Tuesday, September 19, 2023 AGENDA Page 1
AGENDA
BERKELEY CITY COUNCIL MEETING
Tuesday, September 19, 2023
6:00 PM
SCHOOL DISTRICT BOARD ROOM - 1231 ADDISON STREET, BERKELEY, CA 94702
TELECONFERENCE LOCATION - 1404 LE ROY AVE, BERKELEY 94708
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
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 encouraged. 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.
Remote participation by the public is available through Zoom. To access the meeting remotely: Join from a PC, Mac, iP ad, iPhone, or Android device: Please use this UR L: https://cityofberkeley- info.zoomgov.com/j/1609353651 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 anonymous. 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 1-8 33-568-8864 (Toll Free) and enter Meeting ID: 160 935 3651 If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.
Pl
ease 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 and applicable Executive Orders as issued by the Governor that are currently in effect. 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 Council 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, September 19, 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.
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.
Public Comment by Employee Unions (first regular meeting of the month): This period of public comment is reserved for officially designated representatives of City of Berkeley employee unions, with five minutes allocated per union if representatives of three or fewer unions wish to speak and up to three minutes per union if representatives of four or more unions wish to speak.
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 Consent 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.
Tuesday, September 19, 2023 AGENDA Page 3
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.
Consent Calendar
1. Contract Amendment for Extending the Lease for the Real Property at 1461 University Avenue
From: City Manager
Recommendation: Adopt an Urgency Ordinance authorizing the City Manager to execute an amendment to Contract No. 32200202 with Shree Jalasai Lodging, LP for the real property located at 1461 University Avenue, Berkeley, extending the term for 30 months and increasing the total cost by $5,362,043, for a new contract not-to- exceed amount of $8,367,313, for the purposes of extending the interim noncongregate shelter program at this location.
Financial Implications: See report
Contact: Peter Radu, City Manager's Office, (510) 981-7000
2. Execute contract with Housing Consortium of the East Bay (HCEB) to operate shelter at the Rodeway Inn
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract with Housing Consortium of the East Bay (HCEB) to operate an interim housing program at the Rodeway Inn (1461 University Ave.) through April 30, 2026.
Financial Implications: See report
Contact: Peter Radu, City Manager's Office, (510) 981-7000
3. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on September 19, 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 - $22,472,259
Contact: Henry Oyekanmi, Finance, (510) 981-7300
Consent Calendar
Tuesday, September 19, 2023 AGENDA Page 4
4. 2024 Tax Rate: Transportation Network Company User Tax From: City Manager
Recommendation: Adopt first reading of an Ordinance setting the 2024 tax rate (effective January 1, 2024) for the transportation network company at the following rates: 56.162 cents on the user for each prearranged trip that originates in the City that is not part of a pooled prearranged trip and 27.424 for each pooled prearranged trip on each user who arranges each prearranged trip that originates in the City and which comprises part of the pooled prearranged trip.
Financial Implications: See report
Contact: Henry Oyekanmi, Finance, (510) 981-7300
5. Contract: Options Recovery Services – Encampment-based Mobile Wellness Center Project
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with Options Recovery Services to provide Mobile Wellness services for individuals who are unhoused or living in encampments in Berkeley. The contract will be funded through California Mental Health Services Act (MHSA) Innovation (INN) funds, for a total not to exceed amount $2,802,400, through June 30, 2028.
Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
6. Authorizing a Lease of 830 University Avenue to Lifelong Medical Care From: City Manager
Recommendation: Adopt first reading of an Ordinance authorizing the City Manager to enter into a lease for 830 University with Lifelong Medical Care (Lifelong).
Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
7. Revenue Grant: California Office of Traffic Safety (OTS) for the 2024 “Selective Traffic Enforcement Program (STEP) Grant
From: City Manager
Recommendation: Adopt a Resolution authorizing the Chief of Police to accept the "Selective Traffic Enforcement Program (STEP)" grant and enter into the resultant grant agreement and any amendments, with the California Office of Traffic Safety.
This OTS grant is for $269,000 for the period of October 1, 2023 through September 30, 2024, which is Federal Fiscal Year 2024.
Financial Implications: See report
Contact: Jennifer Louis, Police, (510) 981-5900
Consent Calendar
Tuesday, September 19, 2023 AGENDA Page 5
8. Revenue Grant: Cannabis Tax Fund Grant Program (CTFGP) From: City Manager
Recommendation: Adopt a Resolution authorizing the Chief of Police to accept the CTFGP grant and enter into the resultant grant agreement and any amendments, with the California Highway Patrol. This grant is for $59,168 for the period of July 1, 2023 through June 30, 2024.
Financial Implications: One-time Grant Program Fund - $59,168 Contact: Jennifer Louis, Police, (510) 981-5900
9. License Agreement – RM Ventures, LLC, d.b.a, In the Wood Grill & Bar for Nonexclusive Use of the Elmwood Parking Lot Pedestrian Paseo From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a ground license agreement with RM Ventures LLC d.b.a., In the Wood Grill and Bar (In the Wood Grill & Bar) for the nonexclusive use of a portion of the Elmwood Parking Lot Pedestrian Access Path (“Paseo”), a City-owned midblock pedestrian path connecting the City’s Elmwood Parking Lot to College Avenue in the Elmwood Neighborhood Shopping District, for an initial term of five (5) years and authorize the City Manager to execute a renewal of this license, under the same terms, after the termination of the initial term.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
10. Contract No. 32200073 Amendment: Toole Design Group for Engineering Design and Construction Support Services for the Southside Complete Streets Project
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32200073 with Toole Design Group for engineering design and construction support services for the Southside Complete Streets Project, increasing the contract by $508,602, for a total amount not to exceed $1,790,213, and extending the term of the contract from December 31, 2023 to June 30, 2025.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
Consent Calendar
Tuesday, September 19, 2023 AGENDA Page 6
11. Agreement with Goldsmiths for Strawberry Creek Culvert Repair From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a Cost Sharing Agreement and Release with Steven and Cathy Goldsmith for repair of a section of Strawberry Creek Culvert. The culvert was reported to have failed on or about October 24, 2021 and the extents of the failure is alleged to include area in both City right-of-way and private property under the Goldsmiths’ home. Per the agreement, the City would expend an amount not to exceed $75,000 toward repair of the creek culvert in exchange for a release of claims relating to the October 24, 2021 culvert failure.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
12. Amendment to the Agreement for Maintenance of State Highways in the City of Berkeley between the California Department of Transportation and the City of Berkeley
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to the Agreement with the California Department of Transportation (Caltrans) for maintenance of the State highways within the City of Berkeley. The amendment will address three new traffic signals: 1) a new pedestrian hybrid beacon (PHB) at San Pablo Avenue and Virginia Street 2) a new PHB at San Pablo Avenue and Hearst Street, and 3) a new rectangular rapid flashing beacon (RRFB) at Ashby Avenue and California Street.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
13. Contract No. 9977C Amendment: Portable Computer Systems dba PCS Mobile for Parking Permit and Citation Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9977C with Portable Computer Systems dba PCS Mobile, increasing the contract amount by $1,650,000 for a total amount not-to- exceed of $3,700,000 and extending the contract term through June 30, 2029.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
Consent Calendar
Tuesday, September 19, 2023 AGENDA Page 7
14. Contract No. 32000078 and Contract No. 32000093 Amendments DC Electric Group, Inc. for On-Call Electrical Services
From: City Manager
Recommendation: Adopt two Resolutions authorizing the City Manager or designee to Amend the contract, increasing the amounts as outlined below, and extending the contracts through June 30, 2026:
1. Increasing Contract No. 32000078 with DC Electric Group, Inc. for the Facilities Electrical Division for on-call electrical services in the amount of $300,000 for a total contract amount not to exceed $475,000.
