Berkeley City Council
January 31, 2023

Contract: Bay Pacific Pipeline, Inc. for Sanitary Sewer Rehabilitation at Various Locations

CONSENT CALENDAR
January 31, 2023
Internal

The Living Wage Ordinance does not apply to this project as Department of Public Works construction contracts are subject to State prevailing wage laws. Bay Pacific Pipeline, Inc. has submitted a Certification of Compliance with the Equal Benefits Ordinance. The Community Workforce Agreement applies to this project because the estimated value of the project exceeds $500,000. As a result, the contractor and all subcontractors will be required to sign an agreement to be bound by the terms of the Agreement.

The City filed a Notice of Exemption declaring this work is exempt from the California Environmental Quality Act (CEQA). This notification was filed with Alameda County to fulfill the requirement for public notification. No comments, questions, or protests were received.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Improvements to the City's sanitary sewer system will help protect water quality by reducing the frequency of SSOs, and infiltration and inflow into the City's sanitary sewer system that can negatively affect the San Francisco Bay.

RATIONALE FOR RECOMMENDATION
Contracted services are required for the specialized services required for this project, as the City lacks the in-house resources needed to complete scheduled sanitary sewer rehabilitation and replacement projects. Further, the City must take timely action to address urgent/emergent sewer repairs without delay. Finally, subject to fines and stipulated penalties, the Consent Decree demands the City to repair acute defects within one year of discovery, and complete sanitary sewer mains rehabilitation and replacement at an average annual rate of no less than 22,120 feet on a three-fiscal-year rolling average. The City will have a three-year annual average of approximately 22,600 linear feet of replaced or rehabilitated sewer through the end of FY 2023 on June 30, 2023.

ALTERNATIVE ACTIONS CONSIDERED
No reasonable alternative exists as the City's sanitary sewer pipelines are in poor condition and in need of timely rehabilitation to prevent an increased probability of infiltration and inflows, sanitary sewer leakages, and backup problems in the sanitary sewer system.

CONTACT PERSON
Joe Enke, Manager of Engineering, Public Works, (510) 981-6411 Daniel Akagi, Supervising Civil Engineer, Public Works, (510) 981-6394 Farid Javandel, Deputy Director of Public Works, Transportation and Engineering (510) 981-7061

Contract: Bay Pacific Pipeline, Inc. for Sanitary Sewer Rehabilitation at Various Locations

CONSENT CALENDAR
January 31, 2023
Internal

Attachments:
1: Resolution
2: Location Map
3: Bid Results

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

CONTRACT: BAY PACIFIC PIPELINE, INC. FOR SANITARY SEWER REHABILITATION FY2023 – HEARST AVE, SCENIC AVE, EUCLID AVE, LE

CONTE AVE, ARCH ST, CEDAR ST, LA LOMA AVE, LE ROY AVE,

PIEDMONT AVE, KELSEY ST, PALM CT, RUSSELL ST AND BACKLINE,

AVALON BACKLINE, BELROSE BACKLINE, UNIVERSITY AVE, ALVARADO RD, AND ROBLE ROAD BACKLINE.

WHEREAS, the Sanitary Sewer Project is part of the City's on-going Sanitary Sewer Capital Improvement Program to rehabilitate or replace the aging and deteriorated sanitary sewer system; and
WHEREAS, the Capital Improvement Program is a requirement of compliance with the National Pollution Discharge Elimination System Permit (NPDES) and California Regional Water Quality Control Board Consent Decree; and
WHEREAS, the City has neither the staff nor the equipment necessary to undertake this Sanitary Sewer Rehabilitation Project and other urgent/emergent sewer repairs; and WHEREAS, on November 9, 2022 the City released an Invitation for Bids (Specification No. 23-11545-C) for sanitary sewer rehabilitation and replacement; and WHEREAS, on December 15, 2022 the City received 5 bids, and Bay Pacific Pipeline, Inc. was found to be the lowest responsive and responsible bidder; and WHEREAS, funds are available in the FY 2023 budget Sanitary Sewer Fund 611; and WHEREAS the City filed a Notice of Exemption on May 19, 2022 declaring this work is exempt from the California Environmental Quality Act.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specifications No. 23-11545-C for the Sanitary Sewer Rehabilitation FY 2023 Project are approved.

BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments with Bay Pacific Pipeline, Inc., until completion of the project in accordance with the approved plans and specifications for the Sanitary Sewer Rehabilitation Project located on Hearst Avenue, Scenic Avenue, Euclid Avenue, Le Conte Avenue, Arch Street, Cedar Street, La Loma Avenue, Le Roy Avenue, Piedmont Avenue, Kelsey Street, Palm Court, Russell Street and Backline, Avalon Avenue Backline, Belrose Avenue Backline, University Avenue, Alvarado Road, and Roble Road Backline, in an amount not to exceed $4 ,417,421 which includes a 10 % contingency for unforeseen circumstances. A record signature copy of said agreement and any amendments will be on file in the Office of the City Clerk.

Item Removed From
Agenda

This item has been removed from the agenda by the
City Manager.

If you have questions regarding this report, please
contact the person noted on the agenda.

City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900

The City of Berkeley, City Council’s Website
https://berkeleyca.gov/your-government/city-council

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Department of Public Works Subject: Contract: Gruendl Inc. DBA Ray’s Electric for Martin Luther King Jr. Way Vision Zero Quick Build Project

RECOMMENDATION

1. Approve plans and specifications for the Martin Luther King Jr. Way Vision Zero Quick Build Project, (Project), Specification No. 23-11554-C;

2. Accept the bid of Gruendl Inc. Doing Business As (DBA) Ray’s Electric, the lowest responsive and responsible bidder; and

3. Authorize the City Manager to execute a contract with Gruendl Inc. DBA Ray’s Electric and any amendments, extensions, and/or change orders until completion of the Project in accordance with the approved plans and specifications, in an amount not to exceed $1,663,900, which includes a contingency of ten percent for unforeseen circumstances.

FISCAL IMPACTS OF RECOMMENDATION
The construction budget for the Martin Luther King Jr. Way Vision Zero Quick Build Project is $1,663,900, including contingency. The construction of this Project is funded in part by a California Active Transportation Program (ATP) grant administered through the California Transportation Commission (CTC). Funds are available in the FY 2023 budget in the funding sources indicated below:

Contract: Gruendl Inc. DBA Ray’s Electric CONSENT CALENDAR for Martin Luther King Jr. Way Vision Zero Quick Build Project January 31, 2023 Low Bid by Ray’s Electric $1,512,567.25
10% Contingency $151,256.73
Total Not-To-Exceed Construction Cost $ 1,663,900

CURRENT SITUATION AND ITS EFFECTS
On November 17, 2022, two bids were received and opened for construction of the Project, in the amounts of $1,512,567.25 and $1,651,194.00. The determination of the low bidder was based on the total price of all bid items, as described in the bid documents.

The low bidder is Gruendl Inc. DBA Ray’s Electric (Ray’s Electric), with a bid of $1,512,567.25, or $246,567 above the engineer’s estimate of $1.266 million. Staff has identified additional funding to cover the total bid price of the low bidder, plus a 10% contingency, as indicated above. Staff has verified that Ray’s Electric is the lowest responsive and responsible bidder in accordance with the Public Contract Code.

The Living Wage Ordinance does not apply to this project as the Public Works Department’s construction contracts are, pursuant to City policy, subject to State prevailing wage laws. Ray’s Electric has submitted a Certification of Compliance with the Equal Benefits Ordinance. The Community Workforce Agreement applies to this project because the estimated construction cost exceeds $500,000. As a result, the successful bidder and all subcontractors will be required to sign an agreement to be bound by the terms of the Community Work Force Agreement.

ATP
Grant-State
Alameda
County
Measure F
VRF Streets
and Roads
Program
Alameda
County
Measure BB
Local Streets
and Roads
Program
Alameda
County
Measure BB
Bicycle and
Pedestrian
Program
City of
Berkeley
Street
Lighting
Fund
City of
Berkeley
Capital
Improvement
Fund
(Fund 306) (Fund 133) (Fund 134) (Fund 135) (Fund 142) (Fund 501) Project

Martin Luther King
Jr. Way Vision
Zero Quick Build,
Specification No.
23-11554-C
$470,000 $215,100 $390,000 $100,000 $118,800 $370,000
Total funding for
construction:
$1,663,900
$1,663,900

Contract: Gruendl Inc. DBA Ray’s Electric CONSENT CALENDAR for Martin Luther King Jr. Way Vision Zero Quick Build Project January 31, 2023

BACKGROUND
The primary purpose of the Martin Luther King Jr. Way Vision Zero Quick Build Project is to improve safety for pedestrians and bicyclists crossing Martin Luther King Jr. Way (MLK), in accordance with the City’s Vision Zero Action Plan which establishes a strategy to eliminate all traffic fatalities and severe injuries by 2028 while increasing safe, healthy, and equitable mobility for all. The initial framework for the Project was conceived during the development of the 2017 Berkeley Pedestrian Plan, in which a variety of community outreach and engagement activities played a key role in identifying recommended pedestrian safety improvements, and reaffirmed during the development of the 2020 Berkeley Pedestrian Plan. The proposed Project is intended to make walking and biking safer and more convenient modes of transportation along the MLK corridor by connecting important destinations, improving crossings at intersections, and addressing the goals of the Berkeley Pedestrian Plan, and the Berkeley Vision Zero Action Plan.

The Project extents include the MLK corridor from Dwight Way to Russell Street and include a total of nine intersections: Dwight Way, Blake Street, Parker Street, Carleton Street, Derby Street, Ward Street, Stuart Street, Oregon Street, and Russell Street.

The Project will construct the following components:
 Pedestrian refuge islands, hardened centerlines, curb ramps, and/or enhanced crosswalk lighting at selected intersections.
 Rectangular rapid flashing beacons (RRFBs) on Martin Luther King Jr. Way at Oregon Street, Stuart Street, and Parker Street.
 Pavement resurfacing with a particular focus on crosswalks, including high- visibility crosswalk markings and pavement markings.
 Red curbs to improve the visibility of pedestrians and bicyclists at intersections.

City staff made a concerted effort to engage the public and solicit input during the conceptual design phase of the Project. On March 3, 2022, City staff hosted an online meeting to obtain community input on the overall Project concept, including improvements proposed at each of the nine intersections along the MLK corridor. City staff used community feedback from this process to develop the final design of the Project.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The purpose of the ATP is to encourage increased use of active modes of transportation, such as biking and walking. Increasing biking and walking would help the City comply with the 2009 Berkeley Climate Action Plan Policy 5.a that calls for expanding and improving Berkeley’s bicycle and pedestrian infrastructure. The Climate Action Plan further states that transportation modes such as public transit, walking, and bicycling must

Contract: Gruendl Inc. DBA Ray’s Electric CONSENT CALENDAR for Martin Luther King Jr. Way Vision Zero Quick Build Project January 31, 2023 become the primary means of fulfilling the City’s mobility needs in order to meet these targets.

RATIONALE FOR RECOMMENDATION
The proposed Project components were designed to address pedestrian and bicycle crossing safety needs along the MLK corridor, in accordance with the Berkeley Pedestrian Plan and the Berkeley Vision Zero Action Plan. Furthermore, the Vision Zero Action Plan classifies MLK as a High-Injury Street in an Equity Priority Area. An Equity Priority Area considers historic data in prioritizing infrastructure projects that remedy systemic inequity. As a whole, the work of this Project is a significant step forward to improve safety at intersection crossings and for people of all ages and abilities to traverse the MLK corridor more safely by walking or biking.

ALTERNATIVE ACTIONS CONSIDERED
Council could opt not to take the proposed actions at this time and instead defer this item to a future Council agenda. Such a decision would delay the construction of the Project and could cause the City to fail to meet its ATP grant funding obligation to award a construction contract within six months of receiving the construction grant fund allocation.

The deadline to award a construction contract to meet the ATP grant funding obligation is February 18, 2023. Failure to award a contract by this date would ultimately endanger the delivery of not only this Project, but could also jeopardize the City’s ability to secure funding for future ATP grant-funded projects.

CONTACT PERSON
Farid Javandel, Deputy Director of Public Works, Transportation and Engineering (510) 981-7061
Ken Jung, Supervising Civil Engineer, Public Works Department (510) 981-7028 Ian Bronswick, Associate Civil Engineer, Public Works Department (510) 981-6399 Attachments:
1: Resolution
2: Site Map
3: Abstract of Bids

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

CONTRACT: GRUENDL INC. DBA RAY’S ELECTRIC FOR MARTIN LUTHER KING JR. WAY VISION ZERO QUICK BUILD PROJECT
WHEREAS, the design of the Martin Luther King Jr. Way Vision Zero Quick Build Project (Specification No. 23-11554-C) consists of pedestrian and bicycle safety improvements across Martin Luther King Jr. Way at nine intersections, from Dwight Way to Russell Street; and
WHEREAS, the Project is identified as a priority project in the City’s 2020 Pedestrian Plan; and
WHEREAS, the City has received a funding allocation from the California Active Transportation Program on August 18, 2022, and the construction contract for this Project must be awarded by the Council of the City of Berkeley by the funding deadline of February 18, 2023 to avoid forfeiture of these funds; and WHEREAS, funds are available in the FY 2023 budget in the Capital Grants - State Fund (Fund 306), the Alameda County Measure F VRF Streets and Roads Program (Fund 133), the Measure BB Local Streets and Roads Fund (Fund 134), the Measure BB Bicycle and Pedestrian Fund (Fund 135), the Street Lighting Fund (Fund 142), and the Capital Improvements Fund (Fund 501); and
WHEREAS, no other funding is required, and no other project will be delayed due to this expenditure; and
WHEREAS, on October 19, 2022, the City released an Invitation for Bids for the work of this Project; and
WHEREAS, Gruendl Inc. doing business as Ray’s Electric was found to be the lowest responsive and responsible bidder; and
WHEREAS, the City has neither the staff nor the equipment needed to undertake the construction of this Project.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specifications for the Martin Luther King Jr. Way Vision Zero Quick Build Project (Specification No. 23-11554-C) are approved.

BE IT FUTHER RESOLVED that the Council of the City of Berkeley accepts the bid of Gruendl Inc. doing business as Ray’s Electric as the lowest responsive and responsible bidder.

BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments, extensions, and/or change orders until completion of the Project in accordance with the approved Plans and Specifications with Gruendl Inc. doing business as Ray’s Electric for an amount not to exceed $1,663,900, which includes a ten percent construction contingency for unforeseen circumstances. A record signature copy of said agreement and any amendments will be on file in the Office of the City Clerk.

Figure 1 - Site Map
Martin Luther King Jr. Way Vision Zero Quick Build Project – Project Spec.

No. 23-11554-C

Legend:
- Approximate location of project work

2180 Milvia Street, Berkeley, CA 94704 • Tel: (510) 981-7000 • TDD: (510) 981-6903 • Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager Office of the City Manager

CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland , Director, Department of Public Works Subject: Contract: Andes Construction, Inc. for FY2023 Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project

RECOMMENDATION
Adopt a Resolution: 1) approving plans and specifications for the FY2023 Sanitary Sewer Rehabilitation Parnassus Road Project, et al. Project located throughout the City of Berkeley; 2) accepting the bid of the lowest responsive and responsible bidder, Andes Construction, Inc.; and 3) authorizing the City Manager to execute a contract and any amendments, extensions, or other change orders until completion of the project in accordance with the approved plans and specifications, in an amount not to exceed $4,444,006, which includes a 10% contingency of $404,001.

FISCAL IMPACTS OF RECOMMENDATION
Funding is available in the FY 2023 Sanitary Sewer Fund at 611-54-623-676-3013- 000-473-665130-PWENSR2301.

Lowest bid by Andes Construction, Inc..........................$4,040,005 10% Contingency ................................................................$404,001 Total construction cost $4,444,006

CURRENT SITUATION AND ITS EFFECTS
An Invitation for Bids (Specification. No. 23-11548-C) was released on November 09, 2022, and bids were opened on December 13, 2022. Six non-local bids were received, ranging from a low of $4,040,005 to a high of $6,492,528 (Attachment 3, Bid Results). The engineer's estimate for the project was $5,200,000. Andes Construction, Inc. of Oakland, CA was the lowest responsive and responsible bidder with a bid of $4,040,005. References for Andes Construction, Inc. proved satisfactory. Staff recommends the award of the contract to Andes Construction, Inc.

This sanitary sewer project supports the City's Strategic Plan goals of providing state

Contract: Andes Construction, Inc. for FY2023 CONSENT CALENDAR Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project January 31, 2023

of-the-art, well-maintained infrastructure, amenities, and the goal of protecting the environment.

BACKGROUND
To remain compliant with the Consent Decree dated September 22, 2014, the City has implemented a long-term mandated Sanitary Sewer Capital Improvement Program to eliminate sanitary sewer overflows (SSOs) and to reduce stormwater infiltration and inflow into the sanitary sewer system. Under this program, the City utilizes a comprehensive asset management approach based on complex and evolving hydrologic and hydraulic modeling and condition assessments to repair, replace, or upgrade the City's portion of the sanitary sewer system. Ultimately, these actions will assist East Bay Municipal Utility District (EBMUD) in its goal of eliminating discharges from its wet weather facilities by the end of 2035.

This is the ninth year of the twenty-two-year Consent Decree program, which stipulates that the City shall perform collection system repair and rehabilitation to control infiltration and inflow.1 This is in support of and in addition to ongoing work previously identified in the City's Sanitary Sewer Management Plan (SSMP) and Asset Management Implementation Plan (AMIP).

This sanitary sewer project is part of the City's ongoing program to rehabilitate or replace its aging sanitary sewer system, and to eliminate potential health hazards to the public. The project is located throughout the City as shown on the Location Map (Attachment 2). The sanitary sewer collection system in these areas requires immediate rehabilitation to prevent pipe failures, sewer blockages, and leakage problems. Field investigations performed using a closed-circuit television camera revealed deteriorated piping and pipe defects in the existing sanitary sewer mains.

These conditions are similar to problems previously found in other sanitary sewer mains prior to their replacement.

Planned work includes the rehabilitation of approximately 6,129 linear feet of sanitary sewer mains varying in size from 6-inch to 12-inch diameter sanitary sewer pipe; rehabilitation of fifty-eight maintenance holes; removal and reconstruction of sixty-two maintenance holes; construction of seven maintenance holes; replacement of 4-inch and 6-inch diameter sanitary sewer laterals, and other related work.

To reduce traffic impacts,
minimize inconvenience to the public, and reduce cost, a majority of this sanitary sewer rehabilitation work will be performed using the pipe bursting method. This trenchless method allows the replacement of pipelines buried below street level without the need for traditional open trench construction. This method of pulling a new high-density polyethylene pipe (HDPE) through the existing vitrified clay pipe with a cone-shaped hammerhead to "burst" the surrounding clay pipe, allows for cost savings and minimizes street closures and traffic disruptions caused by open trenches.

The contract’s one hundred twenty working
day term includes a seventy-five working day construction period and an additional forty- five working days for project closeout. A 10% contingency is included for related 1 At an average annual rate of no less than 22,120 feet of sanitary sewer mains on a three-fiscal-year rolling average.

Contract: Andes Construction, Inc. for FY2023 CONSENT CALENDAR Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project January 31, 2023

construction events.

The Living Wage Ordinance does not apply to this project as Department of Public Works construction contracts are subject to State prevailing wage laws. Andes Construction, Inc. has submitted a Certification of Compliance with the Equal Benefits Ordinance. The Community Workforce Agreement (CWA) applies to this project because the estimated value of the project exceeded $500,000. As a result, the contractor and all subcontractors will be required to sign an agreement to be bound by the terms of the CWA.

The City filed a Notice of Exemption declaring this work is exempt from the California Environmental Quality Act (CEQA). This notification was filed with Alameda County to fulfill the requirement for public notification. No comments, questions, or protests were received.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Improvements to the City's sanitary sewer system will help protect water quality by reducing the frequency of SSOs, and infiltration and inflow into the City's sanitary sewer system that can negatively affect the San Francisco Bay.

RATIONALE FOR RECOMMENDATION
Contracted services are required for the specialized services required for this project, as the City lacks the in-house resources needed to complete scheduled sanitary sewer rehabilitation and replacement projects. Further, the City must take timely action to address urgent and emergent sewer repairs without delay. Finally, subject to fines and stipulated penalties, the Consent Decree demands the City repair acute defects within one year of discovery, and complete sanitary sewer mains rehabilitation and replacement at an average annual rate of no less than 22,120 feet on a three-fiscal- year rolling average. The City will have a three-year annual average of approximately 22,600 linear feet of replaced or rehabilitated sewer through the end of FY 2023 on June 30, 2023.

ALTERNATIVE ACTIONS CONSIDERED
No reasonable alternative exists as the City's sanitary sewer pipelines are in poor condition and in need of timely rehabilitation to prevent an increased probability of infiltration and inflows, sanitary sewer leakages, and backup problems in the sanitary sewer system.

CONTACT PERSON
Joe Enke, Manager of Engineering, Public Works, (510) 981-6411 Daniel Akagi, Supervising Civil Engineer, Public Works, (510) 981-6394 Farid Javandel, Deputy Director of Public Works, Transportation and Engineering (510) 981- 7061
Attachments:
1: Resolution

Contract: Andes Construction, Inc. for FY2023 CONSENT CALENDAR Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project January 31, 2023

2: Location Map
3: Bid Results

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

CONTRACT: ANDES CONSTRUCTION, INC. FOR FY2023 SANITARY
SEWER REHABILITATION PARNASSUS RD, ET AL. PROJECT.

WHEREAS, the Sanitary Sewer Project is part of the City's on-going Sanitary Sewer Capital Improvement Program to rehabilitate or replace the aging and deteriorated sanitary sewer system; and
WHEREAS, the Capital Improvement Program is a requirement of compliance with the National Pollution Discharge Elimination System Permit (NPDES) and California Regional Water Quality Control Board Consent Decree; and
WHEREAS, the City has neither the staff nor the equipment necessary to undertake this Sanitary Sewer Rehabilitation Project and other urgent and emergent sewer repairs; and WHEREAS, on November 9, 2022, the City released an Invitation for Bids (Specification No. 23-11548-C) for sanitary sewer rehabilitation and replacement; and WHEREAS, on December 13, 2022, the City received six bids and Andes Construction, Inc. was found to be the lowest responsive and responsible bidder; and WHEREAS the City filed a Notice of Exemption on May 19, 2022, declaring this work is exempt from the California Environmental Quality Act, and WHEREAS, funds are currently available in the FY 2023 Sanitary Sewer Fund 611; and NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specifications No. 23-11548-C for the FY2023 Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project are approved.

BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments with Andes Construction, Inc., until completion of the project in accordance with the approved plans and specifications for the Sanitary Sewer Rehabilitation Parnassus Road Project, et al. Project located throughout the City, in an amount not to exceed $4,444,006 which includes a 10% contingency for unforeseen circumstances. A record signature copy of the said contract and any amendments is to be on file in the City Clerk Department.

ATTACHMENT 3

Internal
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7170 ● TDD: (510) 981-6903 E-Mail: [email protected]

CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Councilmember Rigel Robinson (Author), Councilmember Kate Harrison (Co-Sponsor), Councilmember Ben Bartlett (Co-Sponsor), and Councilmember Sophie Hahn (Co-Sponsor)
Subject: Parking/Towing Fines & Fees Reform

RECOMMENDATION

1. Adopt an Ordinance amending BMC 14.72.080 to allow individuals who are eligible for Residential Preferential Parking (RPP) permits and also for parking citation Indigent Payment Plans to purchase Residential Parking Permits even if they have outstanding parking tickets older than 21 days.

2. Direct the City Manager to implement reforms that reduce the disproportionate burden of parking and towing fines and fees on low-income individuals, as follows:
a. Expand eligibility for the City’s parking citations indigent payment plan to encompass households making up to 50% of Alameda County’s Area Median Income (AMI) and update these guidelines in accordance with AMI on an annual basis. Provide notice of the change to all individuals with unpaid tickets.
b. Amend City policy to formalize the current practice of not booting or towing cars when the sole reason for doing so is the vehicle having five or more outstanding parking tickets where payment is delinquent.

3. Refer to the City Manager to:
a. Develop and return to Council with a program to offer vehicle release fee waivers for low-income and/or homeless individuals and, if feasible, vehicle release fee reductions or waivers for first-time tows. b. Explore the possibility of raising the thresholds for 2A to 80% or 100% of AMI in the future, and explore the possibility of indexing fee reduction to income.
c. Consider allowing all undocumented individuals to participate in payment plans or fee reductions or waivers without the need to show proof of income or public benefits.
d. Look at simplification of payment plan administration and potentially allowing all parking and towing-related fines and fees to be paid through payment plans, regardless of income qualification, as a means to simplify administration. Consider software options for tracking and collection.

