Tuesday, January 31, 2023 AGENDA Page 1
AG E N D A
BERKELEY CITY COUNCIL MEETING
Tuesday, January 31, 2023
6:00 PM
SCHOOL DISTRICT BOARD ROOM - 1231 ADDISON STREET, BERKELEY, CA 94702
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – MARK HUMBERT
PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED IN A HYBRID MODEL WITH BOTH IN -PERSON
ATTENDANCE AND VIRTUAL PARTICIPATION
For in-person attendees, face coverings or masks that cover both the nose and the mouth are required. Physically distanced seating will be available. If you are feeling sick, please do not attend the meeting in person.
Live captioned broadcasts of Council Meetings are available on Cable B -TV (Channel 33) and via internet accessible video stream at http://berkeley.granicus.com/MediaPlayer.php?publish_id=1244.
To access the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this UR L https://cityofberkeley-info.zoomgov.com/j/1610761302. If you do not wish for your name to appear on the screen, then use the drop down menu and click on "rename" to rename yourself to be a nonymous. To request to speak, use the “raise hand” icon by rolling over the bottom of the screen.
To join by phone: Dial 1-669-254-5252 or 1-833-568-8864 (Toll Free) and enter Meeting ID: 161 076 1302. If you wish to comment during the public comment p ortion of the agenda, Press *9 and wait to be recognized by the Chair.
Please be mindful that the meeting will be recorded and all rules of procedure and decorum apply for in-person attendees and those participating by teleconference or videoconference.
To submit a written communication for the City Council’s consideration and inclusion in the public record , email [email protected].
This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981 -6900. The City C ouncil may take action related to any subject listed on the Agenda. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.
Tuesday, January 31, 2023 AGENDA Page 2
Preliminary Matters
Roll Call:
Land Acknowledgement Statement: The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch-yoon)), the ancestral and unceded land of the Chochenyo (Cho-chen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000-year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay. We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of this unceded stolen land since the City of Berkeley’s incorporation in 1878. As stewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today. The City of Berkeley will continue to build relationships with the Lisjan Tribe and to create meaningful actions that uphold the intention of this land acknowledgement.
Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.
1. Presentation: Bay Area Community Land Trust (BACLT)
2. Adjourn in memory of James Reagan, Community Activist City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.
Public Comment on Non-Agenda Matters: Persons will be selected to address matters not on the Council agenda. If five or fewer persons wish to speak, each person selected will be allotted two minutes each. If more than five persons wish to speak, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. Persons attending the meeting in-person and wishing to address the Council on matters not on the Council agenda during the initial ten-minute period for such comment, must submit a speaker card to the City Clerk in person at the meeting location and prior to commencement of that meeting. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda.
Consent Calendar
The Council will first determine whether to move items on the agenda for “Action” or “Information” to the “Consent Calendar”, or move “Consent Calendar” items to “Action.” Three members of the City Council must agree to pull an item from the Consent Calendar or Information Calendar for it to move to Action.
Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.
No additional items can be moved onto the Consent Calendar once public comment has commenced. At any time during, or immediately after, public comment on Information and Conse nt items, any Councilmember may move any Information or Consent item to “Action.” Following this, the Council will vote on the items remaining on the Consent Calendar in one motion.
For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.
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Public Comment on Consent Calendar and Information Items Only: The Council will take public comment on any items that are either on the amended Consent Calendar or the Information Calendar. Speakers will be entitled to two minutes each to speak in opposition to or support of Consent Calendar and Information Items. A speaker may only speak once during the period for public comment on Consent Calendar and Information items.
Additional information regarding public comment by City of Berkeley employees and interns: Employees and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such, the department in which they work and state whether they are speaking as an individual or in their official capacity when addressing the Council in open session or workshops.
Recess Items
1. Contract No. 32200036 Amendment: Berkeley Convention and Visitors Bureau, d.b.a. Visit Berkeley
From: City Manager
Recommendation: Adopt a Resolution ratifying the action taken by the City Manager during recess to modify the sole source contract (Contract No. 32200036) and any amendments with the Berkeley Convention and Visitors Bureau, d.b.a. Visit Berkeley, to distribute one-twelfth of annual Berkeley Transient Occupancy Tax funds to support tourism marketing and promotion for the period from July 1, 2020 through June 30, 2023.
Financial Implications: See report
Contact: Eleanor Hollander, Economic Development, (510) 981-7530
2. Contract No. 100692-3 Amendment: Serological Research Institute for DNA Testing Services
From: City Manager
Recommendation: Adopt a Resolution ratifying the action taken by the City Manager during recess to amend Contract No. 100692-3 and any necessary future amendments with Serological Research Institute (SERI) for the Police Department, increasing the contract amount by $500,000 for a total not to exceed amount of $2,000,000 while the contract expiration will remain June 30, 2025.
Financial Implications: See report
Contact: Jennifer Louis, Police, (510) 981-5900
Consent Calendar
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3. Lease Agreement: Bay Area Hispano Institute for Advancement (BAHIA) at building 1718 8th Street, at James Kenney Park
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,852-N.S. authorizing the City Manager to execute a lease agreement with Bay Area Hispano Institute for Advancement (BAHIA) to use the building at 1718 8th Street, adjacent to James Kenney Community Center, in James Kenney Park for a 15-year lease term anticipated to begin March 1, 2023 and ending February 1, 2038, with one 5-year option to renew.
First Reading Vote: All Ayes.
Financial Implications: See report.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
4. Resolution Reviewing and Ratifying the Proclamation of Local Emergency Due to the Spread of a Severe Acute Respiratory Illness Caused by a Novel (New) Coronavirus (COVID-19)
From: City Manager
Recommendation: Adopt a Resolution reviewing the need for continuing the local emergency due to the spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19) and ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, and December 13, 2022.
Financial Implications: To be determined
Contact: Farimah Brown, City Attorney, (510) 981-6950
5. Resolution Making Required Findings Pursuant to the Government Code and Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
From: City Manager
Recommendation: Adopt a Resolution making the required findings pursuant to Government Code Section 54953(e)(3) and determining that as a result of the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference, initially ratified by the City Council on September 28, 2021, and subsequently reviewed and ratified on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, February 8, 2022, March 8, 2022, March 22, 2022, April 12, 2022, May 10, 2022, May 31, 2022, June 28, 2022, July 26, 2022, August 23, 2022, September 20, 2022, October 11, 2022, November 3, 2022, November 29, 2022, December 13, 2022, and January 10, 2023.
Financial Implications: To be determined
Contact: Farimah Brown, City Attorney, (510) 981-6950
Consent Calendar
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6. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on January 31, 2023
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.
Financial Implications: Various Funds - $33,541,532
Contact: Henry Oyekanmi, Finance, (510) 981-7300
7. Grant Application: Funding from California Department of Forestry and Fire Protection (CAL FIRE) Wildfire Prevention Grant to Implement an Incentive Program for Residents of Berkeley’s Very High Fire Hazard Severity Zone From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to apply for and accept a grant, and any amendments, from the California Department of Forestry and Fire Protection (CAL FIRE) for up to $5 Million to implement a vegetation management program for residents of Berkeley’s Very High Fire Hazard Severity Zone (VHFHSZ). Grant funds will be used to develop and deliver public education materials explaining the inspection process and the importance of creating defensible space, assist residents in need of financial assistance to remove vegetation to meet state and local codes, enhance the chipper program, and fund a 3rd party administrator to manage applications and contractor pay schedules.
Financial Implications: See report
Contact: David Sprague, Fire, (510) 981-3473
8. Contract No. 32000202 Amendment: Berkeley Food & Housing Project for Rental Subsidy for the Russell Street Residence
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to execute an amendment to Contract No. 32000202 with Berkeley Food & Housing Project (BFHP) to provide rental subsidies for the Russell Street Residence through June 30, 2023 in an amount not to exceed $3,400,640. This will extend the existing contract by one year and add $576,616 in funding.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
9. Contract: AppleOne Employment Services for Temporary Staffing Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract with AppleOne Employment Services for Temporary Staffing Services, in the amount of $250,000 for the period of February 1, 2023 through July 31, 2023.
Financial Implications: General Fund - $250,000
Contact: Aram Kouyoumdjian, Human Resources, (510) 981-6800
Consent Calendar
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10. Contract No. 32000118 Amendment: Nexgen Asset and Work Order Management Software Maintenance and Professional Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000118 with Nexgen Asset Management to provide additional funding for software maintenance, training and professional services for software enhancements, increasing the amount by $689,400, for a total not-to- exceed amount of $1,706,909 through June 30, 2024.
Financial Implications: Various Funds - $689,400
Contact: Kevin Fong, Information Technology, (510) 981-6500
11. AHEAD, Inc: Using the California Department of General Services’ (DGS) Software Licensing Program (SLP) for Software License Purchases From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to increase spending authority with AHEAD, Inc. (“AHEAD”) for the purchase of additional Varonis software licenses, utilizing pricing and contracts, amendments, and extensions from the California Department of General Services (DGS) Software Licensing Program (SLP) increasing the amount by $186,610 for a total amount not- to-exceed $422,915 and the period beginning January 31, 2023 through December 21, 2023.
Financial Implications: Cost Allocation Fund - $186,610 Contact: Kevin Fong, Information Technology, (510) 981-6500
12. Contract No. 32200183 Amendment: Western Water Features Inc. for the Electrical Renovations at King Swim Center
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32200183 with Western Water Features, Inc. for the electrical renovations at King Swim Center, increasing the contract amount by $90,000 for a total not to exceed amount of $1,100,000.
Financial Implications: CIP Fund - $90,000
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
Consent Calendar
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13. Contract: California Constructores for Grove Park Field and Playground Renovation Project
From: City Manager
Recommendation: Adopt a Resolution: 1. Approving the plans and specifications for the Grove Park Field and Playground Renovation Project, Specification No. 22- 11538-C; and 2. Accepting the correction of the sum of bid items for California Constructores’ bid; and 3. Accepting the bid of the lowest responsive and responsible bidder, California Constructores; and 4. 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, with California Constructores, for the Grove Park Field and Playground Renovation Project at 2828 Martin Luther King Jr. Way, Berkeley, CA 94703, in an amount not to exceed $2,483,865, which includes a contract amount consisting of the base bid plus one additive alternate of $2,159,883 and a 15% contingency in the amount of $323,982.
Financial Implications: Various Funds - $2,483,865
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
14. Contract No. 32000020 Amendment: Rincon Consultants, Inc. for On-Call Planning and Environmental Review Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000020 with Rincon Consultants, Inc., to increase the total not-to-exceed amount by $1,000,000 to a new total of $2,000,000, for additional services related to the review of land use permit applications and environmental review.
Financial Implications: See report
Contact: Alene Pearson, Planning and Development, (510) 981-7400
15. Contract: Koios Engineering, Inc. for Urgent Sewer Repair FY2023 Project From: City Manager
Recommendation: Adopt a Resolution: 1) approving plans and specifications for the Urgent Sewer Repair FY2023 Project, located throughout the City of Berkeley; 2) accepting the bid of the lowest responsive and responsible bidder, Koios Engineering, 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 $1,490,427, which includes a 10% contingency of $135,493.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
Consent Calendar
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16. Contract: Bay Pacific Pipeline, Inc. for Hearst, et al. FY2023 Sanitary Sewer Rehabilitation Project
From: City Manager
Recommendation: Adopt a Resolution: 1) approving plans and specifications for the FY2023 Sanitary Sewer 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; 2) accepting the bid of the lowest responsive and responsible bidder, Bay Pacific Pipeline, 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 $4,417,421, which includes a 10% contingency of $401,584.
Financial Implications: Sanitary Sewer Fund - $4,417,421 Contact: Liam Garland, Public Works, (510) 981-6300
17. ***Item Removed from the Agenda by the City Manager*** Authorize a Funding Agreement with AC Transit to supplement the Quick-Build Durant Transit Lane Project
From: City Manager
Contact: Liam Garland, Public Works, (510) 981-6300
18. Contract: Gruendl Inc. DBA Ray’s Electric for Martin Luther King Jr. Way Vision Zero Quick Build Project
From: City Manager
Recommendation: Adopt a Resolution: 1. Approving 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.
Financial Implications: Various Funds - $1,663,900
Contact: Liam Garland, Public Works, (510) 981-6300
Consent Calendar
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19. Contract: Andes Construction, Inc. for FY2023 Sanitary Sewer Rehabilitation Parnassus Rd, et al. Project
From: City Manager
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.
Financial Implications: Sanitary Sewer Fund - $4,444,006 Contact: Liam Garland, Public Works, (510) 981-6300
Council Consent Items
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20. Parking/Towing Fines & Fees Reform (Reviewed by the Health, Life Enrichment, Equity & Community Committee)
From: Councilmember Robinson (Author), Councilmember Harrison (Co- Sponsor), Councilmember Bartlett (Co-Sponsor), Councilmember Hahn (Co- Sponsor)
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. 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: 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
Council Consent Items
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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.
Financial Implications: See report
Contact: Rigel Robinson, Councilmember, District 7, (510) 981-7170
Action Calendar
The public may comment on each item listed on the agenda for action as the item is taken up. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.
The Presiding Officer will request that persons wishing to speak use the "raise hand" function to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.
Action items may be reordered at the discretion of the Chair with the consent of Council.
Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. This is followed by five-minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak use the "raise hand" function to be recognized and to determine the number of persons interested in speaking at that time.
Action Calendar – Public Hearings
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Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker.
The Presiding Officer may with the consent of persons representing both sides of an issue allocate a block of time to each side to present their issue.
Each member of the City Council shall verbally disclose all ex parte contacts concerning the subject of the hearing. Councilmembers shall also submit a report of such contacts in writing prior to the commencement of the hearing. Written reports shall be available for public review in the office of the City Clerk.
21. ZAB Appeal: 2065 Kittredge Street, Use Permit #ZP2021-0193 From: City Manager
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.
Financial Implications: None
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Council Action Items
22. Resolution Authorizing Regional Early Action Planning Grants (REAP 2.0) for Higher Impact Transformative Activities
From: Mayor Arreguin (Author)
Recommendation: Adopt a resolution authorizing the City of Berkeley to request an allocation of Early Action Planning Grants (REAP 2.0) for Higher Impact Transformative Activities.
Financial Implications: See report
Contact: Jesse Arreguin, Mayor, (510) 981-7100
23. Outcomes Based Funding, Pay-For-Success and Social Impact Bonds (Reviewed by the Budget & Finance Committee)
From: Councilmember Bartlett (Author)
Recommendation: Qualified Positive Recommendation from the Berkeley City Council Budget & Finance Committee to:
Refer to the City Attorney to provide guidance on how the City can implement an Outcomes Based Funding initiative; request implementation analysis from the City Manager; and request information on whether or not this program can be used with external funds (e.g. grants) or city funds only
Policy Committee Recommendation: Send the item to the City Council with a Qualified Positive Recommendation to refer to the City Attorney to provide guidance on how the City can implement an Outcomes Based Funding initiative; request implementation analysis from the City Manager; and request information on whether or not this program can be used with external funds (e.g. grants) or city funds only.
Financial Implications: See report
Contact: Ben Bartlett, Councilmember, District 3, (510) 981-7130
Council Action Items
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24. Amending City Council Rules of Procedure & Order to Allow Policy Committee Track Items with Budget Referrals to be Referred to the Budget & Finance Committee and one Subject Matter Policy Committee (Reviewed by the Agenda & Rules Committee)
From: Councilmember Hahn (Author)
Recommendation: That the City Council sets the following deadline: In order to be considered for the June 2023 budget process, Policy Committee Track items (as defined in the City Council Rules of Procedure and Order) that have potential budget implications must be submitted to the agenda process to allow for consideration by the Agenda & Rules Committee no later than at the March 6, 2023 meeting (setting the Agenda for the March 21, 2023 Regular Meeting of the City Council).
Policy Committee Recommendation: Send the item to the City Council with a qualified positive recommendation that in order to be considered for the budget process that will take place in June 2023, policy committee track items (as defined in the City Council Rules of Procedure), that have the potential for budget implications, must be submitted to the agenda process to allow for consideration by the Agenda & Rules Committee no later than its March 6, 2023 meeting.
Financial Implications: See report
Contact: Sophie Hahn, Councilmember, District 5, (510) 981-7150
Information Reports
25. Updated Sanctuary City Contracting Compliance Report for FY 2021 From: City Manager
Contact: Farimah Brown, City Attorney, (510) 981-6950
Public Comment – Items Not Listed on the Agenda
Adjournment
NOTICE CONCERNING YOUR LEGAL RIGHTS : If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90 -day period will be barred. 2) In any lawsuit that may be filed against a City Co uncil decision to approve or deny a use permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.
Archived indexed video streams are available at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas.
Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.
Communications to the City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U .S. Postal Service
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to the City Clerk Department at 2180 Milvia Street. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk Department for further information.
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the public counter at the City Clerk Department located on the first floor of City Hall located at 2180 Milvia Street as well as posted on the City's website at https://berkeleyca.gov/.
Agendas and agenda reports may be accessed via the Internet at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas and may be read at reference desks at the following locations:
City Clerk Department - 2180 Milvia Street, First Floor Tel: 510-981-6900, TDD: 510-981-6903, Fax: 510-981-6901 Email: [email protected]
Libraries: Main – 2090 Kittredge Street,
Claremont Branch – 2940 Benvenue, West Branch – 1125 University, North Branch – 1170 The Alameda, Tarea Hall Pittman South Branch – 1901 Russell
COMMUNICATION ACCESS INFORMATION:
This meeting is being held in a wheelchair accessible location.
To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at (510) 981-6418 (V) or (510) 981-6347 (TDD) at least three business days before the meeting date.
Attendees at public meetings are reminded that other attendees may be sensitive to various scen ts, whether natural or manufactured, in products and materials. Please help the City respect these needs.
Captioning services are provided at the meeting, on B -TV, and on the Internet. In addition, assisted listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to be returned before the end of the meeting.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the agenda for this meeting of the Berkeley City Council wa s posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on January 19, 2023.
Mark Numainville, City Clerk
Tuesday, January 31, 2023 AGENDA Page 15
Communications
Council rules limit action on Communications to referral to the City Manager and/or Boards and Commissions for investigation and/or recommendations. All communications submitted to Council are public record. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.
Warming Centers
1. Stephanie Hung
2. Moni Law
3. Enrique Marisol
4. Laura Cornwall
5. Clara Donovan
6. Lisa Teague
7. Melissa Tomlinson
8. Patty Yao
World Housing Crisis
9. Michelle LePaule
Emergency Batteries During Hill Fires
10. Mary Behm Steinberg
Stuart Street Repair
11. Toby St. John
City of Berkeley Hiring Practices
12. Elana Auerbach
Berkeley Police Department Matters
13. John White
14. Friends of Adeline
People’s Park
15. Sandra Morey
TOPA (Tenant’s Opportunity to Purchase Act)
16. Nicholas Heller
Turtle Island Monument
17. Corrina Gould, on behalf of Confederated Villages of Lisjan Nation
18. Jennifer Lovvorn, on behalf of the Civic Arts Program
Visuals for Zoom Meetings
19. Bryce Nesbitt
Tuesday, January 31, 2023 AGENDA Page 16
BUSD Achievement Gap
20. Barbara Gilbert
Crime in Berkeley
21. Ernie Mansfield
22. Eric Friedman
IKE Kiosks
23. Verna Winters
Demolition Ordinance
24. Rafa Sonnenfeld
Youth Representation on Berkeley’s Environmental & Climate Commission
25. Alfred Twu
26. Jasmine Moreira Cortes
27. Liza Lutzker
28. 21 similarly-worded form letters
Earthquake Zones
29. Kelly Hammargren
URL’s Only
30. Vivian Warkentin (2)
Supplemental Communications and Reports
Items received by the deadlines for submission will be compiled and distributed as follows. If no items are received by the deadline, no supplemental packet will be compiled for said deadline.
• Supplemental Communications and Reports 1
Available by 5:00 p.m. five days prior to the meeting.
• Supplemental Communications and Reports 2
Available by 5:00 p.m. the day before the meeting.
• Supplemental Communications and Reports 3
Available by 5:00 p.m. two days following the meeting.
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
RECESS ITEM
CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Eleanor Hollander, Manager, Office of Economic Development Subject: Contract No. 32200036 Amendment: Berkeley Convention and Visitors Bureau, d.b.a. Visit Berkeley
RECOMMENDATION
Adopt a Resolution ratifying the action taken by the City Manager during recess to modify the sole source contract (Contract No. 32200036) and any amendments with the Berkeley Convention and Visitors Bureau, d.b.a. Visit Berkeley, to distribute one-twelfth of annual Berkeley Transient Occupancy Tax funds to support tourism marketing and promotion for the period from July 1, 2020 through June 30, 2023.
NEGATIVE EFFECT IF ACTION IS DELAYED UNTIL AFTER COUNCIL RECESS The Office of Economic Development (OED) will not be able to make payments on recent invoices received and Visit Berkeley will not have adequate operating funds for FY 2023 activities already underway. The contract has exceeded the not-to-exceed amount of $700,000 (established by council action on September 14, 2021).
FISCAL IMPACTS OF RECOMMENDATION
Transient Occupancy Tax (TOT) is assessed on the room charge for rental of transient lodging when the period of occupancy is 30 days or less. Hotel guests pay the tax and it is often referred to as a “hotel tax”.
In 1991, the TOT collected by the City of Berkeley was raised from 11% to 12% in order to create and fund a Convention and Visitors Bureau (CVB). The City retained their original 11% TOT to the general fund and there was no out-of-pocket expense to the City for the organization’s creation. Simultaneously, the lodging industry agreed to raise the TOT 1% with a goal that strategic marketing and sales outreach would increase revenues to lodging businesses and financially benefit the City by increasing general fund revenues, sales tax, and overall economic impacts from visitor spending.
Every year, the City of Berkeley collects twelve percent (12%) TOT from lodging establishments’ short-term room rental revenues and distributes one-twelfth of the amount collected via a “TOT contract” with the Berkeley CVB, d.b.a. Visit Berkeley. The
Contract: Berkeley Convention and Visitor’s Bureau, d.b.a. Visit Berkeley CONSENT CALENDAR January 31, 2023
revenues are collected and the funds are expended from the General Fund using the budget code 011-21-208-251-0000-000-446-636110-. While historically, a new contract was signed every fiscal year with a Not to Exceed (NTE) amount provided by the Budget Office based on the City’s projections for TOT revenues, during the COVID-19 pandemic (FY 2021), OED continued distributing Visit Berkeley’s TOT allocation using funds encumbered through the FY 2020 contract.
Subsequently, a new contract (Contract Number #32200036) for FYs 22 and 2023 was established with Visit Berkeley in September 2021 with a not-to-exceed (NTE) amount of $700,000 using the best post-pandemic predictions regarding TOT available at the time. The NTE amount authorized under that contract is currently insufficient to distribute TOT funds owed to Visit Berkeley for FY 2023 payments, and now OED needs to modify the existing contract with Visit Berkeley to make these payments. A modification of this same multi-year contract (to remove the NTE amount) will enable OED to distribute all TOT payments due to Visit Berkeley for FYs 2022-2023 as pass though contract reflecting actual TOT revenues collected by the City of Berkeley.
CURRENT SITUATION AND ITS EFFECTS
The concept of a Berkeley Convention and Visitors Bureau (CVB) was presented to and approved by City Council as a Consent Item on September 24, 1991 and the CVB was incorporated as a 501(c)6, Not for Profit Mutual Benefit Corporation known as “Visit Berkeley” that same year. Ever since, there has been an annual contract between the City of Berkeley and Visit Berkeley to enable the pass-through of TOT funds collected.
Council is requested to ratify the action taken by the City Manager to modify a sole source contract (Contract Number: 32200036) with the Berkeley Convention and Visitors’ Bureau, d.b.a. Visit Berkeley, to remove the not-to-exceed (NTE) amount of $700,000, as revenues collected to date have already exceed that amount. The removal of the NTE amount on Contract Number #32200036 reflects that:
As of October 31, 2022, $511,048.06 has been expended in contract number #32200036 (that is) paid to Visit Berkeley FYs 2022 and 2023. Visit Berkeley is currently owed $253,527.62 in FY 2023 TOT funds, billed in November 2022.