2. Increasing Contract No. 32000093 with DC Electric Group, Inc. for the Transportation Division for on-call electrical services for traffic calming devices in the amount of $100,000 for a total contract amount not to exceed $600,000.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
15. Contract: Turnstone Data Inc. for Parking Data Analytics Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a three-year contract with an option for two one-year extensions, that require no additional funding, with Turnstone Data Inc., to provide parking data analysis and visualization services in an amount not to exceed $375,000 for the period from January 1, 2024 through December 31, 2026.
Financial Implications: See report
Contact: Liam Garland, Public Works, (510) 981-6300
Council Consent Items
16. Budget Referral: Berkeley Food Network to address increased demand From: Mayor Arreguin (Author), Councilmember Harrison (Co-Sponsor), Councilmember Hahn (Co-Sponsor)
Recommendation: Refer $200,000 to the November 2023 AAO #1 process to address the increased number of people experiencing food insecurity in Berkeley including people in danger of eviction due to the COVID-19 eviction moratorium expiration and rent debt due to inflation and rental increases. The proposed funding source is FY 2023-2024 Measure P tax receipts.
Financial Implications: See report
Contact: Jesse Arreguin, Mayor, (510) 981-7100
Tuesday, September 19, 2023 AGENDA Page 8
Action Calendar
The public may comment on each item listed on the agenda for action. 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 during one of the Action Calendar public comment periods on the item. Public comment will occur for each Action item (excluding public hearings, appeals, and/or quasi-judicial matters) in one of two comment periods, either 1) before the Action Calendar is discussed; or 2) when the item is taken up by the Council.
A member of the public may only speak at one of the two public comment periods for any single Action item.
The Presiding Officer will request that persons wishing to speak line up at the podium, or use the "raise hand" function in Zoom, 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 – Scheduled Public Comment Period
During this public comment period, the Presiding Officer will open and close a comment period for each Action item on this agenda (excluding any public hearings, appeals, and/or quasi -judicial matters). The public may speak on each item. Those who speak on an item during this comment period may not speak a second time when the item is taken up by Council.
Tuesday, September 19, 2023 AGENDA Page 9
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 line up at the podium, or use the "raise hand" function in Zoom, to be recognized and 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.
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.
17. Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) and Repeal of Chapter 12.99 to Conform to State Law and Respond to Guidance from the California Department of Housing and Community Development (Continued from July 25, 2023)
From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt the first reading of an ordinance amending Berkeley Municipal Code (BMC) Title 23, and repealing BMC Chapter 12.99, relating to Accessory Dwelling Units and Junior Accessory Dwelling Units.
Financial Implications: See report
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Council Action Items
18. Authorizing the City Attorney to Submit an Amicus Brief in Support of the UC Regents in Make UC a Good Neighbor v. Regents of University of California From: Mayor Arreguin (Author), Councilmember Robinson (Author), Councilmember Wengraf (Co-Sponsor)
Recommendation: Adopt a Resolution Authorizing the City Attorney to submit an amicus brief in support of the University of California Regents’ in Make UC a Good Neighbor v. The Regents of University of California, currently before the California State Supreme Court on appeal.
Financial Implications: See report
Contact: Jesse Arreguin, Mayor’s Office, (510) 981-7100
Council Action Items
Tuesday, September 19, 2023 AGENDA Page 10
19. Referral to Rezone Gilman Street to Maximize Revenue Productivity Per Acre From: Councilmember Kesarwani (Author), Councilmember Taplin (Co- Sponsor), Councilmember Robinson (Co-Sponsor), Councilmember Wengraf (Co-Sponsor)
Recommendation: Refer to the City Manager and Planning Commission to rezone Gilman Street—a major thoroughfare for entering and exiting the City —from San Pablo Avenue to Interstate 80 to maximize revenue-generating and job-creating uses. Specifically, the rezoning of Gilman Street should consider the following:
Potential for applying the Manufacturing, Research and Development (M-RD) zoning district currently planned for the Pacific Steel Casting site to a portion of Gilman street. The M-RD zoning district seeks to better align with development interest by:
allowing research and development, office, laboratory, and light manufacturing uses currently not permitted by the existing Manufacturing (M) zoning; and removing protections for existing manufacturing uses and constraints associated with certain development standards; and/or Consider a new zoning designation for a portion of Gilman Street west of San Pablo Avenue to I-80 that maximizes revenue productivity per acre via permitted uses and associated development standards; and Extend West Berkeley Commercial District (C-W) zoning on Gilman Street from Ninth Street further west for a certain number of blocks and enhance the flexibility of C-W development standards to increase the likelihood of redevelopment—in coordination with “Keep Innovation in Berkeley” Council referral (passed on Sept. 13, 2022) that seeks to allow research and development uses in C zones. Refer $250,000 to the FY 2024-25 budget process for consulting services to assist with the planning process and associated environmental review and economic analyses.
Financial Implications: See report
Contact: Rashi Kesarwani, Councilmember, District 1, (510) 981-7110
Information Reports
20. Settlement of California River Watch Notice of Intent to File Suit From: City Manager
Contact: Farimah Brown, City Attorney, (510) 981-6950
Public Comment – Items Not Listed on the Agenda
Tuesday, September 19, 2023 AGENDA Page 11
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 Council 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.
Com
munications 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 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 scents, whether natural or manufactured, in products and materials. Please help the City respect these needs.
Tuesday, September 19, 2023 AGENDA Page 12
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.
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I hereby certify that the agenda for this meeting of the Berkeley City Council was 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 September 7, 2023.
Mark Numainville, City Clerk
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.