Internal
Parking/Towing Fines & Fees Reform CONSENT CALENDAR January 31, 2023

e. Explore opportunities to coordinate outreach for payment plans with opportunities to engage residents in participation in other social services and public benefits.

4. Refer $383,512 in ongoing annual funding to the FY 2024 Mid-Biennial Budget Update for 2 Associate Management Analyst FTEs to administer and expand the indigent payment plan program.

POLICY COMMITTEE RECOMMENDATION
On December 12, 2022, the Health, Life Enrichment, Equity, & Community Policy Committee adopted the following action: M/S/C (Taplin/Hahn) to forward the item to Council with a positive recommendation that the City Council approve the item with the Author’s substitute recommendations as follows:
(1) Adopt an Ordinance amending BMC 14.72.080 to allow individuals who are eligible for Residential Preferential Parking (RPP) permits and also for parking citation Indigent Payment Plans to purchase Residential Parking Permits even if they have outstanding parking tickets older than 21 days.
(2) Direct the City Manager to implement reforms that reduce the disproportionate burden of parking and towing fines and fees on low-income individuals, as follows:
a) Expand eligibility for the City’s parking citations indigent payment plan to encompass households making up to 50% of Alameda County’s Area Median Income (AMI) and update these guidelines in accordance with AMI on an annual basis. Provide notice of the change to all individuals with unpaid tickets. b) Amend City policy to formalize the current practice of not booting or towing cars when the sole reason for doing so is the vehicle having five or more outstanding parking tickets where payment is delinquent.
(3) Refer to the City Manager to:
a) Develop and return to Council with a program to offer vehicle release fee waivers for low-income and/or homeless individuals and, if feasible, vehicle release fee reductions or waivers for first-time tows.
b) Explore the possibility of raising the thresholds for 2A to 80% or 100% of AMI in the future, and explore the possibility of indexing fee reduction to income (if at 30% AMI, pay 30% of fee, if at 50%, pay 50% of fee, etc.) c) Consider allowing all undocumented individuals to participate in payment plans or fee reductions or waivers without the need to show proof of income or public benefits.
d) Look at simplification of payment plan administration and potentially allowing all parking and towing-related fines and fees to be paid through payment plans, regardless of income qualification, as a means to simplify administration.

Consider software options for tracking and collection.
e) Explore opportunities to coordinate outreach for payment plans with opportunities to engage residents in participation in other social services and public benefits (4) Refer $383,512 in ongoing annual funding to the FY 2024 Mid-Biennial Budget Update for 2 Associate Management Analyst FTEs to administer and expand the indigent payment plan program.

Internal
Parking/Towing Fines & Fees Reform CONSENT CALENDAR January 31, 2023

Vote: All Ayes.

BACKGROUND
The fines and fees reform movement is growing across cities in the United States, including here in the Bay Area. Punitive fines and fees levied by governments — and the enforcement actions taken when they go unpaid — can create a cycle of economic hardship for the most vulnerable. In addition to the monetary consequences, the towing of a car or the loss of a license or vehicle registration can upend one’s life. This drives economic inequality and facilitates a breakdown of trust between community and government.

Instead of punishing people for being unable to pay their parking tickets, the City should look at expanding payment options, identifying alternative budget strategies to replace unnecessarily punitive fees, and moving away from enforcement strategies that disproportionately impact low-income people.

These reforms align with the direction given by the Reimagining Public Safety Taskforce. In their report presented to Council in March 2022, the Taskforce recommends a “review of transportation laws, fines and fees to promote safety and equity.” The relevant section reads:
“Another issue is the matter of how Berkeley approaches fines and fees for violations issued. One example relates to our penalties for parking tickets, which can be devastatingly expensive to those experiencing poverty. While the city does offer an Indigent Payment Plan for Parking Citations where late fees are waived and payments can be spread over time, there are substantial administrative hurdles to jump through to apply to this program and there are still fees to be paid. In instances in which a vehicle is towed, the spiraling fines and fees could lead to the loss of a car or license, and this loss of mobility can further lead to loss of access to employment, education, or medical care.

Ensuring that cars are parked properly often does have an important public safety component, but not always, and punitive fines and fees certainly do not improve public safety.”1
The City Manager’s report, presented to Council in April 2022, echoes the Taskforce and recommends that the City “review Berkeley Municipal Code for proposed changes to increase equity and racial justice in the City’s existing transportation fines and fees, especially related to parking. Involve the Transportation Commission in the recommendation of such changes to Council.”2 Through the subsequent FY 2023-2024 budget process, Council allocated $150,000 to conduct a fines and fees analysis. 1 https://berkeley-rps.org/wp-content/uploads/2022/03/BerkeleyReport_032422FNL.pdf 2 https://berkeleyca.gov/sites/default/files/city-council-meetings/2022-04- 21%20Agenda%20Packet%20-%20Council.pdf

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This item should align with and complement the upcoming assessment of fines and fees. Both will build off Council’s past referrals related to fines and fees reform, including amendments to the indigent payment plan,3 a referral to the Disability Commission to examine the impacts that the parking citation system may have on people with low income and disabilities,4 and a referral expanding the community service in lieu of parking penalties program to non-residents.5 RPP for Vehicles with Outstanding Parking Tickets
The City’s Residential Parking Permits (RPP) program allows Berkeley residents living in designated zones to purchase an annual parking permit for $66. Under current policy, if a resident has any outstanding parking violations older than 21 days, they are ineligible to purchase an RPP permit.6
This policy can create a cycle of debt for residents who do not have the funds to pay off tickets, yet have no choice but to continue to park their car on City streets, either for work or because their apartment unit does not come with a parking space. For an individual experiencing financial hardship, a $66 permit may be within financial reach even if paying off several hundreds of dollars in tickets all at once is not. If they are not allowed to obtain a permit, they may continue getting more and more citations for unpermitted parking with no way out of the situation. Combined with late fees, this racks up fines and fees and punishes people who are trying to come into compliance by purchasing a permit.

The City should be encouraging compliance, not prohibiting it. Amending the BMC to allow residents making below 50% of Area Median Income to purchase Residential Parking Permits even if they have outstanding parking tickets would enable them to stop the ongoing citations and focus on paying off their existing tickets.

Eligibility for Indigent Payment Plan
AB 503 (2017) established that low-income individuals are eligible for a payment plan for unpaid parking citations.7 The City’s program allows individuals to pay off their balance monthly over the course of 24 months or less, up to a limit of $500.8 3 https://records.cityofberkeley.info/PublicAccess/api/Document/AQOQRceMCzTaULeVOAA2odBEtJ8DÁw cGNV911ÁdF8ZjqW2lEoRntIzlwfDSYlPb5u3gX4RBHOuzWVWoWBiaUcEc%3D/ 4 https://records.cityofberkeley.info/PublicAccess/api/Document/AanANYizYnm9EVOkiYEpn1CRI60Sdf9vU 3UY3hzKBDUqnqFpplÉsjT5za7N5EjkH69KlLlhA5ÉucrfpQPIqWAWc%3D/ 5 https://records.cityofberkeley.info/PublicAccess/api/Document/ASÁplwGjfLaUÁsb382hHTJR7BdOvBCibrp 2fGaLyCIJTwp7PklTMCtUFrLbZvMGjfPTj4Mccz5wXn4500yCd7U4%3D/ 6 https://berkeley.municipal.codes/BMC/14.72.080
7 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=40220.&lawCode=VEH 8 https://berkeleyca.gov/city-services/parking/parking-tickets

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Candidates may qualify based on income or proof of public benefits, as follows:
 Supplemental Security Income (SSI) or State Supplementary Payment (SSP)  California Work Opportunity and Responsibility to Kids Act (CalWORKs) or a federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program
 Supplemental Nutrition Assistance Program (SNAP) or the California Food Assistance Program (CFAP)
 County Relief, General Relief (GR) or General Assistance (GA)  Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI)
 In-Home Support Services (IHSS)
 Medi-Cal
Current vs. Suggested Income Caps to be Eligible for the Indigent Payment Plan Household
Size
Current Annual Income Cap
(Federal Poverty Guidelines)
Suggested Annual Income Cap
(Alameda County 50% AMI)
1 $13,590 $47,950
2 $18,310 $54,800
3 $23,030 $61,650
4 $27,750 $68,500
5 $32,470 $74,000
6 $37,190 $79,500
7 $41,190 $84,950
8 $46,630 $90,450
AB 503 establishes minimum requirements for indigent payment plan programs but does not prohibit municipalities from expanding eligibility. Federal poverty guidelines do not reflect the high cost of living in the City of Berkeley and the larger Bay Area. The federal caps fall well below 30% AMI, which is classified as extremely low income.9 Acknowledging this reality, the City recently expanded eligibility for low-income commissioner stipends using 50% AMI for a household size of 3.10 9 https://www.acgov.org/cda/hcd/documents/2021IncomeandRentLimits.pdf 10 https://berkeleyca.gov/sites/default/files/city-council-meetings/03-09-Annotated-Agenda.pdf

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While an individual does not have to meet the income guidelines if they are receiving any of the public benefits listed above, our current restrictions may not adequately serve undocumented immigrants, who are ineligible for many government programs.

Giving more people the option to enroll in an indigent payment plan will also shield low- income residents from the broader consequences of delinquent parking tickets. For example, the California Department of Motor Vehicles is required to refuse renewal of vehicle registration until all outstanding parking tickets have been paid, unless the individual is enrolled in a payment plan. Expired vehicle registration puts the vehicle at risk of being towed, which results in additional financial hardship and potential loss of wages for the vehicle’s owner if they are not able to get to work without their car.

Furthermore, barring vehicle owners from registering their vehicles is antithetical to public safety, since it serves the general public to ensure that drivers are insured and vehicles are regularly smog checked.

Scofflaw Vehicle Enforcement/I-Tows
California Vehicle Code Section 22651 grants local governments the authority to remove and impound scofflaw vehicles, or vehicles with five or more notices of parking violations where payment is delinquent.11 This practice is also known as an I-Tow. AB 2876 (2018) placed certain limits on this authority, revising the CVC to read:
“Any removal of a vehicle is a seizure under the Fourth Amendment of the Constitution of the United States and Section 13 of Article I of the California Constitution, and shall be reasonable and subject to the limits set forth in Fourth Amendment jurisprudence. A removal pursuant to an authority, including, but not limited to, as provided in Section 22651, that is based on community caretaking, is only reasonable if the removal is necessary to achieve the community caretaking need, such as ensuring the safe flow of traffic or protecting property from theft or vandalism.”12 In San Francisco, vehicles towed for unpaid parking tickets made up only 9% of all vehicles towed but 55% of lien sales. Half of all the vehicles towed for parking ticket debt were sold, suggesting that this practice targets people who are simply unable to pay and is not a particularly effective strategy for collecting debt.13 The staff and transportation costs associated with towing and lien sales often do not justify the small amounts of debt that are able to be collected in the end.

In 2019, Assemblymember David Chiu introduced AB 516, which would have ended the practice commonly referred to as a “poverty tow” but died in Senate Appropriations.14 In 11 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=22651&lawCode=VEH 12 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2876 13 https://wclp.org/wp-content/uploads/2019/03/TowedIntoDebt.Report.pdf 14 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB516

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February 2022, the City of Los Angeles temporarily suspended the towing of scofflaw vehicles in response to a federal court ruling against the City.15 The Berkeley Police Department does not currently conduct scofflaw enforcement due to both the “community caretaking” clause of AB 2876 and the impacts of the COVID-19 pandemic. Parking enforcement performs a critical public safety function by enforcing against cars that are unsafely parked or otherwise pose a risk to the general public.

However, scofflaw vehicles that are legally parked are towed solely for the crime of poverty, which does not fall under “community caretaking.” In the interest of transparency and clarity, the City should formalize the current practice of not booting or towing scofflaw vehicles by updating relevant public-facing policy documents and internal employee manuals.

Vehicle Release Fee Waivers
When a vehicle is towed in the City of Berkeley, the vehicle’s owner must pay a release fee of $75 to the City for certain infractions, in addition to towing fees and daily storage fees. If the vehicle was towed for unpaid parking citations, the owner must also pay off all outstanding parking fines and fees before they can obtain a vehicle release.

In the State of California, vehicle owners owe an average of $499 in tow, storage, and administrative fees just three days after a tow.16 This is in addition to the parking or registration fees that must be paid off. If they do not have the money to retrieve the vehicle, it can be sold at a lien sale after 30 days, resulting in a permanent loss of mobility and potentially jeopardizing their employment and access to other essential services such as school and health care.

These towing practices disproportionately burden low-income people due to the exorbitant fees and the time required to resolve a tow. An individual must first go to the City’s Customer Service Center or the DMV to pay outstanding parking and registration fines and fees, then to the Police Department to obtain a vehicle release, and finally to the tow yard to retrieve their car. If someone is not able to take time off work or school to do so on short notice, the daily storage fees accumulate quickly.

As part of San Francisco’s Financial Justice Project, the City and County of San Francisco implemented a tow waiver program for people experiencing homelessness or low income, as well as a fee reduction for first-time tows.17 For low-income people, the $325 administrative fee is waived and the tow fee is reduced from $268 to $100. For unhoused people, both the administrative and tow fees are waived. For first-time tows, the administrative fee is reduced to $275.
15 https://www.latimes.com/california/story/2022-02-08/los-angeles-stops-impounding-cars-for-unpaid- tickets
16 https://wclp.org/wp-content/uploads/2019/03/TowedIntoDebt.Report.pdf 17 https://www.sfmta.com/getting-around/drive-park/towed-vehicles/reduced-fees-first-time-tow-and-low- income-individuals

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San Francisco is a larger and more well-resourced jurisdiction that handles their own towing, as opposed to contracting it out to tow companies like the City of Berkeley does.

While the case study of San Francisco cannot be directly applied to Berkeley, we should look to San Francisco’s program as a model and offer waivers for fees that fall under the City’s control.

ALTERNATIVES CONSIDERED
The City could reduce the tow and storage fees imposed on vehicle owners by amending our tow contracts at the next available opportunity. However, this would make it infeasible for any tow companies to operate in Berkeley without significant subsidies.

The City could also consider municipalization of towing operations.

FINANCIAL IMPLICATIONS
Staff time and $383,512 in ongoing annual funding for 2 Associate Management Analyst FTEs.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable negative environmental impacts associated with this action.

CONTACT PERSON
Councilmember Rigel Robinson, (510) 981-7170
Angie Chen, Legislative Assistant
Attachments:
1: Ordinance

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ORDINANCE NO. -N.S.

ORDINANCE AMENDING THE MUNICIPAL CODE TO ALLOW ISSUANCE OF

RESIDENTIAL PARKING PERMITS FOR VEHICLES WITH OUTSTANDING PARKING

TICKETS
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Section 14.72.080 is amended to read as follows:

14.72.080 Issuance of permits.

A. Residential, local business and neighborhood-serving community facility parking permits shall be issued by the Department of Finance in accordance with requirements set forth in this chapter. Each such permit shall be designed to state or reflect thereon the identification of the particular residential, local business or neighborhood-serving community facility permit parking area for which it is issued. No more than one residential or local business parking permit shall be issued to each motor vehicle for which application is made.

B. When issuing local business and neighborhood-serving community facility permits, the Department of Finance in consultation with the traffic engineering division shall issue permits such that they will not unduly be concentrated on a specific block front in any given residential permit parking area.

C.

1. No permits shall be issued to residents in newly constructed residential units. The Current Planning division shall provide a listing of newly-constructed housing units to the Department of Finance.

2. No permits shall be issued to residents of Group Living Accommodations as defined in Chapter 23F.04 that are approved after January 1, 2012, unless the Zoning Adjustments Board specified otherwise when it approved the GLA. The Current Planning division shall provide a listing of addresses subject to this paragraph to the Department of Finance.

3. In the R-2 and R-2A zoning districts, no permits shall be issued to residents of dwelling units with more than 5 bedrooms to which new bedrooms have been added subsequent to January 1, 2012. The Current Planning division shall provide a listing of addresses subject to this paragraph to the Department of Finance.

4. This subdivision shall not prevent issuance of permits to residents of permitted and legal nonconforming sororities, fraternities and student cooperatives who are not otherwise prohibited from obtaining them.

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D. The Department of Finance and the Public Works Transportation Division are authorized to issue such rules and regulations necessary to implement this chapter, and are not inconsistent with it.

E. Parking permits shall not be issued for vehicles for which there is any outstanding City of Berkeley notice of violation of parking rules and restrictions that are unpaid for more than 21 calendar days from the issuance of the parking violation, except for vehicles belonging to individuals eligible for the City’s Indigent Payment Plan.

E. Parking permits shall not be issued for vehicles for which there is any outstanding City of Berkeley notice of violation of parking rules and restrictions that are unpaid for more than 21 calendar days from the issuance of the parking violation.

Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

PUBLIC HEARING
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning & Development Department Subject: ZAB Appeal: 2065 Kittredge Street, Use Permit #ZP2021-0193

RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the Zoning Adjustments Board decision to approve Use Permit # ZP2021-0193 to demolish portions of existing City Landmark commercial buildings and construct an eight-story, mixed-use building at 2065 Kittredge Street with 187 dwelling units (including four live/work units and nine Very Low-Income units), 4,993 square feet commercial space and 43 parking spaces, and dismiss the appeal.

FISCAL IMPACTS OF RECOMMENDATION
None.

CURRENT SITUATION AND ITS EFFECTS
On July 26, 2021, William Schrader submitted a Preliminary Application to vest rights pursuant to Senate Bill (SB) 330, the Housing Crisis Act of 2019 (Government Code Sections 65941.1 and 66300), for a housing development project.

On October 25, 2021, William Schrader submitted an application for Use Permit #ZP2021-0193 to construct an eight-story, mixed-use building with 187 dwelling units, 4,993 square feet commercial space and 43 parking spaces. The applicant also submitted an application for Landmark Structural Alteration Permit #LMSAP2021-0004 for the alteration of a City Landmarked site.

On June 1, 2022, the use permit application was deemed complete.

On April 21, 2022, the Design Review Committee (DRC) conducted a DRC Referral review for LMSAP2021-0004, and forwarded advisory comments for the Landmarks Preservation Commission (LPC) and Zoning Adjustments Board (ZAB).

On June 2, 2022 the LPC conducted a review of Structural Alteration Permit (SAP) #LMSAP2021-0004, and continued the discussion to a second meeting. On August 4, 2022, the LPC conducted a second meeting, approved the SAP for demolition and new

ZAB Appeal: 2065 Kittredge Street PUBLIC HEARING
Use Permit #ZP2021-0193 January 31, 2023

construction at the landmark site, adopted an Addendum to a previously certified and adopted Environmental Impact Report (EIR), and added a required condition of approval that the project obtain Final Design Review.

On September 22, 2022, the ZAB conducted a public hearing for the use permit application. After hearing public comments and holding discussion, the ZAB adopted the EIR Addendum and Revised Mitigation Monitoring and Reporting Program (MMRP) and approved the use permit by a vote of 7-0-0-1 (Yes: Duffy, Kahn, Kim, Sanderson, Thompson, Vincent, Tregub; No: None; Abstain: None; Absent: O’ Keefe).

On October 11, 2022, staff issued a Notice of Decision of the ZAB approval.

On October 25, 2022, the City Clerk received an appeal filing from Adams, Broadwell Joseph and Cardozo, on behalf of East Bay Residents for Responsible Development.

On January 17, 2023, staff posted the public hearing notice at the site and three nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area. The Council must conduct a public hearing to resolve the appeal.

BACKGROUND
The project site is located within the Downtown Mixed-Use District (C-DMU), Core Sub- Area, as identified in the City’s Downtown Area Plan (DAP). Directly adjacent to the project site and on the same block is the Shattuck Hotel, a City of Berkeley Landmark, whose main lobby and entrance are on Allston Way but which also occupies the airspace above the ground floor retail along the entire block’s frontage on Shattuck Avenue. Below the hotel rooms along Shattuck Avenue is a row of commercial storefronts, as well as the entrance to the former commercial occupant known as Shattuck Cinemas, which is now closed.

Commercial land uses and a public parking structure are located north of the project site across Allston Way. South of the project site on Shattuck Avenue and across Kittredge Street is the Berkeley Central Library, a City of Berkeley and National historic landmark.

West of the project site across Harold Way are the Dharma College and the Mangalam Center, both City of Berkeley Landmarks.

The project site is a single parcel that encompasses an entire City block with street frontage on Allston Way (north), Shattuck Avenue (east), Kittredge Street (south) and Harold Way (west) that is subdivided into commercial airspace condominium parcels A, B, and C of Parcel Map 6889. The project site is Unit B of the condominium subdivision, Parcel Map 6889, which was created in December, 2020. Entitlements were previously obtained for the project site in 2015 (UP13-10000010 and LM13-40000002, under the address 2211 Harold Way) to demolish historic structures and construct an 18-story, 302-unit, mixed-use building, with approximately 10,877 square feet of commercial space, a ten-theater cinema complex, and 177 underground parking spaces. Building

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permits were never obtained for the project, and the City deemed the entitlements expired on January 17, 2020.

The proposed project would demolish a portion of the City Landmark Shattuck Hotel (the 1913 expansion) and fully demolish the City Landmark Hink’s department store expansions completed in 1926 and 1959, and construct an eight-story, mixed-use building with 187 dwelling units.

The project is eligible for a density bonus under Government Code Section 65915, by including nine Very Low-income units (five percent of the base project), and qualifies for a 20 percent density bonus, or 33 bonus units, of which 24 are utilized, resulting in a 187-unit density bonus project, with a concession to reduce the usable open space requirement, and waivers of height maximums, front yard setback minimums, the landscaped usable open space minimum, and the commercial parking minimum. The ZAB found the project to be compliant with all vested and applicable, objective general plan and zoning standards, and without specific adverse impact on public health or safety, and approved it on September 22, 2022 without reductions to project’s density, pursuant to the State Housing Accountability Act (HAA), Government Code Section 65589.5(j).1
For additional project background, please see Attachment 3, the ZAB staff report for this project.

RATIONALE FOR RECOMMENDATION
The issues raised in the appellant’s letter and staff’s responses follow. For the sake of brevity, the appeal issues are not re-stated in their entirety. Please refer to the appeal letter (Attachment 2) for the full text.

Issue:

The appellants assert that the Project was approved by the ZAB without meeting the “non-detriment” finding in Berkeley Municipal Code Section 23.406.040(E)(1)2, and the project is detrimental to the general welfare of the City, its residents, and 1 The Housing Accountability Act (HAA), Government Code Section 65589.5(j), requires that when a proposed housing development complies with the applicable, objective general plan and zoning standards, but a local agency proposes to deny the project or approve it only if the density is reduced, the agency must base its decision on written findings supported by substantial evidence that the development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density. 2 Berkeley Municipal Code Section 23.406.040(E)(1) Findings for Approval:
“To approve a Use Permit, the ZAB shall find that the proposed project or use:
(a) Will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or visiting in the area or neighborhood of the proposed use; and (b) Will not be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City.”

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its workers, in violation of the City’s zoning code. Specifically, they assert that the Project Applicant has made no commitment to build using a local skilled and trained workforce, to provide apprenticeship training opportunities for City of Berkeley or East Bay residents, or to provide healthcare for its construction workforce. The appellants believe that the Project is therefore inconsistent with City plans, policies, and goals which seek to ensure that the City has an adequate supply of decent housing and living wage jobs. Further, the project previously approved on this site – the 2211 Harold Way Mixed Use Project – was approved with a community benefits package that included a labor agreement with other benefits.

The appellants further assert that the ZAB approval is inconsistent with the analyses presented in the staff report written in support of Council’s recent Referral to draft the Helping Achieve Responsible Development with Healthcare and Apprenticeship Training Standards (“HARD HATS”) Ordinance, which, if enacted, would implement apprenticeship program requirements and healthcare security for workers on General Plan area projects.

Response:

Although the Berkeley Municipal Code (BMC) requires findings of general non-detriment for approval of discretionary permits, and the General Plan (GP) and Downtown Area Plan (DAP) goals and policies broadly guide development in the downtown zoning district, BMC non-detriment findings and GP/DAP goals and policies are not objective standards; they cannot provide a basis for denial of (or reduction in density for) a housing project due to protections provided by the HAA. Pursuant to the HAA, the City cannot deny or reduce the density of a housing development that is compliant with objective standards, unless it can meet the strict finding of specific adverse impact3 on public health or safety – a level of impact which the State Department of Housing and Community Development considers to be rare.4
The project applicant submitted a Preliminary Application pursuant to SB 330 (Government Code Sections 65941.1 and 66300) to vest in policies, standards and fees in effect on July 26, 2021, when the application was determined to be complete, for the pendency of the project approval. Upon review of the SB 330 use permit application, the ZAB determined that the project was compliant with all vested and applicable objective general plan and zoning standards, that the findings for specific adverse impact on 3 Per Government Code Section 65589.5(d)(2), a “specific, adverse impact” means “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” 4 Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5), p. 20; State Department of Housing and Community Development.

