Commission (PRC) Inga Miller Inga Miller See Commission Charge 2nd Wednesday, 7pm Planning Commission (PC) Nick Kosla Nick Kosla See Commission Charge 2nd & 4th Tuesday, 7:00 pm Supplemental Sales Tax Oversight Commission Dennis Fay Dennis Fay See Commission Charge Quarterly Traffic Safety Advisory Committee (TSAC) Dennis Fay Darlene Gee See Commission Charge 3rd Monday, 7:00 pm Library Parcel Tax Oversight Committee Inga Miller Inga Miller Attend Meetings as needed meets twice a year Affordable Housing Sub-Committee
Darlene Gee
Amy Worth
Darlene Gee
Amy Worth Attend Meetings as Council Subcommittee meets as needed Library Facility Steering Committee
Amy Worth
Dennis Fay
Amy Worth
Dennis Fay Attend Meetings as Council Subcommittee meets as needed City/School 2x2 Committee
Amy Worth
Nick Kosla
Amy Worth
Nick Kosla Attend Meetings as Council Subcommittee meets as needed Wilder Subcommitee
Nick Kosla
Amy Worth
Nick Kosla
Amy Worth Attend Meetings as Council Subcommittee meets as needed Public Safety Council Subcommittee
Amy Worth
Inga Miller
Amy Worth
Inga Miller Attend Meetings as Council Subcommittee meets as needed Inclusion, Diversity, Equity, Action (School Partnership) Amy Worth
Darlene Gee
Amy Worth
Darlene Gee
Downtown Planning & Housing Element Subcommittee
Nick Kosla
Inga Miller
Nick Kosla
Inga Miller Attend Meetings as Council Subcommittee meets as needed OTHER AGENCIES: Attend Some Meetings; Report to Council Association of Bay Area Governments (ABAG) Amy Worth Amy Worth Attend 2 meetings; serve as City's voting
delegate. two meetings annually
Central Contra Costa Solid Waste Authority Board
(CCCSWA)
Amy Worth
Inga Miller
Amy Worth
Inga Miller
Attend monthly regular board meeting; serve on
1-2 board committees w/ monthly meeting last Thursday, 3:00 pm Contra Costa County Transit Authority (CCCTA)
Amy Worth
Dennis Fay (alt)
Amy Worth
Dennis Fay (alt) Attend monthly board meeting 3rd Thursday, 9:00 am Lamorinda School Bus Program (LSBP JPA)
Amy Worth
Dennis Fay (alt)
Amy Worth
Dennis Fay (alt) Attend monthly JPA meetings 2nd Monday, 9:30 am League of CA Cities Voting Delegate (LOCC)
Amy Worth
Inga Miller (alt)
Mayor
Vice Mayor
Serve as City's voting delegate at annual
conference one meeting annually
CITY OF ORINDA - CITY COUNCIL APPOINTMENTS 2022
COUNCIL SUB-COMMITTEE:

H.3.a
Packet Pg. 177 Attachment: City Council Appointment List 2022 Comparative (2646 : City Council Committee -League of CA Cities East Bay Division Delegate
Amy Worth
Inga Miller (alt)
Mayor
Vice Mayor
Attend monthly dinner meetings; open to all
Council members 3rd Thursday, 6:00 pm
SouthWest Area Transportation Committee (SWAT)
Amy Worth
Dennis Fay (alt)
Amy Worth
Dennis Fay (alt) Subgroup of CCTA. Attend Monthly Meetings 1st Monday, 3:00 pm -Lamorinda Project Management Committee
(LPMC)
Amy Worth
Dennis Fay (alt)
Amy Worth
Dennis Fay (alt)
Meets as needed after SWAT meeting/ subgroup
of SWAT 1st Monday as needed
-Lamorinda Fee and Financing Authority (LFFA)
Amy Worth
Dennis Fay (alt)
Amy Worth
Dennis Fay (alt)
Meets as needed after SWAT meeting/ subgroup
of SWAT 1st Monday as needed
COUNCIL LIAISON WITH CITY PARTNERS:

Serve as Primary Contact Person for Council;
Attend Some Meetings; Report to Council
Acalanes Unified High School District (AUHSD) Inga Miller Inga Miller " " 1st/3rd Wednesday, 7:30 pm Bay Area Rapid Transit (BART) Dennis Fay Dennis Fay " " 2nd/4th Thursday, 9am Chamber of Commerce Nick Kosla Nick Kosla " " 2nd Tuesday, 8:00 am East Bay Municipal Water Utility District (EBMUD) Inga Miller Inga Miller " " 2nd/4th Tuesday, 1:15 pm East Bay Regional Park District (EBRPD) Nick Kosla Nick Kosla " " 1st/3rd Tuesday, 2:00 pm Friends of Orinda Creeks Inga Miller Inga Miller " " 4th Wednesday, 8:00 am Libraries-
-Friends of Orinda Library Amy Worth Amy Worth " " 3rd Wednesday, 9:15 am -Library Regional Board Amy Worth Amy Worth " " meets as needed Moraga-Orinda Fire District Dennis Fay Dennis Fay " " 3rd Wednesday, 7:00pm Orinda Association (OA) Inga Miller Inga Miller " " 2nd Monday, 7:30 pm Orinda Historical Society Inga Miller Inga Miller " " quarterly Orinda Seniors Advisory Committee Amy Worth Amy Worth " " 1st Tuesday Orinda Teen Advisory Committee Nick Kosla Nick Kosla " " 1st Monday Orinda Union School District (OUSD) Nick Kosla Nick Kosla " " 2nd Monday, 4:00 pm Orinda/Tabor Sister City Committee Amy Worth Amy Worth " " 4th Thursday H.3.a
Packet Pg. 178 Attachment: City Council Appointment List 2022 Comparative (2646 : City Council Committee

Orinda City CouncilJanuary 11, 2022

Orinda City Council
January 11, 2022