Regular Meeting Annotated Agenda
July 6, 2010

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ANNOTATED AGENDA

BERKELEY CITY COUNCIL MEETING

Tuesday, July 6, 2010

7:00 P.M.

Council Chambers - 2134 Martin Luther King Jr. Way

Tom Bates, Mayor

Councilmembers:

District 1 – Linda Maio

District 5 – Laurie Capitelli

District 2 – Darryl Moore

District 6 – Susan Wengraf

District 3 – Max Anderson

District 7 – Kriss Worthington

District 4 – Jesse Arreguin

District 8 – Gordon Wozniak


 

Preliminary Matters

Roll Call: 7:06 p.m.  Absent: Councilmember Moore.

Ceremonial Matters: None

City Manager Comments: None

Public Comment on Non-Agenda Matters: 2 speakers.


Public Comment on Consent Calendar and Information Items Only:.8 speakers. 


Consent Calendar

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

1. Zoning Ordinance Amendment to Allow Development Flexibility for Existing Public Libraries (PDF)
From: Planning Commission
Recommendation: Adopt second reading of Ordinance No. 7,148–N.S. to add BMC 23C.04.076 allowing (1) existing public libraries to be changed, expanded, or demolished and a new public library constructed, and (2) modification of any Zoning Ordinance requirement applicable to such projects with a Use Permit, rather than a Variance.
Financial Implications: See report
First Reading Vote: Ayes: Maio, Moore, Anderson, Capitelli, Wengraf, Worthington, Wozniak, Bates.  Abstain: Arreguin.
Contact: Jordan Harrison, Commission Secretary, 981-7400
Action: Moved to Action Calendar.  4 speakers.  M/S/C (Wozniak/Anderson) to adopt second reading of Ordinance No. 7,148–N.S.
Vote: Ayes: Maio, Anderson, Capitelli, Wengraf, Worthington, Wozniak, Bates.  Abstain: Arreguin.  Absent: Moore.

2. Amendment to Drinking in Public Ordinance, BMC Section 13.36.070 (PDF)
From: City Manager
Recommendation: Adopt first reading of an Ordinance amending Berkeley Municipal Code Section 13.36.070 regarding drinking in public.
Financial Implications: None
Contact: Zach Cowan, City Attorney, 981-6950
First Reading Vote: Ayes – Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington, Wozniak, Mayor Bates; Noes – None; Absent – Moore.
Action:  Adopted first reading of Ordinance No.7,149 –N.S.  Second reading scheduled for July 13, 2010.

3. Ordinance Clarifying Limitations Period for Tax Collection (PDF)
From: City Manager
Recommendation: Adopt an Ordinance adding Chapter 7.22 of the Berkeley Municipal Code, clarifying when the limitations period for collecting City taxes begins.
Financial Implications: See report
Contact: Zach Cowan, City Attorney, 981-6950
First Reading Vote: Ayes – Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington, Wozniak, Mayor Bates; Noes – None; Absent – Moore.
Action:  Adopted first reading of Ordinance No.7,150 –N.S.  Second reading scheduled for July 13, 2010.

4. Minutes for Approval (PDF)
From: City Manager
Recommendation: Approve the minutes for the June 22, 2010 City Council meetings (special closed and regular).
Financial Implications: None
Contact: Deanna Despain, City Clerk, 981-6900
Action: Approved minutes as submitted.

5. Contract No. 7421 Amendment: Access Information Management for Records Center Services (PDF)
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 7421 with Access Information Management for storage of Citywide Records, by increasing the amount by $45,000 for a total not-to-exceed amount of $171,000 for the period ending September 30, 2011.
Financial Implications: General Fund - $45,000
Contact: Deanna Despain, City Clerk, 981-6900
Action:  Adopted Resolution No. 64,962–N.S.

6. Rescind Resolution No. 64,547-N.S. and Adopt a Revised Resolution Accepting FY09 Federal Earmarks (PDF)
From: City Manager
Recommendation: Rescind Resolution No. 64,547-N.S. adopted July 14, 2009 and adopt a revised Resolution: 

  • authorizing the City Manager to accept FY 2009 federal earmark funding in the amount of $147,386 to implement the East Bay Green Jobs Pilot Project for the period January 1, 2010 to December 31, 2011; and
  • authorizing the City Manager to execute a sole source contract, and any amendments and extension thereto, with The Workforce Collaborative in an amount not to exceed $55,000 for the purpose of implementing the East Bay Green Jobs Pilot Project on behalf of the East Bay Green Corridor Partnership.