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public health or safety in order to deny (or reduce) the project could not be made, and approved the project in accordance with SB 330 and the HAA.

In addition, though the project site is located in the C-DMU, Mixed Use Commercial District, where a “community benefits” package that includes a Project Labor Agreement is required of proposed buildings which exceed 75 feet in height, this project is not subject to the requirement because its Base Project5 height does not exceed 75 feet, unlike the 2211 Harold Way project that the appellants reference.

Finally, the HARDHATS ordinance referenced in the appeal letter is not yet City policy.

If the Berkeley City Council in the future were to adopt the proposed ordinance in its current form, it would still not be relevant to a land use permit review process, as “HARDHATS” is framed as a requirement of all projects of a certain size, not as a discretionary review criterion.

ENVIRONMENTAL SUSTAINABILITY
The project approved by the ZAB is compliant with all applicable State and local environmental requirements, would be located in a transit-rich area, and would be built and operated according to current codes for energy conservation, waste reduction, low toxicity, and other factors.

ALTERNATIVE ACTIONS CONSIDERED
Pursuant to BMC Section 23.410.040(G), the Council may (1) continue the public hearing, (2) reverse, affirm, or modify the ZAB’s decision, or (3) remand the matter to the ZAB.

Action Deadline:

Pursuant to BMC Section 23.410.040(I), if the disposition of the appeal has not been determined within 30 days from the date the public hearing was closed by the Council (not including Council recess), then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied.

CONTACT PERSONS
Jordan Klein, Director, Planning & Development Department, (510) 981-7534 Steven Buckley, Land Use Planning Manager, (510) 981-7411 Sharon Gong, Project Planner, (510) 981-7429
5 Pursuant to Government Code Section 65915, the Base Project in a density bonus project is the objective standards-compliant project that represents the maximum allowable density on the site before adding the density bonus units, which are conferred by-right if the minimum amount of below-market-rate units are included in the project.

ZAB Appeal: 2065 Kittredge Street PUBLIC HEARING
Use Permit #ZP2021-0193 January 31, 2023

Attachments:

1. Draft Resolution
 Exhibit A.1: Findings and Conditions
 Exhibit A.2: Mitigation Monitoring and Reporting Program, Revised July 2022  Exhibit A.3: SAP Findings and Conditions
 Exhibit B: Project Plans, received September 1, 2022
 Exhibit C: EIR Addendum for 2065 Kittredge Mixed-Use Project  Exhibit D: Supplemental Analysis Memorandum to EIR Addendum, dated September 8, 2022

2. Appeal Letter, dated received October 25, 2022

3. September 22, 2022 ZAB Hearing Staff Report

4. Index to Administrative Record

5. Administrative Record

6. Public Hearing Notice
Referenced Link:
2211 Harold Mixed-Use Project Final EIR and Statement of Overriding Considerations, available at: https://aca.cityofberkeley.info/CitizenAccess/Default.aspx. Click on Zoning tab; enter permit number ZP2021-0193; select permit ZP2021-0193; click on the “Record Info” drop down menu; click on Attachments for a list of all application materials.

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

AFFIRMING THE ZONING ADJUSTMENTS BOARD APPROVAL OF USE PERMIT #ZP2021-0193 TO DEMOLISH PORTIONS OF EXISTING CITY LANDMARK

COMMERCIAL BUILDINGS AND CONSTRUCT AN EIGHT-STORY, MIXED-USE BUILDING AT 2065 KITTREDGE STREET WITH 187 DWELLING UNITS (INCLUDING FOUR LIVE/WORK UNITS AND NINE VERY LOW-INCOME UNITS), 4,993 SQUARE FEET COMMERCIAL SPACE AND 43 PARKING SPACES, AND DISMISS THE APPEAL WHEREAS, on July 26, 2021, William Schrader (“applicant”) submitted a Preliminary Application to vest rights pursuant to Senate Bill (SB) 330, the Housing Crisis Act of 2019 (Government Code Sections 65941.1 and 66300), for a housing development project.

WHEREAS, on October 25, 2021, William Schrader submitted an application for Use Permit #ZP2021-0193 to demolish portions of existing City Landmark commercial buildings and construct an eight-story, mixed-use building with 187 dwelling units (including four live/work units and nine Very Low-Income units), 4,993 square feet commercial space and 43 parking spaces (“project”); and also submitted an application for Landmark Structural Alteration Permit #LMSAP2021-0004 for the alteration of a City Landmarked site; and
WHEREAS, on June 1, 2022, staff deemed this application complete and determined that the level of California Environmental Quality Act (“CEQA”) review would be an Addendum to the certified 2211 Harold Way Mixed-Use Project Final Environmental Impact Report (“EIR”); and
WHEREAS, on April 21 2022, the Design Review Committee (DRC) conducted Design Review Referral for LMSAP2021-0004, and forwarded advisory comments for the LPC and ZAB.

WHEREAS, on June 2, 2022 the Landmarks Preservation Commission (LPC) conducted a review of Structural Alteration Permit #LMSAP2021-0004, and continued the discussion to a second meeting; and
WHEREAS, on August 4, 2022, the LPC and conducted a second meeting, approved the SAP for demolition and new construction at the landmark site, adopted an Addendum to the previous EIR, and conditioned the project for Final Design Review; and WHEREAS, on September 8, 2022, staff mailed and posted a Notice of Public Hearing for the project at the site and two nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area; and
WHEREAS, on September 22, 2022, the Zoning Adjustments Board (ZAB) conducted a public hearing for the Use Permit. After hearing public comments and holding discussion, the ZAB adopted the EIR Addendum and Revised Mitigation Monitoring and Reporting Program, and approved the Use Permit by a vote of 7-0-0-1 (Yes: Duffy, Kahn, Kim,

Olson, Sanderson, Thompson, Vincent, Tregub; No: None; Abstain: None; Absent: O’ Keefe); and
WHEREAS, on October 11, 2022, staff issued the notice of the ZAB decision; and WHEREAS, on October 25, 2022, the City Clerk received an appeal filing from Adams, Broadwell Joseph and Cardozo, on behalf of East Bay Residents for Responsible Development; and
WHEREAS, on or before January 17, 2023, staff mailed and posted a Notice of Public Hearing at the site and two nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area; and
WHEREAS, on January, 31, 2023, the Council held a public hearing to consider the ZAB’s decision, and in the opinion of this Council, the facts stated in, or ascertainable from the public record, including the staff report and comments made at the public hearing, warrant approving the project.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Berkeley that the City Council hereby adopts the findings made by the ZAB in Exhibit A.1 to affirm the decision of the ZAB to approve Use Permit #ZP2021-0193, adopts the conditions of approval in Exhibits A.1, A.2 and A.3; adopts the project plans in Exhibit B; adopts the EIR Addendum and Supplemental Analysis Memo in Exhibits C and D; and dismisses the appeal.

Exhibits
 Exhibit A.1: Findings and Conditions
 Exhibit A.2: Mitigation Monitoring and Reporting Program, Revised July 2022  Exhibit A.3: SAP Findings and Conditions
 Exhibit B: Project Plans, received September 1, 2022
 Exhibit C: EIR Addendum for 2065 Kittredge Mixed-Use Project  Exhibit D: Supplemental Analysis Memorandum to EIR Addendum, dated September 8, 2022

Atta chme nt 1, Ex hibit A .1
Findings and Condition s
SEPTEMBER 22, 2022
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E
-mail: [email protected]
2065 Kittredge Street
Use Permit #ZP2021 -0
193 to demolish portions of existing City Landmark
commercial buildings and construct an 8-story, mixed -use building with 187 dwelling units (including four live/work units and nine Very Low -Income units), 4,993 square feet commercial space and 43 parking spaces. Project utilizes State Density Bonus.

PERMITS REQUIRED
• Use Permit under BMC Section 23.326.070(A) to demolish a non-residential building • U se Permit under BMC Section 23.204.020(A) to construct a new mixed- us e development
• Use Permit under BMC Section 23.204.020(A) to construct dwelling units • Use Permit under BMC Section 23.204.030(B)(1) to create new floor area of 10,000 square feet or more
• Use Permit under BMC Section 23.204.130(E)(1) to exceed the maximum building height limits, up to 75 feet (plus 5-foot parapet, by right)
CONCESSIONS/WAIVERS UNDER GOVERNMENT CODE SECTION 65915-65918 • Concession to reduce the usable open space requirement – to provide 11,916 square feet where 14,960 square feet is required
• W aiver of BMC Section 23.204.130(E)(1) to exceed building height limits – to be 87 feet (plus 5-
foot parapet, by right), where 75 feet is the limit (plus 5-foot parapet, by right, with a use permit) • Waiver of BMC Section 23.204.130(E)(3) to reduce setbacks to 0 feet, where 15 feet is required, where above 75 feet in height
• Waiver of BMC Section 23.204.130(E)(3) to increase front setback maximum to 0-20 feet, where 5 feet is required, at 0-20-foot building height
• Waiver of BMC Section 23.304.090(B)(7) to reduce the landscaped usable open space to 25 percent, where from 40 percent minimum is required
• Waiver of BMC Section 23.304.050(A) to exceed building height limits with rooftop architectural elements which exceed the maximum height limit for the district • Waiver of BMC Section 23.322.030(B)(1) to reduce the minimum commercial parking requirement to zero, where eight is required
I. CEQA FINDINGS

1. Pursuant to the California Environmental Quality Act (CEQA), the City prepared an EIR Addendum for this Project.

A. CEQA Approach: Pursuant to Section 15164 of the CEQA Guidelines, codified in Sections 15000 et seq. of Title 14 of the California Code of Regulations, a lead agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15612 calling for preparation of a subsequent

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EIR have occurred. Under Section 15162(a), where an EIR has been certified for a project, no subsequent EIR shall be prepared for the project unless the lead agency determines, on the basis of substantial evidence in light of the whole record, that there are substantial changes in the project or circumstances or substantially important new information that will cause the project to have significant new impacts or substantially increase previously identified significant impacts.

As discussed in detail in the EIR Addendum, potential impacts associated with the modified project (the proposed changes compared to the project evaluated in the Final EIR) are consistent with potential impacts characterized and mitigated for in the Final EIR.

Substantive revisions to the Final EIR are not necessary because no new significant impacts or significant impacts of substantially greater severity than previously described would occur. Thus, the conditions outlined in CEQA Guidelines Section 15162(a) requiring preparation of a subsequent EIR would not be met.

B. EIR Addendum and Revised MMRP: An Addendum to the 2211 Harold Way Mi xed-Use Project (UP 13-10000010) Final EIR, which was certified in December 2015, was prepared to evaluate the potentially significant environmental impacts of the proposed project, pursuant to the California Environmental Quality Act. The Addendum considered the Final EIR and Statement of Overriding Considerations, and evaluated the modified project. The modified project was found to be smaller and less impactful than the Final EIR project. The impacts related to demolition and alteration of historic buildings, would remain significant and unavoidable, and the same overriding considerations would apply to the modified project, except that the project is no longer required to provide community benefits, and cultural resource impacts were addressed in the modified design.

The Addendum described the changes in the modified project, and addressed the following issues in detail: Air Quality, Cultural Resources, Greenhouse Gas Emissions, Noise, Transportation, and Utilities and Service Systems. All other environmental issues were evaluated for impact from the modified project as well, with the conclusion that impacts to these areas w
ill be less than significant with mitigation, similar to the original project. For each of the above- listed areas of evaluation, the EIR Addendum findings supported the conclusion that impacts from the modified project will not result in new significant effects or a substantial increase in the severity of previously identified significant effects on the environment. Therefore, no new mitigation measures will be necessary for any of these evaluated areas. Furthermore, several mitigation measures for Cultural Resources are no longer required, as discussed below.

Cultural Resources. No new or substantially more severe significant effects will oc cur to
cultural resources, and no new mitigation measures will be necessary. Design changes in the modified project include a reduction in building height, design strategies to break up massing with varied rooflines and materials, and the projection of the second- floor level above the double- height street level, aligning with the cornice of the 1912 portion of the Shattuck Hotel. These design modifications have responded to the design measures adopted in Mitigation Measures CR -2(a), (b) and (c) of th e Final EIR ; therefore the measures do not apply to the modified project. In particular, the modified project avoids impact to the Allston Way elevation, in response to Mitigation Measure CR -2(a); the redesign of the Kittredge Street “hyphen” responds to Mitigation Measure CR-2(b); and the

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removal of large-scale use of aluminum glazing systems responds to Mitigation Measure CR-2(c).

In conclusion, similar to the original project, cultural resource impacts from the modified project will be less than significant with mitigation, with the exception of impacts related to demolition and alteration of historic buildings, which will remain significant and unavoidable.

Mitigation Measures CR -2(a) through (c) will be removed from the Mitigation Monitoring and Reporting Program (MMRP). All other measures adopted in the Final EIR for the purposes of mitigating cultural resources impacts remain applicable.

Revisions to the project were made after the LPC meeting on August 4, 2022, including the elimination of one unit (two bedrooms), the addition of 812 square feet of commercial area, and other minor revisions. The City reviewed the revised plans and concluded that the revisions did not change the conclusions of the EIR Addendum.

Public Resources Code Section 21081.6 and CEQA Guidelines Section 15091(d) require the City to adopt a reporting or monitoring program for the changes to the project that it has adopted or made a condition of approval in order to avoid or substantially lessen significant effects on the environment. The monitoring program is designed to ensure compliance during project implementation. The MMRP for the 2211 Harold Way Mixed- Use Project Final EIR has been revised to reflect the changes to the mitigation measures that were described in the Addendum.

C. The Zoning Adjustments Board finds that the modified project's significant environmental impacts to cultural resources are acceptable in light of the project's benefits. These benefits were set forth in the statement of overriding considerations that was adopted in connection with the 2211 Harold Way project, and, with the exception of that statement’s inclusion of benefits regarding maintaining a cinema and community benefits required per BMC Section

23.E.68.090.E for the tower aspect of that project, the benefits and considerations in that statement are applicable to the modified project. The benefits set forth therein constitute overriding considerations warranting approval of the modified project, independent of the other benefits, despite each and every unavoidable impact.

The EIR Addendum, 2211 Harold Mixed-Use Project Final EIR and Statement of Overriding Considerations are available at this link:
https://aca.cityofberkeley.info/CitizenAccess/Default.aspx. Click on Zoning tab; enter permit number ZP2021-0193; select permit ZP2021-0193; click on the “Record Info” drop down menu; click on Attachments for a list of all application materials.

II. DENSITY BONUS FINDINGS

1. Pursuant to Government Code Section 65915, the Zoning Adjustments Board finds that:

A. Under the City’s methodology for implementing density bonuses, the “base project” consists of 164 units;
B. The project will provide at least nine (9) Very Low-Income (VLI) qualifying units in the 163- unit “base project”, as more fully set forth in Condition 70; C. The project is entitled to a density increase of 20 percent over the otherwise maximum allowable residential density under the Zoning Ordinance and General Plan Land Use Element, under the requirements of Government Code Section 65915(b) and (f), plus one

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concession or incentive. This equates to a density bonus of 24 units (33 units maximum) above the Base Project, for a total of 187 units.

2. In accordance with Government Code Section 65915(d) and (k), the Zoning Adjustments Board hereby grants the following concessions in order to provide for affordable housing costs:

A. Concession to reduce the usable open space requirement – to provide 11,916 square feet where 14,960 square feet is required

3. In accordance with Government Code Section 65915(d), in order to allow construction of the proposed project with the density permitted under State law, the Zoning Adjustments Board finds that the approval of the concession is required to provide for affordable rents, as provided in Government Code Section 65915(d)(1)(A) because 1) approval of the concession will result in identifiable and actual cost reduction; 2) approval of the concession will not have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources; and 3) will not be contrary to State or Federal law.

4. In accordance with Government Code Section 65915(e) the Zoning Adjustments Board hereby grants the following waivers:

A. Waiver of BMC Section 23.204.130(E)(1) to exceed building height limits – to be 87 feet (plus 5-foot parapet, by right), where 75 feet is the limit (plus 5-foot parapet, by right, with a use permit)
B. Waiver of BMC Section 23.204.130(E)(3) to reduce setback to 0 feet, where 15 feet is required, where above 75 feet in height
C. Waiver of BMC Section 23.204.130(E)(3) to increase front setback maximum to 0-20 feet, where 5 feet is required, at 0-20 foot building height
D. Waiver of BMC Section 23.304.090(B)(7) to reduce the landscaped usable open space to 25 percent, where from 40 percent minimum is required
E. Waiver of BMC Section 23.304.050(A) to exceed building height limits with rooftop architectural elements which exceed the maximum height limit for the district F. Waiver of BMC Section 23.322.030(B)(1) to reduce the minimum commercial parking requirement to zero, where 8 is required
These waivers are required because state law requires the City to modify development standards as necessary to accommodate these density bonus units, and because the Zoning Adjustments Board hereby finds that the density bonus units can best be accommodated by granting these waivers.

5. In accordance with Government Code Section 65915(e), in order to allow construction of the proposed project with the density permitted under State law, the Zoning Adjustments Board finds approval of waivers is required 1) construct the proposed project at the density permitted under State law; 2) approval of requested waivers will not have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources; and 3) approval of the requested waiver s will not be contrary to State or Federal law.

III. F

INDINGS FOR APPROVAL

6. The Housing Accountability Act §65589.5(j) requires that when a proposed housing development complies with applicable, objective general plan and zoning standards, a local

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agency may not deny the project or approve it with reduced density unless the agency makes written findings supported by substantial evidence that:

A. The development would have a specific adverse impact on public health or safety unless disapproved or approved at a lower density; and
B. There is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval or approval at a lower density.

The project includes construction of 187 dwelling units. Because the base project would comply with applicable, objective general plan and zoning standards, §65589.5(j) does apply to this project. No significant, quantifiable, direct and unavoidable impacts, based on objective, identified written public health or safety standards, polices, or conditions, have been identified by staff.

7. As required by Section 23.406.040(E)(1) of the BMC, the project, under the circumstances of this particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City because:

A. The project is consistent with all applicable C -DMU District standards and qualifies for waivers and concessions for the listed district standards granted pursuant to State Density Bonus, Government Code, Section 65915;
B. Shadow impacts will affect commercial uses only, and will not affect residential uses; and C. The project is subject to the City’s standard conditions of approval regarding construction noise and air quality, waste diversion, toxics, and stormwater requirements, thereby ensuring the project will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

IV. O

THER FINDINGS FOR APPROVAL

8. As required by Section 23.326.070(D) of the BMC, the Zoning Adjustments Board finds that the proposed demolition of the existing building at 2065 Kittredge Street will not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City, and meets the finding that demolition is required to allow a proposed new building or other proposed new use.

9. As required by Section 23.204.130(I) of the BMC, the Zoning Adjustments Board finds that the proposed use or structure:

A. Is compatible with the purposes of the district to implement the vision and goals of the Downtown Area Plan:
a. Environmental Sustainability and Access: DAP Goals ES-3, UL-1 AC-1, AC-4. The project provides higher-density development in proximity to regional transit, shops and amenities, and it will improve options to increase access to Downtown on foot, by bicycle and via transit will promote transit as an efficient and attractive choice through its location and through its T ransportation Demand Management Plan and other associated Conditions of Approval.

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b. Land Use: DAP Goal LU -1 (Policies LU -1.1 and LU -1.3). T he Project will include residential, and commercial uses that allow people who live, work and learn in the Downtown to meet daily needs on foot.
c. Historic Preservation and Urban Design: The LPC referred the project to DRC for design review recommendations, and considered the project in relation to its urban context, focusing on the application of the Downtown Design Guidelines, which implement the objectives and policies of the Historic Preservation and Urban Design chapter of the DAP.

The LPC approved the SAP with findings for consistency with Landmarks Preservation, the Secretary of Interior standards for rehabilitation, and DAP design review standards . (See section IV.B for details.)
d. Streets and Open Space: DAP Goal OS-1. The project will enhanc e public open spaces
and streets to benefit pedestrians, improve Downtown’s livability, and foster a sense of place.
e. Housing and Community Health and Services: DAP Goals HC- 1, HC-2, HC-3. The project
will encourage Downtown as a thriving, livable, diverse residential neighborhood with a mix of supportive uses, and play a significant role in meeting Berkeley’s continuing need for additional housing.
f. Economic Development : DAP Goal ED-

1. T he project will ser ve the needs of the
neighborhood and the City, make Downtown a more attractive regional destination, by promoting successful retail businesses and other attractions, with daytime and night-time populations to support them.

B. Is compatible with surrounding uses and buildings:
a. The project site currently includes office and retail uses. (Previous cinema and museum uses no longer occupy the site.) The proposed project w ill change uses on the site to
ground-floor commercial (retail and food service) and residential uses above. Uses on the surrounding properties include retail, public parking, office, library, hotel, and residential.

The project will not introduce new land uses that do not already exist in the Downtown, and as described above, will further the vision and goals of the DAP. b. T he DRC forwarded a positive recommendation for the project design, and the LPC voted to approve the SAP, with findings for consistency with Landmarks Preservation, the Secretary of Interior standards for rehabilitation, and DAP design review standards.

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V. STANDARD CONDITIONS OF APPROVAL FOR ALL PROJECTS
The following conditions, as well as all other applicable provisions of the Zoning Ordinance, apply to this Permit:

1. C
onditions and Mitigation Monitoring and Reporting Program Shall be Printed on Plans The conditions of this Permit shall be printed on the second sheet of each plan set submitted for a building permit pursuant to this Use Permit, under the title ‘Use Permit Conditions.’ Additional sheets may also be used if the second sheet is not of sufficient size to list all of the conditions.

The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2” by 11” sheets are not acceptable.

2. C
ompliance Required
(BMC Section 23.102.050)
All la nd uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations . Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property.

3. Approval Limited to Proposed Project and Replacement of Existing Uses (BMC Sections

23.404.060.B.1 and 2)
A. This Permit authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.

B. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.

4. Conformance to Approved Plans (BMC Section 23.404.060.B.4) All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.

5. Exercise and Expiration of Permits (BMC Section 23.404.060.C) A. A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.

B. A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.

C. The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction. The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant. A determination that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certification).

D. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.

6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D)

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Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re- established without obtaining a new permit, except as set forth in Standard Condition #5 above.

7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless the Permit is modified by the Board. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.

8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless o f the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

9. Pay Transparency Acknowledgement (BMC Section 13.104.030) Prior to the issuance of a building permit for any Project subject to this Chapter:

A. A Responsible Representative of the Permittee shall certify under penalty of perjury that:
(1) the Permittee has reviewed Chapter 13.104 of the Berkeley Municipal Code; and (2) the Permittee will be responsible for demonstrating compliance with this Chapter.

B. The Permittee shall provide to the City a Contractor Pay Transparency Acknowledgment on a form approved by the City for this purpose. A Responsible Representative of the Permittee shall certify under penalty of perjury that the Contractor and all Qualifying Subcontractors performing work on the Project will comply with Chapter 13.104 of the Berkeley Municipal Code and with Labor Code sections 226(a) and 2810.5 for each employee who works on the Project.

10. Pay Transparency Attestations Following Project Completion (BMC Section 13.104.040) Within 10 days of the approved final inspection of any Project subject to this Chapter, each Permittee shall provide to the City for each Contractor and Qualifying Subcontractor a Pay Transparency Attestation on a form approved by the City. On each Pay Transparency Attestation, a Responsible Representative of the Contractor or Qualifying Subcontractor shall attest under penalty of perjury that the Contractor or Qualifying Subcontractor complied with Chapter 13.104 of the Berkeley Municipal Code and Labor Code sections 226(a) and 2810.5 for each employee who performed work on the Project. The City will maintain Pay Transparency Attestation forms for period of at least three years after their date of receipt by the City.

11. Posting of Ordinance (BMC Section 13.104.050)
Each day work is performed on the Project, each Permittee shall post, and keep posted in a conspicuous location where it may be easily read by employees during the hours of the workday, a notice that: (A) contains the text of Chapter 13.104 of the Berkeley Municipal Code; (B) explains that workers can report violations of Labor Code sections 226 and 2810.5 to the Labor Commissioner of the State of California; and (C) provides current contact information, including office address, telephone number, and email address of the Labor Commissioner of the State of California.

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12. Conditions of Approval (BMC Section 13.104.060)
The requirements of Sections 13.104.030 through 13.104.050 shall be included as conditions of approval of any Use Permit or Zoning Certificate for any Project that is subject to this Chapter.