Berkeley’s Crime
1. Robin Kibby
2. Shok Saidmuradov
Police Matters
3. David Freeling
4. Alex Merenkov
5. Carol Denney
Hotel Sales
6. Sabina McMurtry
Visit Berkeley
7. Visit Berkeley
Red Curb
8. Sherleen Brown
9. Amy Campos
Hiring Bonus’
10. Minda Berbeco
Cannabis Policy
11. Getting It Right from the Start
Second Hand Smoke
12. Carol Denny
Tuesday, September 19, 2023 AGENDA Page 13
Willard Park
13. Vincent Casalaina
14. Mary Oram
Homelessness
15. Sharon Sangco, on behalf of Windsor Management (2)
16. Peter Radu, Neighborhood Services
17. Aimee Baldwin
School Expansion
18. Leila Moncharsh
Ohlone Greenway
19. Rachel Edelson
Seismic Prep
20. John Parman
UN Association Venue
21. Dirk Neyhart
New Construction
22. Dan Auten
Gus Newport
23. Boona Cheema
Black Rep
24. Tanya Dennis, Post Newspaper Reporter
Waterfront Specific Plan
25. Claudia Kawczynska, Chair of Parks, Recreation and Waterfront Commission 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
ACTION CALENDAR
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Peter Radu, Assistant to the City Manager Subject: Contract Amendment for Extending the Lease for the Real Property at 1461 University Avenue
RECOMMENDATION
Adopt an Urgency Ordinance authorizing the City Manager to execute an amendment to Contract No. 32200202 with Shree Jalasai Lodging, LP for the real property located at 1461 University Avenue, Berkeley, extending the term for 30 months and increasing the total cost by $5,362,043, for a new contract not-to-exceed amount of $8,367,313, for the purposes of extending the interim noncongregate shelter program at this location.
FISCAL IMPACTS OF RECOMMENDATION
Total costs for this lease are not to exceed $124 per room per night for 43 rooms, plus a $2000 per room fund for damages payable upon lease termination, for a total increase of $5,362,043, which will be paid for using State of California Encampment Resolution Funding grant funds, leftover UC Berkeley donation funds from the original lease, as well as funding from Measure U1 that will no longer be needed for Homekey. These funds will be appropriated in the Second Amendment to the FY2024 Annual Appropriations Ordinance.
CURRENT SITUATION AND ITS EFFECTS
On April 26, 2022, the Council adopted an urgency ordinance to enter into a lease for the Rodeway Inn, using a combination of a California Encampment Resolution Funding grant and a UC Berkeley donation to operate noncongregate interim housing at the Rodeway Inn for the cohort of individuals currently living in the encampment at People’s Park. That program, since its inception, has successfully served 110 people; of the 72 people who have exited the program, 35 (49%) have moved directly into permanent housing – a success rate approaching half of all exits.
Shortly thereafter, staff issued an RFP, and eventually an application, for the State of California’s Homekey Program to purchase the motel and convert it to permanent supportive housing for people experiencing homelessness. As of the drafting of this report, the State is still reviewing the City's Homekey application. With the lease for the existing interim shelter program ending on October 31, 2023, if the application is not
Contract Amendment for Extending the Lease for the Real Property at 1461 ACTION CALENDAR University Avenue September 19, 2023
accepted, the immediate future of this successful noncongregate shelter program will be at stake.
The proposed contract amendment, as specified in Exhibit A attached to this report, continues the existing master lease for 43 rooms at a flat price of $124 per room per night, as well as a renewed damage fund not to exceed $2000/room payable at the end of the lease, for a total amount not to exceed $5,080,450. This includes regular cleaning, linen service, and supplies to the rooms. Staff propose to contract with Housing Consortium of the East Bay (HCEB) to provide the social services component of the program, as the current service provider, Abode Services, is not interested in continuing their contract with the city. Staff are bringing a contract with HCEB to Council in a separate report on the 10/3/23 Council agenda.
Increasing access to interim housing for persons experiencing homelessness is consistent with the City’s strategic priorities, and specifically the July, 2021 endorsement of the All Home Regional Action Plan.
BACKGROUND
In February 2022, the City was awarded just over $4.7M in State of California Encampment Resolution Funding grant funds to operate the Rodeway Inn as the primary interim housing option for people living in People’s Park. On April 26, 2023, the Council approved a lease and a services contract with Abode Services to operate the Rodeway Inn as an interim noncongregate housing program. On October 31, 2023, the current lease at the Rodeway will expire.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental impacts associated with this lease. Providing noncongregate interim housing for those currently living in encampments in Berkeley will reduce the negative impact of encampments on Berkeley’s environment and waterways.
RATIONALE FOR RECOMMENDATION
If adopted, this lease amendment will allow the City to continue providing safe, low- barrier noncongregate shelter options to people living in encampments. Data from the Homeless Response Team (which will be the source of referrals for the extended Rodeway Inn program) shows that, between September 2021 and April 2023, roughly 500 shelter (both congregate and noncongregate) offers were made to people on the streets in Berkeley, with an overall acceptance rate of 43%; for noncongregate offers, that acceptance rate increased to 84%, demonstrating the effectiveness of this intervention for people living in encampments.
Adopting the agreement by Urgency Ordinance is appropriate in light of the current shelter crisis and the imminent expiration of the existing lease contract. By adopting this
Contract Amendment for Extending the Lease for the Real Property at 1461 ACTION CALENDAR University Avenue September 19, 2023
agreement through an Urgency Ordinance, it will be possible to execute a lease with an effective date of November 1, 2023.
ALTERNATIVE ACTIONS CONSIDERED
Staff considered a short-term extension of the Rodeway Inn through March 31, 2023 (to get through the immediate rainy season) using existing ERF and Measure P funding already approved for the program, but then closing the program and saving the $8.5M in Homekey funding already approved by Council for a future Homekey funding opportunity in 2024 or some other similar use. Staff advise against this alternative action for three reasons:
1. There is an immediate need for continuing this interim shelter now, and no identified locations for those living in this program have been identified, whereas the future Homekey funding and real estate opportunities are unknown at this time; and
2. On July 12, 2021, Council adopted the All Home Regional Action Plan, which commits the city to a 75% reduction in unsheltered homelessness over 3 years.
While prioritizing funding for interim housing over future permanent housing opportunities may seem inconsistent with the 1-2-4 framework in this plan, it is actually very consistent with the plan, which acknowledges that communities such as Berkeley may need to immediately invest in interim housing up front to quickly get people off the street before finding permanent solutions to their homelessness:
“1-2-4” is not a prescription or a one-size-fits-all solution. It’s a ratio that illustrates proportionate investment in three strategies simultaneously. In order to reduce unsheltered homelessness rapidly, most cities or counties will need to frontload investment into interim housing options, such as leasing or purchasing motels, tiny homes, mobile homes or other temporary housing options.1 Given that the All Home Regional Action Plan is the City Council’s current endorsed unsheltered homelessness strategy, continuing this lease using freed- up Homekey funding now is consistent with this strategy.