One twelfth of the TOT revenues collected by the City in FYs 2022 and 2023 (projected to equal approximately $700,000 in CVB revenues) has been distributed to Visit Berkeley to date, and the NTE amount of the contract must be removed to pass through the remaining collected TOT funds for the term of the contract (June 30, 2023) as to date, a total of $ 764,575.68 under this contract Visit Berkeley should have received by now.
Visit Berkeley will be owed the TOT collected in the final month of FY 2023 (June) after FY 2023 collections are reconciled (this amount is referred to as the “true-up” and is paid in the subsequent fiscal year).
Contract: Berkeley Convention and Visitor’s Bureau, d.b.a. Visit Berkeley CONSENT CALENDAR January 31, 2023
The multi-year nature of the contract makes it more efficient for the City to issue “true-up” TOT payments for past and upcoming fiscal years, as tax collections for the prior fiscal year are not usually tallied until several months after the close of the prior fiscal year. For example, if an advance payment to enable Visit Berkeley’s operations in any given year exceeds the TOT amount due to Visit Berkeley for that year, the following year’s distributions will be adjusted to reflect the prior year’s overpayment.
The cumulative funds distributed to Visit Berkeley will always be reconciled so they equal one twelfth of the TOT revenues collected by the City of Berkeley.
BACKGROUND
TOT is levied on all lodging establishments in Berkeley. As of December 2022, there are 26 such establishments. The origin of the arrangement with Visit Berkeley is detailed in the March 1991 Convention and Visitors Bureau Creation Documents and Berkeley City Council Consent Calendar, September 24, 1991. Each year, the forecasted TOT collection amount is codified in the Biennial (or Annual) Budget and one-twelfth of the TOT collected annually is devoted to Visit Berkeley. OED staff receives the annual or biennial TOT revenue projection from Budget staff in the City Manager’s Office, calculates one-twelfth of that number, and produces a contract with Visit Berkeley for that amount with a corresponding scope of work and payment schedule. If the revenues come in over the amount anticipated, the contact must be modified to properly pass through the funds in accordance with the adopted 1991 Resolution entitled Convention and Visitors Bureau Creation Documents.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Visit Berkeley works to promote the Bay Area Green Business certification program with Berkeley’s hotel owners, thereby encouraging the local lodging industry to take considerable action to meet environmental sustainability objectives.
RATIONALE FOR RECOMMENDATION
Modifying the FY 2021-2023 TOT contract will enable the City to distribute funds owed to Visit Berkeley over a multi-year period, as per the 1991 Convention and Visitors Bureau Creation Documents.
ALTERNATIVE ACTIONS CONSIDERED
No alternative actions were considered.
CONTACT PERSON
Elizabeth Redman Cleveland, Economic Development, (510) 981-7532.
Eleanor Hollander, Economic Development, (510) 981-7534 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
RATIFYING THE ACTION TAKEN BY THE CITY MANAGER DURING RECESS TO MODIFY A SOLE SOURCE CONTRACT (CONTRACT NO. 32200036) WITH VISIT
BERKELEY
WHEREAS, the City of Berkeley collects Transient Occupancy Tax (TOT) on room charges for rental of transient lodging every year; and WHEREAS, TOT was raised from 11% to 12% to create and fund a Convention and Visitors Bureau (d.b.a. Visit Berkeley) in 1991 so strategic marketing and sales outreach would increase revenues to lodging businesses and financially benefit the City by increasing general fund revenues, sales tax, and overall economic impacts from visitor spending; and
WHEREAS, the City of Berkeley Office of Economic Development (OED) distributes one- twelfth of the TOT amount collected annually for the General Fund via a “TOT contract” with Visit Berkeley; and
WHEREAS, OED is unable to make payments on recent invoices received and Visit Berkeley will not have adequate operating funds for FY 2023 activities and beyond until the existing contract is modified to remove the not-to-exceed (NTE) contract amount; and WHEREAS, payments due to Visit Berkeley as forecasted by the City’s FYs 2022-23 budget revenue projections for TOT, equaled approximately $700,000 of TOT funds for Visit Berkeley which set the contract’s NTE amount in September 2021; and WHEREAS, the actual funds distributed to Visit Berkeley will be based on actual TOT revenues collected by the City of Berkeley; and
WHEREAS, the actual revenues collected to date have exceeded the $700,000 NTE amount of the contract and are now due to Visit Berkeley.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council ratifies the action taken by the City Manager to modify a sole source contract (Contract No. 32200036) and any amendments with Visit Berkeley to distribute one- twelfth of annual Berkeley TOT funds to support tourism marketing and promotion for the period from July 1, 2020 through June 30, 2023.
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
RECESS ITEM
CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Interim Chief, Police Department Subject: Contract No. 100692-3 Amendment: Serological Research Institute for DNA Testing Services
RECOMMENDATION
Ratify the action taken by the City Manager during recess to amend Contract No. 100692-3 and any necessary future amendments with Serological Research Institute (SERI) for the Police Department, increasing the contract amount by $500,000 for a total not to exceed amount of $2,000,000 while the contract expiration will remain June 30, 2025.
NEGATIVE EFFECT IF ACTION IS DELAYED UNTIL AFTER COUNCIL RECESS The Police Department utilizes this contractor to test DNA evidence involved in crimes against the community. Without this contract, the Police Department would not be able to have critical DNA evidence processed in an expeditious manner to support the arrest and charging of suspects in various violent criminal cases.
FISCAL IMPACTS OF RECOMMENDATION
Approval supports an ongoing operational expense required for solving criminal cases in a timely manner. The funding for this contract is allocated from the State Proposition 172 Fund.
CURRENT SITUATION AND ITS EFFECTS
The Berkeley Police Department (BPD) currently contracts with the Serological Research Institute (SERI) for its forensic deoxyribonucleic acid (DNA) testing services.
On May 10, 2022, the BPD received unanimous Council approval for a $500,000 amendment to this contract and that additional allocation has been nearly exhausted. In order to support additional casework, the Department will need approval of an additional $500,000 to the existing contract limits set when this contract was amended in May of 2022. This dollar increase will allow the Department to continue to test DNA for criminal investigations. This enables the potential identification of a suspect based on DNA found at a crime scene and may result in the suspect being arrested and charged faster.
Contract No. 100692-3 Amendment: Serological Research Institute for DNA Testing Services Consent CALENDAR January 31, 2023
Due to the unpredictable nature of the contract usage, the BPD has expended nearly $500,000 since the May 2022 amendment and has less than $20,000 remaining of the $1,500,000 contract. It can be difficult to estimate the dollar amount required annually as it can change significantly from year to year based on the DNA collected and volume required to be tested. In order to continue processing DNA evidence to substantiate charges against suspects, the BPD is requesting this contract amendment of an additional $500,000 and a contract total not to exceed $2,000,000.
This essential contract supports our goal to create a resilient, safe, connected, and prepared city and BPD considers it as a Strategic Plan Priority Project.
BACKGROUND
In 2014, the Department entered into a service contract with SERI to obtain their forensic DNA services. SERI was added when two other providers, the Alameda County Sheriff’s Crime Laboratory and Forensic Analytical Sciences, Inc. were unable to keep up with increased caseload from the Berkeley Police Department. SERI is accredited through the American Society of Crime Laboratories Directors/Laboratory Accreditation Board. SERI is located in Richmond, CA and provides state of the art forensic services, laboratory analysis and expert testimony for its clients.
While maintaining compliance with the Federal Bureau of Investigations, Quality Assurance Standards for Forensic DNA Testing, SERI has consistently provided the fastest case turnaround times of our three contracted vendors. SERI has helped minimize DNA testing backlogs the department was experiencing with other vendors.
Fast DNA testing turnaround times help the department identify serious violent offenders and helps solve criminal cases faster. SERI was originally intended to be an additional DNA Laboratory. However, due to the high level of service provided, they have become our primary provider. During this time, the investigative demand for their services has increased based on several factors including improved DNA recovery techniques and new legislative requirements.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Serological Research Institute provides and maintains an extensive online test request submission and product ordering options. These online forms reduce the amount of paper required to forward and process requests.
RATIONALE FOR RECOMMENDATION
The cost associated with DNA testing services is an operational expense for which the Berkeley Police Department is currently responsible. In an effort to solve criminal cases as fast as practical and potentially limit further victimization, the BPD continues to utilize these services. An amendment to increase funds for this contract will allow the Department to continue to meet the DNA testing requirements of its investigations.
Contract No. 100692-3 Amendment: Serological Research Institute for DNA Testing Services Consent CALENDAR January 31, 2023
ALTERNATIVE ACTIONS CONSIDERED
Stop the use of this contract and allow DNA testing to be submitted to the county crime laboratory which has extensive testing backlogs and limited availability to accept additional casework. This option would result in violent criminal cases to remain unsolved and unprosecuted.
CONTACT PERSON
Jennifer Louis, Interim Chief of Police, 510-981-5700
Attachment:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 100692-3 AMENDMENT: SEROLOGICAL RESEARCH INSTITUTE
FOR DNA TESTING SERVICES
WHEREAS, the Berkeley Police Department is responsible for the investigation of criminal cases in Berkeley; and
WHEREAS, closure of criminal investigations will bring relief to the families of the victims and reduce fear in the community; and
WHEREAS, the use of forensic deoxyribonucleic acid (DNA) testing is essential to solving violent crimes; and
WHEREAS, the Department primarily enlists the services of Serological Research Institute for the timely processing of DNA testing; and WHEREAS, it is essential to have an accredited laboratory in order to ensure the consistent processing of DNA evidence; and
WHEREAS, the Berkeley Police Department has identified DNA testing services as an operational expense for which the Department is responsible and funds from the State Proposition 172 Fund will be the primary source of funding.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council ratifies the action taken by the City Manager to amend Contract No. 100692-3 and any necessary future amendments with Serological Research Institute (SERI) for the Police Department, increasing the contract amount by $500,000 for a total not to exceed amount of $2,000,000 while the contract expiration will remain June 30, 2025.
Ordinance No. 7,852-N.S. Page 1 of 1
ORDINANCE NO. 7,852-N.S.
LEASE AGREEMENT WITH BAHIA TO USE CITY PROPERTY LOCATED AT 1718 8th STREET IN JAMES KENNEY PARK
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Manager, or her designee, is hereby authorized to execute a lease agreement with BAHIA with a lease term beginning on March 1, 2023, ending February 1, 2038. The estimated revenue is $111,593. The lease shall be substantially in the form attached hereto as Exhibit “A”.
Section 2. All revenue from said lease shall be deposited in the Parks Tax Fund in a specific revenue account (Budget Code 450-5801-363.10-04) and used to maintain public facilities in James Kenney Park.
Section 3. Copies of this bill 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 fifteen calendar 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.
At a regular meeting of the Council of the City of Berkeley held on January 17, 2023, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Hahn, Harrison, Humbert, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: None.
1 CITY OF BERKELEY
IMPROVED PROPERTY LEASE
Between
THE CITY OF BERKELEY, A CHARTER CITY
ORGANIZED AND EXISTING UNDER THE LAWS
OF THE STATE OF CALIFORNIA
as Landlord,
and
BAY AREA HISPANO INSTITUTE FOR ADVANCEMENT (BAHIA) INC. as Tenant.
For the Property at
1718 8th Street
Berkeley, CA
Exhibit A: Lease AgreementPage 2 of 44
2 1718 8th Street Lease – BAHIA, Tenant
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................................................. 2
1. DEFINITIONS ..................................................................................................................................................... 5
2. TERM ................................................................................................................................................................... 5
3. RENT .................................................................................................................................................................... 6
4. PROPERTY AND OTHER TAXES .................................................................................................................... 7
5. USE OF PREMISES ............................................................................................................................................ 8
6. USE OF JAMES KENNEY PARK PROPERTY ............................................................................................... 10
7. SERVICES ......................................................................................................................................................... 12
8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY .......................................................... 12
9. ALTERATIONS AND IMPROVEMENTS ....................................................................................................... 12
10. LIENS ................................................................................................................................................................. 15
11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS .................................................................. 16
12. ENVIRONMENTAL .......................................................................................................................................... 17
13. DAMAGE OR DESTRUCTION........................................................................................................................ 17
14. INDEMNIFICATION ........................................................................................................................................ 17
15. INSURANCE ..................................................................................................................................................... 18
16. COMPLIANCE WITH LAWS ........................................................................................................................... 21
17. ASSIGNMENT AND SUBLEASE .................................................................................................................... 22
18. INSPECTION ..................................................................................................................................................... 23
19. DEFAULT .......................................................................................................................................................... 23
20. REMEDIES UPON DEFAULT ......................................................................................................................... 25
21. ENVIRONMENTAL OBLIGATIONS .............................................................................................................. 26
22. LANDLORD'S RIGHT TO CURE .................................................................................................................... 27
23. EMINENT DOMAIN ......................................................................................................................................... 28
24. SUBORDINATION ........................................................................................................................................... 28
25. NO MERGER ..................................................................................................................................................... 29
26. TRANSFER BY LANDLORD .......................................................................................................................... 29
27. ESTOPPEL CERTIFICATES ............................................................................................................................ 29
28. HOLDING OVER .............................................................................................................................................. 29
29. CHANGES BY LANDLORD ............................................................................................................................ 30
30. GOVERNING LAW .......................................................................................................................................... 30
31. SECURITY DEPOSIT ....................................................................................................................................... 30
32. SIGNAGE ........................................................................................................................................................... 31
33. NO PARTNERSHIP ........................................................................................................................................... 31
34. NO WAIVER ..................................................................................................................................................... 32
35. NOTICES ........................................................................................................................................................... 32
36. COMPLETE AGREEMENT .............................................................................................................................. 33
37. REQUESTS FOR CONSENT; WAIVER OF CLAIM ...................................................................................... 33
38. INTERPRETATION .......................................................................................................................................... 33
39. SUCCESSORS AND ASSIGNS ........................................................................................................................ 33
3 1718 8th Street Lease – BAHIA, Tenant
40. AUTHORITY ..................................................................................................................................................... 33
41. UNAVOIDABLE DELAYS .............................................................................................................................. 33
42. TIME OF THE ESSENCE ................................................................................................................................. 34
43. BROKERAGE .................................................................................................................................................... 34
44. CITY NON-DISCRIMINATION ORDINANCE .............................................................................................. 34
45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES ...................................................... 35
46. CONFLICT OF INTEREST PROHIBITED ...................................................................................................... 35
47. NUCLEAR FREE BERKELEY ......................................................................................................................... 36
48. OPPRESSIVE STATES ..................................................................................................................................... 36
49. BERKELEY LIVING WAGE ORDINANCE (LWO) ....................................................................................... 36
50. BERKELEY EQUAL BENEFITS ORDINANCE (EBO) ................................................................................. 37
51. BERKELEY SANCTUARY CITY ORDINANCE ........................................................................................... 38
52. AUDIT ................................................................................................................................................................ 38
53. CITY BUSINESS LICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER ................................................. 39
54. SURVIVAL ........................................................................................................................................................ 39
55. EXHIBITS .......................................................................................................................................................... 39 Exhibit “A”: Leased Premises ............................................................................................................................ 41 Exhibit “B”: Schedule of Improvements and Maintenance ................................................................................ 42
4 1718 8th Street Lease – BAHIA, Tenant
PROPERTY LEASE
BASIC LEASE INFORMATION
1. Landlord: City of Berkeley, a California municipal corporation 2180 Milvia Street
Berkeley, CA 94704
Attention: Director, Parks, Recreation & Waterfront
Telephone: (510) 981-6706
Email: [email protected]
2. Tenant: Bay Area Hispano Institute for Advancement (BAHIA) Inc.
3. Tenant Trade Name: Bay Area Hispano Institute for Advancement Inc.
4. Effective Date: March 1, 2023
5. Premises: One building (as depicted in Exhibit “A”) located at 1718 8th Street, the outdoor gated play area and garden area, and non-exclusive rights to the common area (outdoor sidewalk area by the front door, as shown on the map attached hereto as Exhibits “A”.
6. Permitted Uses: The Premises shall be used by Tenant for the purpose of operating a child care and development center.
7. Initial Term: Fifteen (15) year(s), commencing as of March 1, 2023 (“Commencement Date”).
8. Option Period: Five (5) years.
9. Base Rent: $6,000 per year with 3% increase annually.
10. Improvements Tenant will invest approx. $219,000 in capital improvements. This includes adding a gate entry at the northeast side of the Premises, ADA access to the loft area, ADA improvements to reading room/amphitheater, repair fence fabric around exterior play area, repaint interior and exterior, and replace roof.
11. Maintenance Tenant commits to ongoing maintenance, including landscaping, trees, graffiti abatement, pest control, and maintenance of plumbing, electrical, roof/gutters, and building systems.
12. Services Base rent includes the cost of utility charges and services, including water, gas, electrical, and sewer. Tenant will make all arrangements and pay for refuse collection and telephone service.
The Basic Lease Information set forth above and the Exhibits attached hereto are incorporated into and made a part of the following Lease. In the event of any conflict between the Basic Lease Information and terms of the Lease, the terms of the Lease shall control.
LANDLORD’S INITIALS _______ TENANT’S INITIALS _______
5 LEASE
THIS LEASE is made by and between the CITY OF BERKELEY, a Charter City organized and existing under the laws of the State of California ("Landlord or City") and BAY AREA HISPANO INSTITUTE FOR ADVANCEMENT, Inc. ("BAHIA"), a non-profit organization doing business at 1718 8th Street, in Berkeley, CA ("Tenant").
WITNESSETH :
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the term and subject to the terms, covenants, agreements and conditions set forth below, to each and all of which Landlord and Tenant hereby mutually agree.
1. DE
FINITIONS
Unless the context otherwise specifies or requires, the following terms shall have the m
eanings herein specified:
A. " Affiliate," as to any person, shall mean such person's partners, members, commissioners, officers, employees, volunteers and agents.
B. "Building"
shall mean a building on the Premises as shown on Exhibit “A”.
C. " Lease Year" shall mean each twelve- month period during the term of the Lease commencing upon the effective date of the Lease.
F. " Premises" shall mean the building located at 1718 8th Street (approximately 4,500 sq. ft.), the outdoor gated play area and garden area (approximately 3,700 sq. ft.) and non
-exclusive rights to the common area (outdoor sidewalk area by the front door (approximately 1,600 sq. ft.) as shown on the map attached hereto as Exhibits "A". The Tenant understands that the building is adjacent to the James Kenney Community Center and on the grounds of James Kenney Park which provide recreational services to children and adults of all ages. Prior to using the common area for special events only, the Tenant agrees to provide at least thirty (30) days' written notice of intent to use J ames Kenney Park, site coordinator and
recreation manager to ensure that there are no other conflicting uses of the space. The Tenant agrees to cooperate with users of the Community Center and Park in use of the common area for ingress and egress. No items will be allowed to be stored within the common area. Items not related to the Tenants' program shall not be stored on the Premises at any time.
2. TERM
A. Initial Term and Term of Renewal. The initial term is for a period of approximately fifteen years. Tenant has the option, under certain terms and conditions as described below, to renew this lease for an additional five-year term. This Lease shall take effect once duly approved by the Berkeley City Council and executed by both Landlord and Tenant
6 (“the Effective Date”). The Initial Lease Term will expire at midnight February 28, 2038 (“the Termination Date”).
B. Procedure for Renewal. If Tenant wishes to renew the Lease beyond the Initial Lease Term, Tenant must provide written notice of such intent to Landlord at least one hundred and twenty (120) days prior to the expiration of the Initial Term. If Landlord, in its sole discretion, determines that Tenant has complied with all terms and conditions of the Lease, at least sixty (60) days prior to expiration of the Lease, Landlord shall provide written notice to Tenant of any additional improvements that will be required to be completed by Tenant or increase in rent for a single five-year renewal term and shall provide notice of its determination to grant renewal of the lease upon condition that Tenant agrees to the additional improvements and increase in rent, if any, at least thirty (30) days prior to the expiration of the Initial Term.
3. RENT
A. Rent. Tenant shall pay to Landlord as a minimum rental for its use and occupancy of the Premises an annual rent of SIX THOUSAND DOLLARS ($6000.00) for the first year of the Lease, increasing by 3% for each subsequent year of the original term and any option term.
For purposes of determining Rent, the first year of the Lease is the period up to February 28, 2024 and will be pro-rated for a partial year.
B. Manner of Payment. All rent and other payments due from Tenant shall be made to Landlord in lawful money of the United States of America at Landlord's address for notice hereunder, or to such other person or at such other place as Landlord may from time to time designate in writing.
C. Delinquency and Late Charges; Interest.
1. Tenant hereby acknowledges that its late payment of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult or impracticable to ascertain. Such costs include, without limitation, processing and accounting charges and overtime wages. Accordingly, any payment of rent or other sum due hereunder that remains due and unpaid for a period of ten (10) days after it becomes due and payable shall be subject to a delinquency charge of ten percent (10%) of the delinquent amount. The parties agree that such charge represents a fair and reasonable estimate of the costs Landlord shall incur by reason of Tenant's late payment. Landlord shall apply any monies received from Tenant first to any accrued delinquency charges and then to any rent then due. Acceptance of such delinquency charges by Landlord shall not constitute a waiver of Tenant's default with respect to such overdue amount. The delinquency charge is in addition to all other remedies that Landlord may have under this Lease or at law.
2. Any amount due to Landlord, if not paid when due, shall bear interest from the date due until paid at the rate of the twelve percent (12%) per annum. Interest shall not be payable on delinquency or late charges nor on any amounts upon which such charges are paid
7 by Tenant, to the extent such interest would cause the total interest to exceed that legally permitted. Payment of interest shall not excuse nor cure any default hereunder by Tenant.
D. Accord and Satisfaction. Landlord's acceptance of a lesser amount of rent or other sum due hereunder shall not be deemed to be other than on account of the earliest rent or payment due and shall be applied by Landlord as provided in subsection C.1. No endorsement or statement on any check or letter accompanying any such check or payment shall be deemed an accord and satisfaction, and Landlord may accept such check or payment and pursue any other remedy available under this Lease or at law. Landlord may accept any partial payment from Tenant without invalidation of any contractual notice required hereunder (if required) and without invalidation of any notice required pursuant to California Code of Civil Procedure Section 1161, et seq., or any successor statute.
4. P
ROPERTY AND OTHER TAXES
A. P ossessory Interest Taxes. The property interests created by this Lease may be subject to property taxation and Tenant, in whom the possessory interest is vested, will be responsible for the timely payment of any property taxes levied on such possessory interest.
Tenant agrees to pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the state, county, city or any tax or assessment levying body against the transfer of the leasehold interest hereunder upon recordation or otherwise, or upon any activity carried on under this Lease, any interest in this Lease or any possessory right which Tenant may have in or to the Property or the Premises by reason of its use or occupancy thereof or otherwise.
B. City of Berkeley Assessments. Tenant also shall be responsible for and shall pay prior to delinquency all assessments imposed against the Property and/or the Premises by the City. Tenant acknowledges that City has established certain assessment districts within the City of Berkeley and that all properties within the assessment districts are subject to annual assessments. The City reserves the right to create additional districts and to terminate any such district(s). Tenant shall be billed for each such assessment in the same manner as other property owners and lessees in the City.