Failure to comply with the requirements of any provision of this Chapter shall be grounds for issuance of an administrative citation under Chapter 1.28 and/or the revocation or modification of any Use Permit issued for the Project under Chapter 23B.60.

13. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specified herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court c osts, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.

VI. A

DDITIONAL CONDITIONS IMPOSED BY THE ZONING ADJUSTMENTS BOARD Pursuant to BMC 23 .406.040.E, the Zoning Adjustments Board attaches the following additional conditions to this Permit:

Prior to Submittal of Any Building Permit:

14. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction- related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and actions to the project planner on a weekly basis. Please designate the name of this individual below:

 Project Liaison ____________________________________________________ Name Phone #

15. F inal Geotechnical Report. The Project Geotechnical Consultant shall coordinate with the project team and complete the analysis necessary to provide final recommendations and a signed and stamped report for the proposed project. Final recommendations shall consider final floor elevations and potential grading concepts. The final report shall include specifications for engineered fill for basement backfill where shallow footings may be proposed, and provide recommended bearing pressures for footings embedded into this engineered fil l, if applicable.

The applicant shall consider the benefits of drilling a boring along the northern side of the

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property to investigate the subsurface conditions in the vicinity of the historic Strawberry Creek channel and installing and monitoring a piezometer(s) to better document groundwater conditions before and during construction. The Final Geotechnical Report shall be compiled, signed and stamped by the Project Geotechnical Consultant and submitted to the City for review by the City Geotechnical Consultant and City Engineer as part of building permit plan check.

16. G
eotechnical Plan Review . The applicant's geotechnical consultant shall review and approve all geotechnical aspects of the final project building and grading plans (i.e., site preparation and grading including removal and replacement/treatment of expansive soils, site surface and subsurface drainage improvements including site runoff discharge, and design parameters for foundations and retaining walls, etc.,) to ensure that their recommendations have been properly incorporated and to ensure that the project concept has not changed significantly since preparation of their report. The results of the plan review should be summarized by the geotechnical consultant in a letter and submitted to the City Engineer for review and approval prior to issuance of building permits.

17. Vapor Intrusion. Submit a vapor intrusion report (including subslab vapor samples and indoor air samples at the northwestern portion of the basement level of the Site) to the Toxics Division for review. See the project Phase I report, dated February 5, 2021 for details on the required report scope.

18. F
inal Design Review. The Project requires approval of a Final Design Review application by the Design Review Committee.

19. A
ddress Assignment. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Use Permit. The new address(es) shall be assigned in accordance with BMC 16.28.030, and entered into the City’s database after the building permit is issued but prior to final inspection.

20. C
onstruction Noise Reduction Program . The applicant shall develop a site -specific noise reduction program prepared by a qualified acoustical consultant to reduce construction noise impacts to the maximum extent feasible, subject to review and approval of the Zoning Officer.

The noise reduction program shall include the time limits for construction listed above, as measures needed to ensure that construction complies with BMC Section 13.40.070. The noise reduction program should include, but shall not be limited to, the following available controls to reduce construction noise levels as low as practical:

A. Construction equipment should be well maintained and used judiciously to be as quiet as practical.

B. Equip all internal combustion engine- dr
iven equipment with mufflers, which are in good
condition and appropriate for the equipment.

C. Utilize “quiet” models of air compressors and other stationary noise sources where technology exists. Select hydraulically or electrically powered equipment and avoid pneumatically powered equipment where feasible.

D. Locate stationary noise- generating equipment as far as possible from sensitive receptors when adjoining construction sites. Construct temporary noise barriers or partial enclosures to acoustically shield such equipment where feasible.

E. Prohibit unnecessary idling of internal combustion engines.

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F. If impact pile driving is required, pre- drill foundation pile holes to minimize the number of impacts required to seat the pile.

G. Construct solid plywood fences around construction sites adjacent to operational business, residences or other noise- sensitive land us es where the noise control plan analysis determines that a barrier would be effective at reducing noise.

H. Erect temporary noise control blanket barriers, if necessary, along building facades facing construction sites. This mitigation would only be necessary if conflicts occurred which were irresolvable by proper scheduling. Noise control blanket barriers can be rented and quickly erected.

I. Route construction related traffic along major roadways and away from sensitive receptors where feasible.

21. D
amage Due to Construction Vibration . The project applicant shall submit screening level analysis prior to, or concurrent with demolition building permit. If a screening level analysis shows that the project has the potential to result in damage to structures, a structural engineer or other appropriate professional shall be retained to prepare a vibration impact assessment (assessment). The assessment shall take into account project specific information such as the composition of the structures, location of the various types of equipment used during each phase of the project, as well as the soil characteristics in the project area, in order to determine whether project construction may cause damage to any of the structures identified as potentially impacted in the screening level analysis. If the assessment finds that the project may cause damage to nearby structures, the structural engineer or other appropriate professional shall recommend design means and methods of construction that to avoid the potential damage, if feasible. The assessment a nd its recommendations shall be reviewed and approved by the Building and Safety Division and the Zoning Officer. If there are no feasible design means or methods to eliminate the potential for damage, the structural engineer or other appropriate professional shall undertake an existing conditions study (study) of any structures (or, in case of large buildings, of the portions of the structures) that may experience damage. This study shall • es
tablish the baseline condition of these structures, including, but not limited to, the location and extent of any visible cracks or spalls; and
• include written descriptions and photographs.

The study shall be reviewed and approved by the Building and Safety Division and the Zoning Officer prior to issuance of a grading permit. Upon completion of the project, the structures (or, in case of large buildings, of the portions of the structures) previously inspected will be resurveyed, and any new cracks or other changes shall be compared to pre-construction conditions and a determination shall be made as to whether the proposed project caused the damage. The findings shall be submitted to the Building and Safety Division and the Zoning Officer for review. If it is determined that project construction has resulted in damage t o the structure, the damage shall be repaired to the pre- existing condition by the project sponsor, provided that the property owner approves of the repair.

22. C
ompliance with Conditions and Environmental Mitigations. The building permit application is subject to verification of compliance to the adopted Mitigation Monitoring and Reporting Program (Attachment - Exhibit B). The applicant shall be responsible for demonstrating compliance with all conditions of approval and mitigation measures per the timeline set forth by this use permit. The applicant shall deposit $10,000 with the City, or less with the approval of the Zoning Officer, to pay for the cost of monitoring compliance with these Conditions of Approval

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and other applicable conditions and regulations. Should compliance- monitoring expenses exceed the initial deposit, the applicant shall deposit additional funds to cover such additional expenses upon the request of the Zoning Officer; any unused deposit will be refunded to the applicant.

Prior to Issuance of Any Building & Safety Permit (Demolition or Construction)

23. Fee Deferrals. All zoning project application fees that were deferred at the time of application submittal shall be paid in full.

24. C
onstruction Noise Management - Public Notice Required. At least two weeks prior to initiating any construction activities at the site, the applicant shall provide notice to businesses and residents within 500 feet of the project site. This notice shall at a minimum provide the following:
(1) project description, (2) description of construction activities during extended work hours and reason for extended hours , (3) daily construction schedule (i.e., time of day) and expected duration (number of months), (4) the name and phone number of the Project Liaison for the project that is responsible for responding to any local complaints, and (5) that construction work is about to commence. The liaison would determine the cause of all construction- related complaints (e.g., starting too early, bad muffler, worker parking, etc.) and institute reasonable measures to correct the problem. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval.

25. C
onstruction Phases . The applicant shall provide the Zoning Officer with a schedule of major construction phases with start dates and expected duration, a description of the activities and anticipated noise levels of each phase, and the name(s) and phone number(s) of the individual(s) directly supervising each phase. The Zoning Officer or his/her designee shall have the authority to require an on- site meeting with these individuals as necessary to ensure compliance with these conditions. The applicant shall notify the Zoning Officer of any changes to this schedule as soon as possible.

26. De
molition . Demolition of the existing building cannot commence until a complete application is submitted for the replacement building. In addition, all plans presented to the City to obtain a permit to allow the demolition are subject to these conditions.

27. Construction and Demolition Diversion. Applicant shall submit a Construction Waste Management Plan that meets the requirements of BMC Chapter 19.37 including 100% diversion of asphalt, concrete, excavated soil and land -clearing debris and a minimum of 65% diversion of other nonhazardous construction and demolition waste.

28. T
oxics . The applicant shall contact the Toxics Management Division (TMD) a t 1947 Center Street or (510) 981-7470 to determine which of the following documents are required and timing for their submittal:

A. Environmental Site Assessments:
1) Phase I
& Phase II Environmental Site Assessments (latest ASTM 1527- 13). A recent Phase I ESA (less than 2 years old*) shall be submitted to TMD for developments for:
• All new commercial, industrial and mixed use developments and all large improvement projects.
• All new residential buildings with 5 or more dwelling units located in the Environmental Management Area (or EMA).

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• EMA is available online
at: http://www.cityofberkeley.info/uploadedFiles/IT/Level_3_-_General/ema.pdf 2) Phase II ESA is required to evaluate Recognized Environmental Conditions (REC) identified in the Phase I or other RECs identified by TMD staff. The TMD may require a third party toxicologist to review human or ecological health risks that may be identified.

The applicant may apply to the appropriate state, regional or county cleanup agency to evaluate the risks.
3) If the Phase I is over 2 years old, it will require a new site reconnaissance and interviews.

If the facility was subject to regulation under Title 15 of the Berkeley Municipal Code since the last Phase I was conducted, a new records review must be performed.

B. Soil and Groundwater Management Plan:
1) A Soil and Groundwater Management Plan (SGMP) shall be submitted to TMD for all non- residential projects, and residential or mixed-use projects with five or more dwelling units, that: (1) are in the Environmental Management Area (EMA) and (2) propose any excavations deeper than 5 feet below grade. The SGMP shall be site specific and identify procedures for soil and groundwater management including identification of pollutants and disposal methods. The SGMP will identify permits required and comply with all applicable local, state and regional requirements.
2) The SGMP shall require notification to TMD of any hazardous materials found in soils and groundwater during development. The SGMP will provide guidance on managing odors during excavation. The SGMP will provide the name and phone number of the individual responsible for implementing the SGMP and post the name and phone number for the person responding to community questions and complaints. 3) TMD may impose additional conditions as deemed necessary. All requirements of the approved SGMP shall be deemed conditions of approval of this Use Permit.

C. Building Materials Survey:
1) Prior to approving any permit for partial or complete demolition and renovation activities involving the removal of 20 square or lineal feet of interior or exterior walls, a building materials survey shall be conducted by a qualified professional. The survey shall include, but not be limited to, identification of any lead- based paint, asbestos, polychlorinated biphenyl (PBC) containing equipment, hydraulic fluids in elevators or lifts, refrigeration systems, treated wood and mercury containing devices (including fluorescent light bulbs and mercury switches). The Survey shall include plans on hazardous waste or hazardous materials removal, reuse or disposal procedures to be implemented that fully comply state hazardous waste generator requirements (22 California Code of Regulations 66260 et seq). The Survey becomes a condition of any building or demolition permit for the project.

Documentation evidencing disposal of hazardous waste in compliance with the survey shall be submitted to TMD within 30 days of the completion of the demolition. If asbestos is identified, Bay Area Air Quality Management District Regulation 11-2- 401.3 a notification must be made and the J number must be made available to the City of Berkeley Permit Service Center.

D. Hazardous Materials Business Plan:
1) A Hazardous Materials Business Plan (HMBP) in compliance with BMC Section

15.12.040 shall be submitted electronically at http://cers.calepa.ca.gov/ within 30 days if on-site hazardous materials exceed BMC 15.20.040. HMBP requirement can be found at http://ci.berkeley.ca.us/hmr/

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Prior to Issuance of Any Building (Construction) Permit

29. Privately Owned Public Open Space (POPOS). The applicant shall submit proof of measures taken (i.e. signage, etc..) to ensure that the POPOS area at Allston and Harold Way are accessible to the public for the life of the project.

30. HV AC Noise Reduction . Prior to the issuance of building permits, the project applicant shall submit plans that show the location, type, and design of proposed heating, ventilation, and cooling (HVAC) equipment. In addition, the applicant shall provide product specification sheets or a report from a qualified acoustical consultant showing that operation of the proposed HVAC equipment will meet the City’s exterior noise requirements in BMC Section 13.40.050. The City’s Planning and Development Department shall review the submitted plans, including the selected HVAC equipment, to verify compliance with exterior noise standards.

31. I
nterior Noise Levels . Prior to issuance of a building permit, the applicant shall submit a report to the Building and Safety Division and the Zoning Officer by a qualified acoustic engineer certifying that the interior residential portions of the project will achieve interior noise levels of no more than 45 Ldn (Average Day -Night Levels). If the adopted Building Code imposes a more restrictive standard for interior noise levels, the report shall certify compliance with this standard.

32. S
treets and Open Space Improvement Plan: Street Frontage Improvements . Streets and Open Space Improvement Plan: Street Frontage Improvements. Consistent with the Downtown Streets and Open Space Improvement Plan (SOSIP) (or subsequent iterations as adopted by the City), the developer shall construct improvements along Harold W ay, Kittredge Street, and Allston Way, to the centerline. Such improvements shall be included with the building permit submittal, designed and constructed as directed by the Public Works and Fire Departments, and constructed prior to certificate of occupancy.

33. G
reen Building Certification. The applicant shall submit documentation demonstrating that the building will attain LEED Gold or higher, or attain a building performance equivalent to this rating that has been approved by the Zoning Officer for this project. Documentation shall include proof of payment of the registration/application fee to the organization administering the green building certification system (e.g. USGBC/GBCI for LEED, Build It Green for GreenPoint Rated, etc.), a copy of the updated green building checklist that reflects anticipated points, and a statement from the appropriate project team professional (e.g. LEED Accredited Professional, GreenPoint Rater, etc.) verifying that the project is on track for certification at the required level or above.

The submitted green building checklist must be a type that is appropriate for the project and a version that is being accepted by the organization granting the green building certification at the time of building permit application. Whenever applicable, measures from the green building checklist shall be incorporated and noted on site plans.

34. S
olar Photovoltaic (Solar PV). A solar PV system, on the solar zone specified in Section 110.10 of the 2019 Energy Code, shall be installed (subject to the exceptions in Section 110.10) as specified by the Berkeley Energy Code (BMC Chapter 19.36). Location of the solar PV system shall be noted on the construction plans.

35. E lectric Vehicle (EV) Charging . At least 20% of the project parking spaces for residential parking shall be “EV Charger Ready”: equipped with raceway, wiring, and power to allow for future Level 2 (240 Volt/40 amp) plug-in electric vehicle (EV) charging system installation, and at least 80%

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of the project parking spaces for residential parking shall be ”EV Spaces Raceway Equipped”:
equipped with a raceway between an enclosed, inaccessible, or concealed area and an electrical service panel/subpanel as specified by the Berkeley Green Code (BMC Section 19.37.040). Any Level 2 EV charging systems installed at parking spaces will be counted toward the applicable readiness requirement. Readiness for EV charging and EV charging station installations shall be noted on the construction plans.

36. W
ater Efficient Landscaping . Landscaping, totaling 500 square feet of more of new landscaping or 2,500 square feet or more of renovated irrigated area, shall comply with the State’s Model Water Efficient Landscape Ordinance (MWELO). MWELO-compliant landscape documentation including a planting, grading, and irrigation plan shall be included in site plans. Water budget calculations are also required for landscapes of 2,500 square feet or more and shall be included in site plans. The reference evapotranspiration rate (ETo) for Berkeley is 41.8.

37. P
rohibition of Natural Gas Infrastructure in New Buildings. The project shall comply with the City of Berkeley Prohibition of Natural Gas Infrastructure in New Buildings (BMC Chapter 12.80).

38. R
ecycling and Organics Collection. Applicant shall provide recycling and organics collection areas for occupants, clearly marked on site plans, which comply with the Alameda County Mandatory Recycling Ordinance (ACWMA Ordinance 2012-01).

39. P
ublic Works ADA. Plans submitted for building permit shall include replacement of sidewalk, curb, gutter, and other streetscape improvements, as necessary to comply with current City of Berkeley standards for accessibility.

40. R
equired Parking Spaces for Persons with Disabilities. Per BMC Section 23.322.040.H of the Zoning Ordinance, “ If the n umber of required off -street parking spaces in a non- residential district is reduced as allowed by this chapter, the number of required parking spaces for persons with disabilities shall be calculated as if there had been no reduction in required spaces.”

Prior to Demolition or Start of Construction:

41. Construction Meeting. The applicant shall request of the Zoning Officer an on-site meeting with City staff and key parties involved in the early phases of construction (e.g., applicant, general contractor, foundation subcontractors) to review these conditions and the construction schedule.

The general contractor or applicant shall ensure that all subcontractors involved in subsequent phases of construction aware of the conditions of approval.

During Construction:

42. Construction Hours. Construction activity shall be limited to between the hours of 7:00 AM and 6:00 PM on Monday through Friday, and between 9:00 AM and 4:00 PM on Saturday. No construction-related activity shall occur on Sunday or any Federal Holiday.

43. C
onstruction Hours - Exceptions. It is recognized that certain construction activities, such as the placement of concrete, must be performed in a continuous manner and may require an extension of these work hours. Prior to initiating any ac tivity that might require a longer period, the developer must notify the Zoning Officer and request an exception for a finite period of time. If the Zoning Officer approves the request, then two weeks prior to the expanded schedule, the developer shall notify businesses and residents within 500 feet of the project site describing the

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expanded construction hours. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval. The project shall not be allowed more than 15 extended working days.

44. P
roject Construction Website. The applicant shall establish a project construction website with the following information clearly accessible and updated monthly or more frequently as changes warrant:
• C
ontact information (i.e. “hotline” phone number, and email address) for the project construction manager
• Calendar and schedule of daily/weekly/monthly construction activities • The final Conditions of Approval, Mitigation Monitoring and Reporting Program, Transportation Construction Plan, Construction Noise Reduction Program, and any other reports or programs related to construction noise, air quality, and traffic.

45. P
ublic Works - Implement BAAQMD -Recommended Measures during Construction . For all proposed projects, BAAQMD recommends implementing all the Basic Construction Mitigation Measures, listed below to meet the best management practices threshold for fugitive dust:

A. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.

B. All haul trucks transporting soil, sand, or other loose material off-site shall be covered.

C. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.

D. All vehicle speeds on unpaved roads shall be limited to 15 mph.

E. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible.

Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.

F. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxi cs control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.

G. A
ll construction equipment shall be maintained and properly tuned in accordance with manufacturer‘s specifications. All equipment shall be checked by a certified visible emissions evaluator.

H. Post a publicly visible sign with the telephone number and person to contact at the lead agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District‘s phone number shall also be visible to ensure compliance with applicable regulations.

46. A
ir Quality - Diesel Particulate Matter Controls during Construction. All off -road construction equipment used for projects with construction lasting more than 2 months shall comply with one of the following measures:

A. The project applicant shall prepare a health risk assessment that demonstrates the project’s on-s
ite emissions of diesel particulate matter during construction will not exceed health risk screening criteria after a screening-level health risk assessment is conducted in accordance with current guidance from BAAQMD and OEHHA. The health risk assessment shall be submitted to the Land Use Planning Division for review and approval prior to the issuance of building permits; or
B. All construction equipment shall be equipped with Tier 2 or higher engines and the most effective Verified Diesel Emission Control Strategies (VDECS) available for the engine type

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(Tier 4 en gines automatically meet this requirement) as certified by the California Air Resources Board (CARB). The equipment shall be properly maintained and tuned in accordance with manufacturer specifications.

In addition, a Construction Emissions Minimization Plan (Emissions Plan) shall be prepared that includes the following:
• An equipment inventory summarizing the type of off-road equipment required for each phase of construction, including the equipment manufacturer, equipment identification number, engine model year, engine certification (tier rating), horsepower, and engine serial number.

For all VDECS, the equipment inventory shall also include the technology type, serial number, make, model, manufacturer, CARB verification number level, and installation date. • A Certification Statement that the Contractor agrees to comply fully with the Emissions Plan and acknowledges that a significant violation of the Emissions Plan shall constitute a material breach of contract. The Emissions Plan shall be submitted to the Public Works Department for review and approval prior to the issuance of building permits.

47. Construction and Demolition Diversion. Divert debris according to y our plan and collect required
documentation. Get construction debris receipts from sorting facilities in order to verify diversion requirements. Upload recycling and disposal receipts if using Green Halo and submit online for City review and approval prior to final inspection. Alternatively, complete the second page of the original Construction Waste Management Plan and present it, along with your construction debris receipts, to the Building Inspector by the final inspection to demonstrate diversion rate compliance. The Zoning Officer may request summary reports at more frequent intervals, as necessary to ensure compliance with this requirement.

48. Low-C
arbon Concrete. The project shall maintain compliance with the Berkeley Green Code (BMC Chapter 19.37) including use of concrete mix design with a cement reduction of at least 25%. Documentation on concrete mix design shall be available at all times at the construction site for review by City Staff.

49. T
ransportation Construction Plan. The applicant and all persons associated with the project are hereby notified that a Transportation Construction Plan (TCP) is required for all phases of construction, particularly for the following activities:
• A
lterations, closures, or blockages to sidewalks, pedestrian paths or vehicle travel lanes (including bicycle lanes);
• Storage of building materials, dumpsters, debris anywhere in the public ROW; • Provision of exclusive contractor parking on-street; or • Significant truck activity.

The applicant shall secure the City Traffic Engineer’s approval of a TCP. Please contact the Office of Transportation at 981- 7010, or 1947 Center Street, and ask to speak to a traffic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The TCP shall be consistent with any other requirements of the construction phase.

Contact the Permit Service Center (PSC) at 1947 Center Street or 981- 7500 for details on obtaining Construction/No Parking Permits (and associated signs and accompanying dashboard

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permits). Please note that the Zoning Officer and/or Tra ffic Engineer may limit off -site parking of construction-related vehicles if necessary to protect the health, safety or convenience of the surrounding neighborhood. A current copy of this Plan shall be available at all times at the construction site for review by City Staff.

50. Avoid Disturbance of Nesting Birds . Initial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the MBTA and CFGC, nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground- disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.

51. A
rchaeological Resources ( Ongoing throughout demolition, grading, and/or construction) .

Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.

Therefore:

A. In the event that any prehistoric or historic subsurface cultural resources are discovered during ground disturbing activities, all work within 50 feet of the resources shall be halted and the project applicant and/or lead agency shall consult with a quali fied archaeologist, historian or paleontologist to assess the significance of the find.

B. If any find is determined to be significant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appr opriate avoidance measures or other appropriate measure, with the ultimate determination to be made by the City of Berkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by the qualified professional according to current professional standards.

C. In considering any suggested measure proposed by the qualified professional, the project applicant shall determine whether avoidance is necessary or feasible in light of factors such as the uniqueness of the find, project design, costs, and other considerations.

D. If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery) shall be instituted. Work may proceed on other parts of the project site w hile mitigation
measures for cultural resources is carried out.

E. If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.

52. H
uman Remains ( Ongoing throughout demolition, grading, and/or construction) . In the event that human skeletal remains are uncovered at the project site during ground-disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate

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the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50- foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities. Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.

53. P
aleontological Resources ( Ongoing throughout demolition, grading, and/or construction). In the event of an unanticipated discovery of a paleontological resource during construction, excavations within 50 feet of the find shall be temporarily halted or diverted until the discovery is examined by a qualified paleontologist (per Society of Vertebrate Paleontology standards [SVP 1995,1996]). The qualified paleontologist shall document the discovery as needed, evaluate the potential resource, and assess the significance of the find. The paleontologist shall notify the appropriate agencies to determine procedures that would be followed before construction is allowed to resume at the location of the find. If the City determines that avoidance is not feasible, the paleontologist shall prepare an excavation plan for mitigating the effect of the project on the qualities that make the resource important, and such plan shall be implemented.

The plan shall be submitted to the City for review and approval.

54. H
alt Work/Unanticipated Discovery of Tribal Cultural Resources . In the event that cultural resources of Native American origin are identified during construction, all work within 50 feet of the discovery shall be redirected. The project applicant and project construction contractor shall notify the City Planning Department within 24 hours. The City will again contact any tribes who have requested consultation under AB 52, as well as contact a qualified archaeologist, to evaluate the resources and situation and provide recommendations. If it is determined that the resource is a tribal cultural resource and thus significant under CEQA, a mitigation plan shall be prepared and implemented in accordance with State guidelines and in consultation with Native American groups. If the resource cannot be avoided, additional measures to avoid or reduce impacts to the resource and to address tribal concerns may be required.