3. Over the last year, the City has lost more year-round interim shelter capacity than it has gained: while we have added 27 beds at the Berkeley Inn and 23 beds at the new Super 8 program, we have lost 50 beds at Horizon and 40 safe RV parking spaces at SPARK (both at 742 Grayson, which closed in December 2022) and 22 beds at the Emergency Respite trailer program (which ended June 1 See p. 13, https://berkeleyca.gov/sites/default/files/documents/2021-07- 13%20Item%2012%20Endorse%20All%20Home%20CA%20Regional%20Action.pdf
Contract Amendment for Extending the Lease for the Real Property at 1461 ACTION CALENDAR University Avenue September 19, 2023
2023) for a net loss of 62 beds/interim spaces. The City cannot afford to continue losing shelter capacity in the midst of a Council-declared shelter crisis.
CONTACT PERSON
Peter Radu, Assistant to the City Manager, 510 981-7045 Attachments:
1: Urgency Ordinance
Exhibit A: Contract Amendment
Exhibit B: Lease Agreement from May 1, 2022.
Contract Amendment for Extending the Lease for the Real Property at 1461 ACTION CALENDAR University Avenue September 19, 2023
ORDINANCE NO. X,XXX N.S.
AUTHORIZING THE CITY MANAGER OR HER DESIGNEE TO EXTEND A LEASE AND
ANY NECESSARY AMENDMENTS WITH SHREE JALASAI LODGING, LP, DBA RODEWAY INN, BERKELEY, FOR REAL PROPERTY LOCATED AT 1461 UNIVERSITY AVENUE, BERKELEY, CA.
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Council finds as follows:
a. The City of Berkeley is facing a growing housing and homelessness crisis, in part exacerbated by the acute lack of affordable housing and supportive housing for people experiencing homelessness; and
b. Encampments in Berkeley are inherently unhealthy for their residents and frequently problematic for surrounding neighbors; and
c. Resolving encampments requires working with their residents to find viable alternatives to their unsheltered status, such as low-barrier, noncongregate interim housing options; and
d. April 26, 2022, the City Council adopted Ordinance No. 7,807-N.S. to master lease the Rodeway Inn at 1461 University Avenue to operate a low-barrier noncongregate shelter for people living in encampments; and e. The current lease expires on Oct. 31, 2023, putting the future of the interim program currently running at the Rodeway at risk of closure; and f. The property owner, Shree Jalasai Lodging, LP, dba Rodeway Inn, Berkeley, has offered to extend the lease on the same terms (43 rooms at a rate of $124 per room per night and $2000 per room in damage funds), to the City for purposes of establishing a homeless shelter for an additional 30 months.
Section 2. The City Manager or her designee is hereby authorized to enter into a lease contract amendment starting November 1, 2023 with Shree Jalasai Lodging, LP, dba Rodeway Inn, Berkeley for real property located at 1461 University Avenue on substantially the same terms as set forth in Exhibit A. The rent will be $124 per room per night, including $2000 per room in damage funds, and will be paid by State of California Encampment Resolution Funding grant funds and City of Berkeley General Funds.
Section 3. This Ordinance is adopted as an urgency ordinance pursuant to the Charter of the City of Berkeley, Article XIV, Section 93 and shall be effective immediately. The City Council finds and determines that the adoption of this Ordinance as an urgency ordinance is necessary for the immediate preservation of the public peace, health and safety of the residents of the City of Berkeley.
Section 4. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 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.
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
ACTION CALENDAR
SEPTEMBER 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Peter Radu, Assistant to the City Manager Subject: Execute contract with Housing Consortium of the East Bay (HCEB) to operate shelter at the Rodeway Inn
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract with Housing Consortium of the East Bay (HCEB) to operate an interim housing program at the Rodeway Inn (1461 University Ave.) through April 30, 2026.
FISCAL IMPACTS OF RECOMMENDATION
If approved, this resolution will result in an expenditure contract with HCEB for an amount not to exceed $4,000,000 for program operations through April 30, 2026. This contract will be paid for using State of California Encampment Resolution Funding grant funds (Fund #336), leftover UC Berkeley donation funds from the original lease (Fund #147), as well as funding from the City General Fund (Measure P and/or U1) previously reserved for HomeKey. These funds will be appropriated in the Second Amendment to the FY2024 Annual Appropriations Ordinance.
CURRENT SITUATION AND ITS EFFECTS
The City is currently funding Abode Services to provide interim emergency shelter at the Rodeway Inn through October 31, 2023. Abode Services is not interested in extending its contract with the city. There are currently 38 households enrolled in the program with 79% being eligible for permanent supportive housing.
On May 10, 2023, Health, Housing and Community Services Department, Housing and Community Services Division staff, in partnership with MPI Homes and HCEB, submitted a proposal to the State of California’s Homekey Program to purchase the Rodeway Inn and convert and operate it as permanent supportive housing for people experiencing homelessness. As of the drafting of this report, the State is still reviewing the City's Homekey application. Since Abode Services will end on October 31st, a contract with HCEB is needed to continue to provide interim shelter services in the event the City is not awarded Homekey funding. Because of the time sensitive nature of this item, the budget reflects service and operations through April 30, 2026 including some funding for HCEB to be on-site in October to get familiar with site operations and
Execute contract with Housing Consortium of the East Bay ACTION CALENDAR to operate shelter at the Rodeway Inn SEPTEMBER 19, 2023
program participants to be ready to take over full operations starting on November 1, 2023.
BACKGROUND
In February 2022, the City was awarded just over $4.7M in State of California Encampment Resolution Funding grant funds to operate the Rodeway Inn as the primary interim housing option for people living in People’s Park. On April 26, 2023, the Council approved a lease with Shree Jalasai Lodging, LP and a services contract with Abode Services to operate the Rodeway Inn as an interim non-congregate housing program. Abode Services contract will end on October 31, 2023.
ENVIRONMENTAL SUSTAINABILITY
Continuing to provide interim shelter and services to previously unsheltered people while they wait to be permanently housed minimizes the detrimental environmental impacts associated with encampment homelessness, including vector and fire hazards, accumulation of trash and waste, and impacts on sensitive waterways.