In addition to authorizing a new contractor, the revised Resolution recognizes that the period of the pilot project, that ran from September 1, 2009 to August 30, 2010 in Resolution No. 64,547, has been changed by the SBA to January 1, 2010 to December 31, 2011.
Financial Implications: See report
Contact: Michael Caplan, Economic Development, 981-7530
Action:  Adopted Resolution No. 64,963–N.S.

7. Formal Bid Solicitation and Request for Proposal Scheduled For Possible Issuance in the Next 30 Days (PDF)
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division.  All contracts over the City Manager's threshold will be returned to Council for final approval.
Financial Implications: Permit Service Center - $140,000
Contact: Robert Hicks, Finance, 981-7300
Action:  Approved recommendation.

8. Contract No. 8181 Amendment: Alta Planning + Design for Architectural and Engineering Services for the Ninth Street Bicycle Boulevard Extension Project (PDF)
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to the contract with Alta Planning + Design and any amendments extensions or other change orders to provide architectural and engineering design services for the Ninth Street Bicycle Boulevard Extension project, increasing the amount by $123,000, for a total amount not to exceed $270,000.
Financial Implications: See report
Contact: Claudette Ford, Public Works, 981-6300
Action:  Adopted Resolution No. 64,964–N.S.

9. Grant Application: Congestion Management Agency Local Streets and Roads Block Grant (PDF)
From: City Manager
Recommendation: Adopt a Resolution authorizing the filing of an application for Congestion Management Agency Local Streets and Roads Block Grant funding and stating the assurance to complete the Sacramento Street Rehabilitation - Dwight Way to Ashby Avenue project; and accepting the grant, if successful, and execute any resultant agreements and amendments.
Financial Implications: Grant Match - Capital Improvement Fund: $345,000
Contact: Claudette Ford, Public Works, 981-6300
Action:  Adopted Resolution No. 64,965–N.S.

10. Contract: Precision Engineering Inc. for Sanitary Sewer Rehabilitation Project for Allston Way, Shattuck Avenue, McKinley Avenue, and Bancroft Way (PDF)
From: City Manager
Recommendation: Adopt a Resolution:

1    Approving the plans and specifications for the Sanitary Sewer Project, 10-10475-C, located on Allston Way, Shattuck Avenue, McKinley Avenue, and Bancroft Way. 

2          Accepting the bid of the lowest responsive responsible bidder, Precision Engineering Inc.

3    Authorizing the execution of a contract and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specification, in an amount not to exceed $681,000.00 for the period of 150 calendar days from the date of the execution of the contract.
Financial Implications: See report
Contact: Claudette Ford, Public Works, 981-6300
Action:  Adopted Resolution No. 64,966–N.S.

Council Consent Items

11. Relinquishment of Council Office Budget Funds to General Fund and Grant of Such Funds to the 12th Annual Run for Peace organized by the United Nations Association - East Bay (PDF)
From: Councilmembers Maio, Capitelli and Wozniak
Recommendation: Adopt a Resolution to approve the expenditure of up to $250 per Councilmember to the 12th Annual Run for Peace, organized by the United Nations Association - East Bay, with funds relinquished to the City’s general fund for this purpose from Councilmember Maio, Capitelli and Wozniak’s discretionary Council Office Budgets.
Financial Implications: Councilmembers’ Discretionary Fund - $250
Contact: Linda Maio, Councilmember, District 1, 981-7110
Action:  Adopted Resolution No. 64,967–N.S. Revised to include any Councilmember that wishes to participate.