55. S
tormwater Requirements . The applicant shall demonstrate compliance with the requirements of the City’s National Pollution Discharge Elimination System (NPDES) permit as described in BMC Section 17.20. The following conditions apply:

A. T he project plans shall identify and show site- specific Best Management Practices (BMPs) appropriate to activities conducted on- site to limit to the maximum extent practicable the discharge of pollutants to the City's storm drainage system, regardless of season or weather conditions.

B. T
rash enclosures and/or recycling area(s) shall be covered; no other area shall drain onto this area. Drains in any wash or process area shall not discharge to the storm drain system; these drains should connect to the sanitary sewer. Applicant shall contact the City of Berkeley and EBMUD for specific connection and discharge requirements. Discharges to the sanitary sewer are subject to t
he review, approval and conditions of the City of Berkeley and EBMUD.

C. Landscaping shall be designed with efficient irrigation to reduce runoff, promote surface infiltration and minimize the use of fertilizers and pesticides that contribute to stormwater

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pollution. Where feasible, landscaping should be designed and operated to treat runoff.

When and where possible, xeriscape and drought tolerant plants shall be incorporated into new development plans.

D. Design, location and maintenance requirements and schedules for any stormwater quality treatment structural controls shall be submitted to the Department of Public Works for review with respect to reasonable adequacy of the controls. The review does not relieve the property owner of the responsibility for complying with BMC Chapter 17.20 and future revisions to the City's overall stormwater quality ordinances. This review shall be shall be conducted prior to the issuance of a Building Permit.

E. All paved outdoor storage areas must be designed to reduce/limit the potential for runoff to contact pollutants.

F. All on-site storm drain inlets/catch basins must be cleaned at least once a year immediately prior to the rainy season. The property owner shall be responsible for all costs associated with proper operation and maintenance of all storm drainage facilities (pipelines, inlets, catch basins, outlets, etc.) associated with the project, unless the City accepts such facilities by Council action. Additional cleaning may be required by City of Berkeley Public Works Engineering Dept.

G. All private or public projects that create and/or replace 10,000 square feet or more of impervious surface must comply with Provision C.3 of the Alameda County NPDES permit and must incorporate stormwater controls to enhance water quality. Permit submittals shall include a Stormwater Requirement Checklist and detailed information showing how the proposed project will meet Provision C.3 stormwater requirements, including a) Site design measures to reduce impervious surfaces, promote infiltration, and reduce water quality impacts; b) Source Control Measures to keep pollutants out of stormwater runoff; c) Stormwater treatment measures that are hydraulically sized to remove pollutants from stormwater; d) an O & M (Operations and Maintenance) agreement for all stormwater treatment devices and installations; and e) Engineering calculations for all stormwater devices (both mechanical and biological).

H. All on-site storm drain inlets must be labeled “No Dumping – Drains to Bay” or equivalent using methods approved by the City.

I. Most washing and/or steam cleaning must be done at an appropriately equipped facility that drains to the sanitary sewer. Any outdoor washing or pressure washing must be managed in such a way that there is no discharge or soaps or other pollutants to the storm drain.

Sanitary connections are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.

J. All loading areas must be designated to minimize “run- on” or runoff from the area.

Accumulated waste water that may contribute to the pollution of stormwater must be drained to the sanitary sewer or intercepted and pretreated prior to discharge to the storm drain system. The property owner shall ensure that BMPs are implemented to prevent potential stormwater pollution. These BMPs shall include, but are not limited to, a regular program of sweeping, litter control and spill cleanup.

K. Restaurants, where deemed appropriate, must be designed with a contained area for cleaning mats, equipment and containers. This contained wash area shall be covered or designed to prevent run- on or run- off from the area. The area shall not discharge to the storm drains; wash waters should drain to the sanitary sewer, or collected for ultimate disposal to the sanitary sewer. Employees shall be instructed and signs posted indicating that all washing activities shall be conducted in this area. Sanitary connections are subject

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to the review, approval and conditions of the waste water treatment plant receiving the discharge.

L. Sidewalks and parking lots shall be swept regularly to prevent the accumulation of litter and debris. If pressure washed, debris must be trapped and collected to prevent entry to the storm drain system. If any cleaning agent or degreaser is used, wash water shall not discharge to the storm drains; wash waters should be collected and discharged to the sanitary sewer. Discharges to the sanitary sewer are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.

M. The applicant is responsible for ensuring that all contractors and sub-contractors are aware of and implement all stormwater quality control measures. Failure to comply with the approved construction BMPs shall result in the issuance of correction notices, citations, or a project stop work order.

56. P
ublic Works . All piles of debris , soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one- eighth millimeter thick and secured to the ground.

57. P
ublic Works . The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.

58. P
ublic Works . The project sponsor shall maintain sandbags or other devices around the site perimeter during the rainy season to prevent on- site soils from being washed off -site and into the storm drain system. The project sponsor shall comply with all City ordinances regarding construction and grading.

59. P
ublic Works . Prior to any excavation, grading, clearing, or other activities involving soil disturbance during the rainy season the applicant shall obtain approval of an erosion prevention plan by the Building and Safety Division and the Public Works Department. The applicant shall be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.

60. P
ublic Works . The removal or obstruction of any fire hydrant shall require the submission of a plan to the City’s Public Works Department for the relocation of the fire hydrant during construction.

61. P
ublic Works . If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.

Prior to Final Inspection or Issuance of Occupancy P
ermit:

62. Compliance with Conditions and Environmental Mitigations. The project shall conform to the plans and statements in the Use Permit. The developer is responsible for providing sufficient evidence to demonstrate compliance with the requirements throughout the implementation of this Use Permit. Occupancy is subject to verification of compliance to the Mitigation Monitoring and Reporting Program.

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63. Compliance with Approved Plan. The project shall conform to the plans and statements in the Use Permit. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated September 1, 2022 , except as modified by conditions of approval.

64. G eotechni cal Construction Inspections. The geotechnical consultant shall inspect, test (as needed), and approve all geotechnical aspects of the project construction. The inspections shall include, but not necessarily be limited to: site preparation and grading including the removal and replacement of undocumented fill, site surface and subsurface drainage improvements, and excavations for foundations and other improvements prior to the placement of steel and concrete. The Consultant should be allowed to inspect site excavations to confirm areas of undocumented fill including areas of potential fill associated with the historic alignment of Strawberry Creek. The results of these inspections and the as-built conditions of the project shall be described by the geotechnical consultant in a letter and submitted to the City Engineer for review prior to final (granting of occupancy) project approval.

65. T
ransportation Demand Management . Prior to issuance of a Certificate of Occupancy, the property owner shall facilitate a site inspection by Land Use Division staff to confirm that the physical improvements required in BMC Section 23.322.060 have been installed. A Parking and Transportation Demand Management (PTDM) compliance report document ing that the programmatic measures required in BMC Section 23.322.060 are implemented shall be submitted to the Land Use Division prior to occupancy, and on an annual basis thereafter, which demonstrates that the project is compliant with the applicable requirements in this section:

A. New construction that results in an off-street total of more than 25 publicly available parking spaces shall install dynamic signage to Transportation Division specifications, including real- time garage occupancy signs at the entries and exits to the parki ng facility with vehicle detection capabilities and enabled for future connection to the regional 511 Travel Information System; or equivalent, as determined by the Land Use Division in consultation with the Transportation Division. The information panels shall be shown in the construction drawings and shall be installed prior to occupancy.

B. For any new building with residential units or structures converted to a residential use, required parking spaces shall be leased or sold separate from the rental or pur chase of dwelling units for the life of the dwelling units. The property owner shall notify all residents of this restriction in leases and/or contracts, and shall provide sample leases and/or contracts including such notification to the project planner prior to issuance of Certificate of Occupancy or final inspection.

C. For new structures or additions over 20,000 square feet, the property owner shall provide transportation benefits at no cost to every employee, residential unit, and/or group living accommodat
ion resident, one pass for unlimited local bus transit service; or (subject to the review and approval of the Zoning Officer in consultation with the Transportation Division) a functionally equivalent transit benefit in an amount at least equal to the pri ce of a non - discounted adult monthly local bus pass. A notice describing these transportation benefits shall be posted in a location or locations visible to all employee and residents.

D. For residential structures constructed or converted from a non- residential use that provide off-street parking, vehicle sharing spaces shall be provided in the amounts shown in BMC Table 23.322-6, to be offered to vehicle sharing service providers at no cost, for as long as providers request the spaces, and otherwise consistent with BMC Section 23.322.060(D).

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66. Green Building Certification. The applicant shall submit updated documentation demonstrating that the building will attain LEED Gold or higher, or attain a building performance equivalent to this rating that has been approved by the Zoning Officer for this project. Documentation expected at this stage includes proof of submission of the final application materials and payment of the certification fee. If this submission has not yet occurred, a detailed explanation and tim eline indicating when it will it happen must be submitted to the Zoning Officer for review and approval.

Once awarded by the organization administering the green building certification system, the applicant shall forward a copy of the certification award to the Zoning Officer.

BELOW MARKET RATE UNITS

67. Number of Below Market Rate Units. The project shall provide nine (9) Very Low-Income rental dwelling units (“BMR Units”), which are required to comply with the State Density Bonus Law (Government Code Section 65915). The BMR Units shall be designated in the Regulatory Agreement and shall be reasonably dispersed throughout the project; be of the same size and contain, on average, the same number of bedrooms as the non-BMR units in the project; and be comparable with the design or use of non-BMR units in terms of appearance, materials and finish quality. The designation of BMR Units shall conform to the addresses assigned to the building by the City.

68. Regulatory Agreement. Prior to the issuance of a building permit, the applicant shall enter into a Regulatory Agreement that implements Government Code Section 65915 and this Use Permit.

The Regulatory Agreement may include any terms and affordability standards determined by the City to be necessary to ensure such compliance. The maximum qualifying household income for the BMR Units shall be 50 percent of area median income (AMI), and the maximum housing payment shall be 30 percent of 50 percent of AMI, as set forth in the following paragraphs of this condition. If the BMR units are occupied by very low-income tenants receiving a rental subsidy through the Section 8 or Shelter Plus Care programs, the rent received by the project sponsor may exceed the restricted rent to the payment standards allowed under those programs so long as the rent allowed under the payment standards is not greater than the market rents charged for comparable units in the development. The applicant shall submit the Regulatory Agreement to the Housing and Community Services Department (HHCS) via email to [email protected] for review and approval.

69. In addition, the following provisions shall apply:

A. Maximum rent shall be adjusted for the family size appropriate for the unit pursuant to California Health & Safety Code Section 50052.5 (h).

B. Rent shall include a reasonable allowance for utilities, as published and updated by the Berkeley Housing Authority, including garbage collection, sewer, water, electricity, gas, and other heating, cooking and refrigeration fuels. Such allowance shall take into account the cost of an adequate level of service. Utilities do not include telephone service. Rent also includes any separately charged fees or service charges assessed by the lessor which are required of all tenants, other than security deposits.

C. BMR units will be provided for the life of the project under Section 22.20.065.

70. D
etermination of Area Median Income (AMI).
• The “AMI” (Area Median Income) shall be based on the income standards for the Oakland Primary Metropolitan Statistical Area reported by the United States Department of Housing and Urban Development (HUD). In the event HUD discontinues establishing such income standards, AMI shall be based on income standards determined by the California State

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Department of Housing and Community Development (HCD). If such income standards are no longer in existence, the City will designate another appropriate source or method for determining the median household income.
• The applicable AMI for the purpose of determining the allowable rent for each unit (but not for the purpose of determining eligibility for occupancy of an inclusionary unit) shall be determined in accordance with the following table:

Unit Size AMI Standard
Studio unit AMI for a one person household
One-bedroom unit AMI for a two person household
Two-bedroom unit AMI for a three person household
Three-bedroom unit AMI for a four person household

71. Nothing in these conditions shall be interpreted to prohibit, or to require modification of the Use Permit or Regulatory Agreement to allow, the provision of additional BMR units, or additional affordability, than are required in the foregoing provisions.

72. P
ercent for Public Art: Consistent with BMC §23C.23, the applicant shall either pay the required in-lieu fee or provide the equivalent amount in a financial guarantee to be released after installation of the On-Site Publicly Accessible Art.

73. A ffordable Housing Mitigation Fee: Consistent with BMC §22.20.065, and fee resolution applicable to this project, the applicant shall provide a schedule, consistent with a schedule approved by the City Manager or her designee, outlining the timeframe for payment of the AHMF, and they shall pay this fee.

74. S
treets and Open Space Improvement Plan: Impact Fee: As required by BMC Section

23.204.130.F, the project shall pay an impact fee to implement the Streets and Open Space Improvement Plan (SOSIP) per the fee schedule adopted by the Council by resolution. The City shall deposit this payment into the Downtown Streets and Open Space Improvement Fund (SOSIF), or its equivalent, to pay for the design and construction of the SOSIP Major Projects.

The fee shall apply to the project’s “Gross Floor Area” as defined in BMC Section 23.502, less any existing Gross Floor Area removed as part of the project.

At All Times:

75. Transportation Demand Management Compliance. The property owner shall submit to the Land Use Division annual PTDM Compliance Reports, s ubject to the review and oversight of Land Use Division staff.

76. E xterior Lighting . All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare beyond the subject property.

77. R
ooftop Projections. No additional rooftop or elevator equipment shall be added to exceed the approved maximum roof height without submission of an application for a Use Permit Modification, subject to Board review and approval.

78. De
sign Review. Signage and any other exterior modifications, including but not limited to landscaping and lighting, shall be subject to Landmarks Preservation Commission approval.

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79. D rainage Patterns. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights -of-way. Drainage plans shall be submitted for approval of the Building & Safety Division and Public Works Department, if required.

80. Electrical Meter. Only one electrical meter fixture may be installed per dwelling unit.

81. Loa
ding . All loading/unloading activities associated with deliveries to all uses shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. daily.

82. R
esidential Permit Parking . N o Residential Permit Parking (RPP) permits shall be issued to project residents, nor shall commercial placards be issued to non- residential occupants and/or users of the site. The project planner shall notify the Finance Department, Customer Service Center, to add these addresses to the list of addresses ineligible for RPP permits. The property owner shall notify all tenants of rental units, and/or buyers of condominium units, of this restriction in leases and/or contracts, and shall provide sample leases and/or contracts including such notification to the project planner prior to issuance of an occupancy permit or final inspection.

83. T
enant Notification. The developer shall provide tenant notification, via a lease rider or deed covenant, that each dwelling unit is located in a mixed-use area that includes commercial, food service and entertainment uses, and that each occupant shall not seek to impede their lawful operation.

84. T
ransit Subsidy Condition. The applicant shall reimburse employees the maximum non- taxable cost of commuting to and from work on public transportation (e.g., monthly passes) if they so commute, and a notice informing employees of the availability of such subsidy shall be permanently displayed in the employee area as per BMC Chapter 9.88.

Attachment 1, E x h i b i t A.2
Mitigation Monitoring & Reporting Program – Ju ly 2015
REVISED JULY 2022
This Draft Mitigation Monitoring and Reporting Program (MMRP) was formulated based upon the findings of the Environmental Impact Report (EIR) an
d Infill Initial Study Checklist prepared for the 2211 Harold Way Mixed-Use Project. The MMRP, which is provided in Tables 1 and 2 of this section, lists mitigation measures recommended in the EIR and the Infill Checklist for the proposed Project and identifies mitigation monitoring requirements. The Final MMRP must be adopted when the City makes a final decision on the project.

This MMRP has been prepared to comply with the requirements of State law (Public Resources Code Section 21081.6). State law requires the adoption of an MMRP when m
itigation measures are required to avoid significant impacts. The MMRP is intended to ensure compliance during implementation of the project.

The MMRP is organized in a matrix format. The first column identifies the impact and the second column identifies the mitigation measure that will be i
mplemented for each project impact. The third column, entitled “Monitoring Responsibility,” refers to the agency responsible for oversight or ensuring that the mitigation measure is implemented. The fourth column, entitled “Monitoring Timing,” refers to when the monitoring will occur to ensure that the mitigation action is completed. The lead agency will provide verification that the measures have been implemented. These mitigation measures include any minor revisions made as a result of the Response to Comments Document.

July 27, 2022
This MMRP w
as revised to reflect the findings in the EIR Addendum prepared for the 2065 Kittredge Mixed-Use Project (ZP2021-0193 & LMSAP2021-0004). Specifically, Cultural Resource Mitigation Measures CR-2(a) through (c) were deleted (because they no longer apply due to changes in the project design).

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 2 of 23

2 Table 1: 2211 Harold Way Mixed-Use Project EIR Mitigation Monitoring and Reporting Program Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
I. CULTURAL RESOURCES
CR-1 The proposed project would
involve demolition of the 1926
addition to the Hotel. Both of these
additions contribute to the hotel’s
historical significance and are
included in the property's local
landmark designation.

CR-1(a) Documentation. In consultation with the City
of Berkeley Planning and Development, the project
applicant shall complete Historic American Building
Survey (HABS) Level II documentation of the Shattuck
Hotel and its setting. This documentation shall include drawings, photographs, and a historical narrative.
• Drawings: Existing historic drawings of the
Shattuck Hotel (including the original 1910
building and the 1912, 1913, and 1926
additions), if available, shall be photographed
with large-format negatives or photographically
reproduce on Mylar. In the absence of existing
drawings, full-measured drawings of the
complex’s plan, exterior elevations, and
courtyard elevations should be prepared.

• Photographs: Photo-documentation of the
Shattuck Hotel (including the original 1910
building and the 1912, 1913 and
1926additions) shall be prepared to HABS
standards for archival photography. HABS
standards require large-format black-and-white
photography, with the original negatives having
a minimum size of 4 x 5 inches. Digital
photography, roll film, film packs, and
electronic manipulation of images are not
acceptable. All film prints, a minimum of 4 x 5
inches, must be hand-processed according to
the manufacturer’s specifications and printed
on fiber base single weight paper and dried to
a full gloss finish. A minimum of 12
City of Berkeley
Planning
Department,
Land Use
Division
Prior to the
issuance of a
demolition
permit

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 3 of 23

3 Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
photographs must be taken, detailing the site,
building exteriors, and building interiors.

Photographs must be identified and labeled
using HABS standards. Color 35mm non-
archival photographs of the historical building
and grounds shall be taken to supplement the
limited number of archival photographs
required under the HABS standards described
above. Photographs should include overall
views of the site; individual views of important
building features; exterior elevations of each
façade of the complex; views of interior
courtyard spaces; and detail views of specific
materials or elements.

• Historical Overview: In consultation with the
City of Berkeley Planning and Development
Department, a qualified historian or
architectural historian shall assemble historical
background information relevant to the
Shattuck Hotel and its setting. Much of this
information may be drawn from the Historic
Context Report that architecture + history LLC
has prepared for the property. The project
applicant shall submit three hard copies and
six electronic copies of the drawings and
historical overview, along with two sets of
photographic negatives, to the City of Berkeley.

To ensure its public accessibility, the City of
Berkeley will distribute the documentation to
the Berkeley Public Library, UC Berkeley’s
Environmental Design Archives, Berkeley
Architectural Heritage Association, the
Berkeley Historical Society, and the Northwest

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 4 of 23

4 Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
Information Center of the California Historical
Resources Information System (CHRIS).

CR-1(b) Salvage. The project applicant shall salvage
materials from the 1913 and 1926 additions to the
Shattuck Hotel for reuse on-site if feasible , as
determined by the Zoning Officer, and given local
historical societies the opportunity to salvage
remaining materials for public information or reuse in
other locations. This effort is expected to focus on the additions’ multi-pane, metal-sash windows (currently
painted over) as well as the ceiling plasterwork in the entry arcade. All salvaged materials shall be stripped
of lead-based paint using safe handling methods. If,
after 30 days, none of the societies is able and willing to salvage the materials, the materials shall be offered to local architectural salvage companies by placing an
advertisement in a website and newspaper of general
circulation for at least 30 days. Demolition may
proceed only after any significant historic features or materials have been identified (at the applicant’s cost) and their removal completed, unless none of the
above organizations are interested in salvaging the
materials.

City of Berkeley
Planning
Department,
Land Use
Division
Prior to the
issuance of a
demolition
permit

CR-1(c) Onsite Interpretation. The project applicant
shall incorporate a wall display featuring historic
photos of the Shattuck Hotel property and a
description of its historical significance into the publicly accessible portion of any subsequent development on
the site. This display shall be developed by
professionals meeting the Secretary of the Interior’s
Professional Qualifications (as verified by City of
Berkeley planning staff) and experienced in creating
such historical exhibits, with the assistance of City of Berkeley planning staff.

City of Berkeley
Planning
Department,
Land Use
Division
Plans for the
exhibit shall be
approved by the
LPC prior to the
issuance of a
building permit.

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 5 of 23

5 Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
CR-1(d) Contribution to the Historic Preservation
Fund. The project applicant shall contribute funds to
the City to be applied to future historic preservation
activities within Downtown Berkeley, including survey
work; property research; and evaluation in accordance
with the Secretary of the Interior’s Standards.

City of Berkeley
Planning
Department,
Land Use
Division
Prior to the
issuance of a
building permit.

CR-2 The proposed project would
alter the setting of historic
landmarks adjacent to and facing
the project, including the Shattuck
Hotel, the Public Library, and the
former Elks Lodge and Armstrong
College buildings because the
project’s design elements would be
partially inconsistent with the
Secretary of the Interior’s
Standards and the Downtown
Berkeley Design Guidelines.

CR-2(a) Allston Way Elevation. New construction on
the Allston Way elevation shall incorporate horizontal
façade elements that reference the roofline of the
adjacent 1912 restaurant addition to the Shattuck
Hotel. Specifically, new construction shall incorporate a horizontal belt course along its Allston Way façade
that corresponds to the cornice and parapet of the
1912 addition. This belt course shall include a cornice element or other horizontal embellishment that
projects from the face of the building. (This element
could consist of a simple projecting molding, for
example, that is stylistically in keeping with the
contemporary design of the proposed project.) By
incorporating this belt course, the proposed project,
despite being considerably taller than the Shattuck
Hotel, would better maintain the scale and feel of the
historic building frontage along Allston Way.

City of Berkeley
Planning
Department,
Land Use
Division
Plans and
designs for the
Allston Way
elevation shall
be approved by
LPC in Final
Design Review
(FDR) prior to
the issuance of
a building
permit.

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 6 of 23

6 Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
CR-2(b) Kittredge Street Elevation. At the Kittredge
Street elevation, the proposed project includes a two-
story “hyphen” that separates the Shattuck Hotel from
the 12- and 18-story portions of the project to the west.

Project drawings show the Kittredge Street façade of
this portion of the project as a blank wall, potentially covered in vegetation. Such wall treatment is
incompatible with the historic setting. Perforations
(such as a door or windows) or other architectural
elements shall be incorporated into the design of this
wall so as to maintain an active street frontage that is more in keeping with the ground floors of the nearby
historical resources and the larger Shattuck Avenue
Commercial Corridor.

Final Design
Review

City of Berkeley
Planning
Department,
Land Use
Division
Plans and
designs for the
Kittredge Street
elevation with
architectural
elements to
maintain an
active street
frontage shall
be approved by
LPC in FDR
prior to the
issuance of a
building permit.

CR-2(c) Glazed Aluminum Window Wall Systems.

While the glazed aluminum window wall systems
proposed for much of the project would clearly
differentiate the proposed project from nearby
historical resources, the design of these wall systems
needs to be modified to make them more compatible
with those resources. The proportion and pattern of
void to wall in the wall treatments of the proposed
project shall be modified to more closely match
Library, the former Elks Lodge and the former
Armstrong College building. Potential ways to achieve
this include replacing the window wall systems with
punched curtain wall systems similar to those used
elsewhere in the project, or breaking up the window
wall systems with windowless bays.

City of Berkeley
Planning
Department,
Land Use
Division
Plans and
designs for the
glazed
aluminum
window wall
systems with
translucent
panels shall be
approved by
LPC in FDR
prior to the
issuance of a
building permit.

CR-4 Construction activities
associated with demolition of the
1959 Hink’s building and the 1926
addition to the Shattuck Hotel, and
partial removal of the 1913
addition to the Shattuck Hotel,
CR-4(a) Foundations Investigation. A registered
structural engineer with a minimum of 5 years of
experience in the rehabilitation and restoration of
historic buildings, meeting the Secretary of the
Interior’s Professional Qualifications, shall investigate the existing relationship of the foundations of the
Applicant’s
historical
architecture and
structural
engineering
consultants
Prior to the
issuance of a
demolition
permit

MITIGATION MONITORING AND REPORTING PROGRAM
July 30, 2015 – Revised July 2022 Page 7 of 23

7 Impact Statement

Mitigation Measures Monitoring
Responsibility
Monitoring
Timing
Verification
(Date and
Initials)
could produce ground vibration or
soil movement under the existing
foundation of nearby historic
resources, compromising the
historic building’s structural
stability.

various portions of the Shattuck Hotel property. Any
required test excavations shall be performed only in
the presence of the structural engineer. The structural engineer shall prepare a report of findings that
specifies modifications to the project design and/or
associated construction activities that are necessary to retain the structural integrity of the Shattuck Hotel
(including the original 1910 building, the 1912 addition, and the portion of the 1913 addition proposed for
retention).

