Chapter 4.42 — EMPLOYEE DEPENDENT CARE ASSISTANCE PLAN
Berkeley Municipal Code · 2026-09 edition · updated 2026-10-02 · Berkeley
Article 1. Definitions
4.42.101 Administrator. 4.42.102 Cafeteria plan. 4.42.103 City. 4.42.104 Code. 4.42.105 Dependent. 4.42.106 Dependent care assistance account. 4.42.107 Dependent care expenses. 4.42.108 Dependent care service provider. 4.42.109 Effective date. 4.42.110 Employee. 4.42.111 Participant. 4.42.112 Plan. 4.42.113 Plan year.
Article 2. Participation
4.42.201 Date of participation. 4.42.202 Cessation of participation. 4.42.203 Reinstatement of former participant.
Article 3. Election to Receive Dependent Care Assistance
4.42.301 Election procedure. 4.42.302 Maximum dependent care assistance.
Article 4. Dependent Care Assistance Accounts
4.42.401 Establishment of accounts. 4.42.402 Crediting of accounts. 4.42.403 Debiting of accounts. 4.42.404 Forfeiture of accounts.
Article 5. Payment of Dependent Care Assistance
4.42.501 Claims for reimbursement. 4.42.502 Reimbursement or payment of expenses. 4.42.503 Report to participants on or before January 31 of each year.
Article 6. Termination of Participation
4.42.601 Termination of participation in plan.
Article 7. Administration
4.42.701 Plan administrator. 4.42.702 Examination of records. 4.42.703 Reliance on tables, etc. 4.42.704 Indemnification of the administrator. 4.42.705 Procedures for review of denial of benefits. 4.42.706 Facility of payment.
Article 8. Amendment or Termination of the Plan
4.42.801 Amendment of the plan. 4.42.802 Termination of the plan.
Article 9. Miscellaneous Provisions
4.42.901 Communication to employees. 4.42.902 Limitation of rights. 4.42.903 Benefits solely from general assets. 4.42.904 Rights not transferable. 4.42.905 No guarantee of tax consequences. 4.42.906 Indemnification of City by participants.
4.42.907 Unenforceable provisions. 4.42.908 Governing law.
The City of Berkeley established effective as of May 1, 1988 the City of Berkeley Dependent Care Assistance Plan to allow its employees to elect to receive benefits under the plan in the form of reimbursements of their dependent care expenses. These payments are excludable from their income under Section 129 of the Code. This plan is intended to qualify as a dependent care assistance program under Section 129 of the Code and is to be interpreted in a manner consistent with the requirements of Section 129. Capitalized terms used repeatedly in the text of this plan are defined in Article 1. (Ord. 5851-NS § 1 (part), 1988)
Article 1. Definitions
The following words and phrases as used in the plan shall have the meanings set forth in this article, unless a different meaning is stated or is clearly required by the context.