12. City of Berkeley's Co-Sponsorship for the 12th Annual "Run for Peace" (PDF)
From: Councilmembers Maio, Capitelli and Wozniak
Recommendation: 

1    Co-Sponsor the 12th annual "Run for Peace" organized by the United Nations Association-USA, East Bay Chapter to be held in Cesar Chavez Park on Sunday, September 19, 2010 and

2    Declare the week of September 19-25, the Week of Peace in Berkeley to join in celebrating the International Day of Peace, and

3    Facilitate community participation and support for the 12th annual "Run for Peace" event.
Financial Implications: None
Contact: Linda Maio, Councilmember, District 1, 981-7110
Action:  Adopted Resolution No. 64,968–N.S.

13. Support for AB 1934: Prohibiting the Open Carrying of Unloaded Handguns in Public Areas (PDF)
From: Councilmembers Capitelli, Maio, Worthington and Anderson
Recommendation: Adopt a Resolution supporting AB 1934 and send letters to bill-sponsor Assembly Member Lori Saldaña acknowledging that support, and letters to Assembly Member Nancy Skinner, State Senator Loni Hancock and Governor Schwarzenegger urging their support for AB 1934.
Financial Implications: None
Contact: Laurie Capitelli, Councilmember, District 5, 981-7150
Action:  Adopted Resolution No. 64,969–N.S.

14. Wild Deer in Residential Areas (PDF)

Revised Agenda Material (PDF)
From: Councilmembers Capitelli and Wengraf
Recommendation: Direct the City Manager to convene a meeting of appropriate representatives from the East Bay Regional Park District, the California Department of Fish and Game and the City of Berkeley to determine: 1) If there is evidence over population of wild deer beyond the rural/urban interface; 2) If so what are the impacts, and; 3) What, if anything, should local jurisdictions be doing to address those impacts.
Financial Implications: None
Contact: Laurie Capitelli, Councilmember, District 5, 981-7150
Action:  Approved revised recommendation to include all North Berkeley neighborhoods.

15. Supporting the State Initiative 1445 (09-0098) Which Will Change Legislative Vote Requirements Necessary to Pass the State Budget (PDF)
From: Councilmembers Worthington, Anderson and Mayor Bates
Recommendation: Support the Best Practices Budget Accountability Act, State Initiative No. 1445 (09-0098), “To allow state budget to pass by majority vote. Retains two-thirds vote requirement to raise taxes
Financial Implications: None
Contact: Kriss Worthington, Councilmember, District 7, 981-7170
Action:  Approved recommendation.

16. Support the Enactment of the Girls Protection Act (H.R. 5137) (PDF)
From: Councilmembers Worthington, Maio, Capitelli and Wengraf
Recommendation: Send a letter to Congresswoman Barbara Lee urging her to press the passage of the Girls Protection Act (H.R. 5137) to end female genital mutilation.
Financial Implications: None
Contact: Kriss Worthington, Councilmember, District 7, 981-7170
Action:  Approved recommendation.


17.   Place Medical Marijuana Ordinance Amendments on the November 2010 Ballot (Continued from June 29, 2010 to a 8:00 p.m. time certain hearing)

a. From: Mayor Bates and Councilmembers Moore, Anderson and Capitelli (PDF)

Revised Agenda Material (PDF)
Recommendation:
Place a measure on the November 2010 Ballot that would amend the City of Berkeley Medical Marijuana Ordinance. These amendments will clarify definitions, increase access to affordable medication for low-income patients, establish limits on collective residential growing, reduce the buffer zone between dispensaries and public/private schools, allow for ancillary facilities in Manufacturing District, establish a tax on gross receipts or square footage, and in the event the State Ballot measure to legalize marijuana use passes, establish a tax on non-medical cannabis, and ensure dispensaries make their financial records available to the City of Berkeley.
Financial Implications: $25,000-$50,000 depending on the Registrar of Voter costs and the number of other ballot measures.
Contact: Tom Bates, Mayor, 981-7100

b. From: Medical Cannabis Commission (PDF)

Supplemental Agenda Material (PDF)
Recommendation:
 

1.   Tax:  1% business license tax on medical cannabis businesses, a $5/square foot tax if the business license tax does not apply, and a $5/square foot tax on large-scale, nonresidential cannabis cultivation and/or processing facilities.