C. Personal Property and Other Taxes. In addition to all other sums to be paid by Tenant hereunder, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the term of the Lease on Tenant's equipment, furniture, fixtures, merchandise, and other personal property located in the Premises, and shall pay, or shall reimburse Landlord for, any and all assessments (including, without limitation, all assessments for public improvements, services or benefits, irrespective of when commenced or completed), excises, levies, business taxes, Lease, permit, inspection and other authorization fees, transit fees, service payments in lieu of taxes and any other fees or charges of any kind, which are levied, assessed, or imposed by any public authority: (i) upon or measured by rental payable hereunder, including without limitation, any gross income tax or excise tax levied by the City of Berkeley, Alameda County, the State of California, the Federal Government or any other government body with respect to the receipt of
8 such rental; (ii) upon or with respect to the development, possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the or any portion thereof; (iii) upon, measured by or reasonably attributable to the cost or value of Tenant's equipment, furniture, fixtures, merchandise, and other personal property located at or in the Premises or by the cost or value of any improvements made by Tenant to the Premises, regardless of whether title to such improvements shall be in Tenant or Landlord; or (iv) upon this Lease or any document to which Tenant is a party creating or transferring an interest in the Premises.
D. Tenant's Right to Contest. Tenant may, at no cost to Landlord, reasonably conte st the legal validity or amount of any taxes, assessments, or charges for which Tenant is responsible under this Lease, and institute such proceedings as Tenant considers necessary; provided, however, that Tenant shall at all times protect Landlord from foreclosure of any lien, and that Landlord shall not be required to join in any proceeding or contest brought by Tenant.
5. U SE OF PREM ISES
A. The Premises shall be used by Tenant for the purpose of operating a child care and development center. Tenant may add new program activities with written approval from the City 30 days prior to commencement and such permission will not be unreasonably withheld so long as the programs held on the Premises focus on child care and development.
B. Tenant shall operate its business on and about the Premises in a manner consistent with the use permitted herein and any local, state or federal laws or regulations or the standards promulgated by Landlord.
C. Tenant understands the leased Premises are adjacent to James Kenney Community Center and on the grounds of James Kenney Park. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the leased Premises Tenant must comply with all applicable regulations governing the use of James Kenney Park.
D. Tenant will comply with all applicable safety standards in effect at any given time, and take all necessary steps to ensure that its participants are properly supervised to prevent injury to participants and others. Tenant will provide adequate supervision of the participants at all times while using the Premises.
E. Landlord shall have no responsibility for Tenant's equipment that may be lost, stolen, or damaged.
F. Tenant agrees to require its employees, participants, and visitors who use the Premises and to abide by standards of behavior common to general park use.
G. Business may be conducted with the public on the Premises at any time on any
9 day that James Kenney Park is open to the public, provided that Tenant shall have obtained all required permits and provided Tenant shall comply with all rules applicable to James Kenney Park.
H. Tenant agrees to cooperate with the City in promoting community participation in Tenant's programs and activities held at James Kenney Park.
I. Tenant shall not, without the written consent of Landlord:
1. place, construct or maintain in, on, or about the Premises or within James Kenney Park any advertisement media, including without limitation, searchlights, flashing lights, loudspeakers, or other similar media or device;
2. place or permit the use in or on the Premises of any vending machines, newspaper racks or other coin operated devices.
3. warehouse or stock on the Premises any goods, wares or merchandise other than that which is directly related to the Tenant's use of the Premises;
4. store, display or sell goods or merchandise on the Premises or place or permit;
5. portable signs or other devices to be stored or to remain on the Premises;
6. use or permit any portion of the Premises to be used as living or sleeping quarters; and
7. sell, distribute, display, or offer for sale any item, which, in Landlord's good faith judgment, may tend to detract from the image of James Kenney Park.
J. Tenant shall not do or permit to be done in, on, or about the Premises anything which is prohibited by or may conflict with any law, statute, ordinance or governmental rule or regulation now in force or hereafter enacted or promulgated, which is prohibited by the standard forms of special form or commercial general liability insurance or which may cause a cancellation of any insurance policy covering James Kenney Park or the Premises or any of its contents, or (except with the prior written consent of Landlord) which may increase the existing rate of or affect any special form or commercial general liability insurance or other insurance upon James Kenney Park or the Premises, or any of its contents. In the event Tenant does or permits to be done anything or keeps or permits to be kept anything on or about the Premises or the James Kenney Park which increases the existing rate of such insurance upon James Kenney Park or the Premises or any of its contents, Tenant shall pay the amount of any such increase promptly upon Landlord's demand. Tenant shall not do or permit anything to be done which will in any way obstruct or interfere with the rights of other lawful users of James Kenney Park, including, without limitation, tenants, their employees or invitees, disturb or annoy them, or use
10 or allow the Premises to be used for any improper, unlawful or objectionable purpose. Tenant shall not maintain or permit any nuisance in or about the Premises or commit or suffer-to be committed any waste in or upon the Premises.
K. No auction, fire, bankruptcy, distress, clearance, or going-out-of-business sale shall be conducted on the Premises nor shall any sign or advertisement regarding such activity be posted in or about the Premises.
L. If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Tenant's business, Tenant shall procure and maintain such license or permit and submit the same for inspection by Landlord. Tenant at all times shall comply. with the terms and conditions of each such license or permit.
M. Nothing shall be done in or about the Premises by Tenant or anyone having a contractual relationship with Tenant that will result in substantial interference, by themselves or third parties, with normal operation and use of James Kenney Park or the means of ingress and egress thereto ("Substantial Interference"). Tenant shall use every effort to eliminate Substantial Interference including legal action. If Tenant fails to bring an immediate halt to any Substantial Interference, Landlord shalt" have the right (i) to take action and require Tenant to undertake and eliminate such Substantial Interference and (ii) to commence any legal action to eliminate such Substantial Interference. Any agreement entered into by Tenant with regard to use of the Premises shall contain a provision reserving to Tenant all of the necessary rights and remedies to permit Tenant to comply with its obligations under this provision and authorizing Landlord to enforce the terms of such provision if Tenant fails to do so.
6. U
SE OF JAMES KENNEY PARK PROPERTY
A. T he parties acknowledge that Tenant has, as a member of the general public, the non-exclusive right, in common with others duly authorized by Landlord, and subject to all generally applicable laws and regulations, to use James Kenney Park.
B. Tenant agrees that except as otherwise provided in this Lease, it is not a covenant or condition of this Lease or of any other agreement with Tenant that Landlord undertake or cause t
o be undertaken any development or redevelopment of the Premises or James Kenney Park, and Landlord shall incur no liability whatsoever to Tenant for failure to undertake such development or redevelopment.
C. Landlord at all times shall have the right and privilege of making such changes in and to James Kenney Park (other than the Building) from time to time which in its sole opinion are deemed to be desirable or appropriate, including the location and relocation of stairways, sidewalks, pathways, driveways, streets, entrances, exits, automobile parking spaces, the direction and flow of traffic, designation of prohibited areas, landscaped areas, utilities and all other facilities; provided, however, that the foregoing is not intended to entitle Landlord to
11 unreasonably effect changes that would materially arid adversely affect access to or visibility of the Premises, except temporarily during periods of construction. Landlord shall have the right to establish, promulgate, and enforce such reasonable rules and regulations concerning James Kenney Park, as it may deem necessary or advisable for the proper and efficient management, operation, maintenance and use thereof, and Tenant shall comply with the same.
D. Landlord at all times shall have the sole and exclusive management and control of James Kenney Park, including without limitation, the right to lease, license or permit the use of space within James Kenney Park to persons for the sale of merchandise and/or services and the right to permit advertising displays, educational displays, displays of art, and promotional activities and entertainment.
E. Nothing contained herein shall be deemed to create any liability to Landlord for any personal injury, or any damage to motor vehicles, vessels, or other property of Tenant's members, employees or others, unless caused by the gross negligence or willful misconduct of Landlord, its agents, servants or employees. Tenant is solely responsible for the security of the Premises, and for the safety of those using the Premises pursuant to this Lease or any permits or licenses from the City. Tenant acknowledges that if Landlord provides security guards or police patrols for James Kenney Park or any portion thereof, Landlord does not represent, guarantee or assume responsibility that Tenant or any person or entity will be secure from losses or injury caused by the acts of third parties and does not assume responsibility for any such illegal acts.
Tenant hereby waives any present or future claims Tenant may have against Landlord, whether known or unknown, for bodily injury or property damage arising from the performance of such security agents. City shall not be obligated to provide any public liability or property damage or loss insurance for the benefit of Tenant or any other person or entity.
F. Tenant will use its best efforts to maintain effective relations with other users of James Kenney Park and with neighbors. Tenant shall park vehicles only in legal and/or designated parking areas and only for the legal period of time; shall deposit all trash in legal containers; shall not deposit food or material of any kind on adjacent Premises; and shall respect the environment of James Kenney Park.
G. Tenant shall not interfere with the free and unobstructed access by the public to James Kenney Park. Tenant shall not preclude other users of James Kenney Park from exercising a different use without first obtaining any and all appropriate permits.
H. Landlord reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, through, across or on the Premises in locations that will not unreasonably interfere with Tenant's access to or use of the Premises. Any interference shall be temporary, and all work on the Premises shall proceed expeditiously. Tenant shall be given reasonable notice before commencement of any work on the Premises. In the event the. installation or maintenance of such future utility lines in such easements causes any damage to the Premises, or any portion thereof, or to the Building, or other facilities located upon the Premises, including but not limited to pavement, curbs and sidewalks, the same shall be repaired
12 by Landlord at its expense, if not so repaired by the party installing and maintaining the line.
Landlord shall hold harmless and indemnify Tenant from all claims arising out of the grant or use of such a utility easement, except to the extent they result from the negligence or willful misconduct of Tenant or its sub-lessees or sub-tenants.
7. SERVICES
A. Tenant acknowledges that there is no separate meter for water, gas, electrical or sewer service provided to the Premises. Tenant understands that base rent includes the cost of these utility charges and services. Tenant shall make all arrangements and pay for refuse collection and telephone service, and all fees and periodic charges related thereto.
B. Landlord makes no representation or warranty that the supply of any utility or service to the Premises and/or the Building will not be interrupted, delayed or reduced.
C. Landlord shall not be liable for damages to either person or property; nor shall Landlord be deemed to have evicted Tenant; nor shall there be any abatement of any rent; nor shall Tenant be relieved from performance of any covenant on its part to be performed hereunder by reason of any (i) breakdown of equipment or machinery utilized in supplying utilities or services; (ii) interruption of or failure to supply or delay in supplying any such utilities or services; (iii) the limitation or restriction on use of water, electricity gas, or telecommunications service serving the Premises or James Kenney Park; or (iv) failure to repair or cure any of the foregoing, except in the case of Landlord's gross negligence or willful misconduct.
8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY
Upon the expiration of this Agreement, Tenant is obligated to remove any personal property pl
aced in the Premises by the Tenant. If any personal property does remain on the Premises upon the expiration of the Agreement it will be considered abandoned personal property, which will be removed, by the City and the Tenant will be responsible for all costs associated with removing the personal property from the Premises.
9. AL
TERATIONS AND IMPROVEMENTS
A. T
enant acknowledges that Landlord owns the Premises. Tenant accepts the Premises from Landlord in its "as is" condition, the conditions that exist as of the Effective Date of this Lease. Tenant acknowledges that Landlord makes no representation or warranty concerning (i) the physical condition of the Premises; (ii) the Premises suitability for Tenant's proposed use; or (iii) the presence of any Hazardous Substance in or about the Premises, except as otherwise expressly set forth in this Lease. Landlord has encouraged Tenant to make its own physical inspection of all aspects of the Premises and to conduct its own investigation as to the suitability of the Property and the Premises for Tenant's use.
B. Upon the execution of this Lease, Landlord approves and requires the
13 improvements to the Premises listed on Exhibit “B” that shall be completed by Tenant. Tenant shall complete the improvements within the timeframe as stated in Exhibit “B”. Tenant shall not make any alterations, additions or improvements to the Premises (i) costing in excess of $5,000 for any single instance or $15,000 in the aggregate for any twelve (12) consecutive months or (ii) affecting the Building structure or utility systems, or attach any fixture or item of equipment thereto without Landlord's prior written consent except for the improvements listed in Exhibit “B”. All such alterations, additions, or improvements shall be made at Tenant's sole expense in accordance with Landlord's General Design Requirements (if any) and the plans and specifications (including specifications for materials to be used in connection therewith) and a statement of the estimated cost of such work submitted to and approved by Landlord (collectively the "Plans and Specifications"). If the cost thereof exceeds $5,000 for any single instance, or if such Tenant's work involves the Building structure or utility systems, any contractor or person selected by Tenant must be a licensed contractor. Landlord, in its sole discretion, shall approve or disapprove Tenant's request and may disapprove Tenant's use of any materials or substances, including but not limited to asbestos and fiberglass, which Landlord, in its sole discretion, deems potentially hazardous, toxic or threatening to health. To the extent that Tenant's work shall require a building permit or other permits from the City of Berkeley, and/or any other governmental agency, Tenant shall not perform any of Tenant's work until Tenant has obtained all requisite permits. Tenant further shall comply with all prevailing wage requirements of California Labor Code Sections 1720 et seq., to the extent such requirements are applicable to Tenant's work.
C. Except as otherwise expressly provided in this Lease, Tenant shall not repair, replace or modify any utility system located within the Building without the Landlord's prior written consent. Tenant is responsible for the repair of any damage to any utility system, structural element of the Building(s), facilities of Landlord or any other facilities arising out of Tenant's construction activities or Tenant's negligence or willful misconduct; provided, however, such provision is not intended to and shall not be interpreted to make any other person or entity a third party beneficiary thereof.
D. This Lease specifically prohibits Tenant, or any other party, from expanding uses or structures allowed on the Premises beyond those designated in use permits approved by the City of Berkeley. Notwithstanding approval of any new Use Permit allowing expansion, or any future expansion of the uses in existing buildings, or additions to existing buildings, or construction of any new buildings, or moving existing buildings onto the Premises, are all subject to the prior written approval of the Landlord (with the exception of the Exhibit “B” Improvements) and all improvements (including Exhibit “B” Improvements) are subject to the environmental review and permit regulations and approvals of same by all applicable local, state, and federal agencies.
E. Except for Exhibit “B” Improvements, Tenant shall not substantially deface or change any floors, walls, ceilings, roofs, or partition any of the structures or improvements on the Premises without first providing thirty (30) days written notice to Landlord. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed,
14 provided Tenant obtains all required permits. Except as may be specifically approved in writing by Landlord, Tenant shall require all contractors to provide a labor and materials bond for the full amount of any contract for improvements that exceed $50,000, including any applicable Exhibit “B” Improvements. Tenant shall pay, when due, all sums of money that may be due or become due for any labor, services, materials, supplies or equipment furnished to or for Tenant in, at, upon or about the Premises and which may be secured by any mechanic's, material men’s or other lien against the Premises or Landlord's interest therein.
All alterations, improvements or additions that are now or in the future attached permanently to the Premises shall be the Property of Landlord and shall remain with the Property at the termination of this Lease, except that Landlord can elect within thirty (30) days of the termination of the Lease to require Tenant, at its cost, to remove any equipment that Tenant has affixed to the Premises.
F 1. Tenant hereby agrees in accordance with the schedule set forth in Exhibit "B" to undertake and complete all of the recommended capital improvements.
2. Tenant understands the Premises were inspected by Disability Access Consultants LLC (DAC). Tenant acknowledges receipt of their findings and some of these are incorporated into planned improvements in Exhibit B. City makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Tenant’s use of the Premises requires modifications or additions to the Premises in order to comply with the ADA or similar legislation, Tenant agrees to make any such necessary modifications and/or additions at Tenant’s expense. City shall have no responsibility to make any repairs or modifications to the premises in order to comply with accessibility standards, except as set forth in other provisions of this Lease.
3. The parties acknowledge and agree that one of the principles underlying the terms and conditions of this Lease is Tenant's agreement to perform specified capital improvements on the Premises in exchange for abated rent and a 15-year term of occupancy. The parties have thoroughly inspected the Building and Premises and have entered into this Lease on the assumption that the capital improvements set forth in Exhibit B represents a reasonable estimate of the improvements necessary to preserve, enhance and improve the condition of the Building through the term of this Lease. However, the parties also acknowledge and agree that certain events (for example, latent or unanticipated defects or damage to the Premises, accessibility requirements, etc.) may give rise to substantial, unavoidable expenses that materially and adversely affect Tenant's ability to perform its obligations under this Lease. In such event, upon Tenant's written notice to Landlord, Landlord shall temporarily defer declaring default pursuant to Section 19 of this Lease, and the parties, in good faith, shall employ their best efforts to negotiate amendments to the Lease that recognize Tenant's financial hardship while preserving to the extent possible the original terms and intent of the Lease. In the event the parties are unable to reach agreement on such amendments, either party may terminate this lease upon 30 days’ written notice to the other. Upon such termination, Tenant shall vacate the Premises in accordance with Section 8. and shall be relieved of all other obligations under this Lease.
15 G. 1. Tenant agrees that to the extent it is required to comply with the prevailing wage requirements, Tenant shall assure that all workers are paid the prevailing rate of per diem wages, and travel and subsistence payments (defined in applicable collective bargaining agreements filed in accordance with Section 1773.8 of the California Labor Code), in effect on the date of Landlord's first approval of a building permit or other approval of the work. Copies of the applicable prevailing rate of per diem wages are on file at Landlord's principal office and will be made available to any interested party on request. Tenant agrees to post a copy of the prevailing rate of per diem wages at the Premises. Tenant, as a penalty to Landlord, shall forfeit Twenty-Five Dollars ($25) for each calendar day, or portion thereof (or such other sum as specified from time to time by Section 1775 of the California Labor Code), for each worker paid less than the applicable prevailing rates for such work or craft in which such worker is employed.
The difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by Tenant.
2. Tenant agrees to keep or cause to be kept by each contractor and subcontractor an accurate payroll record for each worker employed on Tenant's Work covered by this subsection H showing all of the information specified in subsection (a) of Section 1776 of the California Labor Code. All such payroll records shall be certified, available for inspection and filed in accordance with the procedures specified in subsections (b)-(e) inclusive of Section 1776 of the California Labor Code. In the event of noncompliance with the foregoing requirements concerning payroll records which continues for more than ten (10) days after Landlord gives Tenant written notice specifying in what respects Tenant must comply, Tenant shall forfeit, as a penalty to Landlord, for each worker Twenty-Five Dollars ($25) for each calendar day, or portion thereof, until strict compliance is effectuated. Tenant shall be responsible for complying with Section 1777.5 of the California Labor Code concerning apprenticeable occupations, with respect to all work covered by that Section. For purposes of the prevailing wage requirements of this subsection, Tenant shall be deemed to be a "contractor" as that term is used in Sections 1720 et seq., of the California Labor Code. Except where the context otherwise requires, the definitions of terms and phrases contained in the State prevailing wage law, Sections 1720 et seq., of the California Labor Code, and in the implementing administrative regulations, shall apply to the same terms and phrases which are used in the prevailing wage requirements of this subsection H.
10. LI
ENS
Tenant shall keep the Premises, the Building, and J ames Kenney Park free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant.
In the
event that Tenant shall not cause any such liens to be released of record, Landlord shall have, in addition to all other remedies provided herein or by law, the right (but not the obligation) to cause the same to be released by such means as Landlord shall deem proper, including payment of the claim giving rise to such lien. All sums paid and all expenses incurred by Landlord in connection therewith shall be reimbursed by Tenant promptly on demand. Landlord shall have the right to post and keep posted on the Premises any notices (including, without limitation,
16 notices of non-responsibility pursuant to California Civil Code Section 3094) that Landlord may deem proper for protection of Landlord and the Premises. Tenant shall give Landlord at least ten (10) business days' prior notice of the date of commencement of any Tenant's work on or in the Premises to allow Landlord to post such notices.
11. T
ENANT AND LANDLORD MAINTENANCE OBLIGATIONS
A. T enant agrees that during the entire term of this Lease, at its own cost and expense, it shall keep and maintain the Building(s
) on the Premises, and all leasehold improvements,
including interior and exterior walls, floors, ceilings, plumbing and heating, fixtures, furniture, and other improvements located on the Premises in good-quality order, repair and condition.
Except as otherwise provided in this Lease, Tenant shall perform, at its own cost and expense, any and all maintenance, removal of graffiti, repairs, or rehabilitation to the Building(s), or other area in the Premises, whether required by deterioration or by operations of Tenant or otherwise.
Subject to approval required by Section 9, the obligation under this section to maintain the building and improvements on the Premises, includes any repairs to the roof and the exterior siding.
B. To the extent applicable, Tenant hereby waives the provisions of Civil Code Sections 1941 and 1942, and any other provision of law now or hereafter in effect, with regard to the habitability of the Property and the Premises.
C. "Good-quality order, repair and condition", as used herein, shall mean the maintenance, repair, or renovation of the Building, equipment, furniture, fixtures, outdoor lighting, signage, and appurtenances necessary to keep and maintain the Building in efficient and attractive condition, given the nature and age of the Building, at any time during the term of this Lease.
D. Tenant shall provide its own janitorial service for the Premises, and all of Tenant's rubbish shall be removed by Tenant to such location(s) on the Premises or within James Kenney Park as may be designated by Landlord for pick-up and disposal by the Landlord.
E. Landlord shall maintain or cause to be maintained, at Landlord’s expense, any street lighting.
F. In the event of a dispute that Landlord and Tenant cannot informally resolve, Tenant’s only remedy against Landlord shall be the right to terminate this Lease, effective thirty (30) days from the delivery of written notice to Landlord.
G. Nothing in this Section 11 shall be deemed to affect or impair Landlord's rights under Section 9 of this Lease. Tenant acknowledges that Landlord has no obligation and has made no promises to alter, remodel, improve, repair, decorate or paint the Building or to improve the Premises, or any part thereof. Landlord has made no representatives respecting the condition of the Building, the Premises, or James Kenney Park, except as specifically set forth in this Lease.
17 12. ENVIRONMENTAL
A. Tenant shall follow all environmental rules and regulations as they apply to City ag
encies. Specifically, Tenant shall minimize waste and recycle and compost. Tenant must participate in a recycling service provided by the City or provide an acceptable alternative with the approval of the City’s Recycling Supervisor. To that end, Tenant shall:
1. A
ssign someone to be in charge of its recycling programs, and to communicate needs and questions to the City’s Zero Waste Division.
2. Recycle corrugated cardboard, office papers and beverage containers (glass bottles, plastic bottles, and cans)
3. Place collection containers for paper at convenient locations.
4. Educate employees and program participants about recycling procedures.
5. Recycle batteries and office equipment (contact the City’s Zero Waste Division for information about vendors).
6. Tenant shall recycle construction waste from tenant improvements.
7. Tenant shall conserve energy.
13. DAM
AGE OR DESTRUCTION
A. I n the event the Premises are damaged by fire, flood, earthquake, act of God, the elements, or other casualty, then (unless this Lease is terminated pursuant to this S ection 13)
Tenant shall forthwith repair the same, at its sole expense. In this event, Tenant shall be solely responsible for the loss, repair, and replacement of its equipment and leasehold improvements.
B. Anything in subsection A to the contrary notwithstanding, neither Tenant nor Landlord shall have any obligation to repair or rebuild the Premises or the Buildings following damage or destruction thereto if the damage or destruction is due to any cause or casualty other than one against which the responsible party is required to carry insurance or actually does carry insurance and such party reasonably estimates that the cost of repair or rebuilding exceeds ten percent (10%) of the replacement cost of the Premises or Buildings, as the case may be. If the responsible party elects not to repair any damage or destruction pursuant to this provision, such party shall give the other party notice of such election within sixty (60) days after the date of such damage or destruction; and this Lease shall terminate as of the date of such damage or destruction.
C. Tenant hereby waives the provisions of California Civil Code Sections 1932 and 1933 and any other statutes now or hereafter in effect which relate to termination of a lease when leased Premises is damaged or destroyed and agrees that such event shall be governed by the terms of this Lease.
14. INDEMNIFICATION
A. To the fullest extent permitted by law, Tenant shall (1) immediately defend and
18 (2) indemnify Landlord, and its directors, officers, and employees from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with the Lease. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. The Tenant's obligation to indemnify applies regardless of whether a liability is a result of the negligence of any other person, unless it is adjudicated that the liability is caused by the sole active negligence or sole willful misconduct of an indemnified party.