4.42.101 Administrator.¶
"Administrator" shall mean the person appointed from time to time by the City Manager to supervise the administration of the plan in accordance with Article 7 hereof. (Ord. 5851-NS § 1 (part), 1988)
4.42.102 Cafeteria plan.¶
"Cafeteria plan" shall mean the City of Berkeley Cafeteria Plan, effective May 1, 1988, as it may be amended from time to time. (Ord. 5851-NS § 1 (part), 1988)
4.42.103 City.¶
"City" shall mean the City of Berkeley, California. (Ord. 5851-NS § 1 (part), 1988)
4.42.104 Code.¶
"Code" shall mean the Internal Revenue Code of 1986, as it may be amended from time to time. (Ord. 5851-NS § 1 (part), 1988)
4.42.105 Dependent.¶
"Dependent" shall mean any individual who is
A. A dependent of the participant who is under the age of fifteen and with respect to whom the participant is entitled to an exemption under Section 152 of the Code; or
B. A dependent or spouse of the participant who is physically or mentally incapable of caring for themselves. (Ord. 5851-NS § 1 (part), 1988)
4.42.106 Dependent care assistance account.¶
"Dependent care assistance account" shall mean the account described in Article 4 hereof. (Ord. 5851-NS § 1 (part), 1988)
4.42.107 Dependent care expenses.¶
"Dependent care expenses" shall mean expenses incurred by a participant which (a) are incurred for the care of a dependent of the participant, (b) are paid or payable to a dependent care service provider, and (c) are incurred to enable the participant to be gainfully employed for any period for which there are one or more dependents with respect to the participant. "Dependent care expenses" shall not include expenses for services incurred outside the participant’s household for the care of a dependent unless such dependent is described in Section 4.42.105A or, if such dependent is described in Section 4.42.105B, the dependent regularly spends at least eight hours each day in the participant’s household. Dependent care expenses shall be deemed to be incurred at the time the services to which the expenses relate are rendered. (Ord. 5851-NS § 1 (part), 1988)
4.42.108 Dependent care service provider.¶
"Dependent care service provider" shall mean a person who provides care or other services described in Section 4.42.107(a) above, but shall not include (a) a dependent care center (as defined in Section 21(b)(2)(D) of the Code), unless the requirements of Code Section 21(b)(2)(C) are satisfied, or (b) an individual related to the participant as described in Section 129(c) of the Code. (Ord. 5851-NS § 1 (part), 1988)
4.42.109 Effective date.¶
"Effective date" shall mean May 1, 1988. (Ord. 5851-NS § 1 (part), 1988)
4.42.110 Employee.¶
"Employee" shall mean any individual employed on a regular full time salaried basis by the City. (Ord. 5851-NS § 1 (part), 1988)
4.42.111 Participant.¶
"Participant" shall mean an employee who participates in the plan in accordance with Article 2. (Ord. 5851-NS § 1 (part), 1988)
4.42.112 Plan.¶
"Plan" shall mean the City of Berkeley Dependent Care Assistance Plan as set forth herein, as it may be amended from time to time. (Ord. 5851-NS § 1 (part), 1988)
4.42.113 Plan year.¶
"Plan year" shall mean the twelve-consecutive month period ending on each successive December 31. (Ord. 5851-NS § 1 (part), 1988)
Article 2. Participation
4.42.201 Date of participation.¶
Each employee who is a participant in the cafeteria plan shall be eligible to participate in the plan. Such an individual may become a participant upon the effective date of an election under the cafeteria plan to receive dependent care assistance under this plan. (Ord. 5851-NS § 1 (part), 1988)
4.42.202 Cessation of participation.¶
A participant will cease to be a participant as of the earlier of (a) the date their employment with the City terminates, or (b) the date on which their election to receive dependent care assistance expires or is terminated under the cafeteria plan. (Ord. 5851-NS § 1 (part), 1988)
4.42.203 Reinstatement of former participant.¶
If a former participant who is eligible under Section 4.42.201 elects again under the cafeteria plan to receive dependent care assistance under this plan, they will again become a participant in this plan on the effective date of such election. (Ord. 5851-NS § 1 (part), 1988)
Article 3. Election to Receive Dependent Care Assistance
4.42.301 Election procedure.¶
A participant may elect to receive dependent care assistance under this plan by filing an election and compensation reduction agreement in accordance with procedures established under the cafeteria plan. An election to receive dependent care assistance shall be irrevocable during the plan year, except as provided in the cafeteria plan. (Ord. 5851-NS § 1 (part), 1988)
4.42.302 Maximum dependent care assistance.¶
The maximum amount which the participant may receive in any plan year in the form of dependent care assistance under this plan shall be the lesser of (a) the participant’s earned income for the plan year (after all reductions in compensation including the reduction related to dependent care assistance), (b) the actual earned income of the participant’s spouse for the plan year, or (c) five thousand dollars. Notwithstanding the foregoing, however, the administrator shall rely upon the representations of the participant and all reimbursements shall be deemed to be eligible for reimbursement under the terms of this section. (Ord. 5851-NS § 1 (part), 1988)