2.   Non-residential cultivation:  Should be allowed in non-residential areas with licensing and regulation

3.   Residential cultivation:  200 square feet is the minimum area recommended

4.   Peer Review Committee:  Should remain autonomous

5.   Auditing: Should revise proposed language to avoid potential self-incrimination
Financial Implications: See report
Contact: Wendy Cosin, Commission Secretary, 981-7400

c. From: City Manager (PDF)

Supplemental Agenda Material (PDF)
Recommendation:
 
In response to the City Council’s discussion regarding Medical Marijuana regulations and taxation, consider language for 2 ordinances to place on the ballot in November 2010, (1) Business License Tax Amendments; and (2) Amendment of regulations governing Medical Cannabis.
Financial Implications: $310,000 from business license tax amendments
Contact: Zach Cowan, City Attorney, 981-6950
Action: M/S/C (Maio/Wengraf) to approve Mayor Bates and Councilmembers Moore, Anderson and Capitelli’s recommendation revised to reflect the following:
  1. Authorize the City Council to increase the allowable number of medical cannabis dispensaries to four (4).
  2. Clarify that collectives are not subject to the dispensary cap and can only be located in residential areas.
  3. Limit cultivation by medical cannabis collectives to the lesser of 200 square feet or 25% of floor area per residence.
  4. Restrict new or relocating medical cannabis dispensing locations to C-districts (Commercial) and reduce the buffer zone for dispensaries from 1000 feet to 600 feet of public schools and other dispensaries, but require equal treatment of private schools.  Grandfather in the existing three dispensaries. Existing dispensaries will be allowed to expand within the existing parcel and not to exceed the maximum building envelope with an Administrative Use Permit.
  5. The new dispensary and non-dispensing locations would be subject to an open process to ensure that successful applicants provide public benefits in return for the opportunity to engage in business services.
  6. Facilities that neither cultivate nor dispense medical cannabis, but provide related services (such as, but not limited to testing laboratories) shall be allowed if consistent with the Zoning Ordinance.
  7. Modify the membership/structure of the Medical Cannabis Commission (the peer review committee created by Measure JJ) to comply with the Fair Representation Ordinance, at least one commissioner shall be a member of a medical cannabis dispensary, one shall be a member of a collective that is not a dispensary, and one shall be a cultivator who is not primarily associated with a single dispensary and provides medical cannabis to more than one collective or dispensary.
  8. Establish a maximum tax rate on cannabis businesses  and clarify that the City Council has the authority to impose a tax rate lower than the maximum authorized:
  • Medical cannabis maximum rate:
    • Up to $25 per $1000 (2.5%) on gross receipts to be phased in over two years, or for Nonprofit Organizations exempt from gross receipts taxation, $25/square foot for the first 3,000 square feet and $10/square feet for the remaining area.
    • If November 2010 State ballot measure to legalize marijuana passes, then the tax rate will be capped at $18 per $1000 (1.8%) on gross receipts or $12.50/square foot for non-profits.
    • Tax rates will be effective January 1, 2011.
  • Non-medical cannabis maximum rate (if California Proposition 19 – The Marijuana Legalization Initiative passes):
    • Up to $100 per $1000 (10%) of gross receipts.

 9.  All medical cannabis facilities will make financial and administrative records available to the City of Berkeley to ensure that they are paying taxes, and complying with state law and these amendments. 

10.Allow the City Council the flexibility to make future changes in the Medical Cannabis Ordinance to respond to unforeseen events and to ensure adequate and fairly priced supply of medical cannabis, prevent unfair or monopolistic practices, and prevent or abate nuisance conditions.

11. No facility used for medical cannabis food preparation may be used for the preparation of any other type of food.

12. No medical cannabis uses may be approved under until the City Council adopts a licensing process and standards for approving such uses. Such standards shall include a requirement that indoor cultivation uses provide for an energy offset through a program specified by the City to offset the net increased energy that is used by the facility as compared to a regular industrial facility.
Action: M/S/C (Capitelli/Anderson) to include the following in Mayor Bates and Councilmembers Moore, Anderson and Capitelli’s recommendation:

 

  1. Allow ten (10) non-dispensing locations in M (Manufacturing) District. The non-dispensing facilities are not required to be operated by the medical marijuana dispensaries. The non-dispensing facilities will not exceed a total of 180,000 square feet, with a single location not to exceed 30,000 square feet, all with a Zoning Certificate.  Such non-dispensing uses may include any use that does not include customer visits, including but not limited to medical cannabis cultivation, food preparation, testing, and manufacturing, and shall be subject any security requirements specified by the Chief of Police. There is no buffer zone requirement for non-dispensing facilities.  Council to review and consider adding MM district in one-year.