RATIONALE FOR RECOMMENDATION
Housing Consortium of the East Bay is an experienced non-congregate shelter provider, having contracted with the County to provide services at Project Roomkey sites in Alameda County. They are also the co-applicant in the Homekey application for this site and are prepared to assume full site operations starting on November 1, 2023 whether or not the Homekey application is awarded.
ALTERNATIVE ACTIONS CONSIDERED
Staff considered circulating a competitive solicitation (request for proposals) for the services at the Rodeway, but determined it wasn’t feasible nor would it be in the program’s best interest to do so. Specifically, this is because HCEB is the co-applicant in the Homekey application and is prepared to take over short- or long-term operations as of November 1st. If the Homekey project is awarded, having another provider take over short-term operations, would have been disruptive for program participants and general operations. This way, HCEB will be on-site and working with Abode Services in October so they are fully prepared to take over operations on November 1, 2023.
CONTACT PERSON
Peter Radu, Assistant to the City Manager, 510-981-7045.
Attachments:
1: Resolution
RESOLUTION NO. XX,XXX N.S.
AUTHORIZING A CONTRACT WITH HOUSING CONSORTIUM OF THE EAST BAY (HCEB) SERVICES TO OPERATE INTERM HOUSING AT THE RODEWAY INN FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $4,000,000 FOR THE PERIOD OCTOBER 1, 2023 TO APRIL 30, 2026.
WHEREAS, the severe lack of housing affordable for people who are experiencing homelessness, is contributing to an acute housing shortage that is worsening the rates of homelessness in Berkeley; and
WHEREAS, the City received State of California Encampment Resolution Fund (ERF) grant funds to operate the Rodeway Inn as an intensive interim housing destination and the current services will end on October 31, 2023; and
WHEREAS, there are currently 38 households enrolled in the interim shelter program, the majority of them waiting to be referred to permanent supportive housing; WHEREAS, the City partnered with MPI Homes and Housing Consortium of the East Bay, to submit a proposal to the State of California’s Homekey Program to purchase the Rodeway Inn and convert it to permanent supportive housing for people experiencing homelessness and the State is still reviewing the application; and WHEREAS, Housing Consortium of the East Bay is an experienced non-congregate shelter provider, having contracted with the County to provide services at Project Roomkey sites in Alameda County and are prepared to assume full site operations starting on November 1, 2023 whether or not the Homekey application is awarded.
NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager to enter into a contract and necessary amendments for the period October 1, 2023 through April 30, 2026 with Housing Consortium of the East Bay for operating a non-congregate interim housing program at the Rodeway Inn.
BE IT FURTHER RESOLVED that the contract amount will not exceed $4,000,000 with a payment of $387,100 to be advanced prior to contract execution to cover staffing and operating costs. Contract payments will be paid from Encampment Resolution Fund grant moneys, the City General Fund (Measure P and/or U1), and leftover donation funds from the University of California, Berkeley. A recorded signature copy of said contract and any amendments will be on file in the City Clerk Department.
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
September 19, 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 September 19, 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 $22,472,259.
PROJECT Fund Source Amount
Berkeley Fire Station
Landscape Project 011 General Fund $172,259
Street Rehabilitation FY
2024
127
130
133
134
501
601
State Transportation Tax
Measure B
Measure F
Measure BB
Capital Improvements
Zero Waste
$14,000,000
Berkeley Water
Transportation Ferry Pier
Project Traffic & Parking
606
307
336
Coastal Conservancy Grant
ACTC Grant
WETA Funding
$150,000
Berkeley Water
Transportation Ferry Pier
Project Design
606
307
336
Coastal Conservancy Grant
ACTC Grant
WETA Funding
$5,800,000
Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council September 19, 2023 Approval on September 19, 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 goods and/or services.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Darryl Sweet, General Services Manager, Finance, 510-981-7329 Berkeley Water
Transportation Ferry Pier
Project Environmental
606
307
336
Coastal Conservancy Grant
ACTC Grant
WETA Funding
$2,200,000
"HARD HATS" labor
compliance consultant 011 General Fund $150,000
Total: $22,472,259
Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council September 19, 2023 Approval on September 19, 2023
Attachments:
1: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on September 19, 2023
a. Berkeley Fire Station Landscape Project
b. Street Rehabilitation FY 2024
c. Berkeley Water Transportation Ferry Pier Project Traffic & Parking d. Berkeley Water Transportation Ferry Pier Project Design e. Berkeley Water Transportation Ferry Pier Project Environmental f. HARD HATS Compliance Consultant
Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.
NEXT 30 DAYS
DATE SUBMITTED: SEPTEMBER 19, 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
24-11622-C Berkeley Fire
Station
Landscape
Project
October
2023
November
2023
Landscape services for
the Station 4
Demonstration Garden
$ 172,259.00 011-72-743-000-
0000-000-422-
612990
Berkeley Fire
Department,
Wildland Urban
Interface Division
Jesse Figoni
x5598
DEPT. TOTAL $ 172,259.00
24-11624-C Street
Rehabilitation FY
2024
1/1/24 March 2024 Pavement rehabilitation
of various streets
$ 14,000,000.00 127-54-623-673-
0000-000-431-
665110 -
$1,000,000
130-54-623-673-
0000-000-431-
665110 - $725,309
133-54-623-673-
0000-000-431-
665110 - $155,000
134-54-623-673-
0000-000-431-
665110 -
$3,500,000
501-54-623-673-
0000-000-431-
665110 -
$7,619,691
601-54-623-673-
0000-000-431-
66510 - $1,000,000
Total – $14,000,000
Public Works/
Engineering
Srinivas Muktevi
981-6402
Rpn Nevels
981-6439
DEPT. TOTAL $ 14,000,000.00
1 of 5
NEXT 30 DAYS
DATE SUBMITTED: SEPTEMBER 19, 2023
Attachment 1
24-11625-C Berkeley Water
Transportation
Ferry Pier
Project Traffic &
Parking
10/1/23 Nov-23 Environmental services
for the Berkeley Water
Transportation Ferry
Pier Project
environmental
analyses, CEQA and
permitting support
services.