B. The duty to defend is a separate and distinct obligation from the Tenant’s duty to indemnify. The Tenant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the Landlord, the Landlord and its directors, officers, and employees, immediately upon submittal to the Tenant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. A determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Tenant from its separate and distinct obligation to defend Landlord. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Tenant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Tenant may submit a claim to the Landlord for reimbursement of reasonable attorneys’ fees and defense costs.
C. The review, acceptance or approval of any of Tenant’s work or work product by any indemnified party shall not affect, relieve or reduce the Tenant’s indemnification or defense obligations. This Section survives the termination of this Lease. The provisions of this Section are not limited by and do not affect the provisions of this Lease relating to insurance.
D. Liabilities subject to this Section include any claim of discrimination or harassment, including but not limited to sexual harassment, arising from the conduct of the Tenant or any of the Tenant’s officers, employees, agents, licensees, or subcontractors. In the event of a discrimination or harassment complaint against any employee, agent, licensee or subcontractor of the Tenant or its subcontractors, the Tenant shall take immediate and appropriate action in response to such complaint, including, but not limited to termination or appropriate discipline of any responsible employee, agent, licensee or subcontractor.
15. I
NSURANCE
A. Tenant, at its sole expense, shall procure and maintain the following insurance:
1. Commercial general liability insurance insuring Tenant against any liability arising out of its use, occupancy, repair or maintenance of the Premises, the Building, James Kenney P
ark, with a combined single limit of not less than $2,000,000 for injury to or
19 death of one or more persons in any one accident or occurrence and Property damage in any one accident or occurrence. Such comprehensive general liability insurance shall include fire liability coverage and public liability and Property damage insurance, including personal injury, broad form Property damage, blanket contractual, and other coverage as may be reasonably required by Landlord. Landlord shall have the right, from time to time, to require Tenant to increase the amount of its comprehensive general liability insurance coverage if, in Landlord's reasonable opinion, the amount of such coverage is not sufficient in light of the risks insured and Tenant's use of the Premises or James Kenney Park.
2. Special Form Property insurance for cost of damage to the Premises, including, without limitation, during any term of construction of Tenant's work, builders' All- Risk Insurance. Such insurance shall include coverage for vandalism and malicious mischief and cost of demolition and increased cost of construction by reason of changes in applicable ordinances/laws and shall not contain a co-insurance clause.
B. All policies of insurance and all renewals thereof shall be approved as to form and sufficiency by Landlord's Risk Manager and shall be issued by good and responsible companies qualified to do and doing business in California and rated A+: XIII or better in the most recent version of B
est's Insurance Guide. Each of the required insurance coverages except for workers compensation (i) shall name Landlord and each of its Affiliates as additional insureds and, with respect to casualty insurance, as their respective interests may appear and (ii) shall provide that it may not be canceled or altered by the insurer in such manner as to adversely affect the coverage unless sixty (60) days' prior notice is given by certified mail to Landlord at the address set forth in Section 35 below, or to such place as Landlord may from time to time designate in a notice to Tenant.
C. An original certificate of each policy of insurance shall be delivered to Landlord prior to the date the Premises is delivered to Tenant and from time to time during the Term. If Tenant shall fail to procure or maintain any insurance required hereunder or shall fail to furnish to Landlord any duplicate policy or certificate, Landlord may obtain such insurance; and any premium or cost paid by Landlord for such insurance shall be reimbursed by Tenant promptly upon Landlord's demand. Tenant shall make good faith efforts to ensure that at least sixty (60) days prior to the expiration of any such policy, an extension endorsement showing that such insurance coverage has been or will be renewed or extended shall be delivered to Landlord and if, despite such good faith efforts, such extension endorsement cannot be timely delivered, Tenant shall cause to be delivered to Landlord within said time other reasonable documentary evidence of renewal of coverage and shall continue exercising diligent efforts to deliver to Landlord the required extension endorsement. If such coverage is canceled or reduced, Tenant, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage but in no event later than the effective date of cancellation or reduction, shall deliver to Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company(ies). Upon Tenant's failure to so deliver such certificate, Landlord may, without further notice and at its option, (1) exercise Landlord's rights as provided in this Lease or (2) procure such insurance coverage at Tenant's expense and Tenant shall promptly reimburse
20 Landlord for such expense.
D. If any of the insurance required in this Section 15 is provided under a claims- made form of policy, Tenant shall maintain such coverage continuously throughout the Term and without lapse for a period of not less than five (5) years beyond the termination of this Lease, to the effect that should occurrences during the Term give rise to claims made after termination of this Lease, such claims shall be covered by such claims-made policies.
E. Each of Tenant's Property insurance policies insuring the Premises and Tenant's Property in the Premises shall include a waiver of the insurer's right of subrogation against Landlord, or, if such waiver should be unobtainable or unenforceable, (i) an express agreement that such policy shall not be invalidated if the assured waives, before the casualty, the right of recovery against any party responsible for a casualty covered by the policy or (ii) any other form of permission concerning the assured's right to waive its right of recovery. If such waiver, agreement or permission shall not be, or shall cease to be, obtainable, Tenant shall so notify Landlord promptly after learning thereof.
F. Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which Tenant might otherwise have against Landlord for loss, damage or destruction of Tenant's Property occurring during the Term to the extent to which Tenant is insured under a policy (ies) containing a waiver of subrogation or agreement or permission to release liability, as provided in E. above. If, notwithstanding the recovery of insurance proceeds by Tenant for such loss, damage or destruction, Landlord is liable to Tenant with respect thereto or is obligated under this Lease to make replacement, repair, restoration or payment, then (provided Tenant's right of full recovery under its insurance policies is not thereby prejudiced or otherwise adversely affected) the amount of the net proceeds of the Tenant's insurance against such loss, damage or destruction shall be offset against Landlord's liability to Tenant therefore or shall be made available to Landlord to pay for replacement, repair or restoration, as the case may be. Nothing contained herein shall relieve either party of any duty to repair, restore or rebuild imposed elsewhere in this Lease or shall nullify any abatement of rent provided for elsewhere in this Lease.
G. If Tenant employs any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the Landlord. The workers' compensation insurance shall: provide that the insurance carrier shall not cancel, terminate, or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the Landlord; provide for a waiver of any right of subrogation against Landlord to the extent permitted by law; and be approved as to form and sufficiency by the Landlord's Risk Manager.
H. If a death, serious personal injury, or substantial Property damage occurs in connection with the performance of this Lease, Tenant shall immediately notify the Landlord's Risk Manager. If any accident occurs in connection with this Lease, Tenant shall promptly submit a written report to Landlord, in such form as the Landlord may require. This report shall
21 include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Tenant's subtenant, if any; 3) name and address of Tenant's liability insurance carrier; and 4) a detailed description of the accident, including whether any of Landlord's equipment, tools or materials were involved.
I. Tenant shall forward all insurance documents to:
Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia St., 3
rd Floor
Berkeley, CA 94704
16. CO MPLIANCE WITH LAWS
A. Tenant, at its sole expense, shall promptly comply with all applicable laws, ordinances, rules, regulations, permits or requirements now or hereafter in effect (whether foreseen or unforeseen by Landlord or Tenant), with the requirements of any board of fire underwriters or similar body now or hereafter constituted; with any occupancy certificate issued by any public officer and with the provisions of all recorded documents affecting the Premises, insofar as any of the foregoing relate to or affect the condition, use or occupancy of the Premises or the Building. Such compliance by Tenant shall include, without limitation, compliance with all obligations to alter, maintain, or restore the Premises (and, as applicable, the Building), or construct improvements in or to the Premises, regardless of cost and regardless of when during the term of the Lease the work is required.
B. Tenant acknowledges that conducting its operations at the Premises and making certain alterations and improvements may require an authorization, approval or permit (collectively, "Regulatory Approval") from a governmental authority having jurisdiction over the Premises. Tenant shall be solely responsible for obtaining any such Regulatory Approval, and Tenant shall not seek any Regulatory Approval without first obtaining the approval of Landlord, except for the items listed on Exhibit “B”. All costs associated with applying for and obtaining any necessary Regulatory Approval shall be borne by Tenant. Tenant shall be solely responsible for complying with any and all conditions imposed by regulatory agencies as part of a Regulatory Approval; however, Landlord shall not take any action that would materially interfere or prevent Tenant from complying with all such conditions. Any fines or penalties imposed as a result of the failure of Tenant to comply with the terms and conditions of any Regulatory Approval shall be paid and discharged by Tenant, and Landlord shall have no liability, monetary or otherwise, for said fines and penalties, except to the extent that such fines or penalties were caused by the willful acts or omissions of Landlord. To the fullest extent permitted by law, Tenant agrees to indemnify and hold Landlord and its officers, agents and employees harmless from and against any loss, expense, cost, damage, attorneys' fees, penalties, claims or liabilities which Landlord may incur as a result of Tenant's failure to timely obtain or comply with the terms and conditions of any Regulatory Approval. Landlord agrees to cooperate (but only to the same extent and in the same manner as a non-public entity could so cooperate,
22 and not as an exercise of Landlord's police or regulatory power) with Tenant in filing, processing and obtaining all Regulatory Approvals, and upon request of Tenant, to join with Tenant as co- applicant in filing, processing and obtaining all Regulatory Approvals; provided, however, that Landlord may refuse to file, process or obtain Regulatory Approvals or to join Tenant as a co-- applicant if Landlord determines in its sole and absolute discretion that it is not in Landlord's best interest to do so. Nothing contained herein shall be deemed to limit or otherwise constrain Landlord's discretion, powers, and duties as a regulatory agency with certain police powers.
C. Tenant understands and agrees that Landlord is entering into this Lease in its capacity as a landowner with a proprietary interest in the Premises and not as a regulatory agency of the City of Berkeley with certain police powers. Landlord's legal status shall in no way limit the obligation of Tenant to obtain any required approvals from Landlord's departments, boards, or commissions that have jurisdiction over the Premises. By Landlord's entering into this Lease, neither Landlord nor any of City Council, boards, commissions, agencies, departments, or Affiliates obligates itself to any other governmental agent, board, commission or agency, or to Tenant, or to any other individual or entity, with regard to any discretionary action relating to development or operation of the Premises or James Kenney Park. Discretionary action includes but is not limited to rezonings, variances, environmental clearances, or any other governmental agency approvals that may be required or desirable for the improvement, alteration, or operation of the Premises or James Kenney Park. By entering into this Lease, Landlord is in no way modifying or limiting the obligation of Tenant to cause the Premises to be used and occupied in accordance with all laws.
17. AS
SIGNMENT AND SUBLEASE
A. Any provision of this Lease to the contrary notwithstanding, Tenant shall not directly or indirectly, by operation of law or otherwise, transfer, assign, pledge, encumber or hypothecate this Lease or all or any portion of the Premises or Tenant's interest in and to the Premises (collectively, an "Assignment") or sublet the Premises or any portion thereof or permit the Premises or any portion thereof to be used, occupied or managed by anyone other than Tenant pursuant to any Lease, use or concession agreement or otherwise (collectively, a "Sublease") without first obtaining Landlord’s written consent. Any assignment, encumbrance, or sublease without Landlord's written consent shall be voidable and, at Landlord's election, shall constitute a default. City has the sole discretion to determine whether to agree to any sublease or assignment. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this Section.
B. Neither this Lease nor any interest therein shall be assignable or transferable in proceedings in attachment, garnishment, or execution against Tenant, in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Tenant or by any process of law. Possession of the Premises shall not be divested from Tenant in such proceedings or by any process of law without the prior written consent of Landlord.
C. Tenant expressly waives any rights that it might otherwise be deemed to possess
23 pursuant to applicable law, including without limitation, Section 1997.040 of the California Civil Code, to limit any remedy of Landlord pursuant to Section 1951.2 or 1951.4 of the Code by means of proof that enforcement of a restriction on use of the Premises would be unreasonable.
18. I
NSPECTION
Landlord may enter the Premises at all reasonable times (with reasonable advance notice e
xcept in case of emergency) (i) to inspect the same; (ii) to exhibit the same to prospective purchasers, mortgagees or tenants; (iii) to conduct tests, inspections and surveys to determine whether Tenant is complying with all of its obligations hereunder; (iv) to post notices of nonresponsibility or other notices that may be permitted hereunder; (v) to post "to Lease" signs of reasonable size upon the Premises during the last ninety (90) days of the Term; and (vi) to make repairs required or permitted to be made by Landlord or repairs to any adjoining space or any utility systems or to make repairs, alterations or additions to any other portion of the Building or J
ames Kenney Park; provided, however, that all such work shall be done as promptly and with as little interference to Tenant as reasonably possible. Tenant hereby waives all claims against Landlord for any injury or inconvenience to or interference with Tenant's business or any loss of occupancy or quiet enjoyment of the Premises resulting from Landlord's entry into the Premises or any work performed therein by Landlord. Landlord shall at all times have a key to all doors in and about the Premises (excluding Tenant's vaults, safes and similar areas designated by Tenant in writing in advance), and Landlord shall have the right to use any and all means which Landlord may deem proper in an emergency to obtain entry to the Premises. Tenant also shall provide Landlord with written notice of the name, address, telephone number, and Tenant's account number of the burglar alarm company (if any) utilized by Tenant for the Premises. Any entry to the Premises by any of said means or otherwise shall not under any circumstances be deemed a forcible or unlawful entry into or a detainer of the Premises or an eviction (actual or constructive) of Tenant from the Premises.
19. DE
FAULT
The occurrence of any one of the following shall constitute an event of default on the part of Tenant:
A. Failure to Use Premises. Failure to use the Premises as specified in S ection 5 and 6.
B. Nonpayment of Rent. F ailure to pay any installment of rent or any other sum due and payable hereunder upon the date when such payment is due, such failure continuing for a period of five (5) days after written notice of such failure; provided, however, that Landlord shall not be required to provide such notice more than twice during any consecutive twelve (12) months with respect to non-payment of any portion of rent, the third such non-payment during any consecutive twelve (12) months constituting an event of default without requirement of notice.
C. Other Obligations. Failure to perform any obligation, a greement or covenant under this Lease, such failure having continued for thirty (30) days after notice of such failure
24 from Landlord or such longer period as is reasonably necessary to remedy such default, provided that Tenant has commenced to remedy the default within such thirty (30) day period and shall continuously and diligently pursue such remedy until such default is cured.
D. General Assignment. A general assignment by Tenant for the benefit of creditors.
E. Bankruptcy. The filing of a voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. In the event that under applicable law the trustee in bankruptcy or Tenant has the right to affirm this Lease and to continue to perform the obligations of Tenant hereunder, such trustee or Tenant, in such time period as may be permitted by the bankruptcy court having jurisdiction, shall cure all defaults of Tenant hereunder outstanding as of the date of affirmance and shall provide to Landlord such adequate assurances as may be necessary to ensure Landlord of the continued performance of Tenant's obligations hereunder. Any transferee (by operation of law or otherwise) must provide Landlord with adequate assurance of its future performance under this Lease. In the event of Tenant's bankruptcy, insolvency or reorganization, the parties specifically intend that the actions of the trustee or Tenant in assuming and/or assigning this Lease shall be governed by Section 365 of Title 11 of the United States Code applicable to shopping center leases.
F. Receivership. The employment of a receiver to take possession of all or substantially all of Tenant's assets in the Premises.
G. Insolvency. T he attachment, execution or other judicial seizure of all or substantially all of Tenant's assets in or on the Premises; the admission by Tenant in writing of its inability to pay its debts as they become due; the filing by Tenant of a petition seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation; the filing by Tenant of an answer admitting or failing timely to contest a material allegation of a petition filed against Tenant in any such proceeding or if, within thirty (30) days after the commencement of any proceeding against Tenant seeking reorganization or arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation, such proceeding shall not have been dismissed.
H. Release of Hazardous or Toxic Substances or Materials and Other Environmental Impacts. Any release or discharge in, on, under, around, or from the Premises and/or James Kenney Park by Tenant, its agents or employees of Hazardous Substances which has not been fully cleaned up within ten (10) days after such release or discharge. Any negative impacts to the natural habitat and environment of James Kenney Park caused by Tenant that are documented by a qualified, independent source and for which reasonable remediation measures are not available, or the Tenant fails to cooperate with the Landlord in implementing in a timely manner reasonable measures intended to mitigate any negative impacts.
I. Illegal Drugs. Any release or discharge of chemicals, toxics, solution in
25 connection with the manufacturing and mixing of any illegal substance on the premises.
J. Non-compliance with Lease terms. Failure to perform any of the obligations and improvements listed on Exhibit “B”, such failure continuing for 30 days after notice from the landlord of said default.
20. RE
MEDIES UPON DEFAULT
A. T ermination . In the event of the occurrence of any event of default, Landlord shall have the right immediately to terminate this Lease by written notice and at any time thereafter to recover possession of the Premises or any part thereof and to expel and remove Tenant, any other person or party occupying the same and all Premises located therein, by any lawful means and to reenter the Premises without prejudice to any of the remedies that Landlord may have under this Lease or under law or equity.
B. Continuation af ter Default. In the event of any default, this Lease shall continue in effect for so long as Landlord does not terminate this Lease under subsection A above. In such case, Landlord may enforce all its rights and remedies under this Lease, including without limitation, the right to recover rent as it becomes due, and all of its rights and remedies under law. Acts of maintenance, preservation, efforts to relet the Premises for Tenant's account or the appointment of a receiver upon application of Landlord to protect Landlord's interest under this Lease shall not constitute an election to terminate this Lease or Tenant's right to possession.
C. Damages upon
Termination. Should Landlord terminate this Lease pursuant to subsection A above, in addition to any other rights and remedies to which it may be entitled under applicable law, Landlord shall be entitled to recover from Tenant: (i) the worth at the time of the award of the unpaid rent and other amounts which had been earned at the time of termination; plus (ii) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rent loss that Tenant proves reasonably could have been avoided; plus (iii) the worth at the time of the award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rent loss that Tenant proves reasonably could be avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which, in the ordinary course of things, would likely result therefrom, including without limitation, the costs and expenses (including brokerage commissions and advertising costs) incurred by Landlord, with or without terminating the Lease, (1) in retaking possession of the Premises; (2) in cleaning and making repairs and alterations to the Premises reasonably necessary to return the Premises to good condition for the use permitted by this Lease and otherwise to prepare the Premises for reletting;(3) in removing all persons and personal property from the Premises and transporting and storing any of Tenant's personal property left at the Premises, although Landlord shall have no obligation to remove, transport, or store any of such personal property; and (4) in reletting the Premises for such term, at such rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; plus (v) such other amounts in
26 addition to or in lieu of the foregoing as may be permitted from time to time under California law. The "worth at the time of award" of the amounts referred to in (i) and (ii) shall be computed with interest at the maximum rate allowed by law. The "worth at the time of award" of the amount referred to in (iii) shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%).
D. Computation of Rent fo
r Purposes of Default. For purposes of computing unpaid rent which would have accrued and become payable pursuant to subsection C above, unpaid rent shall include the total rent for the balance of the term of the Lease.
E. Remedies Cumulative. All rights, privileges and elections or remedies of the parties are cumulative and not alternative to the extent permitted by law and except as otherwise specifically provided herein.
F. No Waiver. Landlord's waiver of any breach of a covenant or condition hereof, or Landlord's failure to declare any default immediately upon occurrence thereof or a delay in taking any action in connection therewith shall not waive such breach or such covenant or condition or any subsequent breach thereof. The subsequent acceptance of rent or other monies by Landlord shall not be deemed a waiver of any preceding default by Tenant, other than the failure of Tenant to pay the particular rent or other sum so accepted, regardless of Landlord's knowledge of such default at the time of its acceptance of rent.
G. No Right of Redemption. Tenant waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 or any other present or future law in the event Tenant is evicted or Landlord takes possession of the Premises by reason of Tenant's default.
21. E
NVIRONMENTAL OBLIGATIONS
A. Tenant shall not, without Landlord's prior written consent (which consent may be granted or denied in Landlord's sole discretion), install, bring into or release or discharge in, on, under, around, or from the Premises any (i) asbestos-containing materials, (ii) electrical transformers, fluorescent light fixtures with ballasts or other equipment containing PCB's or (iii) materials which constitute hazardous, extremely hazardous or toxic materials under the Resource Conservation and Recovery Act, the California Hazardous Waste Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the California Safe Drinking Water and Toxic Enforcement Act of 1986 or any other applicable law or regulation concerning hazardous or toxic materials, (collectively "Hazardous Substances") and has not done so prior to the effective date of this Lease. Any Hazardous Substances which are used, stored, treated, disposed of or released from the Premises by Tenant or its representatives, agents, employees or invitees, shall be used, stored, treated, released and disposed of in accordance with all applicable laws and regulations.
B. If Tenant knows or has reasonable cause to believe that any Hazardous Substance
27 has been released on or beneath the Premises, Tenant shall immediately notify the Berkeley Police Department and the Toxic Management Office and promptly give written notice of same to Landlord. If Tenant knows or has reasonable cause to believe that such substance is an imminent and material danger to public health or safety, Tenant shall take all actions necessary to alleviate such danger. Tenant shall provide to Landlord as promptly as possible, and in any event within five business days after Tenant first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Tenant's use thereof and concerning Hazardous Substances. Tenant shall not negotiate or enter into any settlement agreement, consent decree or other compromise in respect of Hazardous Substances affecting the Premises or the Premises without first giving Landlord prior written notice and full opportunity to appear, intervene or otherwise protect Landlord's rights and interests.
C. Without limitation of the provisions of Sections 14 hereof, Tenant shall indemnify, defend and hold Landlord and its affiliates harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses which arise during or after the term of this Lease as a result of the handling of Hazardous Substances on the Premises, or James Kenney Park by Tenant, its agents or invitees, including without limitation, all costs of monitoring, investigating, and remediation of the same, damages for diminution in the value of the Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on marketing of any such space and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees.
This indemnification by Tenant includes, but is not limited to, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration work requested by Landlord or required by any federal, state or local governmental agency or political subdivision because of Hazardous Substance present in the soil or groundwater in, on or under the Premises or in any improvements. Without limiting the foregoing, if the presence of any Hazardous Substance in, on, under or about the Premises caused or permitted by Tenant results in any contamination of the Premises or James Kenney Park, Tenant, at its sole expense, promptly shall take all action that is necessary to return the Premises to the condition existing prior to the introduction of such Hazardous Substance in, on, under or about the Premises; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions could not potentially have any material adverse effect upon the Premises. Tenant's obligations under this Section 21.C. shall survive the expiration or termination of this Lease.
22. L
ANDLORD'S RIGHT TO CURE
All covenants to be performed by Tenant shall be performed at Tenant's sole cost and expense and without abatement of rent. Without limiting Landlord's rights under any other provision of this Lease, if Tenant shall fail to pay any sum of money or shall fail to perform any other act and such failure shall have become an event of default under Section 19, Landlord, without waiving or releasing Tenant from any of its obligations, may make (but shall not be obligated to make) any such payment or perform any such other act. All sums so paid by
28 Landlord and all necessary incidental costs shall be deemed additional rent and shall be payable to Landlord immediately upon Landlord's written demand.
23. E MINENT DOMAIN
A. I f all or any part of the Premises shall be taken as a result of the exercise of the power of eminent domain, this Lease shall terminate as to the part so taken on the earlier of the dates that title vests in the condemning authority or such authority takes possession of the Premises. In the case of a partial taking, either Landlord or Tenant shall have the right to terminate this Lease as to the balance of the Premises by written notice to the other party within thirty (30) days after such date of taking; provided, however, that Tenant shall have no right to terminate this Lease unless the portion of the Premises taken shall be of such extent and nature as substantially to impede or impair Tenant's use of the balance of the Premises. In the event of any such taking, Landlord shall be entitled to all compensation, damages, income, rent, awards and interest that may be paid or made in connection with such taking. Tenant shall have no claim against Landlord for the value of any unexpired Term; however, Landlord shall cooperate with Tenant if Tenant seeks to recover, at its sole expense, proceeds or awards paid to compensate for damage to the "goodwill" associated with Tenant's business. Any such amounts recovered shall belong to Tenant.