Vote: Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington, Wozniak, Noes: Bates.  Absent: Moore.

Action: M/S/C (Maio/Wengraf) to direct staff to return with language for a Business License Tax Amendments Ordinance to be placed on the ballot in November 2010.  Payment schedule for the tax to begin July, 2010.

Vote: Maio, Anderson, Arreguin, Capitelli, Worthington, Wozniak, Bates.  Absent: Moore and Wengraf.

Councilmember Wengraf absent: 10:24 p.m. – 10:32 p.m.

18. Revising the Rental Housing Safety Program (Continued from June 29, 2010) (PDF)
From: City Manager
Recommendation: Direct the City Manager to prepare the following changes to the Rental Housing Safety Program:

1    Incorporate penalties for noncompliance with Schedule A into proactive and reactive inspections.

2    Eliminate Schedule B, the Gas Heating Certification program.

3    Increase the amount of re-inspection fees and administrative citations.
Financial Implications: See report
Contact: Jane Micallef, Housing, 981-5400
Action: Moved to Consent Calendar. Approved the City Manager’s recommendation to direct the City Manager to prepare the following changes to the Rental Housing Safety Program:

1    Incorporate penalties for noncompliance with Schedule A into proactive and reactive inspections.

2    Eliminate Schedule B, the Gas Heating Certification program.

3    Increase the amount of re-inspection fees and administrative citations. 

Referred the matter to the 4 x 4 committee to look at other changes to the program.

19. Follow-up on Smart Meters: City Response to Smart Meter Problems and Preparation of a Letter to the California Public Utilities Commission (Continued from June 1, 2010) (PDF)
From: Councilmember Worthington
Recommendation: Take action in responding to Smart Meter problems and send a letter to the California Public Utilities Commission (CPUC), asking for continued investigation of the Pacific Gas & Electric (PG&E) Smart Meter program, requirement of PG&E to submit a characterization study of the system planned to the City of Berkeley, requirement of PG&E to allow consumers to ‘opt out’ of the program without repercussions, as well as an immediate moratorium on the disposal, recycling, or permanent alteration of old PG&E meters and a call for consideration of a moratorium on the further installation of PG&E Smart Meters.
Financial Implications: See report
Contact: Kriss Worthington, Councilmember, District 7, 981-7170
Action: 28 speakers. M/S/C (Worthington/Maio) to approve Councilmember Worthington’s recommendation to take action in responding to Smart Meter problems and send a letter to the California Public Utilities Commission (CPUC).  Councilmembers Maio, Capitelli and Worthington to wordsmith letter and agree on content before distribution
Vote: Ayes: Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington.  Noes: Wozniak. Abstain: Bates.  Absent: Moore. 

Action: M/S/C (Wengraf/Maio) to suspend the Rules of Procedure and extend the meeting to 11:15 p.m.

Action: M/S/C (Worthington/Maio) to suspend the Rules of Procedure and extend the meeting to 11:30 p.m.

20. Oppose Social Security and Medicare Solvency Commission Act (S. 276) (Continued from June 22, 2010) (PDF)
From: Councilmember Worthington
Recommendation: Send a letter urging Senator Feinstein to withdraw this damaging bill or amend it to benefit the important needs of our senior citizens and people with disabilities and to send letters to Senator Boxer and Congresswoman Lee asking them to please oppose S. 276.
Financial Implications: None
Contact: Kriss Worthington, Councilmember, District 7, 981-7170
Action: Continued to July 13, 2010.


Action Calendar – New Business

21. Setting the Schedule, Deadlines, and Policy for the Filing of Ballot Measure Arguments: November 2, 2010 General Municipal Election (PDF)
From: City Manager
Recommendation: 

1    Adopt a Resolution setting the schedule, deadlines, and policies to file ballot measure arguments for city measures placed on the ballot at the November 2, 2010 General Municipal Election.