NTE $150,000 over
the course of 3 years
Multiple –
Coastal
Conservancy Grant:
606-52-545-000-
0000-000-461-
612990-
PRWWF24002
ACTC Grant:
307-52-545-000-
0000-000-461-
612990-
PRWWF24002
WETA Funding:
336-52-545-000-
0000-000-461-
612990-
PRWWF24002
Parks, Recreation
& Waterfront
Liza McNulty
510-542-4131
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 5
NEXT 30 DAYS
DATE SUBMITTED: SEPTEMBER 19, 2023
Attachment 1
24-11626-C Berkeley Water
Transportation
Ferry Pier
Project Design
10/1/23 November
2023
Design services for the
Berkeley Water
Transportation Ferry
Pier Project
NTE $5,800,000 over
the course of 3 years
Multiple –
Coastal
Conservancy Grant:
606-52-545-000-
0000-000-461-
612310-
PRWWF24002
ACTC Grant:
307-52-545-000-
0000-000-461-
612310-
PRWWF24002
WETA Funding:
336-52-545-000-
0000-000-461-
612310-
PRWWF24002
Parks, Recreation
& Waterfront
Liza McNulty
510-542-4131
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 5
NEXT 30 DAYS
DATE SUBMITTED: SEPTEMBER 19, 2023
Attachment 1
24-11627-C Berkeley Water
Transportation
Ferry Pier
Project
Environmental
10/1/23 November
2023
Environmental services
for the Berkeley Water
Transportation Ferry
Pier Project
environmental
analyses, CEQA and
permitting support
services.
NTE $2,200,000 over
the course of 3 years
Multiple –
Coastal
Conservancy Grant:
606-52-545-000-
0000-000-461-
612990-
PRWWF24002
ACTC Grant:
307-52-545-000-
0000-000-461-
612990-
PRWWF24002
WETA Funding:
336-52-545-000-
0000-000-461-
612990-
PRWWF24002
Parks, Recreation
& Waterfront
Liza McNulty
510-542-4131
DEPT. TOTAL $ 8,150,000.00
24-11631-C "HARD HATS"
labor complinace
consultant
9/26/2023 10/31/2023
Consultant to design and
implement a program to
enforce the provisions
outlined in Chapter 13.107 of
the Berkeley Municipal
Code
$ 150,000.00
DEPT. TOTAL $ 150,000.00 011-21-201-000-0000-
000-412-612990
Planning/Ofc of
Director
Jenny McNulty
981-7451
TOTAL $ 22,472,259.00
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
4 of 5
Attachment 1
5 of 5
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Henry Oyekanmi, Director, Finance Department Subject: 2024 Tax Rate: Transportation Network Company User Tax
RECOMMENDATION
Adopt first reading of an Ordinance setting the 2024 tax rate (effective January 1, 2024) for the transportation network company at the following rates: 56.162 cents on the user for each prearranged trip that originates in the City that is not part of a pooled prearranged trip and 27.424 for each pooled prearranged trip on each user who arranges each prearranged trip that originates in the City and which comprises part of the pooled prearranged trip.
FISCAL IMPACTS OF RECOMMENDATION
The tax levy of the recommended 56.162 cents for each non-pooled prearranged trip and
27.424 cents on each user for each pooled prearranged trip will result in estimated collections of $1,022,160.
CURRENT SITUATION AND ITS EFFECTS
The 2023 tax of 53.775 cents tax per each non-pooled prearranged trip and the 26.259 cents tax per each pooled prearranged trip is being adjusted by the Personal Income Growth of 4.440% as authorized on November 3, 2020 by voter approved Measure GG as the voters approved the greater of the Consumer Price Index in the immediate San Francisco Bay Area of 4.192% or Personal Income Growth increase in California of
4.440%.
BACKGROUND
On November 3, 2020, over 66% of Berkeley voters approved Measure GG which authorized a transportation network company user tax for prearranged trips for private and pooled trips for general municipal services in the City until January 1, 2041.
The tax may be increased or decreased annually in May, according to the greater of the increase or decrease in the cost of living in the immediate San Francisco Bay Area or personal income growth in the state of California, as verified by official United States economic report.
2024 Tax Rate: Transportation Network Company User Tax CONSENT CALENDAR September 19, 2023
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.
ALTERNATIVE ACTIONS CONSIDERED
The fiscal impact on general municipal services of forgoing an adjustment to the fiscal year’s transportation network company user tax would be a reduction of $2,427 in estimated collections.
CONTACT PERSON
Henry Oyekanmi, Director, Finance Department, 981-7326
Attachments:
1: Ordinance
ORDINANCE NO. -N.S.
IMPOSING A GENERAL TAX ON USERS OF TRANSPORATION NETWORK COMPANIES AT A RATE OF 56.162 CENTS FOR PRIVATE TRIPS AND 27.424 CENTS
FOR POOLED TRIPS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The 2024 Tax Rate, effective January 1, 2024, to fund general municipal services is set at 56.162 cents for private trips and 27.424 for pooled trips.
Section 2. This tax rate will result in estimated total collections of $1,022,160.
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Health, Housing, and Community Services Subject: Contract: Options Recovery Services – Encampment-based Mobile Wellness Center Project
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with Options Recovery Services to provide Mobile Wellness services for individuals who are unhoused or living in encampments in Berkeley. The contract will be funded through California Mental Health Services Act (MHSA) Innovation (INN) funds, for a total not to exceed amount $2,802,400, through June 30, 2028.
FISCAL IMPACTS OF RECOMMENDATION
Funding in the amount of $1,201,000 provided from the State of California Mental Health Services Act Fund 315, is available in the Fiscal Year 2024 budget. The remaining funding for this project, in the amount of $1,601,400, will be included in future budgets.
CURRENT SITUATION AND ITS EFFECTS
In March 2023, per Bid Specification 23-11592-C a Request for Proposal (RFP) was released to obtain a community partner to implement this project. Following proposal review and rating from a panel of reviewers, which included community members, Options Recovery Services was selected as the vendor to implement these services in Berkeley.
The City Council approved, Encampment-based Mobile Wellness Center Project will offer a customizable menu of services (i.e. food/hygiene, service navigation, wellness activities, and community/enrichment) to Berkeley’s unhoused population. Services and activities through this project will be responsive to the changing needs of the community and will be planned on a weekly basis based on on-going conversations with encampment community members. Coordination with local partners involved in current homeless outreach efforts will be central to service provision. This project is funded through Mental Health Services Act (MHSA) Innovation (INN) funds.
Contract: Options Recovery Services CONSENT CALENDAR
Encampment-based Mobile Wellness Center Project September 19, 2023
BACKGROUND
The State of California provides MHSA funding for local mental health services and supports. One of the annually recurring MHSA funding components is Innovation (INN).
MHSA regulations require that INN funds are to be utilized on short-term pilot projects that increase learning in the mental health field. In order to utilize funds, stakeholder informed INN Plans outlining how funds are to be allocated are required to be developed and locally approved. MHSA INN Plans also require approval from the California Mental Health Services Oversight and Accountability Commission (MHSOAC).
Following extensive community engagement, the MHSA INN Encampment-Based Mobile Wellness Center Project Plan was written and circulated for a 30-Day Public Review. A Public Hearing before the Mental Health Commission Meeting was held at the end of the 30-Day Public Review Period. In April 2022, both the City Council and the California Mental Health Services Oversight and Accountability Commission (MHSOAC) approved the MHSA INN Project Plan.