B. If any part of the Premises shall be so taken and this Lease shall not be terminated, then t
his Lease shall continue in full force and effect, except that the Rent shall be reduced in the same proportion that the rentable area of the Premises taken bears to the original rentable area of the Premises. Landlord, upon receipt of the award, shall make all necessary repairs and alterations (exclusive of Tenant's trade fixtures, furniture, furnishings, personal Premises, decorations, signs and contents) to restore the portion of the Premises remaining to as near its former condition as the circumstances will permit and to restore the Building to the extent necessary to constitute the portion of the Building not so taken a complete architectural unit. Landlord, in any event, shall not be required to spend for such repairs and alterations an amount in excess of the amount received by Landlord as damages for the taking of such part of the Premises and/or Building; and Tenant, at its sole cost and expense, shall make all necessary repairs and alterations to Tenant's trade and lighting fixtures, furniture, furnishings, personal Premises, decorations, signs and contents.
C. As used herein, the "amount received by Landlord" shall mean that portion of the award received by Landlord as damages from the condemning authority which is free and clear of all prior claims or collections by Landlord and less reasonable attorneys' and appraisers' fees and expenses.
24. S
UBORDINATION
A. This Lease shall be subject and subordinated to (i) all ground or underlying leases which have been or may hereafter be executed affecting the Premises, (ii) any Declaration of Covenants, Conditions and Restrictions now or hereafter recorded affecting J ames Kenney Park,
29 all without the necessity of having further instruments executed on behalf of Tenant to effectuate such subordination.
B. Tenant agrees to execute and deliver upon demand such further instruments or documents as may reasonably be required by Landlord to evidence any such subordination of this Lease. Tenant hereby constitutes and appoints Landlord, as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any such instrument(s) on behalf of Tenant.
25. NO MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation t
hereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies or operate as an assignment to it of any or all such s ubleases or
subtenancies.
26. T
RANSFER BY LANDLORD
In the event the original Landlord or any successor owner of James Kenney Park shall sell or convey the Premises or the Building, or any portion thereof that includes the Premises, all liabilities and obligations on the part of the original Landlord or such successor owner shall terminate. All such liabilities and obligations thereupon shall be binding only upon the new owner. Tenant agrees to attorn to such new owner.
27. ES
TOPPEL CERTIFICATES
From t ime to time, Tenant shall execute and deliver to Landlord promptly upon request a certificate certifying (i) that this Lease is unmodified and in full force and effect or, if there has been any modification, that this Lease is in full force and effect as modified, and stating the date and nature of each such modification; (ii) the date to which rent and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; (iv) that Landlord is not in default under this Lease and that Tenant has no claims, charges, offsets or defenses against Landlord, or specifying the nature of any such default or claim, charges, offsets or defense; and (v) such other matters as may be reasonably requested by Landlord. A ny such certificate may be
relied upon by any prospective purchaser, vendee, or other party. If Tenant fails to execute and deliver any such certificate within ten (10) business days after Landlord's written request, such failure, at Landlord's election, shall be conclusive against Tenant that this Lease is in full force and effect, without modification (except as may be represented by Landlord), that there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance.
28. HOLDING OVER
If, after the expiration of the Term of the Lease, Tenant remains in possession of the
30 Premises with Landlord’s consent all provisions of this Lease shall remain in effect with the following exceptions: (1) Tenant shall become a tenant from month-to-month, such tenancy terminable on thirty (30) days’ notice given at any time by either party; and (2) the Rent shall increase to 120% of the amount of the rent when the Lease expired.
29. CH
ANGES BY LANDLORD
A. T he description of the Premises and the location of any Premises utility system(s), including without limitation electrical, plumbing, shall be subject to such minor changes as Landlord determines to be necessary or desirable in the course of any construction performed by or under the authorization of Landlord. N
o such changes shall invalidate or affect this
Lease. Landlord shall effect such changes using reasonable efforts not to disturb Tenant's business. Tenant shall have no claim against Landlord for abatement of rent or loss of business as a result of any such disturbance.
B. Landlord shall have the right in its sole discretion to, among other things, change permitted land uses, install, maintain and remove public improvements, change the arrangement, character, use or location of entrances or passageways, walkways, streets, sidewalks, parking areas, stairs, landscaping, toilets, and other facilities and portions of James Kenney Park, and to change the name, number or designation by which the Building is commonly known. None of the foregoing shall be deemed an actual or constructive eviction of Tenant, nor shall it entitle Tenant to any reduction of rent hereunder or result in any liability of Landlord to Tenant; provided, however, Landlord shall not unreasonably obstruct or interfere with access to or the lines of sight toward the Premises.
30. GOVERNING LAW
This Lease shall be governed by the laws of the State of California.
31. S ECURITY DEPOSIT
As security for the full and faithful performance by Tenant of each and every term, provision, c
ovenant, and condition of this Lease, Tenant shall deposit with Landlord in an amount of O NE
HUNDRED DOLLARS ($100), unless waived in whole or in part by Landlord. Such security shall be deposited on or before the Effective Date of this Lease.
If Tenant defaults in respect to any of the terms, provisions, covenants and conditions of this Lease, including but not limited to the payment of rent, Landlord may use the security deposit or any portion of it to cure the default or compensate the Landlord for all damage sustained by Landlord resulting from Tenant's default. If Landlord so uses any portion of the security deposit, Tenant will restore the security deposit to its original amount within ten (10) days after written demand from Landlord.
Landlord will not be required to keep the security deposit separate from its own funds and
31 Tenant shall not be entitled to interest on the security deposit. The security deposit will not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this Lease, Landlord shall return the unused portion of the security deposit to Tenant within sixty (60) days after the end of the term. Landlord may deliver the security deposit to a purchaser of the Premises and be discharged from further liability with respect to it.
32. S
IGNAGE
The size, design, material and location of any sign, marquee, awning, decoration or other a
ttachment, advertising material or lettering on the Premises or on the exterior of the Building (collectively "signage") shall be subject to Landlord's prior written approval. All such signage shall comply with the criteria outlined in Landlord's General Design Requirements (if any) and shall be subject to the following provisions:
A. Tenant, at its sole expense, shall submit to Landlord a written description of all proposed signage, including dimensions, color, proposed location and other pertinent information ("Signage Proposal"). Landlord shall review the Signage Proposal and shall notify Tenant in writing of its approval, or reason(s) for its disapproval, within thirty (30) business days after Landlord's receipt of the Signage Proposal. If disapproved, Tenant shall make all required modifications to the Signage Proposal and shall resubmit the same to Landlord within seven (7) days after its receipt of Landlord's disapproval.
B. Within ten (10) days after Landlord's approval of the Signage Proposal, Tenant, at its sole expense, shall cause to be prepared and submitted to Landlord two (2) sets of plans ("Sign Plans") reflecting in detail the information contained in the approved Signage Proposal.
Landlord shall review the Sign Plans within thirty (30) days after Landlord's receipt of the same.
C. Upon Tenant's receipt of its sign permit from Landlord, Tenant s hall construct
and/or install all signage shown on the Sign Plans; in any event, however, Tenant shall complete such construction and/or installation not later than thirty (30) days after the sign permit is issued, unless otherwise agreed to by the City in writing.
D. Upon Landlord's request, Tenant immediately shall remove any signage that Tenant has placed or permitted to be placed in, on or about the Premises or Building contrary to the terms of this Section 32. If Tenant fails to do so, Landlord may enter upon the Premises and remove the same at Tenant's expense. Tenant, at its sole expense, shall maintain and replace all approved signage and shall repair, at its sole expense, any damage to the Building caused by the erection, maintenance or removal of any signage, including any damage caused by Tenant's removal of its signage at the expiration or earlier termination of the Lease. Tenant also shall comply with such regulations as may from time to time be promulgated by Landlord governing the signage of all tenants in James Kenney Park.
33. NO
PARTNERSHIP
32 It is expressly understood and agreed that Landlord shall not be deemed in any way or for any purpose a partner, agent or principal of Tenant, in the conduct of its business or otherwise, or a joint venture or member of a joint enterprise with Tenant.
34. NO WAIVER
Landlord's waiver of Tenant's breach of any covenant or condition shall not be deemed a w
aiver of any subsequent breach of the same or any other covenant or condition, nor shall any custom or practice which may develop between the parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord to insist upon Tenant's performance in strict accordance with the terms of this Lease.
35. NO
TICES
All notices, demands, consents or approvals which may or are required to be given by e
ither party shall be in writing and shall be deemed to have been received when delivered personally or on
the earlier of the date of actual receipt or two (2) business days following deposit in the United States mail, registered or certified, postage prepaid, addressed as follows:
To Tenant: BAHIA
1718 8th Street
Berkeley, CA 94710
To Landlord: Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia Street, 3 rd Floor
Berkeley, CA 94704
With copy to: City Manager
City of Berkeley
2180 Milvia Street, 5th Floor
Berkeley, CA 94704
Notices to Landlord regarding Hazardous Substances required by Section 21 hereof shall be sent both to the above addresses and to such other place as either party may from time to time designate in a written notice to the other party, or in the case of Tenant, delivered to the Premises.
Tenant will appoint an agent to receive the service of all proceedings, demands, and notices hereunder the person in charge of or occupying the Premises at the time. If no person shall be in charge of or occupying the same, then such service may be made by attaching the same on the main entrance of the Premises
33 36. COMPLETE AGREEMENT
This Lease is intended by the parties as the final expression of their agreement with r
espect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous ag
reement. The parties further intend that this Lease constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding involving this Lease. The language and all parts of this Lease shall be construed as a whole and in accordance with its fair meaning and not restricted for or against either party. This Lease may be modified or amended only by a written instrument signed by both parties.
37. REQUESTS FOR CONSENT; WAIVER OF CLAIM
Tenant hereby waives any claim for damages against Landlord that it may have based upon a
ny assertion that Landlord unreasonably has withheld or has delayed any consent or approval, and Tenant's sole remedy shall be an action for specific performance of such provision, injunction or declaratory judgment. In the event of a final determination in Tenant's favor, the requested consent or approval shall be deemed to have been granted.
38. I
NTERPRETATION
The use of masculine, feminine, or neuter genders shall include the other genders, and the s
ingular shall include the plural and vice-versa. Headings are intended for convenience only and shall not be referred to in construing any provision. If there is more than one party as Tenant, the obligations imposed upon Tenant shall be joint and several. If any provision(s) of this Lease shall be found, to any extent, to be invalid or unenforceable the remainder of the Lease shall not be affected thereby.
39. S
UCCESSORS AND ASSIGNS
This Lease shall be binding upon and shall inure to the benefit of Landlord, its successors and assigns, and shall be binding upon and shall inure to the benefit of Tenant, its heirs, successors and (to the extent assignment may be permitted hereunder) assigns.
40. AUT
HORITY
If Tenant is a corporation or partnership, each of the persons executing this Lease on be
half of Tenant covenants and warrants that Tenant is a duly authorized and existing corporation or partnership, that Tenant has and is qualified to do busine ss in California, that
Tenant has full right and authority to enter into this Lease and that each person signing on behalf of Tenant is authorized to do so.
41. UNAVO
IDABLE DELAYS
34 A. In the event that Tenant or Landlord is delayed, directly or indirectly, from the performance of any act or thing required to be done or performed under the terms or conditions hereof by acts of the other party to this Lease, acts of God, fire, floods, inclement weather, unavoidable governmental action, strikes or labor difficulties of any and all kinds, shortages of or delay in the delivery of materials, acts of war, riot and civil commotion, or by any other cause beyond the reasonable control of Tenant or Landlord, as the case may be, such failure shall not be deemed to be a breach of this Lease or a violation of any such covenants or conditions and the time within which Tenant or Landlord must perform any such act shall be extended by a period of time equal to the period of delay arising from any of such causes.
B. Notwithstanding any provision of this Section 41 or any other provision of this Lease to the contrary, it is understood and agreed that there shall be no abatement of, or delay in the commencement of, or payment of any sum due to Landlord under this Lease.
42. TI
ME OF THE ESSENCE
Time is of the essence of each and every covenant and condition of this Lease.
43. B
ROKERAGE
Landlord and Tenant hereby represent and warrant, each to the other, that they have not d
isclosed this Lease or the subject matter hereof t
o, and have not otherwise dealt with, any
broker, finder or any other person, firm, corporation or other legal entity so as to create any legal right or claim of whatsoever kind or nature for a commission or similar fee or compensation with respect to the Premises or this Lease. Landlord and Tenant hereby indemnify each other against, and agree to hold each other harmless from, any liability or claim (and all expenses, including attorneys' fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with the indemnitor and relating to the Premises or this Lease.
44. CI
TY NON- DISCRIMINATION ORDINANCE
A. T enant
hereby agrees to comply with the provisions of the Berkeley Municipal Code ("B.M.C."), including without limitation Chapter 13.26, as amended from time to time. In the performance of its obligations under this Lease, Tenant agrees as follows:
1. Tenant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.
2. Tenant shall permit Landlord access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the reasonable opinion of Landlord, are necessary to monitor compliance
35 with this non-discrimination provision. In addition, Tenant shall fill out, in a timely fashion, forms supplied by Landlord to monitor this non-discrimination provision.
B. Tenant understands that this Lease is governed by City Council Resolution No. 58,664 – N.S. This resolution, as may be amended from time, stipulates that Tenant's membership policies may be reviewed by the City for compliance therewith at any time, and that unsatisfactory membership policies may result in non-renewal of this Lease or termination by the City.
45. N ON-DI
SCRIMINATION AGAINST PERSONS WITH DISABILITIES
A.
If Tenant provides any aid, service or benefit to others on the Landlord’s behalf, Tenant shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Tenant shall further observe and comply with all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefits, services or activities of the Landlord.
B. If Tenant is or becomes a "public accommodation" as defined in Title II I of the Americans with Disabilities Act of 1990, Tenant shall observe and comply with all applicable provisions of the Act and any amendments thereto, and all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations offered by the Tenant. All of Tenant's activities must be in accordance with these laws, ordinances, codes, and regulations, and Tenant shall be solely responsible for complying therewith.
46. C
ONFLICT OF INTEREST PROHIBITED
A. In accordance with California Government Code Section 1090, Berkeley City Charter Section 36 and B.M.C. Chapter 3.64, neither Tenant nor any employee, officer, director, partner or member of Tenant, or immediate family member of any of the preceding, shall have served as an elected officer, an employee, or a board, a committee or commission member of Landlord, who has directly or indirectly influenced the making of this Lease.
B. In accordance with California Government Code Section 1090 and the Political Reform Act, (Government Code Section 87100 et
seq.,) no person who is a director, officer,
partner, trustee, employee or consultant of Tenant, or immediate family member of any of the preceding, shall make or participate in a decision made by Landlord or any of its boards, commissions or committees, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Tenant, except to the extent permitted by 2 California Code of Regulations, Section 18700(c)(2).
36 C. Interpretation of this S ection shall be governed by the definitions and provisions used in the Political Reform Act, Government Code Section 87100 et seq., its implementing regulations, manuals and codes, Government Code Section 1090, Berkeley City Charter Section 36 and B.M.C. Chapter 3.64, as amended from time to time.
47. N
UCLEAR FREE BERKELEY
Tenant agrees to comply with B.M.C. Chapter 12.90, the Nuclear Free Berkeley Act, as a
mended from time to time.
48. OPPRESSIVE STATES
A. In accordance with Resolution No. 59,853 – N.S., Tenant certifies that it has no co
ntractual relations with, and agrees during the term of this Lease to forego contractual relations to provide personal services to, the following entities:
1. T
he governing regime in any Oppressive State.
2. Any business or corporation organized under the authority of the governing regime of any Oppressive State.
3. Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Lease) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.
B. For purposes of this Lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.
C. Tenant’s failure to comply with this Section shall constitute a default of this Lease and Landlord may terminate this Lease pursuant to Section 19. In the event that Landlord terminates this Lease due to a default under this provision, Landlord may deem Tenant a non- responsible bidder for five (5) years from the date this Lease is terminated.
49. B
ERKELEY LIVING WAGE ORDINANCE (LWO)
A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Tenant employs six (6) or more part-time or full- time
employees, and generates $350,000 or more in annual gross receipts, Tenant will be required to provide all eligible employees with City mandated minimum compensation during the term of this lease, as defined in B.M.C. Chapter 13.27, and well as comply with the terms enumerated herein.
B. Tenant shall be required to maintain all reasonable records and documents that would establish whether Tenant is subject to Berkeley's Living Wage Ordinance. If Tenant is
37 subject to the LWO, as defined therein, Tenant shall be further required to maintain monthly records of those employees located on the leased premises. These records shall include the total number of hours worked, the number of hours spent providing service on the leased Premises, the hourly rate paid, and the amount paid by Tenant for health benefits, if any, for each of its employees providing services under the lease. The records described in this Section shall be made available upon the City's request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Section 19 herein.
C. If Tenant is subject to the LWO, Tenant shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all subleases in which Tenant enters with regard to the subject premises. Subtenants shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the leased Premises.
D. If Tenant fails to comply with the requirements of this the LWO and this lease, the City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
Tenant's failure to comply with this Section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 19.
In addition, at City's sole discretion, Tenant may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Tenant's failure to pay all of its eligible employees at least the applicable living wage rate will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty of forfeiture for Tenant's breach.
50. BER
KELEY EQUAL BENEFITS ORDINANCE (EBO)
A. Tenant hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Tenant is currently subject to the Berkeley Equal Benefits Ordinance, Tenant will be required to provide all eligible e mployees with City
mandated equal benefits during the term of this lease, as defined in B.M.C. Chapter 13.29, as well as comply with the terms enumerated herein.
B. If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant agrees to supply the City with any records the City deems necessary to determine compliance with this provision. Failure to do so shall be a considered a default, subject to the provisions of Section 19 of this lease.
C. If Tenant fails to comply with the requirements of this Section, City shall have the
38 rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
Tenant’s failure to comply with this Section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 20.
In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Tenant’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.
51. BERKELEY SANCTUARY CITY ORDINANCE
Tenant hereby agrees to comply with the provisions of the Sanctuary City Contracting Ordinance, B.M.C. Chapter 13.105. In accordance with this Chapter, Tenant agrees not to provide the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security with any Data Broker or Extreme Vetting Services as defined herein:
A. “Data Broker” means either of the following: (1) The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector business and government agencies; (2) the aggregation of data that was collected for another purpose from that for which it is ultimately used.
B. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services. Extreme Vetting does not include: (1) The City’s computer-network health and performance tools; (2) Cybersecurity capabilities, technologies and systems used by the City of Berkeley Department of Information Technology to predict, monitor for, prevent, and protect technology infrastructure and systems owned and operated by the City of Berkeley from potential cybersecurity events and cyber-forensic based investigations and prosecutions of illegal computer-based activity.
52. AUDIT
Pursuant to Section 61 of the Berkeley City Charter, the City Auditor's Office, or its de
signee, may conduct an audit of Tenant's f
inancial, performance and compliance records
maintained in connection with the operations and services performed under this Lease, and with the payments made under this Lease. In the event of such audit, Tenant agrees to make all such financial, performance and compliance records available to the Auditor's Office, or to its designee. City agrees to provide Tenant an opportunity to discuss and respond to any findings before a final audit report is filed.
39 53. CI TY BUSINESS L ICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER
Tenant has obtained a City business license as required by B.M.C. Chapter 9.04, and its l
icense number is written below; or, Tenant is exempt from the provisions of B.M.C. Chapter
9.04 and has written below the specific B.M.C. section under whic h it is exempt. Tenant shall
pay all state and federal income taxes and any other taxes lawfully assessed and due. Tenant certifies under penalty of perjury that the taxpayer identification number written below is correct.
54. S
URVIVAL
The provisions of this Lease and obligations of Tenant, that by their nature, are to be performed a
fter or are to survive termination of this Lease shall survive such termination.
55. EXHIBITS
Exhibits A and B, and any other exhibit, addendum or schedule referenced in this Lease are
made a part hereof by this reference.
40 IN WITNESS WHEREOF, the parties hereto have executed this Lease at Berkeley, California effective as of the Effective Date.
LANDLORD:
CITY OF BERKELEY
A municipal corporation
By: __________________
City Manager Date
Approved as to form: Registered by:
___________________ __________
City Attorney Date City Auditor Date
Attest:
_______________________
City Clerk Date
TENANT:
BAY AREA HISPANO INSTITUTE FOR ADVANCEMENT (BAHIA) INC.
A non-profit organization
By: _________________________________
Martha Melgoza, Executive Director Date
TENANT INFORMATION
Tax Identification No.
Incorporated: Yes No
Certified Woman Business Enterprise: Yes____ No X
Certified Minority Business Enterprise: Yes ____ No X
Certified Disadvantaged Business Enterprise: Yes No City Business License No. ___________, or Exempt pursuant to B.M.C. Section ________
6/27/22, 3:35 PM 1718 Eighth St - Google Maps
https://www.google.com/maps/place/1718+Eighth+St,+Berkeley,+CA+94710/@37.8720999,-122.2968883,110m/data=!3m1!1e3!4m5!3m4!1s0x80857ec49a806e2d:0x95beaa4e406d45b8!8m2!3d37.872… 1/1 Imagery ©2022 Maxar Technologies, Map data ©2022 20 ft
1718 Eighth St
Exhibit “A”
Leased Premises: Lease building
Leased exterior - outdoor fenced play area
non-exclusive use, common area shared with James Kenney Park Outdoor play area
+/- 3,700 sq ft
1718 8th Street
+/- 4,500 sq ft
Common Area
+/- 1,600 sq ft
Schedule of Improvements and Maintenance 2023-2038
BAHIA Inc.
Date What/Location Description Estimated Cost
2023 Fence around exterior play area Repair fence fabric $ 10,000 2024 Gate entry Adding gate entry at the northeast side of the Premises, between the Premises and the sidewalk $ 25,000 2028 Exterior building Repaint by year 5 $ 20,000 2028 Reading room stairs/room ADA improvements to amphitheater/reading room $ 22,000 2028 Electrical
Comprehensive inspection with an electrician and make
repairs as recommended. $ 10,000
2038 Exterior building Repaint by year 15 $ 20,000 2038 Electrical
Comprehensive inspection with an electrician and make
repairs as recommended. $ 10,000
by 2038 Stairs to loft area ADA access to loft area $ 32,000 by 2038 Roof Replace roof $ 70,000
TOTAL $ 219,000.00
Preventative Maintenance
Frequency What/Location Description
Quarterly Stairs & Railings Make sure that they are not loose Yearly General Building & Interior Test smoke and carbon monoxide detectors and change batteries
Monthly Interior Lights Check condition and look for any that might be broken, replaced bulbs as needed
Monthly General Building & Interior Conduct routine pest inspections and treatments Monthly Exterior Windows Check condition and look for any that might be broken Yearly (Fall) Roof & Gutters Clean debris from roof and gutters. Check condition of roof Ongoing Painting Check for condition of exterior/interior paint or siding Ongoing Painting Graffiti abatement as needed
Yearly Electrical Look for loose wires or fixtures. You will want to schedule a more comprehensive inspection with an electrician.
Monthly Plumbing Check for leaks, signs of water damage and loose fixtures.
You will want a more complete inspection with a plumber.
Yearly Heating & Cooling Systems Check gas water heater and gas furnace. Change furnace filter. Clear cobwebs and dust from furnace prior to starting.
Monthly Heating & Cooling Systems Check sump pump
Ongoing Exterior Landscape Remove weeds, bamboo, or any other invasive plants growing beyond fenced area
Exhibit “B"
Schedule of Improvements and Maintenance 2023-2038
BAHIA Inc.