2    Determine whether to designate, by motion, specific members of the Council to file ballot measure arguments on each measure placed on the ballot as provided for in Elections Code Section 9282.
Financial Implications: None
Contact: Deanna Despain, City Clerk, 981-6900
Action: Continued to July 13, 2010.

22. Authorizing the Issuance of $16 million in General Obligation Bonds for Measure FF, Series 2010 – Branch Library Improvement Project (PDF)
From: City Manager
Recommendation: Adopt a Resolution authorizing the issuance of $16 million aggregate principal amount of general obligation bonds, series 2010 (Measure FF - Branch Library Improvement Project), and authorizing actions related hereto.
Financial Implications: See report
Contact: Robert Hicks, Finance, 981-7300
Action: Moved to Consent Calendar.  Adopted Resolution No. 64,970–N.S.authorizing the issuance of $16 million aggregate principal amount of general obligation bonds, series 2010 (Measure FF - Branch Library Improvement Project), and authorizing actions related hereto.

Council Action Items

23. Oppose PG&E Rate Increases as Proposed (PDF)
From: Councilmember Worthington
Recommendation: Send a letter to the California Public Utilities Commission (CPUC) opposing Pacific Gas & Electric’s proposed rate increases as they currently stand.
Financial Implications: None
Contact: Kriss Worthington, Councilmember, District 7, 981-7170
Action: No action taken.

Information Reports

24. Unrepresented Temporary Employee (PDF)
From: City Manager
Contact: David Hodgkins, Human Resources, 981-6800
Action:  Received and filed.

25. Audit Update: Association of Sports Field Users (ASFU) (PDF)
From: City Manager
Contact: William Rogers, Parks, Recreation and Waterfront, 981-6700
Action:  Received and filed.

26.   **Removed by City Manager**Audit Status Report: Permit Service Center Surprise Cash Count
From: City Manager
Contact: Dan Marks, Planning and Development, 981-7400

27. Audit Status Report: Improved Workflow Systems Will Help Ensure Property Taxes are Adjusted for New Construction (PDF)
From: City Manager
Contact: Dan Marks, Planning and Development, 981-7400
Action:  Received and filed.


Public Comment – Including Items Not Listed on the Agenda –

Adjournment: 11:27 p.m.

Communications (PDF)

COB Newscan Service
1.    Barbara Gilbert

Supplemental Communications and Reports 1 (PDF)

Item 1: Zoning Ordinance Amendment to Allow Development Flexibility for Existing Public Libraries
1.    Judith Epstein
2.    Jane Welford
3.    Peter Warfield

Item 17: Place Medical Marijuana Ordinance Amendments on the November 2010 Ballot
4.    Janet Weiss

Item 18: Revising the Rental Housing Safety Program
5.    Roy Benford

Item 19: Follow-up on Smart Meters: City Response to Smart Meter Problems and Preparation of a Letter to the California Public Utilities Commission
6.    Maura Hagerty
7.    Sandi Maurer
8.    Tim Silk
9.    Cindy Sage
10. Charlotte Shoemaker
11. Oona Aven
12. Lynn Rubin
13. Sterling O’Grady
14. Annette Guerrer
15. Phoebe Sorgen
16. Zach Sorgen
17. Nancy Feinberg
18. Stephanie Thomas

Supplemental Communications and Reports 2 (PDF)

Item 14: Wild Deer in Residential Areas

  • Revised report, submitted by Laurie Capitelli, District 5 (see agenda item)

Item 17: Place Medical Marijuana Ordinance Amendments on the November 2010 Ballot

  • Revised report, submitted by Tom Bates, Mayor (see agenda item)
  • Supplemental materials, submitted by Medical Cannabis Commission (see agenda item)
  • Supplemental materials, submitted by City Attorney (see agenda item)

19. Eric Dynamic

Item 18: Revising the Rental Housing Safety Program
20. Igor Tregub

Item 19: Follow-up on Smart Meters: City Response to Smart Meter Problems and Preparation of a Letter to the California Public Utilities Commission
21. Lloyd Morgan
22. PG&E