Article 4. Dependent Care Assistance Accounts
4.42.401 Establishment of accounts.¶
The City will establish and maintain on its books a dependent care assistance account for each plan year with respect to each participant who has elected to receive dependent care assistance for the plan year. (Ord. 5851-NS § 1 (part), 1988)
4.42.402 Crediting of accounts.¶
There shall be credited to a participant’s dependent care assistance account for each plan year, as of each date compensation is paid to the participant in such plan year, an amount equal to the reduction, if any, to be made in such compensation in accordance with the participant’s election and compensation reduction agreement under the cafeteria plan. All amounts credited to such dependent care assistance account shall be the property of the City until paid out pursuant to Article 5. (Ord. 5851-NS § 1 (part), 1988)
4.42.403 Debiting of accounts.¶
A participant’s dependent care assistance account for each plan year shall be debited from time to time in the amount of any payment under Article 5 to or for the benefit of the participant for dependent care expenses incurred during such plan year. Amounts debited to each such dependent care assistance account shall be treated as payments of the earliest amounts credited to the account and not yet treated as paid under this sentence, under a "first-in/first-out" approach. (Ord. 5851-NS § 1 (part), 1988)
4.42.404 Forfeiture of accounts.¶
The amount credited to a participant’s dependent care assistance account for any plan year shall be used to reimburse the participant for dependent care expenses incurred during such plan year, and only if the participant applies for reimbursement on or before the ninetieth day following the close of the plan year. If any balance remains in the participant’s dependent care assistance account for any plan year after all reimbursements hereunder, such balance shall not be carried over to reimburse the participant for dependent care expenses incurred during a subsequent plan year, and shall not be available to the participant in any other form or manner, but shall remain the property of the City, and the participant shall forfeit all rights with respect to such balance. (Ord. 5851-NS § 1 (part), 1988)
Article 5. Payment of Dependent Care Assistance
4.42.501 Claims for reimbursement.¶
A participant who has elected to receive dependent care assistance for a plan year may apply to the administrator during such plan year for reimbursement of dependent care expenses incurred by the participant during the plan year by submitting an application in writing to the administrator, in such form as the administrator may prescribe, setting forth:
A. The amount, date and nature of the expense with respect to which a benefit is requested;
B. The name of the person, organization or entity to which the expense was paid; and
C. Such other information as the administrator may from time to time require.
Such application shall be accompanied by receipts, cancelled checks or other statements showing the amounts of such expenses, together with any additional documentation which the Administrator may request. (Ord. 5851-NS § 1 (part), 1988)
4.42.502 Reimbursement or payment of expenses.¶
The City shall reimburse the participant from the participant’s dependent care assistance account for dependent care expenses incurred during the plan year for which the participant submits documentation in accordance with Section 4.42.501. The City shall make such reimbursements once each month. No reimbursement or payment under this Section 4.42.502 of expenses incurred during a plan year shall at any time exceed the balance of the participant’s dependent care assistance account for the plan year at the time of the reimbursement or payment. The amount of any dependent care expenses not reimbursed or paid as a result of the preceding sentence shall be carried over and reimbursed or paid only if and when the balance in such account permits such reimbursement or payment. In no event, however, will any reimbursement or payment be made for expenses which were incurred prior to the date the participant’s participation in the plan commenced for such plan year. (Ord. 5851-NS § 1 (part), 1988)
4.42.503 Report to participants on or before January 31 of each year.¶
On or before January 31 of each year, the administrator shall furnish to each participant who has received dependent care assistance during the prior plan year a written statement showing the amount of such assistance paid during such year with respect to the participant. (Ord. 5851-NS § 1 (part), 1988)
Article 6. Termination of Participation
4.42.601 Termination of participation in plan.¶