In consultation with a historic preservation architect
meeting the Secretary of the Interior’s Standards and
Guidelines for Archeology and Historic Preservation,
Professional Qualifications Standards, the structural
engineer (with geotechnical consultation as
necessary) shall determine whether, due to the nature
of the excavations, soils, method of soil removal and
the existing foundations of the Shattuck Hotel, the
potential for settlement would require underpinning
and/or shoring. If underpinning and/or shoring is
determined to be necessary, appropriate designs shall
be prepared and submitted for review and approval.

Foundation and shoring shall not use driven or
vibration piles. Only cast-in-place or auger piles or
micropiles shall be used for shoring, underpinning,
and/or new foundations. The existing structure shall be shored at each side of the location where the western
portion of the hotel is to be demolished. After the
existing structure is shored, an air gap shall be cut
between the building to remain and the portion of the
building to be demolished at the roof, floor levels and through the above grade walls prior to the demolition
of the western portion of the building. The air gap shall

City of Berkeley
Planning
Department,
Land Use
Division

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be a minimum of 12 inches wide and also be wide
enough that no debris can lodge in the gap and
transfer vibrations into the portion of the building to remain. The contractor may elect to demolish an entire
bay of the existing structure between two column lines
so that additional shoring may be minimized or
eliminated. This will prevent the transmission of
vibrations from the demolition through the existing
structural members and, therefore, limit the potential
for structural damage due to the vibrations from the
demolition. Any debris that becomes lodged in the gap
shall be removed as soon as is safely possible.

All documents prepared in accordance with this
Measure shall be submitted to the City of Berkeley
Planning and Development Department for approval,
and all work required by this Measure shall be at the
project sponsor’s expense
CR-4(b) Construction Monitoring. Prior to
demolition, the historic preservation architect and
structural engineer referenced in Mitigation Measures
CR-4(a) shall undertake an existing condition study of
the Shattuck Hotel, including the location and extent of any visible cracks or spalls. Any existing damage to
the hollow clay tile that could cause structural damage due to construction vibrations shall be noted. This
initial survey will serve as a baseline to determine if any damage would occur during demolition or
construction of the new building. The documentation
shall take the form of written descriptions and
photographs, and shall include those physical
characteristics of the resource that conveys its historic significance and that justify its inclusion on the local register. The documentation shall be reviewed and
Applicant’s
historical
architecture and
structural
engineering
consultants

City of Berkeley
Planning
Department,
Land Use
Division
Prior to the
issuance of a
demolition
permit

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approved by the City of Berkeley Planning and
Development Department.

The historical architect and structural engineer shall
monitor the Shattuck Hotel during construction and
report any changes to existing conditions, including,
but not limited to, expansion of existing cracks, new
spalls, or other exterior deterioration. Any new cracks, new spalls, or other exterior deterioration shall be
repaired to the pre-existing condition as indicated at
the end of this section. Monitoring reports shall be
submitted to the City of Berkeley Planning and
Development Department on a periodic basis. The
structural engineer shall consult with the historic
preservation architect, especially if any problems with character-defining features of a historic resource are
discovered. If in the opinion of the structural engineer, in consultation with the historic preservation architect, substantial adverse impacts to historic resources
related to construction activities are found during
construction, the historical architect and structural
engineer shall so inform the project sponsor or
sponsor’s designated representative responsible for
construction activities.

Vibrations shall be limited during demolition of the
existing below grade wall and foundation concrete so
as not to transmit significant vibrations to the
remaining structures. The use of jackhammers and
smaller hoe-rams with lower impact force shall be
used wherever possible to limit vibrations. Larger hoe- rams (rated at greater than 2,000 foot-pounds) shall
not be used without a written determination by a
qualified testing agency that such rams will not cause
vibrations greater than 0.2 inches per second of

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vertical movement at the existing hotel. Measurements
for vibrations shall be taken at the same distance to
the vibration source as the Shattuck Hotel building will be from the source during use for construction or
demolition. The testing agency used for measuring
vibrations shall be experienced in measuring
vibrations, as determined by the City of Berkeley
Planning and Development Department.

The areas where the demolition will be closest to the
existing building and therefore most likely to propagate vibrations to the remaining structures are: demolition
of the eastern end of the existing cinema building
along Kittredge Street; demolition for the new
construction below the hotel at the corner of Shattuck
Avenue and Kittredge Street; and demolition of the
eastern portion of the former Hink’s Department Store
addition at Allston Way and Harold Way. At these
areas where demolition of below grade concrete will
be close to the remaining structures, the concrete shall be demolished using methods that limit vibrations,
such as the use of jackhammers and small hoe-rams
with lower impact force, even if it is determined that
larger hoe-rams can be used elsewhere on the site.

The structural engineer shall consult with the historic preservation architect, especially if any problems with character‐ defining features of a historic resource are discovered. Because of the inherent unpredictability of large-scale excavation and construction, there is an
unlikely but possible chance that unforeseen damage
would occur. If substantial adverse impacts to historic resources related to construction activities are found
during construction, and if in the opinion of the
structural engineer, in consultation with the historic

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preservation architect, the historical architect and the structural engineer (monitoring team) shall so inform
the project sponsor or sponsor’s designated
representative responsible for construction activities.

The historical architect and the structural engineer
shall make specific recommendations to the project
sponsor, including whether work should stop and
whether construction activities should be modified.

Once the historic architect and the structural engineer inform the project sponsor, the project sponsor shall
adhere to the monitoring team’s recommendations for
corrective measures, including halting construction or
using methods which cause less vibration, in situations where construction activities would imminently
endanger historic resources. The City of Berkeley
Planning and Development Department shall establish
the frequency of monitoring and reporting. The project
sponsor shall respond to any claims of damage by
inspecting the affected property promptly, but in no
case more than 5 working days after the claim was
filed and received by the project sponsor. A sign shall be posted in a visible place onsite and a letter shall be sent to the hotel owner or manager specifying the
monitoring team’s contact information prior to the start of construction activities.

Any new cracks or other changes in the Shattuck
Hotel shall be compared to pre-construction conditions
and a determination made as to whether the proposed
project could have caused such damage. In the event
that the project is demonstrated to have caused any
damage, such damage shall be repaired to the pre-
existing condition. Site visit reports and documents
associated with claims processing shall be provided to

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the City of Berkeley Planning and Development
Department.

Monitoring reports shall be submitted to the City of
Berkeley Planning and Development Department on a
periodic basis. All work required by this Measure shall be at the project sponsor’s expense.

CR-4(c) Training Program. The historic preservation
architect referenced in Mitigation Measures CR-4(a)
shall establish a training program for construction
workers involved in the project that emphasizes the
importance of protecting historic resources. This
program shall include information on recognizing
historic fabric and materials, and directions on how to exercise care when working around and operating
equipment near the Shattuck Hotel, including storage
of materials away from the historic building. It shall
also include information on means to reduce vibrations
from demolition and construction, and monitoring and
reporting any potential problems that could affect the
historic resource. A provision for establishing this
training program shall be incorporated into the general contractor’s contract with the project applicant
regarding construction of the project, and the contract provisions shall be reviewed and approved by the City
of Berkeley Planning and Development Department.

All work required by this Measure shall be at the
project sponsor’s expense.

Applicant’s
preservation
architecture and
structural
engineering
consultants

City of Berkeley
Planning
Department,
Land Use
Division
Prior to the
issuance of a
demolition
permit

II. TRANSPORTATION/TRAFFIC
T-2 Development facilitated by the
proposed project would increase
future (years 2020 and 2035)
traffic levels on the local circulation
system. One of the 10 studied
T-2 Dedicated Right-Turn Pocket at Shattuck
Avenue/Durant Avenue Intersection. The
northbound outside lane at the intersection of Shattuck Avenue and Durant Avenue shall be restriped to
Applicant shall
obtain a permit
for the restriping
of this
intersection
Prior to
issuance of
Certificate of
Occupancy.

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intersections would operate at
levels of service that exceed its
performance standards under the
Year 2035 scenario.
provide a dedicated right-turn pocket by the applicant
prior to issuance of Certificate of Occupancy.

City of Berkeley
Public Works
Department to
review

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14 Table 2: 2211 Harold Way Mixed-Use Project Infill Checklist Mitigation Monitoring and Reporting Program Impacts

Mitigation Measures Monitoring
Responsibility
Monitoring Timing Verification
(Date and
Initials)
I. AIR QUALITY
AIR-2 This proposed project
may expose sensitive
receptors to TACs or odors
through development of new
residential units near non-
residential development that
may be sources of TACs or
odors near existing
residences or other sensitive
receptors.

AIR-2 Buffer TAC and Odor Emission
Sources and Sensitive Land Uses. Consider
potential air pollution and odor impacts from
future development that may emit pollution
and/or odors when locating (a) air pollution
sources, and (b) residential and other pollution-
sensitive land uses in the vicinity of air pollution
sources (which may include areas where buses
idle, diesel generators, parking garage vents,
restaurants, and other similar uses). Buffer
sensitive receptors from TACs whenever
possible, and if buffering is not feasible, apply
appropriate mitigation to reduce impacts to a
less than significant level, such as air filtration
systems or other technologies.

Applicant and
Architect

City of Berkeley
Planning Department,
Division of Public
Works
Prior to the
issuance of Building
Permit

AIR-3 The proposed project
would result in temporary
emissions of dust and diesel
exhaust that may result in
both nuisance and health
impacts.

AIR-3 Implement BAAMD-Recommended
Measures to Control PM10 Emissions during
Construction. Measures to reduce diesel
particulate matter and PM
10 from construction
are recommended to ensure that short-term
health impacts to nearby sensitive receptors are
avoided.

Dust (PM10) Control Measures:
• Water all active construction areas at
least twice daily and more often during
windy periods. Active areas adjacent to
residences should be kept damp at all
times.
• Cover all hauling trucks or maintain at
least two feet of freeboard.

Construction
Contractor

City of Berkeley
Planning Department,
Division of Public
Works
During demolition,
site preparation and
project construction

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• Pave, apply water at least twice daily, or
apply (non-toxic) soil stabilizers on all
unpaved access roads, parking areas,
and staging areas.
• Sweep daily (with water sweepers) all
paved access roads, parking areas, and
staging areas and sweep streets daily
(with water sweepers) if visible soil
material is deposited onto the adjacent
roads.
• H
ydroseed or appl
y (non-toxic) soil
stabilizers to inactive construction areas
(i.e., previously-graded areas that are
inactive for 10 days or more).
• Enclose, cover, water twice daily, or
apply (non-toxic soil binders to exposed
stockpiles.
• Limit traffic speeds on any unpaved
roads to 15 mph.
• Replant vegetation in disturbed areas as
quickly as possible.
• Suspend construction activities that
cause visible dust plumes to extend
beyond the construction site.

Measures to Reduce Diesel Particulate
Matter and PM

2.5:
• Clear signage at all construction sites
will be posted indicating that diesel
equipment standing idle for more than
five minutes shall be turned off. This
would include trucks waiting to deliver or
receive soil, aggregate, or other bulk
materials. Rotating drum concrete trucks

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could keep their engines running
continuously as long as they were onsite
or adjacent to the construction site.
• Opacity is an indicator of exhaust
particulate emissions from off-road
diesel powered equipment. The project
shall ensure that emissions from all
construction diesel powered equipment
used on the project site do not exceed
40 percent opacity for more than three
minutes in any one hour. Any equipment
found to exceed 40 percent opacity (or
Ringelmann 2.0) shall be repaired
immediately.
•
T he contractor shall install temporary
electrical service whenever possible to
avoid the need for independently
powered equipment (e.g., compressors).
• Properly tune and maintain equipment
for low emissions.

II. CULTURAL RESOURCES
CR-3 The proposed project
would result in the
destruction or disturbance of
unidentified subsurface
archaeological resources,
which would represent a
potentially significant impact.

CR-3 Halt Work/Archaeological
Evaluation/Site-Specific Mitigation. If
archaeological resources are uncovered during
construction activities, all work within 50 feet of
the discovery shall be redirected until a qualified
archaeologist can be contacted to evaluate the
situation, determine if the deposit qualifies as
an archaeological resource, and provide
recommendations. If the deposit does not
qualify as an archaeological resource, then no
further protection or study is necessary. If the
deposit does qualify as an archaeological
Construction
Contractor

City of Berkeley
Planning Department,
Land Use Division
Throughout site
preparation and
ground disturbing
activities of project
construction, and in
the event that
archaeological
resources are
encountered on-
site.

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resource, then the impacts to the deposit shall
be avoided by project activities. If the deposit
cannot be avoided, adverse impacts to the
deposit must be mitigated. Mitigation may
include, but is not limited to, archaeological data
recovery. Upon completion of the
archaeologist's assessment, a report should be
prepared documenting the methods, findings
and recommendations. The report should be
submitted to the City, the project proponent and
the NWIC.

CR-4 The proposed project
could result in the
destruction of unidentified
subsurface paleontological
resources.

CR-4 Halt Work/Paleontological
Evaluation/Site-Specific Mitigation. Should
paleontological resources be encountered
during construction or site preparation activities,
such works shall be halted in the vicinity of the
find. A qualified paleontologist shall be
contacted to evaluate the nature of the find and
determine if mitigation is necessary. All feasible
recommendations of the paleontologist shall be
implemented. Mitigation may include, but is not
limited to, in-field documentation and recovery
of specimen(s), laboratory analysis, the
preparation of a report detailing the methods
and findings of the investigation, and curation at
an appropriate paleontological collection facility.

Construction
Contractor

City of Berkeley
Planning Department,
Land Use Division
Throughout site
preparation and
ground disturbing
activities of project
construction, and in
the event that
paleontological
resources are
encountered on-
site.

CR-5 The proposed project
could result in the
disturbance of unidentified
subsurface human remains,
which would represent a
potentially significant impact.

CR-5 Halt Work/Coroner's Evaluation/Native
American Heritage Consultation/Compliance
with Most Likely Descendent
Recommendations. If human remains are
encountered during construction activities, all
work within 50 feet of the remains should be
redirected and the County Coroner notified
immediately. At the same time, an archaeologist
shall be contacted to assess the situation. If the
Construction
Contractor

City of Berkeley
Planning Department,
Land Use Division
Throughout site
preparation and
ground disturbing
activities of project
construction, and in
the event that
unidentified
subsurface human
remains are

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(Date and
Initials)
human remains are of Native American origin,
the Coroner must notify the Native American
Heritage Commission within 24 hours of this
identification. The Native American Heritage
Commission will identify a Native American
Most Likely Descendant (MLD) to inspect the
site and provide recommendations for the
proper treatment of the remains and any
associated grave goods. The archaeologist
shall recover scientifically-valuable information,
as appropriate and in accordance with the
recommendations of the MLD. Upon completion
of the archaeologist's assessment, a report
should be prepared documenting methods and
results, as well as recommendations regarding
the treatment of the human remains and any
associated archaeological materials. The report
should be submitted to the City, the project
proponent and the NWIC.
encountered on-
site.

III. NOISE
NOI-1 The proposed project
under the DAP could be
exposed to excessive noise
levels, noise levels along
many Downtown Area
roadways would exceed
those considered compatible
with exterior residential land
uses. This would represent a
potentially significant impact.

Where exterior noise levels
exceed 70 dBA Ldn, such as
along University Avenue and
Shattuck Avenue, residential
NOI-1 Site-Specific Noise Studies/Site
Planning/Noise Control Treatments. Future
residential units proposed under the DAP would
be exposed to outdoor noise levels in excess of
60 dBA Ldn and indoor noise levels in excess of
45 dBA Ldn, which would exceed the City’s and
state’s established land use compatibility
thresholds. In areas where residential
development would be exposed to an Ldn of
greater than 60 dBA, site-specific noise studies
should be conducted to determine the area of
impact and to present appropriate mitigation
measures, which may include the following:

City of Berkeley
Planning Department,
Land Use Division
Prior to the
issuance of Building
Permit

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units would not be able to
meet the 45-dBA Ldn interior
standard simply through
typical construction methods.

This would be a potentially
significant impact. Retail
units developed under the
DAP along most of the area
roadways would meet the
exterior commercial land use
compatibility guideline of 70
dBA Ldn established in the
Noise Element. Exterior
noise levels would exceed
70 dBA Ldn along University
Avenue and Shattuck
Avenue. This would be a
potentially significant impact.

• Utilize site planning to minimize noise in
shared residential outdoor activity areas
by locating these areas behind the
buildings, in courtyards, or orienting the
terraces to alleyways rather than streets,
whenever possible.
• The California Building Code and the City
of Berkeley require project specific
acoustical analyses to achieve interior
noise levels of 45 dBA Ldn or lower in
residential units exposed to exterior noise
levels greater than 60 dBA Ldn. Building
sound insulation requirements would
need to include the provision of forced-air
mechanical ventilation in noise
environments exceeding 70 dBA Ldn so
that windows could be kept closed at the
occupant’s discretion to control noise.

Special building construction techniques
(e.g., sound-rated windows and building
façade treatments) may be required
where exterior noise levels exceed 65
dBA Ldn. These treatments include, but
are not limited to, sound rated windows
and doors, sound rated exterior wall
assemblies, acoustical caulking, etc. The
specific determination of what treatments
are necessary will be conducted on a
unit-by-unit basis during project design.

Result of the analysis, including the
description of the necessary noise control
treatments, will be submitted to the City
along with the building plans and
approved prior to issuance of a building
permit. Feasible construction techniques

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such as these would adequately reduce
interior noise levels to 45 dBA Ldn or
lower. Implementation of the above
measure would reduce the impact to a
level of less than significant.

NOI-5 The proposed project
would intermittently expose
businesses and residences
throughout the Downtown
Area to high levels of noise
throughout the planning
horizon. Construction would
elevate noise levels at
adjacent businesses and
residences by 15 to 20 dBA
or more, significant impact.

NOI-5 Develop Site-Specific Noise-
Reduction Programs and Implement Noise
Abatement Measures During Construction.

Prior to the issuance of building permits, the
applicant shall develop a site specific noise
reduction program prepared by a qualified
acoustical consultant to reduce construction
noise impacts to the maximum extent feasible,
subject to review and approval of the Zoning
Officer. The noise reduction program shall
include appropriate time limits for construction
(7:00 AM to 7:00 PM on weekdays and between
the hours of 9:00 AM and 8:00 PM on
weekends or holidays) as well as technically
and economically feasible controls to meet the
requirements of the Berkeley Municipal Code.

The noise reduction program should include,
but shall not be limited to, the following
available controls to reduce construction noise
levels as low as practical:
• Construction equipment should be well
maintained and used judiciously to be
as quiet as practical.
• E quip all internal c
ombustion engine-
driven equipment with mufflers, which
are in good condition and appropriate
for the equipment.
• Utilize “quiet” models of air
compressors and other stationary noise
sources where technology exists.

City of Berkeley
Planning Department,
Land Use Division
Prior to the
issuance of a
Building Permit

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Select hydraulically or electrically
powered equipment and avoid
pneumatically powered equipment
where feasible.
• Locate stationary noise-generating
equipment as far as possible from
sensitive receptors when adjoining
construction sites. Construct temporary
noise barriers or partial enclosures to
acoustically shield such equipment
where feasible.
• P
rohibit unnecessary idling of internal
combustion engines.
• If impact pile driving is required, pre-d
rill
foundation pile holes to minimize the
number of impacts required to seat the
pile.
• Construct solid plywood fences around
construction sites adjacent to
operational business, residences or
other noise-sensitive land uses where
the noise control plan analysis
determines that a barrier would be
effective at reducing noise.
• Erect temporary noise control blanket
barriers, if necessary, along building
facades facing construction sites. This
mitigation would only be necessary if
conflicts occurred which were
irresolvable by proper scheduling.

Noise control blanket barriers can be
rented and quickly erected.

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• Route construction related traffic along
major roadways and away from
sensitive receptors where feasible
• Businesses, residences or other noise-
sensitive land uses within 500 feet of
construction sites should be notified of
the construction schedule in writing
prior to the beginning of construction.

Designate a “construction liaison” that
would be responsible for responding to
any local complaints about construction
noise. The liaison would determine the
cause of the noise complaints (e.g.,
starting too early, bad muffler, etc.) and
institute reasonable measures to
correct the problem. Conspicuously
post a telephone number for the liaison
at the construction site.

NOI-6 The proposed project
would expose residences,
businesses, and historic
structures within or in the
vicinity of the Downtown
Area to construction-related
vibration during the
excavation and foundation
work of the buildings
constructed during the DAP,
a significant impact.

NOI-6 Avoidance of Pile-Driving/Site-
Specific Vibration Studies/Monitoring/
Contingency Planning. The following
measures are recommended to reduce vibration
from construction activities:
• Avoid impact pile-driving where
possible. Drilled piles causes lower
vibration levels where geological
conditions permit their use.
• A
void using vibratory rollers and
tampers near sensitive areas.
• In areas where project construction is
anticipated to include vibration
generating activities, such as pile-driving
in close proximity to existing structures,
site-specific vibration studies should be
City of Berkeley
Planning Department,
Land Use Division
Prior to the
issuance of a
Building Permit

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Initials)
conducted to determine the area of
impact and to present appropriate
mitigation measures that may include
the following:
o Identification of sites that would
include vibration compaction
activities such as pile-driving and
that have the potential to generate
groundborne vibration, and the
sensitivity of nearby structures to
goundborne vibration. Vibration
limits should be applied to all
vibration-sensitive structures
located within 200 feet of the
project. A qualified structural
engineer should conduct this task.
o D
evelopment of a vibration
monitoring and construction
contingency plan to identify
structures where monitoring would
be conducted, set up a vibration
monitoring schedule, define
structure-specific vibration limits,
and address the need to conduct
photo, elevation, and crack surveys
to document before and after
construction conditions
o Construction contingencies would
be identified for when vibration
levels approached the limits.
o At a minimum, vibration monitoring
should be conducted during initial
demolition activities and during pile-
driving activities. Monitoring results

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may indicate the need for more or
less intensive measurements.
o When vibration levels approach
limits, suspend construction and
implement contingencies to either
lower vibration levels or secure the
affected structures.
o Conduct post-survey on structure
where either monitoring has
indicated high levels or complaints
of damage has been made. Make
appropriate repairs or
compensation where damage has
occurred as a result of vibration.

25

A t t a c h m e n t 1 , E x h i b i t
A . 3
Findings and Conditions
AUGUST 4, 2022
2065 Kittredge Street
Structural Alteration Permit #LMSAP 2021-0004

PROJECT DESCRIPTION
The application proposes to partially demolish the rear portion of the City Landmark Shattuck Hotel building, and to completely demolition the 1926 and 1959 Hink’s department store expansions; and to construct a new multi-story, mixed-use building on the site, located in the Downtown.

CEQA FINDINGS

1. An Addendum to the Final Environmental Impact Report (EIR) to the 2211 Harold Way Mixed-Use Project, which was certified in December 2015, was prepared to evaluate the potentially significant environmental impacts of the proposed project, pursuant to the California Environmental Quality Act. The Landmarks Preservation Commission has considered the Addendum together with the previously certified Final EIR. The Addendum reflects the independent judgment of the Commission and has been completed in compliance with CEQA. The Addendum, together with the 2211 Harold Way Mixed-Use Project Final EIR, is adequate for the 2065 Kittredge Street Mixed-Use Project. On the basis of the whole record, including the Addendum, the previously certified Final EIR, and the public comments received, the Commission finds that the project changes described in the Addendum, i.e., the modified project, will not result in new significant effects or a substantial increase in the severity of previously identified significant effects on the environment.

2. The Addendum prepared for the project addressed the following issues: Air Quality, Cultural Resources, Greenhouse Gas Emissions, Noise, Transportation, and Utilities and Service Systems.

3. Public Resources Code Section 21081.6 and CEQA Guidelines Section 15091(d) require the City to adopt a reporting or monitoring program for the changes to the project that it has adopted or made a condition of approval in order to avoid or substantially lessen significant effects on the environment. The Mitigation Monitoring and Reporting Program for the 2211 Harold Way Mixed-Use Project Final EIR, as modified in the addendum and reflected in the Conditions of Approval for the modified project, are hereby adopted as the reporting and monitoring program for this project; see Exhibit A. The monitoring program is designed to ensure compliance during project implementation.