Following project plan approvals, a panel which included members of the community was convened to inform what would be requested in the Request for Proposal (RFP).
The RFP was released at the end of March 2023 and closed in May. A separate review panel that included members of the community was convened to review and rate the received proposals and Options Recovery Services was the selected vendor.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this project.
RATIONALE FOR RECOMMENDATION
The execution of this contract will ensure that additional mental health wellness services are implemented for individuals who are unhoused in Berkeley.
ALTERNATIVE ACTIONS CONSIDERED
No alternative actions were considered as City Council previously approved the Encampment-based Mobile Wellness Center Project Plan to implement services for unhoused individuals.
CONTACT PERSON
Jeff Buell, Manager of Mental Health, HHCS, (510) 981-7682 Karen Klatt, Community Services Specialist III, HHCS, (510) 981-7644 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT: OPTIONS RECOVERY SERVICES – ENCAMPMENT-BASED MOBILE
WELLNESS CENTER PROJECT
WHEREAS, the City’s Health, Housing, and Community Services, Mental Health Division (HHCS/MHD), currently receives Mental Health Services Act (MHSA) Innovation (INN) funds on an annual basis to implement short-term projects that will increase learning in the mental health field through strategies that increase the access, quality, or outcomes of services, and/or promote community collaborations; and WHEREAS, the HHCS/MHD often collaborates with community partners in the implementation of MHSA INN funded services; and
WHEREAS, in order to utilize MHSA INN funds, the HHCS/MHD must have a stakeholder informed, local and state approved plan in place; and
WHEREAS, following an extensive community engagement process, a draft plan was developed to allocate $2,802,400 of INN funds to implement a Mobile Wellness Center for services, activities, and supports for the unhoused population in Berkeley; and WHEREAS, on April 22, 2022, per Resolution No. 70,287-N.S, City Council authorized approval of the Encampment-based Mobile Wellness Center Project Plan and any extensions for services, activities and supports for homeless individuals in Berkeley for a total project amount not to exceed $2,802,400; and
WHEREAS, on April 26, 2022 the California Mental Health Oversight and Accountability Commission (MHSOAC) approved the Encampment-based Mobile Wellness Center Project Plan; and
WHEREAS, in March 2023, per Bid Specification 23-11952-C a Request for Proposal was released to find a local provider to implement this project; and WHEREAS, in June 2023, following proposal review from a panel that included individuals from the community, Options Recovery Services was chosen as the vendor to implement these services in Berkeley; and
WHEREAS, funds for this contract in the amount of $1,201,000 are available in the Fiscal Year 2024 budget in the Mental Health Services Act Fund 315; and WHEREAS, funds in the amount of $1,601,400 will be available for this contract in the Fiscal Years 2025 through 2027 budgets in the Mental Health Services Act Fund 315.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is hereby authorized to execute a contract and any amendments with Options Recovery Services to implement Mobile Wellness services to
individuals who are unhoused or living in encampments for a total contract amount not to exceed $2,802,400 through June 30, 2028, with a record signature copy of said contract and any amendments to be on file in the Office of the City Clerk.
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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
September 19, 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: Authorizing a Lease of 830 University Avenue to Lifelong Medical Care
RECOMMENDATION
Adopt first reading of an Ordinance authorizing the City Manager to enter into a lease for 830 University with Lifelong Medical Care (Lifelong).
FISCAL IMPACTS OF RECOMMENDATION
Lifelong will pay $2,000 per month in facility costs for the duration of the lease. Revenue will be deposited into Fund 673, a building maintenance fund, so that these funds can be available for maintenance and repairs to this historic building.
CURRENT SITUATION AND ITS EFFECTS
Lifelong is currently operating a Trust Clinic in Oakland, which was created through a close partnership with Alameda County. The purpose of the Trust Clinic is to serve the mental and physical health needs of people experiencing homelessness, by being very accessible and offering a range of services. Lifelong proposes to duplicate the success of that clinic at 830 University.
Berkeley Free Clinic will be losing the site that they have occupied for years, due to redevelopment plans at that property, and proposes to relocate their services to 830 University as well. The Berkeley Free Clinic is a worker-run collective that works to ensure that comprehensive, private health services are available to everyone.
Lifelong and Berkeley Free Clinic worked together to plan for use of the building, and will enter into an agreement regarding mutual responsibilities for this project prior to executing this lease. They are planning to make limited interior updates and renovations. This lease will run for five years with an option to renew. Staff anticipate submitting a lease with Berkeley Free Clinic for approval later this fall.
BACKGROUND
The Council previously approved $525,000 in Measure P funds for Lifelong to support the operation of this new Trust Clinic. Lifelong will use some of these funds to cover initial facility costs. Because this is a landmarked building, changes that can be made to the building are very limited.
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Authorizing a Lease of 830 University Avenue CONSENT CALENDAR to Lifelong Medical Care September 19, 2023
The City has owned and operated the building at 830 University as a public health clinic since 1916. Ann Chandler (1941-2012) was a director of the Alameda County Public Health Laboratory for 25 years and a Berkeley City Council member from 1984 to1992.
She backed the creation of a teen health clinic at Berkeley High School, advocated for people with HIV/AIDS, pressed for increased TB testing, and expanded mental health services, and the facility was named after her (the Ann Chandler Public Health Center).
In recent years the Department of Health, Housing, and Community Services Public Health Division (HHCS/PH) operated out of this site. Services included sexual and reproductive health, immunizations, Black Infant Health, and the Women, Infant, and Children (WIC) nutrition program. With changes in health insurance provision and benefits, demand for services decreased at this clinic over time. In 2022, HHCS/PH consolidated its sexual and reproductive health services at the High School Health Center and moved other services to the West Berkeley Family Center at 1900 Sixth Street, with a goal of creating a service-enhanced, welcoming environment for children and families.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no environmental sustainability and climate impacts associated directly with the subject matter of this report.
RATIONALE FOR RECOMMENDATION
Leasing the 830 University site to Lifelong and Berkeley Free Clinic will ensure that a robust array of health care services, reaching both people experiencing homelessness and people who are not well-served or served at all by other health care options, will continue to be available in Berkeley. People who are based in Berkeley and going to the Oakland Trust Clinic will be able to access care closer to home. Lifelong and Berkeley Free Clinic will expand and carry on Berkeley’s more than 100 year tradition of providing health services at this site.
ALTERNATIVE ACTIONS CONSIDERED
Staff did not identify another use of the site which would continue the legacy of the Ann Chandler Health Center and make full use of a site designed for clinic services.