In the event that a participant ceases to be a participant in this plan for any reason, the participant’s compensation reduction agreement relating to dependent care assistance shall terminate. The participant (or their estate) shall be entitled to reimbursement only for dependent care expenses incurred within the same plan year and prior to the date participation is terminated, and only if the participant (or their estate) applies for such reimbursement in accordance with Section 4.42.501 on or before the ninetieth day following the date participation is terminated. No such reimbursement shall exceed the remaining balance, if any, in the participant’s dependent care assistance account for the plan year in which the expenses were incurred. (Ord. 5851-NS § 1 (part), 1988)
Article 7. Administration
4.42.701 Plan administrator.¶
The administration of the plan shall be under the supervision of the administrator. It shall be a principal duty of the administrator to see that the plan is carried out, in accordance with its terms, for the exclusive benefit of persons entitled to participate in the plan without discrimination among them. The administrator will have the full power to administer the plan in all of its details, subject to applicable requirements of law. For this purpose, the administrator’s powers will include, but will not be limited to, the following authority, in addition to all other powers provided by this plan:
A. To make and enforce such rules and regulations as it deems necessary or proper for the efficient administration of the plan, including the establishment of any claims procedures that may be required by applicable provisions of law;
B. To interpret the plan, its interpretation thereof in good faith to be final and conclusive on all persons claiming benefits under the plan;
C. To decide all questions concerning the plan and the eligibility of any person to participate in the plan;
D. To appoint such agents, counsel, accountants, consultants and other persons as may be required to assist in the administration of the plan;
E. To allocate and delegate its responsibilities under the plan and to designate other persons to carry out any of its responsibilities under the plan, any such allocation, delegation or designation to be by written instrument and in accordance with applicable requirements of law.
F. To determine a claims procedure under which participants may apply for reimbursement of dependent care expenses; and
G. To determine the eligibility of dependent care expenses for reimbursement under this plan. (Ord. 5851-NS § 1 (part), 1988)
4.42.702 Examination of records.¶
The administrator will make available to each participant such of its records under the plan as pertain to them, for examination at reasonable times during normal business hours. (Ord. 5851-NS § 1 (part), 1988)
4.42.703 Reliance on tables, etc.¶
In administering the plan, the administrator shall be entitled to the extent permitted by law to rely conclusively on all tables, valuations, certificates, opinions and reports which are furnished by accountants, counsel, or other experts employed or engaged by the administrator. (Ord. 5851-NS § 1 (part), 1988)
4.42.704 Indemnification of the administrator.¶
The City agrees to indemnify and to defend to the fullest extent permitted by law any employee serving as administrator (including any employee or former employee who formerly served as such) against all liabilities, damages, costs and expenses (including attorney’s fees and amounts paid in settlement of any claims approved by the City) occasioned by an act or an omission to act in connection with the plan, if such act or omission is in good faith. (Ord. 5851-NS § 1 (part), 1988)
4.42.705 Procedures for review of denial of benefits.¶
Any person whose claim for benefits under the plan has been denied in whole or in part shall receive a notice from the administrator setting forth the specific reasons for such denial, specific references to the plan provisions on which the denial was based and an explanation of the procedure for review of the denial. Such person, or such person’s duly authorized representative, may appeal to the administrator for a review of the denial by sending to the administrator a written request for review within sixty days after receiving notice of the denial. The administrator shall give the claimant the opportunity to review pertinent documents in preparing such request. The request for review shall set forth all grounds on which it is based, together with supporting facts and evidence which the claimant deems pertinent. The administrator may require the claimant to submit such additional facts, documents or other material as it deems necessary or advisable in making its review of the denial. Within sixty days after the receipt of the request for review, the administrator shall communicate its decision to the claimant in writing (unless there has been an extension of up to sixty days due to special circumstances, provided the delay and the special circumstances occasioning it are communicated to the claimant within the first sixty day period), and if the administrator confirms the denial, in whole or in part, the communication shall set forth the reasons for the decision and specific references to the plan provisions on which the decision is based. (Ord. 5851-NS § 1 (part), 1988)
4.42.706 Facility of payment.¶