LANDMARKS PRESERVATION ORDINANCE FINDINGS
Pursuant to Berkeley Municipal Code Sections 3.24.260.C.1.a, the Landmarks Preservation Commission of the City of Berkeley makes the following findings:

1. The proposed project allows for the preservation of the Mission Revival style original hotel, together with all of its 1912 and most of its 1913 additions. The Hotel will still form a

FINDINGS AND CONDITIONS 2065 Kittredge Street – Structural Alteration Permit #LMSAP 2021-0004

significant presence on Shattuck Avenue, retaining its distinctive form, stucco walls, decorative tile work, wall surface ornamentation, squared towers, hipped roof forms, arched or arcaded wall openings, varied roof heights, red clay tile roof cladding, and broad eave overhangs with exposed rafter tails; with the new building rising behind. Mitigation measures are included to reduce any construction related impacts to the hotel, and as such the project will not adversely affect its features.

FINDINGS REGARDING THE SECR
ETARY OF THE INTERIOR’S STANDARDS FOR

REHABILITATION
Regarding the Secretary of the Interior’s (SOI) Standards for Restoration/Rehabilitation, the Landmarks Preservation Commission of the City of Berkeley makes the following findings:

1. SOI Standard #2: The pr oposed project will retain the City Landmark Shattuck Hotel building, including its early 1912 and 1913 building additions. The structure’s Spanish Revival architectural design and character-defining features will not be removed or altered. The proposed demolition of a low-rise, rear portion of the 1913 addition building would not result alteration of the primary building facades, thereby avoiding loss of distinctive materials and features. The proposed wholesale demolition of the 1926 building addition is not found to be a significant loss of distinctive features, in part because the structure’s significance lay primarily in its associations with historical events. As the significant architectural character of the Shattuck Hotel will not be completely removed, and will continue to represented in the retained features of this site, the proposed project complies with Standard #2.

2. S OI Standard #9: The proposed new construction will be visually and physically separated from the street-facing façades of the Shattuck Hotel building; the Allston elevation will be separated by an existing alley that will remain, and the Kittredge elevation will feature a hyphen where the façade steps back and away from the historic structure. The new building will be located to the rear of the Shattuck Hotel, and the Hotel will retain its primacy and presence along Shattuck Avenue. The design of the new building is distinctively contemporary, thereby differentiating it from the historic structure.

ZONING ORDINANCE DESIGN REVI

EW STANDARDS
Pursuant to BMC Chapter 23E.12.020, the Landmarks Preservation Commission of the City of Berkeley finds the project as proposed substantially conforms with the Southside Area Plan Design Guidelines (2011) in that the project:

1. G
eneral Guidelines -
Similar to typical 20th century commercial design, like Shattuck Hotel, the new project generally maintains a band separating the building’s base and creating a middle and a top. The upper most (or top) floor is present, though quiet as it steps back and features usable open space. The selection of proposed building materials is found to be comparable with new construction in Downtown, while the color palette is reflective of the historic Hotel building. The proposed window design comprises 25-50% of the upper façade, as recommended.

2065 Kittredge Street – Structural Alteration Permit #LMSAP 2022-0004 FINDINGS & CONDITIONS August 4, 2022 Page 3 of 4

2. Roof Forms. - Owing to the proposed massing and color palette, much of the upper story visually serves as a successful termination to the building.

3. Building Materials - The materials proposed for this project are found to be durable and of high quality.

4. Frontage, Setbacks & Heights - The project height is comparable to the neighboring buildings, including the City Landmark Shattuck Hotel. As the results of refinements, the final proposal maintains a continuous build-to-line with the exception of the main, residential entry plaza. A step-back occurs throughout the project at approximately 65 to 75 ft. above street level.

5. Open Spaces – As the result of project refinements, the final design features public open space that is directly aligned with the existing open space at Berkeley Public Library.

6. Public Serving Frontages for Kittredge, Harold and Allston Way - The project features the recommended pattern and placement of entrances on all three street-facing facades, as well as the desired amount of glazing on Kittredge and Allston elevations. The Harold Way façade exceeds the recommended amount of glazing at the live/work entrances and comes close in the residential window pattern.

HISTORIC PRE

SERVATION & DESIGN REVIEW CONDITIONS

1. Project plans. Project shall conform to plans, facades restoration specifications, and photographs, dated July 22, 2022.

2. Fi
nal Design Review. P
ursuant to BMC Section 23.406.070.C, prior to submittal of any building permit for this project, the project proponent shall obtain Final Design Review (FDR) approval from the Landmarks Preservation Commission. Prior to FDR consideration, the project proponent shall make the following improvements subject to Commission approval:
a) Enlarge and further refine the commercial tenant space at the corner of Kittredge Street and Harold Way.
b) Further refine the public open space areas.
c) Establish internal access between the bicycle parking area and the residential entry.

3. This Structural Alteration Permit approval is contingent upon Use Permit approval of this project.

4. Mitigation monitoring & reporting program – Exhibit A. The project proponent shall adhere to and demonstrate compliance with this plan to the satisfaction of the Zoning Officer. The project proponent shall bear the cost of monitoring to ensure compliance with the plan; a deposit of not less than $10,000 may be required prior to building permit submittal in order to secure the services of a third-party monitor.

5. Chemical Treatments. Any chemical or physical graffiti removal treatments needed as construction progresses shall be undertaken using the gentlest means possible.

FINDINGS AND CONDITIONS 2065 Kittredge Street – Structural Alteration Permit #LMSAP 2021-0004

6. Signage program. For Final Design Review, the project proponent shall submit complete signage details, including colors, materials, letter heights, dimensions, placement on building, and installation details. All materials will be matte unless otherwise noted.

7. Landscape & Irrigation. For Final Design Review, the applicant shall submit a Landscape plan including the number, location, and species of all proposed plantings, and which existing plantings shall be removed. The applicant shall provide irrigation for all landscaped areas or provide drought tolerant plant palette. This shall be called out on Landscape building permit drawings. Further, the plans shall include irrigation for all landscaped areas.

8. Exterior lighting detail. For Final Design Review, the project proponent shall submit lighting details showing all proposed site and building lighting. Exterior lighting, including for signage, shall be downcast and not cause glare on the public right-of-way and adjacent parcels.

Attachment 2

Z ONING

A DJUSTMENTS
B OAR
D
Staff Report
1947 Center Street, Second Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]

FOR BOARD ACT
ION
SEPTEMBER 22, 2022
2065 Kittredge Street
Use Permit # ZP2021-0193 to demolish portions of existing City Landmark commercial buildings and construct an 8-story, mixed -use building with 187 dwelling units (including four live/work units and nine Very Low-Income units), 4,993 square feet commercial space and 43 parking spaces. Project utilizes State Density Bonus.

I. Background
A. Land Use Designations:
• General Plan: DT – Downtown; Downtown Area Plan
• Zoning: C-DMU (Core) – Downtown Mixed-Use Commercial District – Core Sub- area
B. Zoning Permits Required:
• Use Permit under BMC Section 23.326.070(A) to demolish a non- residential building
• Use Permit under BMC Section 23.204.020(A) to construct a new mixed- use development
• Use Permit under BMC Section 23.204.020(A) to construct dwelling units • Use Permit under BMC Section 23.204.030(B)(1) to create new floor area of 10,000 square feet or more
• Use Permit under BMC Section 23.204.130(E)(1) to exceed the maximum building height limits, up to 75 feet (plus 5-foot parapet, by right) C. Concessions and Waivers and Pursuant to State Density Bonus Law (CA Gov’t.

Code Section 65915):
• Concession to reduce the usable open space requirement – to provide 11,916 square feet where 14,960 square feet is required
• Waiver of BMC Section 23.204.130(E)(1) to exceed building height limits – to be 87 feet (plus 5-foot parapet, by right), where 75 feet is the limit (plus 5-foot parapet, by right, with a use permit)
• Waiver of BMC Section 23.204.130(E)(3) to reduce setback to 0 feet, where 15 feet is required, where above 75 feet in height
Attachment 3

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• Waiver of BMC Section 23.204.130(E)(3) to increase front setback maximum to 0- 20 feet, where 5 feet is required, at 0-20-foot building height • Waiver of BMC Section 23.304.090(B)(7) to reduce the landscaped usable open space to 25 percent, where from 40 percent minimum is required • Waiver of BMC Section 23.304.050(A) to exceed building height limits with rooftop architectural elements which exceed the maximum height limit for the district • Waiver of BMC Section 23.322.030(B)(1) to reduce the minimum commercial parking requirement to zero, where eight is required
D. CEQA Recommendation: Adopt the Environmental Impact Report (EIR) Addendum to the certified 2211 Harold Way Mixed- Use Project Final EIR (SCH #2014052063) and Revised Mitigation Monitoring and Reporting Program (MMRP) pursuant to the California Environmental Quality Act. The Addendum and MMRP are attached to this staff report. See Section V for discussion of the project’s CEQA review.

E. Parties Involved:
• Applicant Bill Schrader, 164 Oak Road, Alamo, CA 94507 • Property Owner CA Student Living Berkeley, LLC, 130 Randolph Street, Suite 2100, Chicago IL, 60601
F. Application Materials, Staff Reports and Correspondence are available on the Internet:
https://aca.cityofberkeley.info/citizenaccess/Default.aspx https://cityofberkeley.info/your-government/boards-commissions/zoning-adjustments- board

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Figure 1: Zoning Map

Legend
C-DMU: Downtown Mixed-Use District
Core: C-D
MU Core Sub-Area
Buffer: C-DMU Buffer Sub -Area
Corridor: C-DMU Corridor Sub -Area
Outer Core: C-DMU Outer Core Sub-Area

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Figure 2: Project Location

Project Site

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Figure 3: City Landmarks and Demolition Boundaries

Project Site

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Figure 4: Kittredge Street Elevation (South)

Figure 5: Harold Way Elevation (West)

Figure 6: Allston Way Elevation (North)

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Table 1: Land Use Information
Location Existing Use Zoning
District
General
Plan
Designation
Subject Property
Office (combination of professional, institutional and
medical)
Children’s Museum (closed)
C-DMU
Core Sub-
Area
DT
Surrounding
Adjacent
Properties
North
Retail (2190 Shattuck Ave);
Public parking structure with ground floor office and
commercial
East
Hotel Shattuck Plaza (2086 Allston Way) and ground
floor retail on Shattuck Ave.

Mixed use retail and apartments (2219 Shattuck Ave.)
Mixed use retail and apartments (2225 Shattuck Ave.)
Mixed use retail and apartments (2231 Shattuck Ave.)
Shattuck Cinemas (closed)
South Central Public Library (2090 Kittredge St.)
C-DMU
Corridor
Sub-Area
West Dharma College and the Mangalam Center (2018
Allston Way)
C-DMU
Outer
Core Sub-
Area

Table 2: Special Characteristics
Characteristic Applies to
Project? Explanation
Affordable Child Care Fee
& Affordable Housing Fee
for qualifying non-
residential projects (Per
Resolutions 66,618-N.S. &
66,617-N.S.)
No
These fees apply to projects with more than 7,500 square feet of net new non-residential gross floor area. The project includes no net new non-residential gross floor area. Therefore, the project would not be subject to these fees. Affordable Housing Fee for qualifying non-
residential projects (Per
Resolution 66,617-N.S.)
Affordable Housing
Mitigations for rental
housing projects (Per
BMC 22.20.065)
Yes
The project would include five or more market rate dwelling units and is therefore subject to the affordable housing provisions of BMC 22.20.065.

Alcohol Sales/Service No The project is not proposing alcohol sales or service with this permit.

Coast Live Oaks No There are no oak trees on the project site.

Creeks No The project site is not within a creek buffer.

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Characteristic Applies to
Project? Explanation
Density Bonus Yes
The project would provide nine Very Low-Income units, or 5% of the Base Project units, and qualifies for a 20% density bonus, or 33 bonus units (24 taken). See Section III.B for discussion.

Green Building Score Yes The Project is designed to achieve a LEED Gold (or equivalent) rating.

Historic Resources Yes
The project would involve removal of the 1926 addition and portions of the 1913 addition to the landmarked Shattuck Hotel.

The project would involve demolition of the 1959 Hink’s Building, which is not a historic resource.

Housing Accountability
Act
(Govt. Code 65589.5(j))
Yes
The project is a “housing development project” consisting of a mixed-use building, and requests no modifications to
development standards beyond waivers and concessions
requested under density bonus law. Therefore, the HAA findings apply to this project, and the project cannot be denied at the density proposed unless the findings for denial can be made.

See Section III.C for discussion.

Public Art on Private
Projects
(BMC Chapter 23C.23)
Yes
The project is subject to the Percentage for Public Art on Private Projects Ordinance. The applicant is electing to pay the fee (0.8% of total building permit valuation) to comply.

Rent Controlled Units No The project involves the partial demolition of non-residential structures and no rent-controlled units would be demolished.

Residential Preferred
Parking Yes
The site is located in RPP zone “I”. However, newly constructed dwellings would not be eligible to participate in the RPP program.

Seismic Hazards (SHMA) No
The project site is located in an area susceptible to liquefaction, as defined by the State Seismic Hazards Mapping Act (SHMA).

The applicant has submitted a geotechnical report that has been peer reviewed by the City’s consultant. Conditions of approval will be included in the permit to ensure oversight by the applicant’s geotechnical consultant.

Soil/Groundwater
Contamination No
The project site is located within the City’s Environmental Management Area. The project site is not listed on the Cortese List. The Phase I submitted by applicant indicated a potential for vapor intrusion associated with previous dry-cleaning activities at the site. A condition of approval will be included in the permit requiring a vapor intrusion report for Toxics Division review, as recommended in the Phase I report. Also, standard Conditions of Approval related to hazardous materials would apply.

Transit Yes
The project site is served by multiple bus lines (local, rapid, and Transbay) that operate along Shattuck Avenue, and is
approximately one block from the Downtown Berkeley BART Station.

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Table 3: Project Chronology
Date Action
July 26, 2021 SB 330 Preliminary Application deemed complete October 25, 2021 SB 330 Use Permit Application submitted June 1, 2022 Application deemed complete; level of CEQA review determined by staff – EIR Addendum
April 21 2022 DRC Design Review Referral for LMSAP2021-0004 June 2, 2022 LPC Structural Alterations Permit LMSAP2021-0004 Hearing August 4, 2022 LPC Structural Alterations Permit LMSAP2021-0004 Hearing September 8, 2022 Public hearing notices mailed/posted
September 22, 2022 ZAB Hearing

Table 4: Development Standards
C-DMU Standards,
Core Sub-Area Existing Proposed Permitted/Required
Lot Area (sq. ft.) 33,5821 33,582 n/a
Gross Floor Area (sq. ft.) 92,531 186,354 n/a
Commercial Floor Area 95,000 4,9932 n/a
FAR 2.8 5.5 n/a
Dwelling Units 0 183 n/a
Live/Work Units 0 4 n/a
Building
Height
Maximum 36’-0” 87’-0”
50’ min./60’ max.
(75’ max. w/use permit 3;
5’ max. parapet by right)
Stories 3 8 n/a
Building
Setbacks

Front
(Kittredge) 0’-0” 0’-0”
0’–5’ (bldg. ht.≤20’)
0’ (bldg. ht.>20’ and ≤75’)
15’ (bldg. ht.>75’)
Front
(Harold) 0’-0”
0’-0”
(2’-6” overhang
into ROW)
0’–5’ (bldg. ht.≤20’)
0’ (bldg. ht.>20’ and ≤75’)
15’ (bldg. ht.>75’)
Front
(Allston) 0’-0” 0’-0”
0’–5’ (bldg. ht.≤20’)
0’ (bldg. ht.>20’ and ≤75’)
15’ (bldg. ht.>75’)
Lot Coverage (%) 100 82 n/a
Usable Open Space (sq. ft.) n/a 11,916 14,960 min.
(80 s.f./d.u.)
Privately Owned Public Open Space
(sq. ft.) n/a 4,5934 100
(1 s.f./50 s.f. of commercial)

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C-DMU Standards,
Core Sub-Area Existing Proposed Permitted/Required
Parking
Commercial
(4,993 sq. ft.) 0 0 8 min.
(1.5 space/1,000 s.f.)
Residential 0 41 0 min./92 max.
(0.5 spaces/du max.)
Carshare 0 2 2 min.

Total 0 43 6 min./92 max.

Bicycle
Parking
Commercial - Short
Term (4,993 sq. ft.) 0 3 3
(1 spc/2,000 s.f. commercial)
Residential - Long Term 0 122 112
(1 space/3 bedrooms)
Residential - Short
Term 0 8 8
(1 space/40 bedrooms, or 2)
Total
122/11
(long term/short
term)
112/11
(long term/short term)
1 Area of Unit B of Parcel Map 6889
2 Includes commercial area in live/work units, 4 x 433.5 sq.ft.=1,734 sq.ft.. 3 The use permit to allow height up to 75 feet is included in the Base Project for the calculation of the density bonus, and is not a requested waiver. Additional height beyond 75’ is being requested as a waiver. 4 Each square foot of usable open space provided as privately-owned public open space is counted as two square feet of required on-site usable open space.

________ = Waiver requested to modify the district standard.

________ = Concession, pursuant to State Density Bonus Law, requested to modify the district standard.

II. Project Setting

A. Neighborhood/Area Description: The project site is located within the Downtown Mixed-Use District (C-DMU), Core Sub-Area, as identified in the City’s Downtown Area Plan (DAP). Directly adjacent to the project site and on the same block is the Shattuck Hotel, a City of Berkeley Landmark, whose main lobby and entrance are on Allston Way but which also occupies the airspace above the ground floor retail along the entire block’s frontage on Shattuck Avenue. Below the hotel rooms along Shattuck Avenue is a row of commercial storefronts, as well as the entrance to the former commercial occupant, Shattuck Cinemas, which is now closed. The hotel consists of guest rooms, a restaurant, a bar, and meeting rooms.

Commercial uses are located along Shattuck Avenue north of and across from the project site. South of the project site on Shattuck Avenue and across Kittredge Street is the Berkeley Central Library, a City of Berkeley and National historic landmark. West of the project site across Harold Way are the Dharma College and the Mangalam Center, both City of Berkeley Landmarks. Commercial land uses and a public parking structure are located north of the project site across Allston Way. (See Figure 1: Zoning Map and Figure 2: Project Location.)

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Building heights in the vicinity range from two to three-stories (portions of the Dharma College complex on Harold Way and U.S. Post Office along Kittredge Street) to the 12-story 2140–2144 Shattuck Avenue Chamber of Commerce Building (173 feet) and 14-story 2150 Shattuck Avenue First Savings/Great Western Building (180 feet). The adjacent Shattuck Hotel is five stories in height, not including the basement. Most buildings around the project site are in the two- to five-story range. One block north, around the intersection of Center Street and Shattuck Avenue, are several AC Transit and UC Berkeley Shuttle bus stops serving a number of bus lines, as well as the Downtown Berkeley BART Station on Shattuck Avenue between Allston Way and Addison Street.

B. Site Conditions/Background: The project site is a portion of the fully urbanized city block discussed above, which is generally level, sloping slightly downward towards the west and south. The project site is a single parcel that encompasses an entire City block with street frontage on Allston Way (north), Shattuck Avenue (east), Kittredge Street (south) and Harold Way (west) that is subdivided into condominium parcels A, B, and C of Parcel Map 6889. (See Figure 3: City Landmarks and Demolition Boundaries) The site is occupied by a City Landmark, The Shattuck Hotel, which has four primary components: the original hotel building constructed in 1910; 1913 hotel expansion and Hink’s Department store addition facing Shattuck Avenue and Kittredge Street; 1926 Hink’s expansion facing Kittredge and Harold Way; and the 1959 Hink’s addition facing Harold Way and Allston Way. The 1913 expansion previously housed the Shattuck Cinema’s movie theaters, part of the Habitot Children’s Museum, and office space. Both the Shattuck Cinemas and Habitot spaces are currently vacant. All portions of the expansions proposed to be demolished are two stories in height with a partial third story and a basement level.

The project site is Unit B of the condominium subdivision, Parcel Map 6889, which was created December, 2020. Entitlements were previously obtained for the project site in 2015 (UP13-10000010 and LM13-40000002, under the address 2211 Harold Way) to demolish historic structures and construct an 18-story, 302-unit, mixed-use building, with approximately 10,877 square feet of commercial space, a ten- theater cinema complex, and 177 underground parking spaces. Building permits were never obtained for the project, and the City deemed the permits expired on January 17, 2020.

III. Project Description

A. The proposed project would demolish a portion of the City Landmark Shattuck Hotel (the 1913 expansion) and fully demolish the City Landmarks 1926 and 1959 Hink’s department store expansions; and construct a mixed-use building with the following main components:
• Eight stories, 87 feet in height
• 183 dwelling units – 41 studios, 30 one-bedroom 101 two-bedroom, and 11 three- bedroom
• Four live/work units

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• 583 bedrooms total
• Nine Very Low Income (VLI) units
• 4,993 square feet of ground-floor commercial space
• 1 1,916 square feet of usable open space – two ground-floor public plazas (off of Kittredge and Allston frontages) and a seventh-floor roof deck • 43 residential vehicle parking spaces in ground-level garage (two carshare spaces) • 122-space bike room
(See Figure 4, 5 and 6: Elevations.)
B. Base Project and Density Bonus: By committing to provide nine VLI units, the project is eligible for a density bonus under Government Code Section 65915. Under the City’s density bonus procedures, the Base Project was calculated to have 163 units, as the maximum allowable density for the site. 1 The Base Project has an average unit size of 995 square feet in a 7-story building. Nine VLI units, or 5 percent of the Base Project, qualifies the project for a 20 percent density bonus or 33 bonus units, of which the project would utilize 24. The resulting Proposed Project would be an eight -story building with 187 units, with an average unit size of 997 square feet. (See Table 5 :

Density Bonus.)

Table 5: Density Bonus
– CA Gov’t Code 65915
Base Project
Units* Qualifying Units Percent Density
Bonus
Number of
Density Bonus
Units*
Proposed
Project Units
163 9 VLI
(5% of BP) 20% 24 (33 max.)
(20%x163) 187
*Per Gov’t Code 65915(q), all unit calculations are rounded up to the nearest whole number.

C. Housing Accountability Act: The Housing Accountability Act (HAA), California Government Code Section 65589.5(j), requires that when a proposed housing development complies with the applicable, objective general plan and zoning standards, but a local agency proposes to deny the project or approve it only if the density is reduced, the agency must base its decision on written findings supported by substantial evidence that:

1) The development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and 2) There is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density.

1 Per the City’s Density Bonus Procedures (DBP), the Base Project is the largest project allowed on the site that is fully compliant with district development standards (i.e. height, setbacks, usable open space, parking, etc.), or, the maximum allowable density for the site. The City uses the DBP to calculate the maximum allowable density for a site where there is no density standard in the zoning district, and to determine the number of units in the Proposed Project, which is the number of Base Project units plus the number of density bonus units that can be added according to the percentage of BMR units proposed, per Government Code, §65915(f).

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The Base Project complies with applicable, objective general plan and zoning standards. Further, Section 65589.5(j)(3) provides that a request for a density bonus “shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.” Therefore, the City may not deny the Base Project or density bonus request or reduce the density with respect to those units without basing its decision on the written findings under Section 65589.5(j), above. Staff is aware of no specific adverse impacts that could occur with the construction of the Base Project or the density bonus units. Therefore, Section 65589.5(j) does apply to the Proposed Project. All findings discussed below are subject to the requirements of Government Code Section 65589.5.

IV. Community Discussion
A. Neighbor/Community Concerns: Prior to submitting the application to the City on October 25, 2021, the applicant installed yellow Proposed Development Project signs at the project site.

October 6, 2021 a neighborhood outreach meeting was held by the applicant. Four members of the public attended and discussed questions about: construction timeline and noise mitigation, shared service access on the alley at Allston Way; the extent of the demolition and impact to internal circulation in the existing buildings to remain; the proposed retail and shared utilities with existing buildings to remain; and exterior materials and finishes.

On March 2, 2022, staff received a letter from a neighbor raising concerns over the demolition of a portion of the Shattuck Cinemas. On April 20 and 21, 2022, prior to the Design Review Committee referral meeting, staff received two letters letter from neighbors raising similar concerns about the demolition of the movie theater, and the loss of a “cultural resource”.

On September 8, 2022, the City mailed public hearing notices to property owners and occupants, and to interested neighborhood organizations, and posted notices within the neighborhood in three locations. No further communications regarding the project were received as of the writing of this staff report.