Date What/Location Description Estimated Cost
2023 Fence around exterior play area Repair fence fabric $ 10,000 2024 Gate entry Adding gate entry at the northeast side of the Premises, between the Premises and the sidewalk $ 25,000
2028 Exterior building Repaint by year 5 $ 20,000
2028 Reading room stairs/room ADA improvements to amphitheater/reading room $ 22,000 2028 Electrical
Comprehensive inspection with an electrician and make
repairs as recommended. $ 10,000
2038 Exterior building Repaint by year 15 $ 20,000
2038 Electrical
Comprehensive inspection with an electrician and make
repairs as recommended. $ 10,000
by 2038 Stairs to loft area ADA access to loft area $ 32,000 by 2038 Roof Replace roof $ 70,000
TOTAL $ 219,000.00
Preventative Maintenance
Frequency What/Location Description
Quarterly Stairs & Railings Make sure that they are not loose Yearly General Building & Interior Test smoke and carbon monoxide detectors and change batteries
Monthly Interior Lights Check condition and look for any that might be broken, replaced bulbs as needed
Monthly General Building & Interior Conduct routine pest inspections and treatments Monthly Exterior Windows Check condition and look for any that might be broken Yearly (Fall) Roof & Gutters Clean debris from roof and gutters. Check condition of roof Ongoing Painting Check for condition of exterior/interior paint or siding Ongoing Painting Graffiti abatement as needed
Yearly Electrical Look for loose wires or fixtures. You will want to schedule a more comprehensive inspection with an electrician.
Monthly Plumbing Check for leaks, signs of water damage and loose fixtures.
You will want a more complete inspection with a plumber.
Yearly Heating & Cooling Systems Check gas water heater and gas furnace. Change furnace filter. Clear cobwebs and dust from furnace prior to starting.
Monthly Heating & Cooling Systems Check sump pump
Ongoing Exterior Landscape Remove weeds, bamboo, or any other invasive plants growing beyond fenced area
Exhibit “B"
Exhibit B: Schedule of Improvements and MaintenancePage 44 of 44
Office of the City Attorney
CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council From: Dee Williams-Ridley, City Manager
Submitted by: Farimah Faiz Brown, City Attorney
Subject: Resolution Reviewing and Ratifying the Proclamation of Local Emergency Due to the Spread of a Severe Acute Respiratory Illness Caused by a Novel (New) Coronavirus (COVID-19)
RECOMMENDATION
Adopt a Resolution reviewing the need for continuing the local emergency due to the spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19) and ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, and December 13, 2022.
FISCAL IMPACT OF RECOMMENDATION
To be determined.
CURRENT SITUATION AND ITS EFFECTS
Pursuant to California Government Code section 8630 and Berkeley Municipal Code Chapter 2.88, on March 3, 2020, the City Manager, in her capacity as Director of Emergency Services, proclaimed a local emergency due to conditions of extreme peril to the safety of persons and property within the City as a consequence of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19), including a confirmed case in the City of Berkeley. As a result of multiple confirmed and presumed cases in Alameda County, the County has declared a local health emergency. The Proclamation of Local Emergency empowers the Director of Emergency Services to make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by such local emergency.
Pursuant to Government Code section 8630(b) and Berkeley Municipal Code section
2.88.040.A.1, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312.
Pursuant to Government Code section 8630(c), the City Council must review the need for continuing the local emergency at least once every sixty (60) days. The Council last reviewed and ratified the Proclamation of Local Emergency on May 10, 2022. The Council therefore must review the continuing need for the local emergency by July 9, 2022.
This item requests that the Council review the continued need for the local emergency and again ratify the Proclamation of Local Emergency issued on March 3, 2020, initially ratified by the Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, and November 3, 2022. If reviewed and ratified on January 31, 2023, the Council will need to again review and ratify the proclamation by April 1, 2023 in order to continue the local emergency.
If at any time the Council determines that the need for continuing the local emergency has ended, state law directs the Council to terminate the local emergency at the earliest possible date that conditions warrant. (Cal. Gov. Code section 8630(d).)
BACKGROUND
On March 1, 2020, Alameda County Public Health Department and Solano County Public Health Department reported two presumptive cases of COVID-19, pending confirmatory testing by the Centers for Disease Control (CDC), prompting Alameda County to declare a local health emergency.
On March 3, 2020, the City’s Director of Emergency Services proclaimed a local emergency due to the spread of COVID-19, including a confirmed case in the City of Berkeley and multiple confirmed and presumed cases in Alameda County.
On March 10, 2020, the City Council ratified the Proclamation of Local Emergency.
Since that date, there have been over 4,955 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley.
Since April 2021, the highly transmissible SARS-CoV-2 B.1.617.2 (“Delta”) variant has been detected in the City of Berkeley and is contributing to substantial levels of community transmission.
The City Council has subsequently reviewed and ratified the Proclamation of Local Emergency on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022,
March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, and December 13, 2022.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Not applicable.
RATIONALE FOR RECOMMENDATION
The Resolution would enable the Director of Emergency Services to continue to efficiently allocate resources due to the ongoing and imminent threat to public safety.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Dee Williams-Ridley, City Manager, City Manager’s Office (510) 981-7000 Farimah Brown, City Attorney, City Attorney’s Office (510) 981-6998 Attachments:
1: Resolution
RESOLUTION NO. –N.S.
RESOLUTION REVIEWING AND RATIFYING THE PROCLAMATION OF LOCAL
EMERGENCY
WHEREAS, the Emergency Services Act, Government Code sections 8558(c) and 8630 authorize the proclamation of a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a city exist; and WHEREAS, pursuant to Government Code section 8630, such an emergency may be proclaimed by the governing body or by an official designated by ordinance adopted by the governing body; and
WHEREAS, Berkeley Municipal Code section 2.88.040 provides that the City Manager, serving as the Director of Emergency Services, may request that the City Council proclaim the existence of a local emergency; and
WHEREAS, under provision of local law, if the City Council cannot be convened and, in the judgment of the Director of Emergency Services, the circumstances warrant it, a proclamation of local emergency may be issued which must be ratified or nullified by the City Council within seven days of issuance; and
WHEREAS, in accordance with authority granted under the above provisions of state and local law, the Director of Emergency Services beginning on March 3, 2020 did proclaim the existence of a local emergency caused by epidemic in the form of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (“COVID-19”), including confirmed cases in California and the San Francisco Bay Area, and presumed cases in Alameda County prompting the County to declare a local health emergency; and WHEREAS, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312; and WHEREAS, Government Code section 8630(c) requires that the City Council review the need for continuing the local emergency at least once every sixty (60) days; and WHEREAS, the City Council subsequently reviewed the need for continuing the local emergency and again ratified the Proclamation of Local Emergency on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, and December 13, 2022; and
WHEREAS, the City Council does find that the aforesaid conditions of extreme peril continue to exist, and now include over 13,000 confirmed cases of COVID-19 and at least
61 deaths in the City of Berkeley, thereby warranting and necessitating the continuation of the local emergency; and
WHEREAS, the City Council will need to again review the need for continuing the local emergency and ratify the Proclamation of Local Emergency by April 1, 2023; WHEREAS, the City Council recognizes that the SARS-CoV-2 B.1.617.2 (“Delta”) variant of COVID-19 that is currently circulating nationally and within the City is contributing to a substantial increase in transmissibility and more severe disease; and WHEREAS, on July 16, 2021, in light of the apparent increased transmissibility of the Delta variant, the City of Berkeley recommended that all individuals including fully vaccinated persons wear masks in public indoor settings; and WHEREAS, on July 26, 2021, the California State Health Officer issued an order requiring vaccination or routine testing of all employees working in high-risk health care and congregate settings, in light of the fact that current requirements of staff in health care settings, such as universal mask requirements for all staff are not proving sufficient to prevent transmission of the more transmissible Delta variant; and WHEREAS, on July 27, 2021, the CDC updated its guidance for fully vaccinated persons to reflect new evidence regarding the Delta variant, noting that “[i]nfections in fully vaccinated people (breakthrough infections) happen in only a small proportion of people who are fully vaccinated, even with the Delta variant”; and WHEREAS, on August 2, 2021, the Health Officer for the City of Berkeley issued an order requiring all individuals to wear masks in all indoor public settings; and WHEREAS, on August 5, 2021, the California State Health Officer issued an order requiring that workers in healthcare settings be fully vaccinated by September 30, 2021; and
WHEREAS, on August 11, 2021, the City announced its intention to implement a vaccination policy for City employees to protect the health and safety of the City of Berkeley’s employees and community members from the imminent and substantial threat to public health and safety posed by the Delta variant; and WHEREAS, on September 14, 2021, given the increased and unforeseen risk posed by the Delta variant, as compared to earlier variants of the COVID-19 virus previously present in the City of Berkeley, the City Council found that a Citywide vaccination policy protects public health and reduces the risk of substantial harm to City staff and community members that could result from workplace outbreaks caused by the Delta variant; and WHEREAS, on September 14, 2021, given the urgency posed by the highly transmissible nature of the Delta variant, the City Council recognized the variant’s existence as creating
an emergency of grave character and as warranting immediate adoption of a Citywide vaccination policy.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Berkeley that it is hereby proclaimed and ordered that the Proclamation of Local Emergency, issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the City Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, and December 13, 2022, has been reviewed and is hereby again ratified and confirmed.
BE IT FURTHER RESOLVED that during the existence of this local emergency the powers, functions, and duties of the emergency organization of this City shall be those prescribed by state law, and the Charter, ordinances, resolutions and approved plans of the City of Berkeley.
Office of the City Attorney
CONSENT CALENDAR
January 31, 2023
To: Honorable Mayor and Members of the City Council Madame City Manager
From: Farimah Faiz Brown, City Attorney
Subject: Resolution Making Required Findings Pursuant to the Government Code and Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
RECOMMENDATION
Adopt a resolution making the required findings pursuant to Government Code Section 54953(e)(3) and determining that as a result of the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference, initially ratified by the City Council on September 28, 2021, and subsequently reviewed and ratified on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, February 8, 2022, March 8, 2022, March 22, 2022, April 12, 2022, May 10, 2022, May 31, 2022, June 28, 2022, July 26, 2022, August 23, 2022, September 20, 2022, October 11, 2022, November 3, 2022, November 29, 2022, December 13, 2022, and January 10, 2023.
FISCAL IMPACT OF RECOMMENDATION
To be determined.
CURRENT SITUATION AND ITS EFFECTS
The City Council made the initial findings required under the Government Code on September 28, 2021. The Council must make the findings every thirty days in order to continue to meet exclusively through video conference or teleconference.
Pursuant to California Government Code section 8630 and Berkeley Municipal Code Chapter 2.88.040, on March 3, 2020, the City Manager, in her capacity as Director of Emergency Services, proclaimed a local emergency due to conditions of extreme peril to the safety of persons and property within the City as a consequence of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19), including a confirmed case in the City of Berkeley. As a result of multiple confirmed and presumed cases in Alameda County, the County has declared a local health emergency. On March 4, 2020, Governor Gavin Newsom issued a Proclamation
of a State of Emergency due to the spread of COVID-19. On March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312.
On March 17, 2020, Governor Newsom signed Executive Order N-29-20, which suspended certain portions of the Ralph M. Brown Act (Cal. Gov. Code § 54950 et seq.) related to the holding of teleconferenced meetings by City legislative bodies. Among other things, Executive Order N-29-20 suspended requirements that each location from which an official accesses a teleconferenced meeting be accessible to the public.
These changes were necessary to allow teleconferencing to be used as a tool for ensuring social distancing. City legislative bodies have held public meetings via videoconference and teleconference pursuant to these provisions since March 2020.
These provisions of Executive Order N-29-20 will expire on September 30, 2021.
COVID-19 continues to pose a serious threat to public health and safety. There are now over 4,700 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley.
Additionally, the SARS-CoV-2 B.1.617.2 (“Delta”) variant of COVID-19 that is currently circulating nationally and within the City is contributing to a substantial increase in transmissibility and more severe disease.
As a result of the continued threat to public health posed by the spread of COVID-19, state and local officials continue to impose or recommend measures to promote social distancing, mask wearing and vaccination. Holding meetings of City legislative bodies in person would present imminent risks to the health and safety of the public and members of legislative bodies, and therefore public meetings cannot safely be held in person at this time
Assembly Bill 361 (Rivas), signed into law by Governor Newsom on September 16, 2021, amended a portion of the Brown Act (Government Code Section 54953) to authorize the City Council, during the state of emergency, to determine that, due to the spread of COVID-19, holding in-person public meetings would present an imminent risk to the health or safety of attendees, and therefore City legislative bodies must continue to meet via videoconference and teleconference. Assembly Bill 361 requires that the City Council must review and ratify such a determination every thirty (30) days.
Therefore, if the Council passes this resolution on January 31, 2023, the Council will need to review and ratify the resolution by March 2, 2023.
This item requests that the Council review the circumstances of the continued state of emergency posed by the spread of COVID-19, and find that the state of emergency continues to directly impact the ability of the public and members of City legislative bodies to meet safely in person, that holding public meetings of City legislative bodies in person would present imminent risks to the health and safety of attendees, and that state and local officials continue to promote social distancing, mask wearing and vaccination. This item further requests that the Council determine that City legislative bodies, including but not limited to the City Council and its committees, and all commissions and boards, shall continue to hold public meetings via videoconference
and teleconference, and that City legislative bodies shall continue to comply with all provisions of the Brown Act, as amended by SB 361.
BACKGROUND
On March 1, 2020, Alameda County Public Health Department and Solano County Public Health Department reported two presumptive cases of COVID-19, pending confirmatory testing by the Centers for Disease Control (CDC), prompting Alameda County to declare a local health emergency.
On March 3, 2020, the City’s Director of Emergency Services proclaimed a local emergency due to the spread of COVID-19, including a confirmed case in the City of Berkeley and multiple confirmed and presumed cases in Alameda County.
On March 4, 2020, Governor Gavin Newsom issued a Proclamation of a State of Emergency due to the spread of COVID-19.
On March 10, 2020, the City Council ratified the Proclamation of Local Emergency.
Since that date, there have been over 4,700 confirmed cases of COVID-19 and at least 57 deaths in the City of Berkeley.
On March 17, 2020, Governor Newsom signed Executive Order N-29-20 which suspended certain portions of the Ralph M. Brown Act (Cal. Gov. Code § 54950 et seq.) to allow teleconferencing of public meetings to be used as a tool for ensuring social distancing. As a result, City legislative bodies have held public meetings via teleconference throughout the pandemic. The provisions of Executive Order N-29-20 allowing teleconferencing to be used as a tool for social distancing will expire on September 30, 2021.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Not applicable.
RATIONALE FOR RECOMMENDATION
The Resolution would enable the City Council and its committees, and City boards and commissions to continue to hold public meetings via videoconference and teleconference in order to continue to socially distance and limit the spread of COVID-
19. ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Farimah Brown, City Attorney, City Attorney’s Office (510) 981-6998 Mark Numainville, City Clerk, (510) 981-6908
Attachments:1: Resolution Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
RESOLUTION NO. –N.S.
RESOLUTION MAKING THE REQUIRED FINDINGS PURSUANT TO GOVERNMENT CODE SECTION 54953(E)(3) AND DIRECTING CITY LEGISLATIVE BODIES TO
CONTINUE TO MEET VIA VIDEOCONFERENCE AND TELECONFERENCE WHEREAS, in accordance with Berkeley Municipal Code section 2.88.040 and sections 8558(c) and 8630 of the Government Code, which authorize the proclamation of a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a City exist, the City Manager, serving as the Director of Emergency Services, beginning on March 3, 2020, did proclaim the existence of a local emergency caused by epidemic in the form of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (“COVID-19”), including confirmed cases in California and the San Francisco Bay Area, and presumed cases in Alameda County prompting the County to declare a local health emergency; and WHEREAS, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312; and WHEREAS, on March 4, 2020, Governor Gavin Newsom issued a Proclamation of a State of Emergency pursuant to the California Emergency Services Act, in particular, Government Code section 8625; and
WHEREAS, the Proclamation of a State of Emergency issued by Governor Newsom on March 4, 2020 continues to be in effect; and
WHEREAS, on September 16, 2021, Governor Newsom signed into law AB 361, which authorizes the City Council to determine that, due to the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference; and
WHEREAS, the City Council does find that the aforesaid conditions of extreme peril continue to exist, and now include over 4,700 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley; and
WHEREAS, the City Council recognizes that the SARS-CoV-2 B.1.617.2 (“Delta”) variant of COVID-19 that is currently circulating nationally and within the City is contributing to a substantial increase in transmissibility and more severe disease; and WHEREAS, as a result of the continued threat to public health posed by the spread of COVID-19, state and local officials continue to impose or recommend measures to promote social distancing, mask wearing and vaccination; and
WHEREAS, holding meetings of City legislative bodies in person would present imminent risks to the health and safety of the public and members of legislative bodies, and therefore public meetings cannot safely be held in person at this time; and WHEREAS, the City Council made the initial findings required by the Government Code on September 28, 2021; and
WHEREAS, the City Council made subsequent findings required by the Government Code on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, February 8, 2022, March 8, 2022, March 22, 2022, April 12, 2022, May 10, 2022, May 31, 2022, June 28, 2022, July 26, 2022, August 23, 2022, September 20, 2022, October 11, 2022, November 3, 2022, November 29, 2022, December 13, 2022, January 10, 2023; and
WHEREAS, the City Council will need to again review the need for the continuing necessity of holding City legislative body meetings via videoconference and teleconference by March 2, 2023.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Berkeley that, pursuant to Government Code section 54953, the City Council has reviewed the circumstances of the continued state of emergency posed by the spread of COVID-19, and finds that the state of emergency continues to directly impact the ability of the public and members of City legislative bodies to meet safely in person, that holding public meetings of City legislative bodies in person would present imminent risks to the health and safety of attendees, and that state and local officials continue to promote social distancing, mask wearing and vaccination.
BE IT FURTHER RESOLVED that City legislative bodies, including but not limited to the City Council and its committees, and all commissions and boards, shall continue to hold public meetings via videoconference and teleconference.
BE IT FURTHER RESOLVED that all City legislative bodies shall comply with the requirements of Government Code section 54953(e)(2) and all applicable laws, regulations and rules when conducting public meetings pursuant to this resolution.
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: Henry Oyekanmi, Director, Finance
Subject: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on January 31, 2023
RECOMMENDATION
Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.
FISCAL IMPACTS OF RECOMMENDATION
Total estimated cost of items included in this report is $33,541,532.
PROJECT Fund Source Amount
Affordable Housing in Lieu
Fee Study 011 GF - Discretionary $150,000
Social Housing Models and
Market Analysis 016 U1 - Housing $150,000
Southside Complete Streets
011
134
147
305
501
GF – Discretionary
Meas BB
UC Settlement
Capital Grant – Fed
Capital Improvements
$14,500,000
On-Call Geotechnical
Consultant Services for FY
24, FY 25 And FY 26
611 Sanitary Sewer Operation $1,500,000
On-Call Survey Consultant
Services for FY 24, FY 25
And FY 26
611 Sanitary Sewer Operation $1,500,000
Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council January 31, 2023 Approval on January 31, 2023
CURRENT SITUATION AND ITS EFFECTS
On May, 6, 2008, Council adopted Ordinance No. 7,035-N.S. effective June 6, 2008, which increased the City Manager’s purchasing authority for services to $50,000. As a result, this required report submitted by the City Manager to Council is now for those purchases in excess of $100,000 for goods; and $200,000 for playgrounds and construction; and $50,000 for services. If Council does not object to these items being sent out for bid or proposal within one week of them appearing on the agenda, and upon final notice to proceed from the requesting department, the IFB (Invitation for Bid) or RFP (Request for Proposal) may be released to the public and notices sent to the potential bidder/respondent list.
BACKGROUND
On May 6, 2008, Council adopted Ordinance No. 7,035-N.S., amending the City Manager’s purchasing authority for services.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The Finance Department reviews all formal bid and proposal solicitations to ensure that they include provisions for compliance with the City’s environmental policies. For each contract that is subject to City Council authorization, staff will address environmental sustainability considerations in the associated staff report to City Council.
RATIONALE FOR RECOMMENDATION
Need for the services.
Fire Station #2
Improvements 511 Meas T1 – Infrstr and Fac $1,091,532
City of Berkeley Parking
Data Analytics (Modeling
and Visualization)
631 Parking Meter Fund $250,000
Bulk Diesel Fuel Service 672 Equipment Maintenance $6,000,000 On-Call Project and
Construction Management
Services
511
501
Meas T1 – Infrstr and Fac
Capital Improvements $8,400,000
Total: $33,541,532
Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council January 31, 2023 Approval on January 31, 2023
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Darryl Sweet, General Services Manager, Finance, 510-981-7329 Attachments:
1: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on January 31,2023
a. Affordable Housing in Lieu Fee Study
b. Social Housing Models and Market Analysis
c. Southside Complete Streets
d. On-Call Geotechnical Consultant Services for FY 24, FY 25 And FY 26 e. On-Call Survey Consultant Services for FY 24, FY 25 And FY 26 f. Fire Station #2 Improvements
g. City of Berkeley Parking Data Analytics (Modeling and Visualization) h. Bulk Diesel Fuel Service
i. On-Call Project and Construction Management Services Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.
NEXT 30 DAYS
DATE SUBMITTED: January 31, 2023
Attachment 1
SPECIFICATION
NO.
DESCRIPTION OF
GOODS /
SERVICES BEING
PURCHASED
APPROX.
RELEASE
DATE
APPROX.
BID
OPENING
DATE
INTENDED USE ESTIMATED
COST
BUDGET CODE TO BE
CHARGED
DEPT. /
DIVISION
CONTACT NAME &
PHONE
23-11571-C Affordable Housing
In Lieu Fee Study
14-Feb-23 28-Mar-23 Economic Feasibility Analysis for an Affordable Housing In Lieu Fee
Up to $150,000 011-53-584-622-0000-000-
441-612990-
HHCS/HCS Mike Uberti, 981-5114
23-11580-C Social Housing
Models and Market
Analysi
2/14/2023 3/28/2023 Policy Research and Market Analysis of Social
Housing Models
Up to $150,000 016-51-504-533-0000-000-
444-612990-
HHCS/HCS Anna Cash, 981-
5403
DEPT. TOTAL $300,000
23-11572-C Southside Complete
Streets
3/1/2023 4/15/2023 The Contractor will construct Class
IV cycletracks along 1 mile of
Bancroft Way (Milvia St. to
Piedmont Ave.), ¼ mile
of Fulton
Street (Bancroft Way to Dwight
Way), and ¼ mile of Dana Street
(Bancroft Way to Dwight Way).
Work also includes dedicated transit
lanes on Bancroft and Dana,
installation
of new roadway
pavement, curb ramps, traffic signal
improvements, signing and striping
improvements, and island medians
along Bancroft Way, Fulton Street
and Dana Street.