If any person to whom any payment shall be due under the plan shall be a minor, or shall be or become in the judgment of the administrator, physically or mentally incompetent, the administrator shall have the right to determine to whom such payments shall be made for the benefit of such person. Written receipt of the person to whom any such payment is made shall be a complete discharge of the obligation for any sum paid. (Ord. 5851-NS § 1 (part), 1988)
Article 8. Amendment or Termination of the Plan
4.42.801 Amendment of the plan.¶
The City reserves the power at any time or times to amend the provisions of the plan to any extent and in any manner that it may deem advisable, by a written instrument adopted by the City Council. (Ord. 5851-NS § 1 (part), 1988)
4.42.802 Termination of the plan.¶
The City has established the plan with the bona fide intention and expectation that it will be continued indefinitely, but the City will have no obligation whatsoever to maintain the plan for any given length of time and may discontinue or terminate the plan at any time without liability. Upon termination or discontinuance of the plan, all elections and reductions in compensation relating to the plan shall terminate, and reimbursements shall be made only in accordance with Article 6, except that any additional expenses incurred during the plan year in which the plan is terminated shall be eligible for reimbursement. (Ord. 5851-NS § 1 (part), 1988)
Article 9. Miscellaneous Provisions
4.42.901 Communication to employees.¶
Promptly after the plan is adopted, the City will notify all employees of the availability and terms of the plan. (Ord. 5851-NS § 1 (part), 1988)
4.42.902 Limitation of rights.¶
Nothing herein contained shall in any way be construed as to affect the employment relationship between the City and its employees, or the City’s right to discharge any participant at any time with or without cause, or to increase or decrease the salary or other compensation of any participant or other employee. The relationship of the City and employees shall continue in the same manner as though this plan had never been executed. (Ord. 5851-NS § 1 (part), 1988)
4.42.903 Benefits solely from general assets.¶
The benefits provided hereunder will be paid solely from the general assets of the City. Nothing herein will be construed to require the City or the administrator to maintain any fund or segregate any amount for the benefit of any participant, and no participant or other person shall have any claim against, right to, or security or other interest in, any fund, account or asset of the City from which any payment under the plan may be made. (Ord. 5851-NS § 1 (part), 1988)
4.42.904 Rights not transferable.¶
The right of any participant to receive any reimbursement under the plan shall not be alienable by the participant by assignment or any other method, and will not be subject to be taken by their creditors by any process whatsoever, and any attempt to cause such right to be subjected will not be required by law. (Ord. 5851-NS § 1 (part), 1988)
4.42.905 No guarantee of tax consequences.¶
Neither the administrator nor the City makes any commitment or guarantee that any amounts paid to or for the benefit of a participant under Article 5 will be excludable from the participant’s gross income for federal or state income tax purposes, or that any other federal or state income tax treatment will apply to or be available to any participant. It shall be the obligation of each participant to determine whether each payment under Article 5 is excludable from the participant’s gross income for federal and state income tax purposes, and to notify the City if the participant has reason to believe that any such payment is not so excludable. (Ord. 5851-NS § 1 (part), 1988)
4.42.906 Indemnification of City by participants.¶
If any participant receives one or more payments or reimbursements under Article 5 that are not for dependent care expenses, such participant shall indemnify and reimburse the City for any liability it may incur for failure to withhold federal or state income tax or Social Security tax from such payments or reimbursements. However, such indemnification or reimbursement shall not exceed the amount of federal and state income tax that the participant would have owed if the payments or reimbursements had been made to the participant as regular cash compensation, plus the participant’s share of any Social Security tax that would have been paid on such compensation, less any such additional income and Social Security tax actually paid by the participant. (Ord. 5851-NS § 1 (part), 1988)
4.42.907 Unenforceable provisions.¶
If any provision or provisions of this plan shall be for any reason invalid or unenforceable, unless the effect thereof would be to alter materially or defeat the purposes hereof, the remaining provisions shall nevertheless be carried into effect. (Ord. 5851-NS § 1 (part), 1988)
4.42.908 Governing law.¶
The plan shall be construed, administered and enforced according to the laws of the state of California. (Ord. 5851-NS § 1 (part), 1988)
The Berkeley Municipal Code is current through Ordinance 8008-NS, passed May 12, 2026.
Disclaimer: The City Clerk’s Office has the official version of the Berkeley Municipal Code. Users should contact the City Clerk’s Office for ordinances passed subsequent to the ordinance cited above.
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