B. Design Review Committee Referral and Landmarks Preservation Commission:

In accordance with BMC Section 3.24.200 of the Landmarks Preservation Ordinance and BMC Section 23.406.070 of the Zoning Ordinance, the Landmarks Preservation Commission (LPC) must grant approval of the proposed demolition and complete Design Review for the new development under a Structural Alteration Permit, because the new construction shares the site with the landmarked structures. The project proposes to demolish the rear portion of the Shattuck Hotel (1913 expansion) and the 1926 and 1959 Hink’s depar tment store expansions . All are components of the designated Shattuck Hotel City Landmark, and two structures – the 1913 and 1926 expansions – are eligible for listing on the National Register of Historic Places as well

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as the California Register of Historic Resources. 2 Staff referred the project to the Design Review Committee (DRC) to obtain advisory comments on the design of the new building and its adherence to the Downtown Design Guidelines for consideration by both the ZAB and LPC.

The DRC met to review the project on April 21, 2022, and forwarded comments and recommendations for improvements to the project design. The applicant made revisions per DRC recommendations and the revised project was reviewed by the LPC under the Structural Alteration Permit (LMSAP2021-0004) on June 2, 2022 and August 4, 2022.

At the August 4, 2022 meeting, the LPC approved the Structural Alteration Permit (SAP) for demolition and new construction at the Shattuck Hotel site, adopted an Addendum to a previous EIR, and conditioned further refinements for Final Design Review (Vote: 5-2-1-1). The SAP Findings and Conditions can be found at this link .

Further revisions to the project were made based on comments received from the LPC at this meeting, including the elimination of one unit (two bedrooms), the addition of 812 square feet of commercial area, and other minor revisions. (See Attachment 2.) The revisions did not affect the conclusion of the EIR Addendum (discussed in section V.B).

V. Environmental Review
A. CEQA Approach: Pursuant to Section 15164 of the CEQA Guidelines, codified in Sections 15000 et seq. of Title 14 of the California Code of Regulations, a lead agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15612 calling for preparation of a subsequent EIR have occurred. Under Section 15162 (a), where an EIR has been certified for a project, no subsequent EIR shall be prepared for the project unless the lead agency determines, on the basis of substantial evidence in light of the whole record, that there are substantial changes in the project or circumstances or substantially important new information that will cause the project to have significant new impacts or substantially increase previously identified significant impacts.

As discussed in detail in the EIR Addendum, potential impacts associated with the modified project (the proposed changes compared to the project evaluated in the Final EIR) are consistent with potential impacts characterized and mitigated for in the Final EIR. Substantive revisions to the Final EIR are not necessary because no new significant impacts or significant impacts of substantially greater severity than previously described would occur. Thus, the conditions outlined in CEQA Guidelines Section 15162 requiring preparation of a subsequent EIR would not be met.

B. EIR Addendum and Revised MMRP: An Addendum to the 2211 Harold Way Mixed- Use Project (UP 13-10000010) Final EIR, which was certified in December 2015, was prepared to evaluate the potentially significant environmental impacts of the proposed

2 The 1959 Hink’s expansion does not have cultural resource status pursuant to CEQA.

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project, pursuant to the California Environmental Quality Act. The Addendum considered the Final EIR and Statement of Overriding Considerations, and evaluated the modified project (see Figure 7). The modified project was found to be smaller and less impactful than the Final EIR project. The impacts related to demolition and alteration of historic buildings, would remain significant and unavoidable, and the same overriding considerations would apply to the modified project, except that the project is no longer required to provide community benefits , and cultural resource impacts were addressed in the modified design.

Figure 7: Changes to Previously Approved Project (from EIR Addendum)

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The Addendum described the changes in the modified project, and addressed the following issues in detail: Air Quality, Cultural Resources, Greenhouse Gas Emissions, Noise, Transportation, and Utilities and Service Systems. All other environmental issues were evaluated for impact from the modified project as well, with the conclusion that impacts to these areas would be less than significant with mitigation, similar to the original project. For each of the above-listed areas of evaluation, the EIR Addendum findings supported the conclusion that impacts from the modified project would not result in new significant effects or a substantial increase in the severity of previously identified significant effects on the environment. Therefore, no new mitigation measures would be necessary for any of these evaluated areas. Furthermore, several mitigation measures for C ultural Resources are no longer required, as discussed below.

Cultural Resources. No new or substantially more severe significant effects would occur to cultural resources, and no new mitigation measures would be necessary.

Design changes in the modified project include a reduction in building height, design strategies to break up massing with varied rooflines and materials, and the projection of the second-floor level above the double-height street level, aligning with the cornice of the 1912 portion of the Shattuck Hotel. These design modifications have responded to the design measures adopted in Mitigation Measures CR-2(a), (b) and (c) of the Final EIR; therefore the measures do not apply to the modified project . In particular, the modified project avoids impact to the Allston Way elevation, in response to Mitigation Measure CR-2(a); the redesign of the Kittredge Street “hyphen” responds to Mitigation Measure CR-2(b); and the removal of large-scale use of aluminum glazing systems responds to Mitigation Measure CR-2(c).

In conclusion, similar to the original project, cultural resource impacts from the modified project would be less than significant with mitigation, with the exception of impacts related to demolition and alteration of historic buildings, which would remain significant and unavoidable. Mitigation Measures CR -2(a) through (c) would be removed f
rom the Miti gation Monitoring and Reporting Program (MMRP). All other measures adopted in the Final EIR for the purposes of mitigating cultural resources impacts remain applicable.

As mentioned in section IV.B, revisions to the project were made after the LPC meeting on August 4, 2022, including the elimination of one unit (two bedrooms), the addition of 812 square feet of commercial area, and other minor revisions. The City reviewed the revised plans and concluded that the revisions d id not change the conclusion of the EIR Addendum (see Attachment 4).

Public Resources Code Section 21081.6 and CEQA Guidelines Section 15091(d) require the City to adopt a reporting or monitoring program for the changes to the project that it has adopted or made a condition of approval in order to avoid or substantially lessen significant effects on the environment. The monitoring program is designed to ensure compliance during project implementation. The MMRP for the 2211 Harold Way Mixed-Use Project Final EIR has been revised to reflect the changes

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to the mitigation measures that were described in the Addendum. The revised MMRP is attached to the permit (see Attachment 1, Exhibit B).

VI. Issues and Analysis
A. SB 330 – Housing Crisis Act of 2019: The Housing Crisis Act, also known as Senate Bill 330, seeks to boost homebuilding throughout the State with a focus on urbanized zones by expediting the approval process for and suspending or eliminating restrictions on housing development projects. A “housing development project” means a use that is: all residential; mixed use with at least two- thirds of the square footage as residential; or transitional or supportive housing. Sections of SB 330 that apply to the proposed project include the following:

1. Government Code Section 65905.5(a) states that if a proposed housing development project complies with the applicable, objective general plan and zoning standards in effect at the time an application is deemed complete, then the city shall not conduct more than five hearings in connection with the approval of that housing development project. This includes all public hearings in connection with the approval of the housing development project and any continuances of such public hearings. The city must consider and either approve or disapprove the project at any of the five hearings consistent with applicable timelines under the Permit Streamlining Act [Chapter 4.5 (commencing with Section 65920)].

The September 22, 2022 ZAB Hearing represents the fourth public hearing for the proposed project since the project was deemed complete. The City can hold one additional public hearing on this project, if needed. That hearing must be reserved for a potential appeal to the City Council.

2. Government Code Section 65913.10(a) requires that the C ity determine whether the proposed development project site is an historic site at the time the application for the housing development project is deemed complete. The determination as to whether the parcel is an historic site must remain valid during the pendency of the housing development project, unless any archaeological, paleontological, or tribal cultural resources are encountered during any grading, site disturbance, or building alteration activities.

As discussed in Section IV.B, the structures proposed to be demolished – the rear portion of the Shattuck Hotel (1913 expansion) and the 1926 and 1959 Hink’s department store expansions – components of the designated Shattuck Hotel City Landmark, and two structures – 1913 and 1926 expansions – are eligible for listing on the National Register of Historic Places as well as the California Register of Historic Resources. Since the project would involve demolition of these historic resources, and an EIR was previously prepared in 2015 for a project proposal with a similar demolition scope, the City determined that an EIR Addendum was required to evaluate the modified project’s impacts on the historic resources. (See Section V for more information regarding the CEQA review ). Further, standard

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conditions of approval have been included to halt work if any unanticipated discovery of archeological, paleontological, or tribal cultural resources.

3. Government Code 65950(a)(2) requires a public agency to approve or disapprove a project within 90 days from the date of certification by the lead agency of the environmental impact report for a housing development project. The project was deemed complete on June 1, 2022. An EIR was certified in December 2015 for a similar project on the project site, and Staff determined on this date that the appropriate level of CEQA review was preparation of an EIR Addendum to evaluate the modified project’s impacts on the environment. (See Section V for details on the CEQA Approach and EIR Addendum.) Therefore, this section does not apply to the project.

4. Government Code Section 66300(d) prohibits the demolition of residential dwelling units unless the project will create at least as many residential units as will be demolished. The project does not propose the demolition of housing unit s.

Therefore, this section does not apply to the project.

B. Density Bonus Waivers and Concessions: The project is entitled to one concession (or incentive) , under Government Code Section 65915(d) for providing at least 5 percent of total units to very low-income households, and an unlimited number of waivers, under Section 65915(e).

Concession. A concession or incentive is a modification of a zoning code requirement that results in identifiable and actual cost reductions to provide for affordable housing costs. The applicant is requesting one concession to reduce the Usable Open Space requirement to eliminate the cost of providing an additional roof deck or balconies.

The City may only deny the concessions if it finds that the concessions would have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact 3 without rendering the development unaffordable to low income, very low income, and moderate-income households, or if the concession would be contrary to State or Federal law. Staff has identified no basis for making such a finding.

Waiver. A waiver is a modification of a development standard that would otherwise physically preclude the construction of the project with the permitted density bonus and concessions. Waivers for height (maximum height and rooftop projections ), setbacks, commercial parking, and the amount of landscaped open space are requested because they are necessary to physically accommodate the full density bonus project on the site.

3 A “specific, adverse impact” means “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.”

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The City may only deny the waivers if it finds that the waivers would have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low income, very low income, and moderate income households, or if the waiver would be contrary to State or Federal law. Staff has not identified any evidence that would support such a finding.

VI. Other Considerations
The following analyses of conformance with district purposes, use permit findings for non- detriment, and the 2002 General Plan goals and policies are provided for informational purposes only, to provide context; they are not required because the proposed project is HAA- compliant.

A. Use Permit for Demolition of Commercial Structures: Pursuant to BMC Section

23.326.070(A), in order to approve a Use Permit to demolish a commercial structure, the Board must make the findings in BMC Section 23.326.070(D)(2), including the finding that the demolition would not be materially detrimental to the commercial needs and public interest of any affected neighborhood of the City , and if demolishing a building more than forty years old, the LPC, upon review, does not recommend against granting the permit.

The
proposed demolition of the rear portion of the Shattuck Hotel (1913 expansion) and the 1926 and 1959 Hink’s department store expansions would not be materially detrimental to the commercial needs and public interest of the neighborhood because the proposed project would provide r
eplacement commercial floor area, public open
space, and new dwelling units within a mixed- use building that would bring more diversity of services to residents and workers in the vicinity and new housing to the neighborhood and the City at large. The exi sting structures to be demolished contain approximately 95,000 square feet of office, food service, and cinema uses. These uses would be replaced by approximately 4,993 square feet of commercial space (retail , food service, and live/work ), 183 units of new residential units (four live/work units ), and approximately 4,600 square feet in two privately-owned plazas (at Allston and Kittredge) that would be open for public use. The demolition is required in order to allow the proposed new mixed-use project to be built. The structures that are proposed for demolition are two stories in height with a basement level, and can be considered to be underutilized, as the DAP identifies two-story buildings near BART as Potential Development Opportunity Sites.

Further, as described above in Section IV.B., the proposed demolition referral and SAP were approved by the LPC on August 4, 2022.

A. Findings for Use Permit s in C -DMU District: Pursuant to BMC Section

23.204.130(I), in order to approve any Use Permit in the district, the Board must make the findings that the proposed use or structure:

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1. Is compatible with the purposes of the district:

The project would include 183 housing units, four live/work units, 4,993 square feet of ground floor commercial uses in Downtown Berkeley and within walking distance of the University of California. It is located in an area that is well served by transit; the Downtown Berkeley BART station is within one block of the site, and multiple AC Transit lines run on Shattuck Avenue and University Avenue. The Project is within the C-DMU Downtown Mixed-Use District, and as per Provisions of the BMC, the purpose of this district is to implement the vision and goals of the Downtown Area Plan (adopted 2012), which include: Environmental Sustainability, Land Use, Access, Historic Preservation and Urban Design, Streets and Open Space, Housing and Community Health and Services, and Economic Development.

• E
nvironmental Sustainability and Access : DAP Goals ES-3, UL-1 AC-1, AC-4.

The project provides higher-density development in proximity to regional transit, shops and amenities, and it would improve options to increase access to Downtown on foot, by bicycle and via transit would promote transit as an efficient and attractive choice through its location and through its Transportation Demand Management Plan and other associated Conditions of Approval. • Land Use: DAP Goal LU-1 (Policies LU-1.1 and LU-1.3). The Project will include residential, and commercial uses that allow people who live, work and learn in the Downtown to meet daily needs on foot.
• Historic Preservation and Urban Design: The LPC referred the project to DRC for design review recommendations, and considered the project in relation to its urban context, focusing on the application of the Downtown Design Guidelines, which implement the objectives and policies of the Historic Preservation and Urban Design chapter of the DAP. The LPC approved the SAP with findings for consistency with Landmarks Preservation, the Secretary of Interior standards for rehabilitation, and DAP design review standards. (See section IV.B for details.)
• Streets and Open Space: DAP Goal OS-1. T he project would enhance public open spaces and streets to benefit pedestrians, improve Downtown’s livability, and foster a sense of place.
• Housing and Community Health and Services : DAP Goals HC- 1, HC-2, HC-3.

The project would encourage Downtown as a thriving, livable, diverse residential neighborhood with a mix of supportive uses, and play a significant role in meeting Berkeley’s continuing need for additional housing. • Economic Development: DAP Goal ED-

1. The project would serve the needs
of the neighborhood and the City, make Downtown a more attractive regional destination, by promoting successful retail businesses and other attractions, with daytime and night-time populations to support them.

2. Is com
patible with surrounding uses and buildings.

The project site currently includes office and retail uses. ( Previous cinema and museum uses no longer occupy the site. ) The proposed project would change uses

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on the site to ground- floor commercial (retail and food service) and residential uses above. Uses on the surrounding properties include retail, public parking, office, library, hotel, and residential. The p roject would not introduce new land uses that do not already exist in the Downtown, and as described above, would further the vision and goals of the DAP.

As noted above, the DRC forwarded a positive recommendation for the project design, and the LPC voted to approve the SAP, with findings for consistency with Landmarks Preservation, the Secretary of Interior standards for rehabilitation, and DAP design review standards.

B. General Non- Detriment Finding: BMC Section 23.406.040 states that before the ZAB approves an application for a Use Permit, it must find that the project, under the circumstances of this particular case existing at the time at which the application is granted, would not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City.

Shadows: According to the shadow studies submitted for the p roject (See Attachment
2, Project Plans – Sheets A3-301 through A3-303). New shadow impacts would occur in the summer months, affecting commercial buildings on adjacent blocks to the west (Dharma College) and south (Downtown city public library) of the project site and the commercial buildings (offices and Shattuck hotel) that share the city block with the project site. New shadow impacts would also occur in the winter months, affecting commercial buildings on adjacent blocks to the northeast and north of the project site (YMCA, parking, and Walgreens) and the commercial buildings that share the city block with the project site (offices and Shattuck hotel). No residential buildings would be affected by new shadows from the project.

Non-Detriment: The project is subject to the City’s standard conditions of approval regarding construction noise and air quality, waste diversion, toxics, and stormwater requirements, thereby ensuring the project would not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

VI. Recommendation

Because of the project’s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, staff recommends that the Zoning Adjustments Board:

A. ADOPT the EIR Addendum and Revised Mitigation Monitoring and Reporting Program (MMRP)

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B. APPROVE Use Permit ZP2021-0193, pursuant to BMC Section 23.406.040 and subject to the attached Findings and Conditions and MMRP (see Attachment 1, Exhibit A and B).

Attachments:

1. Findings and Conditions
a. Exhibit A, Findings and Conditions
b. Exhibit B, Mitigation Monitoring and Reporting Program, Revised July 2022 c. The SAP Findings and Conditions document is available at this link:
https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2022-08- 04_LPC_Agenda_linked_0.pdf

2. Project Plans, received September 1, 2022

3. EIR Addendum for 2065 Kittredge Mixed-Use Project
The 2211 Harold Mixed-Use Project Final EIR and Statement of Overriding Considerations are available at this link: https://aca.cityofberkeley.info/CitizenAccess/Default.aspx. Click on Zoning tab; enter permit number ZP2021-0193; select permit ZP2021-0193; click on the “Record Info” drop down menu; click on Attachments for a list of all application materials.

4. Supplemental Analysis Memorandum to EIR Addendum, dated September 8, 2022

5. Notice of Public Hearing

Staff Planner: Sharon Gong, [email protected], (510) 981-7429

Z ONING

A DJUSTMENTS
B OAR
D
Staff Report
1947 Center Street, Second Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]

FOR BOARD ACT
ION
SEPTEMBER 22, 2022
2065 Kittredge Street
Use Permit # ZP2021-0193 to demolish portions of existing City Landmark commercial buildings and construct an 8-story, mixed -use building with 187 dwelling units (including four live/work units and nine Very Low-Income units), 4,993 square feet commercial space and 43 parking spaces. Project utilizes State Density Bonus.

I. Background
A. Land Use Designations:
• General Plan: DT – Downtown; Downtown Area Plan
• Zoning: C-DMU (Core) – Downtown Mixed-Use Commercial District – Core Sub- area
B. Zoning Permits Required:
• Use Permit under BMC Section 23.326.070(A) to demolish a non- residential building
• Use Permit under BMC Section 23.204.020(A) to construct a new mixed- use development
• Use Permit under BMC Section 23.204.020(A) to construct dwelling units • Use Permit under BMC Section 23.204.030(B)(1) to create new floor area of 10,000 square feet or more
• Use Permit under BMC Section 23.204.130(E)(1) to exceed the maximum building height limits, up to 75 feet (plus 5-foot parapet, by right) C. Concessions and Waivers and Pursuant to State Density Bonus Law (CA Gov’t.

Code Section 65915):
• Concession to reduce the usable open space requirement – to provide 11,916 square feet where 14,960 square feet is required
• Waiver of BMC Section 23.204.130(E)(1) to exceed building height limits – to be 87 feet (plus 5-foot parapet, by right), where 75 feet is the limit (plus 5-foot parapet, by right, with a use permit)
• Waiver of BMC Section 23.204.130(E)(3) to reduce setback to 0 feet, where 15 feet is required, where above 75 feet in height
Attachment 3

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• Waiver of BMC Section 23.204.130(E)(3) to increase front setback maximum to 0- 20 feet, where 5 feet is required, at 0-20-foot building height • Waiver of BMC Section 23.304.090(B)(7) to reduce the landscaped usable open space to 25 percent, where from 40 percent minimum is required • Waiver of BMC Section 23.304.050(A) to exceed building height limits with rooftop architectural elements which exceed the maximum height limit for the district • Waiver of BMC Section 23.322.030(B)(1) to reduce the minimum commercial parking requirement to zero, where eight is required
D. CEQA Recommendation: Adopt the Environmental Impact Report (EIR) Addendum to the certified 2211 Harold Way Mixed- Use Project Final EIR (SCH #2014052063) and Revised Mitigation Monitoring and Reporting Program (MMRP) pursuant to the California Environmental Quality Act. The Addendum and MMRP are attached to this staff report. See Section V for discussion of the project’s CEQA review.

E. Parties Involved:
• Applicant Bill Schrader, 164 Oak Road, Alamo, CA 94507 • Property Owner CA Student Living Berkeley, LLC, 130 Randolph Street, Suite 2100, Chicago IL, 60601
F. Application Materials, Staff Reports and Correspondence are available on the Internet:
https://aca.cityofberkeley.info/citizenaccess/Default.aspx https://cityofberkeley.info/your-government/boards-commissions/zoning-adjustments- board

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Figure 1: Zoning Map

Legend
C-DMU: Downtown Mixed-Use District
Core: C-D
MU Core Sub-Area
Buffer: C-DMU Buffer Sub -Area
Corridor: C-DMU Corridor Sub -Area
Outer Core: C-DMU Outer Core Sub-Area

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Figure 2: Project Location

Project Site

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Figure 3: City Landmarks and Demolition Boundaries

Project Site

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Figure 4: Kittredge Street Elevation (South)

Figure 5: Harold Way Elevation (West)

Figure 6: Allston Way Elevation (North)

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Table 1: Land Use Information
Location Existing Use Zoning
District
General
Plan
Designation
Subject Property
Office (combination of professional, institutional and
medical)
Children’s Museum (closed)
C-DMU
Core Sub-
Area
DT
Surrounding
Adjacent
Properties
North
Retail (2190 Shattuck Ave);
Public parking structure with ground floor office and
commercial
East
Hotel Shattuck Plaza (2086 Allston Way) and ground
floor retail on Shattuck Ave.

Mixed use retail and apartments (2219 Shattuck Ave.)
Mixed use retail and apartments (2225 Shattuck Ave.)
Mixed use retail and apartments (2231 Shattuck Ave.)
Shattuck Cinemas (closed)
South Central Public Library (2090 Kittredge St.)
C-DMU
Corridor
Sub-Area
West Dharma College and the Mangalam Center (2018
Allston Way)
C-DMU
Outer
Core Sub-
Area

Table 2: Special Characteristics
Characteristic Applies to
Project? Explanation
Affordable Child Care Fee
& Affordable Housing Fee
for qualifying non-
residential projects (Per
Resolutions 66,618-N.S. &
66,617-N.S.)
No
These fees apply to projects with more than 7,500 square feet of net new non-residential gross floor area. The project includes no net new non-residential gross floor area. Therefore, the project would not be subject to these fees. Affordable Housing Fee for qualifying non-
residential projects (Per
Resolution 66,617-N.S.)
Affordable Housing
Mitigations for rental
housing projects (Per
BMC 22.20.065)
Yes
The project would include five or more market rate dwelling units and is therefore subject to the affordable housing provisions of BMC 22.20.065.

Alcohol Sales/Service No The project is not proposing alcohol sales or service with this permit.

Coast Live Oaks No There are no oak trees on the project site.

Creeks No The project site is not within a creek buffer.

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Characteristic Applies to
Project? Explanation
Density Bonus Yes
The project would provide nine Very Low-Income units, or 5% of the Base Project units, and qualifies for a 20% density bonus, or 33 bonus units (24 taken). See Section III.B for discussion.

Green Building Score Yes The Project is designed to achieve a LEED Gold (or equivalent) rating.

Historic Resources Yes
The project would involve removal of the 1926 addition and portions of the 1913 addition to the landmarked Shattuck Hotel.

The project would involve demolition of the 1959 Hink’s Building, which is not a historic resource.

Housing Accountability
Act
(Govt. Code 65589.5(j))
Yes
The project is a “housing development project” consisting of a mixed-use building, and requests no modifications to
development standards beyond waivers and concessions
requested under density bonus law. Therefore, the HAA findings apply to this project, and the project cannot be denied at the density proposed unless the findings for denial can be made.

See Section III.C for discussion.

Public Art on Private
Projects
(BMC Chapter 23C.23)
Yes
The project is subject to the Percentage for Public Art on Private Projects Ordinance. The applicant is electing to pay the fee (0.8% of total building permit valuation) to comply.

Rent Controlled Units No The project involves the partial demolition of non-residential structures and no rent-controlled units would be demolished.

Residential Preferred
Parking Yes
The site is located in RPP zone “I”. However, newly constructed dwellings would not be eligible to participate in the RPP program.

Seismic Hazards (SHMA) No
The project site is located in an area susceptible to liquefaction, as defined by the State Seismic Hazards Mapping Act (SHMA).

The applicant has submitted a geotechnical report that has been peer reviewed by the City’s consultant. Conditions of approval will be included in the permit to ensure oversight by the applicant’s geotechnical consultant.

Soil/Groundwater
Contamination No
The project site is located within the City’s Environmental Management Area. The project site is not listed on the Cortese List. The Phase I submitted by applicant indicated a potential for vapor intrusion associated with previous dry-cleaning activities at the site. A condition of approval will be included in the permit requiring a vapor intrusion report for Toxics Division review, as recommended in the Phase I report. Also, standard Conditions of Approval related to hazardous materials would apply.

Transit Yes
The project site is served by multiple bus lines (local, rapid, and Transbay) that operate along Shattuck Avenue, and is
approximately one block from the Downtown Berkeley BART Station.