$14,500,000
(includes 10%
construction
contingency)
$1,000,000
City Council
Approved
12.13.22 $150,538
$2,063,732
Includes FY24 UC
Funding
$7,335,000
$3,950,730
011-54-622-668-0000-000-
431-665110-
(PWTRCS2001)
134-54-622-668-0000-000-
431-665110-
(PWTRCS2001)
147-54-622-668-0000-000-
431-665110-
(PWTRCS2001)
305-54-622-668-0000-000-
431-665110-
(PWTRCS2001)
501-54-623-673-3012-000-
431-665110-
(PWTRCS2001)
Public Works -
Transportation
Public Works -
Transportationq
1 of 3
NEXT 30 DAYS
DATE SUBMITTED: January 31, 2023
Attachment 1
23-11573-C On-Call
Geotechnical
Consultant Services
for FY 24, FY 25 and
FY 26
3/6/2023 4/4/2023 "FY 2024: $500,000
FY 2025: $500,000
FY 2026: $500,000
"
"FY 2024:
$500,000
FY 2025:
$500,000
FY 2026:
$500,000
Total:$1,500,000
"Funding is project based
and subject to available
funding
Initial funding will be in
611-54-623-676-0000-000-
472-612310
"
Public Works -
Engineering
Adadu Yemane
981-6413
23-11574-C On-Call Survey
Consultant Services
for FY 24, FY 25 and
FY 26
3/6/2023 4/4/2023 Provide On-Call survey services to
aid in the design and construction of
the City’s Capital
Improvement
Projects
"FY 2024:
$500,000
FY 2025:
$500,000
FY 2026:
$500,000
Total:$1,500,000
"Funding is project based
and subject to available
funding
Initial funding will be in
611-54-623-676-0000-000-
472-612310
"
Public Works -
Engineering
Adadu Yemane
981-6413
23-11575-C Fire Station #2
Improvements
6/16/23 7/13/2023 HVAC, Electrical, and Interior
Improvements
$1,091,532.00 511-54-623-677-0000-000-
444-662110-
PWT1CB2204-511-T1-P2-
CONSTRUCT-
PW/Engineerin
g
Elmar Kapfer 981-
6435
23-11578-C City of Berkeley
Parking Data
Analytics (Modeling
and Visualization)
2/1/2023 3/25/2023 City requests proposals from
qualified contractors to collect,
analyze, model/predict, and visualize
parking occupancy
data at on-street
meters and off-street parking garages
to enable City staff to make well-
informed parking price and/or time
limit
adjustments in a timely and
efficient manner.
$225,000 "631-54-622-665-0000-000-
472-612990-
FY 24: $75k
FY 25: $75k
FY 26: $75k "
Public
Works/Transpo
rtation
Gordon Hansen, 981-
7064
SPECIFICATION
NO.
DESCRIPTION OF
GOODS /
SERVICES BEING
PURCHASED
APPROX.
RELEASE
DATE
APPROX.
BID
OPENING
DATE
INTENDED USE ESTIMATED
COST
BUDGET CODE TO BE
CHARGED
DEPT. /
DIVISION
CONTACT NAME &
PHONE
2 of 3
NEXT 30 DAYS
DATE SUBMITTED: January 31, 2023
Attachment 1
23-11579-C Bulk diesel fuel
service
2/1/2023 2/23/2023 "Bulk fuel services for City’s fleet vehicles for a 3-year term with an
option to extend for an additional 3
years and remote monitoring of fuel
levels in above ground tanks.
Looking for multiple
providers. RFQ
preferred."
$2,000,000 per
year for a total of
$6,000,000
672-54-626-722-0000-000-
473-642130-
Public Works /
Equipment
Maint.
Greg Ellington
981-6469
23-11581-C On-Call Project
and Construction
Management
Services
2/7/2023 3/14/2023 Project management and
construction management
services for various capital
improvement projects at City-
owned and maintained facilities (3-
year term).
"$8,400,000
Total over three
years
FY23- $1.0M
FY24-$3.0M
FY25- $4.4M "
"TBD (on-call contract)
funds are built into
projects.
511-52-545-000-0000-
000-461-612310-
511-54-623-677-0000-
000-444-612990-
501-54-623-677-0000-
000-444-612990- "
PW/Eng Elmar Kapfer
981-6435
DEPT. TOTAL 33,241,532
TOTAL 33541532
SPECIFICATION
NO.
DESCRIPTION OF
GOODS /
SERVICES BEING
PURCHASED
APPROX.
RELEASE
DATE
APPROX.
BID
OPENING
DATE
INTENDED USE ESTIMATED
COST
BUDGET CODE TO BE
CHARGED
DEPT. /
DIVISION
CONTACT NAME &
PHONE
3 of 3
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: David Sprague, Interim Chief, Fire Department Subject: Grant Application: Funding from California Department of Forestry and Fire Protection (CAL FIRE) Wildfire Prevention Grant to Implement an Incentive Program for Residents of Berkeley’s Very High Fire Hazard Severity Zone
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to apply for and accept a grant, and any amendments, from the California Department of Forestry and Fire Protection (CAL FIRE) for up to $5 Million to implement a vegetation management program for residents of Berkeley’s Very High Fire Hazard Severity Zone (VHFHSZ). Grant funds will be used to develop and deliver public education materials explaining the inspection process and the importance of creating defensible space, assist residents in need of financial assistance to remove vegetation to meet state and local codes, enhance the chipper program, and fund a 3rd party administrator to manage applications and contractor pay schedules.
FISCAL IMPACTS OF RECOMMENDATION
There is no requirement for matching funds for this grant. The Fire Department (Department) is applying for the full amount available.
CURRENT SITUATION AND ITS EFFECTS
The Department is preparing to launch an educational campaign targeting residents in the VHFHSZ to increase awareness of the importance of defensible space and the impending Zone 0 state regulations that go in to effect for all new construction January of 2023 and all existing properties in January of 2024. The community will benefit from additional programs, staffing, and resident defensible space assistance programs.
This grant supports the City’s Strategic Plan’s goals and objectives as follows:
Goal 1: Create a resilient, safe, connected, and prepared City
3.23 Fire Prevention: Increase fire/life safety capacity and resources to effectively maintain community safety.
Grant Application: Funding from California Department of Forestry and Fire Protection CONSENT CALENDAR Wildfire Prevention Grant to Implement an Incentive Program for Residents of January 31, 2023 Berkeley’s Very High Fire Hazard Severity Zone
Goal 2: Be a customer-focused organization that provides excellent, timely, easily- accessible service and information to the community.
9.10 Increase and improve communications from the Fire Department Goal 3: Champion and demonstrate social and racial equity.
No specific objective: however, this program does address the socioeconomic equity of Berkeley’s residents.
Program Objectives
In addition to Goals 1-3 listed above, this program provides Berkeley residents with the following expanded services:
a public education program that will educate residents about defensible space, an enhanced chipping program,
a resident assistance program for vegetation treatment performed from 0-100 ft for those who cannot do the work due to physical or financial hardship, a resident assistance program for vegetation treatment performed past 100ft.
BACKGROUND
The science around wildfire prevention is novel and is driving changes to best practices, regulations, and fire codes. The California State Board of Forestry passed legislation that mandates intense vegetation management within a five-foot radius around homes. This will go into effect in January 2023 for new homes and January of 2024 for existing homes. Berkeley residents voted to implement Measure FF in November 2020 to help fund operational changes and improve the community’s resistance to wildfire. If awarded, the grant funds, coupled with the existing budget will allow the Department to make significant improvements in the overall defensible space in the VHFHSZ.
ENVIRONMENTAL SUSTAINABILITY
Ensuring Berkeley is complying with state and local wildfire prevention standards will help sustain the local environment and mitigate the potential of fire, mudslides, and other catastrophic impacts associated with the overgrowth of vegetation and loss of habitat post- wildfire.
RATIONALE FOR RECOMMENDATION
The challenges faced in the VHFHSZ present a citywide threat from wildfire that must be aggressively mitigated by a partnership between residents and the City. The education provided to the VHFHSZ residents and the creation of defensible space will help prevent a wildfire that has the potential to impact the entire City of Berkeley and adjacent communities.
ALTERNATIVE ACTIONS CONSIDERED
None.
Grant Application: Funding from California Department of Forestry and Fire Protection CONSENT CALENDAR Wildfire Prevention Grant to Implement an Incentive Program for Residents of January 31, 2023 Berkeley’s Very High Fire Hazard Severity Zone
CONTACT PERSON
David Sprague, Interim Fire Chief, 510-981-3473
Dan Green, WUI Division Chief, 510-981-3473
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
GRANT APPLICATION: FUNDING FROM CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION (CAL FIRE) WILDFIRE PREVENTION GRANT TO IMPLEMENT AN INCENTIVE PROGRAM FOR RESIDENTS OF BERKELEY’S VERY HIGH FIRE
HAZARD SEVERITY ZONE
WHEREAS, the science around wildfire prevention is novel and is driving changes to best practices, regulations, and fire codes, and
WHEREAS, the California State Board of Forestry has passed legislation that mandates intense vegetation management within a five-foot radius around homes, and WHEREAS, these grant funds will be coupled with the existing budget to make significant improvements in defensible space within the VHFHSZ, and WHEREAS, grant funds may be used to support public education around the inspection program and the need to create defensible space, assist residents in need with the costs of removing vegetation to meet state and local codes, enhance the chipper program, and fund a 3rd party administrator to manage applications and reimbursement.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is authorized to apply for and accept a grant, and any amendments, from the California Department of Forestry and Fire Protection (CAL FIRE) for up to $5,000,000 to implement a vegetation management program for residents of Berkeley’s Very High Fire Hazard Severity Zone (VHFHSZ).
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: Lisa Warhuus, Director, Health, Housing and Community Services Subject: Contract No. 32000202 Amendment: Berkeley Food & Housing Project for Rental Subsidy for the Russell Street Residence
RECOMMENDATION
Adopt a Resolution authorizing the City Manager or her designee to execute an amendment to Contract No. 32000202 with Berkeley Food & Housing Project (BFHP) to provide rental subsidies for the Russell Street Residence through June 30, 2023 in an amount not to exceed $3,400,640. This will extend the existing contract by one year and add $576,616 in funding.
FISCAL IMPACTS OF RECOMMENDATION
Funds for the scope of work in the amount of $576,616 will be provided from the Mental Health Services Act (MHSA) Community Services & Supports funding category, Fund 315. Funding is available in the Fiscal Year 2023 (FY 2023) budget.
CURRENT SITUATION AND ITS EFFECTS
Russell Street Residence (RSR) is a board and care facility that provides supportive housing for high need mental health clients. A daily subsidy is needed to cover the costs of operating the program. RSR provides up to 17 beds per night for some of the most vulnerable members of our community. The Department of Health, Housing, and Community Services’ Mental Health Division (HHCS/MHD) has administered a contract with BFHP for housing and services at this site since December 2019, and recommends that services continue through this fiscal year.
BACKGROUND
The City initially contracted with BFHP to provide these services in December of 2019 and has extended and increased it three times since then. BFHP has done a satisfactory job administering this program, and these additional funds will help ensure that they can continue the program for another year.
Council previously approved funding for RSR activities in its adoption of the MHSA Three Year Program and Expenditure Plans (Three Year Plans) and Annual Updates on
Contract No. 32000202 Amendment CONSENT CALENDAR
January 31, 2023
July 27, 2021 via Resolution No. 69,999-N.S. Funding for these services and supports is included in the FY 2023 Budget.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
Operating costs for RSR increased during Fiscal Year 2022. This amendment will allow HHCS/MHD to reimburse BFHP for costs incurred in FY2022, and to subsidize operating costs for FY2023. The amendment will add one year of funding to the contract, ensuring no break in services and allowing a vital community organization to continue their important work.
ALTERNATIVE ACTIONS CONSIDERED
Staff did not identify an alternative action that would be consistent with the adopted MHSA Three-Year Program and Expenditure Plans.
CONTACT PERSON
Conor Murphy, Associate Management Analyst, HHCS, 510-981-7611 Jeff Buell, Manager of Mental Health Services, HHCS, 510-981-7682 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32000202 AMENDMENT: BERKELEY FOOD & HOUSING PROJECT
FOR ADMINISTRATIVE SERVICES
WHEREAS, City Council approved the MHSA Plan Fiscal Year 2019-2020 Annual Update on July 23, 2019 by Resolution No. 69,033-N.S., which included funding for the programs to be included in the contract here; and
WHEREAS, City Council approved participation in the Homeless Mentally Ill Outreach and Treatment allocation funding on September 13, 2018 by Resolution No. 68,592-N.S.; and
WHEREAS, on December 3, 2019 via Resolution No. 69,192-N.S., City Council approved a contract with Berkeley Food and Housing Project for Flexible Spending Programs and the Russell Street Residence; and
WHEREAS, on May 26, 2020 via Resolution No. 69,404-N.S., City Council approved amending Contract No. 32000202; and
WHEREAS, on July 14, 2020 via Resolution No. 69,492-N.S. City Council approved amending Contract No. 32000202; and
WHEREAS, on January 18, 2022 via Resolution No. 70,180-N.S. City Council approved amending Contract No. 32000202; and
WHEREAS, community input and stakeholder feedback has determined a need for the programs being funded; and
WHEREAS, the Berkeley Food and Housing Project has been a trusted partner in the implementation of a variety of programs in collaboration with the City; and WHEREAS, funds in the amount of $576,616 are available in FY2023 in ERMA GL Code 315 (Mental Health Services Act).
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is authorized to execute an amendment to Contract No. 32000202 with the Berkeley Food and Housing Project for administrative services through June 30, 2023 in an amount not to exceed $3,400,640. A record signature copy of said contract and any amendments to be on file in the City Clerk Department.
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: Aram Kouyoumdjian, Director of Human Resources Subject: Contract: AppleOne Employment Services for Temporary Staffing Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract with AppleOne Employment Services for Temporary Staffing Services, in the amount of $250,000 for the period of February 1, 2023 through July 31, 2023.
FISCAL IMPACTS OF RECOMMENDATION
One-time funding in the amount of $250,000 paid for by all departments from various funding sources included in the FY 2023 Adopted Budget as a citywide contract.
CURRENT SITUATION AND ITS EFFECTS
Due to recruitment and retention problems facing the Department and the City, which have an unknown duration, it is critical that the Departments have alternatives in place to ensure work can progress and that there is continuity of operations. The volume of work facing Departments currently lack resource capacity.
BACKGROUND
Departments are in the midst of a number of large projects, assignments or make sufficient promotions that disrupt the completion of work. With vacancies and ongoing placement of employees in open positions, additional immediate staffing is needed to sustain vital services for the City. The salary savings from recent open City positions would fund these temporary staffing services.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
AppleOne has provided outstanding services when the City has had temporary staffing needs. They are responsive and have a great selection of temporary staff available on short notice.
Contract: AppleOne Employment Services CONSENT CALENDAR January 31, 2023
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Jessica Lewis, Assistant Management Analyst, 510-981-6824 Attachments:
1. Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT: APPLEONE EMPLOYMENT SERVICES FOR TEMPORARY STAFFING
SERVICES
WHEREAS, the Human Resources Department conducts recruitments and maintains employment lists of qualified individuals for career and temporary positions; and WHEREAS, City departments may require additional administrative, clerical, technical, or professional temporary staff to augment its existing resources to deliver services and provide administrative support; and
WHEREAS, if there are no available candidates from existing employment lists, City departments may use a temporary staffing agency to obtain limited-term temporary staff; and
WHEREAS, expenditures for these services will be paid from a variety of funding sources in budgets of individual operating departments when temporary staffing services are required.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a Contract with AppleOne Employment Services in the amount of $250,000. A record signature copy of said contract and any amendments to be on file in the Office of the City Clerk.
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: Kevin Fong, Director, Information Technology Subject: Contract No. 32000118 Amendment: Nexgen Asset and Work Order Management Software Maintenance and Professional Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000118 with Nexgen Asset Management to provide additional funding for software maintenance, training and professional services for software enhancements, increasing the amount by $689,400, for a total not-to-exceed amount of $1,706,909 through June 30, 2024.
FISCAL IMPACTS OF RECOMMENDATION
Funding for FY 23 and FY24 software maintenance and professional services are available in the Public Works and Parks, Recreation and Waterfront funds as itemized below. Any future expenditures are subject to Council approval of the proposed citywide budget and Annual Appropriations Ordinances.
Software Maintenance:
Funding Source Budget Code FY 2023 FY 2024
Public Works
Department Tech Svcs –
Software Maint Fund
672-54-626-722-0000-000-472-613130 $134,400 $141,120
Parks Tax, PRW,
Software Maintenance
138-52-541-598-0000-000-461-613130 $33,600 $35,280
Total Software Maintenance $168,000 $176,400
Professional Services:
Funding Source Budget Code FY 2023 FY 2024
PW Building
Maintenance
673-54-624-692-0000-000-472-612990- $10,000 $41,000
PW Building Purchase 636-54-624-697-0000-000-472-612990- $1,000 $4,000 PW Sanitary Sewer 611-54-621-654-0000-000-472-612990- $11,000 $41,000
Contract No. 32000118-1 Amendment: Nexgen CMMS/EAM CONSENT CALENDAR JANUARY 31, 2023
PW Clean Storm Water 616-54-625-713-0000-000-472-612990- $11,000 $41,000 PW Zero Waste 601-54-625-714-0000-000-472-612990- $11,000 $41,000 PW Street Light
Assessment District
142-54-624-694-3018-000-426-612990- $11,000 $41,000
PW Measure BB (Street
& Road)
134-54-625-715-0000-000-431-612990- $10,000 $41,000
Forestry 138-52-542-566-0000-000-461-634110- $3,750 $3,750 Bldg Maintenance 138-52-542-568-0000-000-461-634110- $3,750 $3,750 Landscape 138-52-542-567-0000-000-461-634110- $7,500 $7,500 Total Professional Services $80,000 $265,000
CURRENT SITUATION AND ITS EFFECTS
The departments of Public Works and Parks, Recreation and Waterfront went live with Nexgen, a new CMMS/EAM (Computerized Maintenance Management System and Enterprise Asset Management) system a year ago. This was part of the Citywide FUND$ Replacement Program. The City seeks additional funding to pay for year 2 and year 3 software maintenance, as well as professional services to implement additional functionalities such as the Contractor Portal and Project modules.
These additions will enable staff to maximize the use of the software and improve the efficiency in servicing our community members. The Nexgen Computer Maintenance Management System & Enterprise Asset Management (CMMS/EAM) System is a Strategic Plan Priority Project, advancing our goal to “Provide state-of-the-art, well maintained infrastructure, amenities, and facilities.”
BACKGROUND
The City’s previous work order and maintenance management systems (FUND$, Accela, and Verint) were antiquated and inadequate to perform proper maintenance of City assets and retrieve information needed to comply with mandated reporting requirements and internal performance measures. These systems were not well integrated, lacked digital field communications, and could not provide effective fiscal management and data analytics typically offered by a modern CMMS/EAM (Computerized Maintenance Management System/Enterprise Asset Management) system. The situation had led to inefficiencies in business workflow, delayed community response times, and limited reporting and analysis required to manage City assets effectively.
On October 23, 2018, the City issued Request for Proposals (RFP) #19-11259-C for an improved Computerized Maintenance Management System & Enterprise Asset Management (CMMS/EAM) System based upon business analysis completed by the Departments of Information Technology, Parks, Recreation and Waterfront, and Public Works in partnership with ThirdWave Corporation.
Contract No. 32000118-1 Amendment: Nexgen CMMS/EAM CONSENT CALENDAR JANUARY 31, 2023
The City received seven (7) responses to the CMMS/EAM System RFP by the December 18, 2018 deadline. A committee of 12+ staff from the Parks, Recreation & Waterfront, Public Works, and Information Technology departments conducted a comprehensive evaluation process that included proposal reviews, vendor demonstrations, and reference checks. Staff selected NEXGEN Asset Management as presenting the most comprehensive, user-responsive, and effective solution for the City’s current and future work order and asset management needs.
In 2019, with the Council approval, the City entered into a contract agreement (No. 32000118) with Nexgen Asset Management to provide the new work order and asset management software. In November 2021, the software went live.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
An improved system, with greater efficiency, will lessen the number of trips field employees have to visit a site to address an issue which reduces greenhouse gas emissions associated with travel time. This supports the reduction of carbon footprint and the goals of the City’s Climate Action Plan. Further, the mobile application capability of the new CMMS/EAM system will eliminate the use of paper currently being used by virtually all field staff thus working towards the City’s goal of achieving zero waste to landfills.
RATIONALE FOR RECOMMENDATION
Software maintenance is required. Further, these additions will enable staff to maximize the use of the software and improve the efficiency in servicing our community members.
ALTERNATIVE ACTIONS CONSIDERED
None. Staff does not recommend using a newly implemented software without software maintenance.
CONTACT PERSON
Kevin Fong, Director, Information Technology, 510-981-6541 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32000118 AMENDMENT: NEXGEN ASSET AND WORK ORDER
MANAGEMENT SOFTWARE MAINTENANCE AND PROFESSIONAL SERVICES WHEREAS, the City of Berkeley has identified the need to improve the efficiency of its asset management and work order processes; and
WHEREAS, on October 23, 2018, the City of Berkeley issued Request for Proposal No. 19-11259-C for an improved computerized maintenance management system & enterprise asset management system and received seven responding bidders; and WHEREAS, in response to the City’s Request for Proposal, vendor NEXGEN Asset Management responded with a proposal that was rated as the highest response submitted by competing vendors; and
WHEREAS, on June 11, 2019, by Resolution No. 68,948 - N.S., the Council approved a contract (No. 32000118) with Nexgen Asset Management for software hosting, implementation, maintenance and related services, for an amount not to exceed $1,017,509; and
WHEREAS, funding for this recommendation will be provided by the FY 2023 and 2024 Public Works, Software Maintenance, Parks, Recreation & Waterfront Software Maintenance and Parks Tax funds, and spending for this contract and related amendments in future fiscal years is subject to Council’s approval of the proposed city- wide budget and annual appropriation ordinances.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to amend Contract No. 32000118 with Nexgen Asset Management for additional funding, increasing the amount by $689,400, for a total not- to-exceed amount of $1,706,909 for software maintenance, training and professional services for software enhancements through June 30, 2024.
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: Kevin Fong, Director, Department of Information Technology Subject: AHEAD, Inc: Using the California Department of General Services’ (DGS) Software Licensing Program (SLP) for Software License Purchases
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to increase spending authority with AHEAD, Inc. (“AHEAD”) for the purchase of additional Varonis software licenses, utilizing pricing and contracts, amendments, and extensions from the California Department of General Services (DGS) Software Licensing Program (SLP) increasing the amount by $186,609.51 for a total amount not-to-exceed $422,914.51 and the period beginning January 31, 2023 through December 21, 2023.
FISCAL IMPACTS OF RECOMMENDATION
Funding for the additional Varonis software licenses in the amount of $186,609.51 is available in the Department of Information Technology’s FY 2023 Cost Allocation Fund as outlined below:
FY2023 Description Funding Source
$186,609.51 Additional Varonis DatAdvantage licenses IT Cost Alloc (680), IT Dept, Security $215,128.00 Previously approved Varonis licenses. IT Cost Alloc (680), IT Dept, Security $21,177.00 Professional Services IT Cost Alloc (680), IT Dept, Security $422,914.51 New NTE Total
CURRENT SITUATION AND ITS EFFECTS
The City’s Data Safety Program is designed to support the City’s IT Digital Strategic Plan’s goal of providing state-of-the-art, well-maintained infrastructure, amenities, and facilities.
The Varonis DatAdvantage product allows the City to monitor file activity and user behavior, prevent data breaches, and perform permissions management and auditing. It maps who can access data, and more importantly, who accesses data across file and email systems, thereby identifying where the City may be at risk.
AHEAD: Using the California Department of General Services’ SLP Contract CONSENT CALENDAR January 31, 2023
BACKGROUND
The procurement and implementation of Varonis in 2021 provided visibility into how the City is handling and protecting the data it touches on a daily basis. City Information Technology is now expanding its Cybersecurity posture by adding control over the storage and management of its file stores, and ensuring proper alerting for files stored and accessed throughout the City’s datacenters.
The City of Berkeley participates in a cooperative purchasing agreement established by the California Department of General Services (DGS)’ called the Software License Program (SLP). Established in January 1994, the SLP negotiates major software discounts with publishers and passes those discounts onto the State. The State establishes contracts with resellers based on these negotiations, which local agencies within the State of California can utilize. The City of Berkeley has engaged AHEAD as a reseller for the Varonis software under SLP contract number SLP-19-70-0151s.
Additional software, and other goods and services related to the City’s Data Safety Program, are also available on this SLP contract with AHEAD.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The Varonis DatAdvantage suite provides the necessary protections needed as the City moves towards utilizing more electronic files and documents, reducing the amount of paper use, thus supporting the City’s efforts to reduce the negative impact on the environment.
RATIONALE FOR RECOMMENDATION
There is a large amount of data that resides in the City’s shared drives which cannot be properly controlled and managed, placing the City at risk, due to a number of factors, including but not limited to identifying the type of data stored, and the owners of the data.
The Varonis DatAdvantage product provides the ability to visualize who can access sensitive and regulated information, audit every single file and email touched on- premise and in the cloud, and manage changes.
ALTERNATIVE ACTIONS CONSIDERED
Varonis provides automated protection as well as remediation through control over the files in City datacenters and those accounts used to access them. To accomplish this without Varonis would require a substantial increase in staffing which is not viable.
CONTACT PERSON
Kevin Fong, Director, Department of Information Technology, 510-981-6541 Attachments:
1: Resolution
AHEAD: Using the California Department of General Services’ SLP Contract CONSENT CALENDAR January 31, 2023
RESOLUTION NO. ##,###-N.S.
A
HEAD: USING THE CALIFORNIA DEPARTMENT OF GENERAL SERVICES’ (DGS)
SOFTWARE LICENSING PROGRAM (SLP) FOR SOFTWARE LICENSE PURCHASES WHEREAS, the purpose of the Data Safety Program is to protect the City of Berkeley’s information and access to information, using an enterprise standard across all city systems, and is designed to support the Digital Strategic Plan and the City’s Strategic Plan goal of advancing our City’s strategic goal to provide state-of-the-art, well- maintained infrastructure, amenities, and facilities; and WHEREAS, the City of Berkeley participates in a cooperative purchasing agreement established by the California Department of General Services (DGS) called the Software License Program (SLP) that negotiates software discounts that are passed down to local agencies through a cooperative contract and software reseller; and WHEREAS, the City of Berkeley has engaged AHEAD as a reseller for the Varonis software under SLP contract number SLP-19-70-0151s, and has the opportunity to purchase additional software, and other goods related to the City’s Data Safety Program; and
WHEREAS, funding for purchases with AHEAD are funded by the IT Cost Allocation Fund (Fund 680), and citywide purchases will be made as needed by other available funding.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to increase spending authority with AHEAD for the purchase of professional services and software, and other goods related to the City's Data Safety Program, utilizing pricing and contracts, amendments, and extensions from the California Department of General Services (DGS) Software Licensing Program (SLP) increasing the amount by $186,609.51 for an amount not-to-exceed $422,914.51, and the period beginning January 31, 2023 through December 21, 2023.
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: Scott Ferris, Director, Parks, Recreation & Waterfront Subject: Contract No. 32200183 Amendment: Western Water Features Inc. for the Electrical Renovations at King Swim Center
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32200183 with Western Water Features, Inc. for the electrical renovations at King Swim Center, increasing the contract amount by $90,000 for a total not to exceed amount of $1,100,000.
FISCAL IMPACTS OF RECOMMENDATION
Funding in the amount of $90,000 for this contract amendment is available in the FY 2023 budget in the CIP Fund (Fund 501). No other funding is required, and no other projects will be delayed due to this expenditure.
CURRENT SITUATION AND ITS EFFECTS
In 2022, the original scope of the renovation project at the King and West Campus Swim Center involved replacement of the plaster, tiles, and electrical equipment.
However, the electrical work at King could not be performed due to insufficient funding. This amendment will allow the installation of the new electrical equipment at King Swim Center that will include a new water chemistry controller with an associated electronic interlock device, upgraded electrical components to adequately power the new controller, and the installation of a variable frequency drive (VFD), which will reduce energy use.
BACKGROUND
Specification No 22-11489C for renovation work at King and West Campus pools was competitively bid out in early January 2022. On January 27, 2022, the City received 2 bids, of which Western Water Features was the lowest responsive bidder.
On March 8, 2022, Council adopted Resolution No. 70,248-N.S., authorizing the contract in the amount of $1,010,000.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
This project will improve the environmental impact of pool operations by reducing the usage of energy and chemicals.
Contract No.32200183 Amendment: Western Water Features Inc. Consent Calendar Electrical renovation at King Swim Center January 31, 2023
RATIONALE FOR RECOMMENDATION
Western Water Features, Inc. is highly qualified and responsive. They have successfully worked for the City of Berkeley and many other local municipalities. The City of Berkeley does not have the in-house labor or resources to complete this additional work.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Scott Ferris, Director, Parks, Recreation & Waterfront, 510-981-6700 Attachment:
1: Resolution
RESOLUTION NO.: ##,###-N.S.
CONTRACT NO. 32200183 AMENDMENT: WESTERN WATER FEATURES INC. FOR
ELECTRICAL RENOVATIONS AT KING SWIM CENTER
WHEREAS, in 2022, the original scope of the renovation project at the King and West Campus Swim Center involved replacement of the plaster, tiles, and electrical equipment. However, the electrical work at King could not be performed due to insufficient funding; and
WHEREAS, this amendment will allow the installation of the new electrical equipment at King Swim Center that will include a new water chemistry controller with an associated electronic interlock device, upgraded electrical components to adequately power the new controller, and the installation of a variable frequency drive (VFD), which will reduce energy use; and
WHEREAS, specification # No 22-11489C for the plaster, tile, and electrical renovation work at King and West Campus pools was competitively bid out in early January 2022; and
WHEREAS, on January 27, 2022, the City received 2 bids, of which Western Water Features was the lowest responsive bidder.
On March 8, 2022, Council adopted
Resolution No. 70,248-N.S., authorizing the contract in the amount of $1,010,000; and WHEREAS, the electrical renovations could not be performed due to insufficient funding; and
WHEREAS, funding in the amount of $90,000 for this contract amendment is available in the FY 2023 budget in the CIP Fund (Fund 501).
WHEREAS, the City has neither the labor or resources necessary to undertake this project.
NOW THEREFORE BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute an amendment to Contract No. 32200183 with Western Water Features Inc. for the electrical renovations at King Swim Center, increasing the contract amount by $90,000 for a total amended not to exceed amount of $1,100,000. A record signature copy of any amendments to be on file in the Office of the City Clerk.
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: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Contract: California Constructores for Grove Park Field and Playground Renovation Project
RECOMMENDATION
Adopt a Resolution:
1. Approving the plans and specifications for the Grove Park Field and Playground Renovation Project, Specification No. 22-11538-C; and
2. Accepting the correction of the sum of bid items for California Constructores’ bid; and
3. Accepting the bid of the lowest responsive and responsible bidder, California Constructores; and
4. 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, with California Constructores, for the Grove Park Field and Playground Renovation Project at 2828 Martin Luther King Jr. Way, Berkeley, CA 94703, in an amount not to exceed $2,483,865, which includes a contract amount consisting of the base bid plus one additive alternate of $2,159,883 and a 15% contingency in the amount of $323,982.
FISCAL IMPACTS OF RECOMMENDATION
Funding is available in the FY 2023 budget in the Measure T1 Fund (Fund 511), Capital Improvement Fund (Fund 501) and Parks Tax Fund (Fund 138). Additional funding from the California Department of Parks and Recreation Prop 68 Per Capita ($253,328) and Prop 68 RIRE ($250,000) grants will be recommended for appropriation in the second amendment to the appropriations ordinance in the One Time Grant Fund (Fund 336).
No other funding is required, and no other projects will be delayed due to this expenditure.
California Constructores (lowest bid)...................................................... $2,159,883 15% Contingency $323,982
Total construction cost $2,483,865
Measure T1 Fund (FY2023) .................................................................... $851,310 Parks Tax Fund (FY2023) ....................................................................... $534,000
Contract: California Constructores for CONSENT CALENDAR Grove Park Field and Playground Renovation Project January 31, 2023
Capital Improvement Fund (FY2023) ...................................................... $595,227 Prop 68 Per Capita Grant Fund (FY2023) ............................................... $253,328 Prop 68 RIRE Grant Fund (FY2023) ....................................................... $250,000 Total construction cost..............................................................................$2,483,865
CURRENT SITUATION AND ITS EFFECTS
The existing 2-5 and 5-12 playgrounds, picnic area and ball field at Grove Park at 2828 Martin Luther King Jr. Way, Berkeley, CA 94703 are in need of renovations. The existing play structures no longer fulfill the play potential of the park due to their deterioration and ADA inaccessibility. The project includes removal and disposal of the 2-5 and 5-12 playgrounds, installation of two new play areas in the existing locations and renovation of the picnic area. In addition to new play structures, accessible surfacing will be installed throughout both play areas to enhance the safety and access for park users. The project also includes renovation of the ball field which included ADA access improvements, replacement of turf, and improvements to the backstop, netting, fencing, dugouts, lighting control, drainage and the irrigation system.
BACKGROUND
The project was advertised for bids on November 23, 2022, and bids were opened on December 20, 2022. The City received 7 bids, from a low base bid of $2,075,983.20 to a high base bid of $2,595,000.
California Constructores was the apparent lowest bidder at $2,075,983.20. Evaluation of bids were conducted as outlined in the Project Manual, Document 00 2113 Instructions to Bidders – Paragraph 3.02 “Evaluation of Bids.” Staff found a mathematical error in the summation of bid items in the total base bid price by California Constructores. Upon evaluating the total base bid price based on bid items, it was found that the correct sum was $2,091,883. According to the Project Manual, Document 00 2113 Instructions to Bidders – Paragraph 3.02 “Evaluation of Bids”, “discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum.” Staff determined California Constructores remained the lowest bidder using the correct sum.
California Constructores was the lowest responsive and responsible bidder. Staff conducted references checks and received satisfactory feedback. Staff recommends that a contract for this project be awarded to California Constructores.
The Living Wage Ordinance does not apply to this project since construction contracts are, pursuant to City policy, subject to State prevailing wage laws. The contractor will need to submit a Certification of Compliance for the Equal Benefits Ordinance. The contract will be subject to the Community Workforce Agreement.
ENVIRONMENTAL SUSTAINABILITY
The construction contract includes requirements to comply with the City’s Environmentally Preferable Purchasing Policy. The project is a renovation of a developed urban site and therefore will not negatively affect natural habitat.
Contract: California Constructores for CONSENT CALENDAR Grove Park Field and Playground Renovation Project January 31, 2023
RATIONALE FOR RECOMMENDATION
The renovation of the existing ages 2-5 and 5-12 playgrounds, picnic area and ball field at Grove Park are needed as part of the City’s ongoing program to repair, renovate, and improve accessibility at non-compliant or aging Parks facilities. The City does not have in-house labor or equipment resources to complete this renovation project.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Scott Ferris, Director, Parks Recreation & Waterfront, (510) 981-6700 Wendy Wellbrock, Associate Civil Engineer, Parks Recreation & Waterfront, (510) 981- 6346
Attachments:
1: Resolution
2: Bid Results
RESOLUTION NO. ##,###-N.S.
CONTRACT: CALIFORNIA CONSTRUCTORES FOR GROVE PARK FIELD AND
PLAYGROUND RENOVATION PROJECT
WHEREAS, the existing 2-5 and 5-12 playgrounds, picnic area and ball field at Grove Park at 2828 Martin Luther King Jr. Way, Berkeley, CA 94703 are in need of renovations; and the City has neither the labor nor the equipment necessary to undertake this project; and
WHEREAS, an invitation for bids was duly advertised on November 23, 2022, bids were opened on December 20, 2022, and the City received 7 bids; and WHEREAS, upon receipt and review of submitted bids, a mathematical error was found in California Constructores’ bid, which upon calculation of the corrected sum, California Constructores remains the lowest bid; and
WHEREAS, California Constructores was determined to be the lowest responsive and responsible bidder, and references for California Constructores were provided and checked out satisfactorily; and
WHEREAS, funding is available in the FY 2023 budget from the Measure T1 Fund (Fund 511), Parks Tax Fund (Fund 138), Capital Improvement Fund (Fund 501), and Prop 68 Per Capita ($253,328) and Prop 68 RIRE ($250,000) grants have been awarded and will be recommended for appropriation in the second amendment to the appropriations ordinance in the One Time Grant Fund (Fund 336).
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specification No. 22-11538-C for the Grove Park Field and Playground Renovation project are approved.
BE IT FURTHER RESOLVED that the correction of the sum of bid items for California Constructores’ bid is accepted; and a construction contract is awarded to California Constructores as the lowest responsive and responsible bidder for a total contract amount of $2,483,865; and
BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments, extensions, or change orders until completion of the project in accordance with the approved plans and specifications with California Constructores for the Grove Park Field and Playground Renovation project in an amount not to exceed $2,483,865, which includes a contract amount consisting of the base bid plus one additive alternate at a total of $2,159,883 and a 15% contingency in the amount of $323,982 for unforeseen circumstances. A record signature copy of the agreement and any amendments to be on file in the Office of the City Clerk.
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: Alene Pearson, Acting Director, Planning and Development Department Subject: Contract No. 32000020 Amendment: Rincon Consultants, Inc. for On-Call Planning and Environmental Review Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000020 with Rincon Consultants, Inc., to increase the total not-to-exceed amount by $1,000,000 to a new total of $2,000,000, for additional services related to the review of land use permit applications and environmental review.
FISCAL IMPACTS OF RECOMMENDATION
The additional not-to-exceed amount in the amended contract will only be exercised if a project applicant requests expedited processing of a Use Permit or other discretionary zoning application, or if an Environmental Impact Report or other technical, environmental review is required. Work will only be authorized under the contract, and funds encumbered, once an applicant provides full funding.
In the event that total revenue exceeds the budgeted amount in the fiscal year, a request for additional appropriation will be submitted as part of a subsequent amendment to the Annual Appropriations Ordinance.
Once the City receives funds from an applicant, they will be 1) deposited into the PSC Fund revenue code 621-53-584-621-0000-000-000-446140; and 2) encumbered into the contractor’s Purchase Order using expenditure account code 621-53-584-622-0000- 000-472-612990.
CURRENT SITUATION AND ITS EFFECTS
The City has used environmental and planning consultants since 2005 for expedited processing of land use permit applications when requested by project applicants. When consultants are used, City staff remains actively involved with the projects and coordinates closely with the consultants. Such on-call services are also used in instances when complex environmental analyses such as those required by CEQA or NEPA must be performed on a project. In all instances, the project applicant assumes responsibility for the costs of such services, passed through the City to the consultant as costs are incurred.
Contract No. 32000020 Amendment: Rincon Consultants, Inc. for CONSENT CALENDAR On-Call Planning and Environmental Review Services January 31, 2023
Rincon Consultants, Inc. (Rincon) has performed well when called upon by the City and has nearly exhausted the original $1,000,000 not-to-exceed amount. Rincon has a strong understanding of the Berkeley Municipal Code and permit processes, closely tracks changing CEQA guidelines, has strong attention to detail, and provides well written work products. Since Rincon is actively working on several City projects, increasing its contract maximum to $2,000,000 will allow for continuity in the project review process.
BACKGROUND
On June 25, 2019, the City Council authorized the execution of contracts with 12 firms in as-needed amounts between $500,000 and $1,000,000 over a three-year period ending in June 2022, including a contract with Rincon for a not-to-exceed amount of $1,000,000. Those contracts were subsequently extended for an additional three-year period without increasing the budget caps.
The City continues to receive a high volume of development applications, including many seeking expedited review and/or specialized analysis at the project applicants’ requests and expenses. Therefore, an increase in the budget cap is warranted to replenish the ability to utilize the contract for the three-year period through fiscal 2025.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Development review services performed by on-call consultants may include assessments of a project’s compliance and consistency with City goals and State requirements for energy and water efficiency, reduction of transportation impacts and fuel use, and other environmental factors.
RATIONALE FOR RECOMMENDATION
As the number of Use Permit applications has increased over the past several years, the Planning Department has improved customer service by using on-call consultants to expedite project applications and conduct environmental reviews. Increasing the not-to- exceed contract amount with Rincon, one of the City’s high-performing on-call contractors, will allow for the continued timely processing of development applications while not incurring additional costs to the City.
ALTERNATIVE ACTIONS CONSIDERED
Staff could redirect work on current projects under expedited review to other firms contracted for such as-needed services, could handle such expedited review requests on a case-by-case basis, or could de-prioritize work on other current projects to do this work in-house.
CONTACT PERSON
Steven Buckley, Land Use Manager, Planning Department, 510-981-7411
Contract No. 32000020 Amendment: Rincon Consultants, Inc. for CONSENT CALENDAR On-Call Planning and Environmental Review Services January 31, 2023
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32000020 AMENDMENT: RINCON CONSULTANTS, INC. FOR
PLANNING AND ENVIRONMENTAL REVIEW SERVICES
WHEREAS, on June 25, 2019, the City authorized the execution of contracts with 12 firms in as-needed amounts between $500,000 to $1,000,000 over a three-year period ending in June 2022, including a contract with Rincon Consultants, Inc. for a not-to-exceed amount of $1,000,000; and
WHEREAS, the as-needed contracts were subsequently extended for an additional three years, through June 2025, without additional funds added; and WHEREAS, the City continues to receive a high volume of development applications, including many seeking expedited review and/or specialized analysis at the project applicants’ requests and expense; and
WHEREAS, staff have found that Rincon Consultants, Inc. have performed well on its previously assigned projects, are working on a number of currently active development project reviews, and wish to utilize Rincon Consultants, Inc. further; and WHEREAS, no work will be authorized under the contract, and no funds will be encumbered, unless an applicant provides full funding, as in the case of expedited application review requests or the need for outside consultants for required analysis, or unless the City Manager or their designee authorizes the temporary use of existing Permit Service Center Fund balance for purposes of alleviating backlogs of applications on a limited basis.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or their designee is hereby authorized to execute an amendment to Contract No. 32000020 with Rincon Consultants, Inc., to add $1,000,000 to the not-to- exceed amount, bring the new contract total not-to-exceed amount to $2,000,000 for as- needed Planning and Environmental Review Services. A copy of the contract and any amendments will be kept on file in the Office of the City Clerk.
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: Koios Engineering, Inc. for Urgent Sewer Repair FY2023 Project
RECOMMENDATION
Adopt a Resolution: 1) approving plans and specifications for the Urgent Sewer Repair FY2023 Project, located throughout the City of Berkeley; 2) accepting the bid of the lowest responsive and responsible bidder, Koios Engineering, 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 $1,490,427, which includes a 10% contingency of $135,493.
FISCAL IMPACTS OF RECOMMENDATION
Funding is available in the FY 2023 Sanitary Sewer Fund 611-54-623-676-3013-000- 473-665130-PWENSR2303.
Low bid by Koios Engineering, Inc.................................$1,354,934 10% Contingency ................................................................$135,493 Total construction cost $1,490,427
CURRENT SITUATION AND ITS EFFECTS
An Invitation for Bids (Specification. No. 23-11544-C) was released on October 26, 2022 and opened on November 17, 2022. Three non-local bids were received, ranging from a low of $1,354,934 to a high of $1,581,068 (Attachment 3, Bid Results). The engineer's estimate for the project was $1,200,000. Koios Engineering, Inc. of San Francisco, CA was the lowest responsive and responsible bidder with a bid of $1,354,934. References for Koios Engineering, Inc. proved satisfactory, thus staff recommends award of the contract to Koios Engineering, Inc.
This sanitary sewer project supports the City's Strategic Plan goals of providing state
Contract: Koios Engineering Inc. for Urgent Sewer Repair FY2023 Project
CONSENT CALENDAR
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 needs 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 entails point (spot) repair of 6-inch, 8-inch diameter sanitary sewer pipes at sixteen locations; rehabilitation of four maintenance holes; removal and reconstruction of fifty-three maintenance holes; and any related work. These repairs will correct existing acute defects including imminent structural failures identified during the FY2022 sewer main inspection and condition assessment program. The planned scope of work also includes provision for emergency/urgent work related to acute sewer system defects at other locations that may arise during FY 2023. As required by the EPA and Regional Water Quality Control Board (RWQCB) Consent Decree, such acute defects must be addressed within one year of being identified.
The contract’s one hundred thirty-five working day term includes a ninety-working day construction period and an additional forty-five working days for project closeout. A 10% contingency is included for related construction events. 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: Koios Engineering Inc. for Urgent Sewer Repair FY2023 Project
CONSENT CALENDAR
January 31, 2023
The Living Wage Ordinance does not apply to this project as Department of Public Works construction contracts are subject to State prevailing wage laws. Koios Engineering, Inc. has submitted a Certification of Compliance with the Equal Benefits Ordinance.
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
Attachments:
1: Resolution
2: Location Map
3: Bid Results
RESOLUTION NO. ##,###-N.S.
CONTRACT: KOIOS ENGINEERING INC. FOR URGENT SEWER REPAIR FY2023 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/emergent sewer repairs; and WHEREAS, on October 26, 2022 the City released an Invitation for Bids (Specification No. 23-11544-C) for sanitary sewer rehabilitation and replacement; and WHEREAS, on November 17, 2022 the City received three bids, and Koios Engineering, 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 these urgent repairs are exempt from the California Environmental Quality Act, and WHEREAS, funds are available in the FY 2023 budget in Sanitary Sewer Fund 611; and NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specifications No. 23-11544-C for the Urgent Sewer Repair FY2023 Project are approved.
BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a cont ract and any amendments with Koios Engineering, Inc. , until completion of the project in accordance with the approved plans and specifications for the Urgent Sewer Repair FY2023 Project located throughout the City, in an amount not to exceed $1,490,427 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.
EMERYVILLE
OAKLAND
EL CERRITO
ALBANY
LOCATION 5
LOCATION 5
U.C. BERKELEY
16 15
14 8
1 4
3 2
911
13 6
5 12
7 10
ATTACHMENT 3
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: Bay Pacific Pipeline, Inc. for Hearst, et al. FY2023 Sanitary Sewer Rehabilitation Project
RECOMMENDATION
Adopt a Resolution: 1) approving plans and specifications for the FY2023 Sanitary Sewer 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; 2) accepting the bid of the lowest responsive and responsible bidder, Bay Pacific Pipeline, 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 $4,417,421, which includes a 10% contingency of $401,584.
FISCAL IMPACTS OF RECOMMENDATION
Funding is available in the FY 2023 Sanitary Sewer Fund 611-54-623-676-3013-000- 473-665130.
Low bid by Bay Pacific Pipeline, Inc. .............................$4,015,837 10% Contingency ................................................................$401,584 Total construction cost $4,417,421
CURRENT SITUATION AND ITS EFFECTS
An Invitation for Bids (Specification. No. 23-11545-C) was released on November 9, 2022 and bids were opened on December 16, 2023. Five non-local bids were received, ranging from a low of $4,015,837 to a high of $6,632,530 (Attachment 3, Bid Results). The engineer's estimate for the project was $6,030,000. Bay Pacific Pipeline, Inc. of Novato, CA was the lowest responsive and responsible bidder with a bid of $4,015,837. References for Bay Pacific Pipeline, Inc. proved satisfactory, thus staff recommends award of the contract to Bay Pacific Pipeline, Inc.
This sanitary sewer project supports the City's Strategic Plan goals of providing state
Contract: Bay Pacific Pipeline, Inc. for Sanitary Sewer Rehabilitation at Various Locations
CONSENT CALENDAR
January 31, 2023
Internal
of-the-art, well-maintained infrastructure, amenities, and the goal of protecting the environment.
BACKGROUND
To remain compliant with the September 22, 2014 Consent Decree, the City has implemented a long-term mandated Sanitary Sewer Capital Improvement Program to eliminate sanitary sewer overflows (SSOs) and to reduce storm water 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 their goal of eliminating discharges from their 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 at various locations throughout the City as shown on the Location Map (Attachment 2). The sanitary sewer collection system in these areas needs 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 8,230 linear feet sanitary sewer mains varying in size from 6-inch to 18-inch diameter; replacement of 1,443 linear feet of 8-inch sanitary sewer force main; maintenance hole rehabilitation; 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 and cured-in-place-pipe methods. These trenchless methods allow replacement of buried pipelines without the need for a traditional open trench construction. These methods of pulling a new high-density polyethylene pipe (HDPE) or a new felt liner through the existing clay and concrete pipes allow for cost savings and avoid street closures and traffic disruptions caused by open trenches. 1 At an average annual rate of no less than 22,120 feet of sanitary sewer mains on a three-fiscal-year rolling average.