CONTACT PERSON
Amy Davidson, Deputy Director, HHCS, 510-981-5406
Attachments:
1: Ordinance
Exhibit A: Lease by and between City of Berkeley and Lifelong Medical Care
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ORDINANCE NO. -N.S.
LEASING THE ANN CHANDLER HEALTH CENTER AT 830 UNIVERSITY TO
LIFELONG MEDICAL CARE AND THE BERKELEY FREE CLINIC
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. FINDINGS:
1. The City of Berkeley acquired 830 University Avenue in 1933 for use as a health clinic.
2. The Department of Health, Housing, and Community Services’ Public Health Division ceased operating clinic services in 830 University Avenue in early 2023.
3. Lifelong Medical Care has proposed using the site to offer homeless health care services, and the Berkeley Free Clinic has proposed to move their current operations to this location.
Section 2. AUTHORIZATION FOR CITY MANAGER TO ENTER INTO A LEASE FOR 830 UNIVERSITY.
The City Manager is hereby authorized to enter into a five-year lease agreement with the option for a five-year extension with Lifelong Medical Care for real property located at 830 University and known at the Ann Chandler Health Center. Such lease shall be on substantially the terms set forth in Exhibit A.
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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LEASE
By and Between
CITY OF BERKELEY
a Charter City organized and existing under the laws of the State of California ("Landlord")
and
LIFELONG MEDICAL CARE
a non-profit corporation
("Tenant")
Dated:_________________, 2023
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EXHIBITS
Exhibit A-1 Legal Description of Property
Exhibit A-2 Depiction of the Premises
Exhibit B May 20, 2022 Building Inspection Report by E. A. Davidovits & Co., Inc.
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LEASE
BASIC LEASE INFORMATION
1. Landlord: City of Berkeley, a Charter City organized and existing under the laws of the State of California
2180 Milvia Street, 2nd Floor
Berkeley, CA 94704
Attn: Deputy Director, Health, Housing, and Community Services Telephone: 510-981-5400
2. Tenant: Lifelong Medical Care, a non-profit corporation 2344 Sixth Street
Berkeley, CA 94710
Phone: 510-981-4177
3. Effective Date: _______________, 2023
4. Premises: Approximately ten thousand (10,000) rentable square feet of space in the building commonly known and referred to as 830 University Avenue, Berkeley, California 94710 (the "Premises").
5. Permitted Uses: Medical office and clinical operations to serve low income and unhoused residents of the City of Berkeley. Any other associated or related legal uses shall be permitted.
6. Initial Term: Five (5) years, commencing as of the "Commencement Date " as that term is defined in the Lease.
7. Rent: In lieu of base rent, a monthly Maintenance Fee of two thousand dollars ($2,000) (hereinafter “Maintenance Fee” or “Rent”) shall be paid due during the Initial Term and during any Additional Term.
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_______
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1 LEASE
This Lease Agreement ("Lease") is made and entered into as of the effective date specified in Section 3 of the Basic Lease Information, above ("Effective Date"), by and between City of Berkeley, a Charter City organized and existing under the laws of the State of California ("Landlord" or "City"), and Lifelong Medical Care, a non-profit corporation ("Tenant").
1. PREMISES.
1.1. Premises. Landlord is the owner of the land parcel(s) on which the Premises are located (the "Property"). A legal description of the Property is attached hereto and incorporated by reference as Exhibit A-1. Landlord hereby leases to Tenant, and Tenant leases from Landlord, the Premises together with Tenant Improvements (defined below), if any. A drawing depicting the general location and layout of the demised Premises is attached hereto and incorporated by reference as Exhibit A-2. Any improvements or alterations existing in the Premises, or otherwise constructed by Tenant or on Tenant's behalf therein pursuant to Section 9 of this Lease are referred to in this Lease as "Tenant Improvements."
1.2. Commencement Date: [ ], 2023
1.3. Delivery Condition. Except as otherwise expressly provided, Tenant shall accept the Premises "as is."
1.4. Premises Name. Tenant acknowledges that the Premises has been known as the Ann Chandler Public Health Clinic, and agrees that any name Tenant gives to its operations at the Premises shall include the term "Ann Chandler." By way of example, Tenant may use the name "Trust Clinic at the Ann Chandler Health Center."
2. TERM.
2.1. Initial Term. The "Initial Term" of this Lease shall be as set forth in Section 6 of the Basic Lease Information and shall commence as of the Commencement Date set forth in Section 1.2 of the Lease. The Initial Term together with any Renewal Term(s), if any, are collectively referred to herein as the "Term."
2.2. Renewal Term. Tenant shall have one (1) option to renew this Lease for a term of five (5) years (the "Renewal Term").
2.2.1 Right to Exercise. Tenant may exercise the option to renew this Lease only if it is fully compliant and current with all obligations after any applicable notice and cure periods as provided for under the Lease.
2.2.2 Notice. Tenant will provide Landlord with written notice of its election to renew the Lease with no less than six (6) months, prior to the end of the Term. If Tenant fails to provide such notice, its right to renew the Lease will not expire until fifteen (15) working days after the Tenant's receipt of Landlord's written demand that the Tenant exercise or forfeit the option to renew.
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2 2.2.3 Extension of Term. Upon the commencement of a Renewal Term, all references to the Term of this Lease will be deemed to mean the Term as extended pursuant to this Section 2.2.
3. RENT
3.1. Maintenance Fees in Lieu of Base Rent. In lieu of base rent, Tenant shall pay Maintenance Fees as set forth in Section 7 of the Basic Lease Information. Maintenance Fees under this Lease shall become due as of the Commencement Date. Maintenance Fees shall be paid as set forth in Section 7 of the Basic Lease Information and this Section 3. Tenant shall pay to Landlord, at Landlord's address designated in Section 1 of the Basic Lease Information, or at such other address as Landlord may from time to time designate in writing to Tenant for the payment of Maintenance Fees, the Maintenance Fees designated in Section 7 of the Basic Lease Information, without notice, demand, offset or deduction, in advance, on the first day of each month of the Term. Upon execution of this Lease, Tenant shall pay to Landlord the first month's Maintenance Fees. If Maintenance Fees are due for a period of less than a full month, the amount due shall be prorated for such partial month on the basis of a 30-day month.
3.1.1 Application of Payments. All payments received by Landlord from Tenant shall be applied to the oldest obligation owed by Tenant to Landlord. No designation by Tenant, either in a separate writing, on a check or money order, or otherwise shall modify this clause or have any force or effect.
4. UTILITIES.
4.1. Tenant Utility and Service Costs. Tenant shall pay for all utilities and services required or desired by Tenant in connection with its use or occupancy of the Premises, including:
(i) heat and air conditioning; (ii) water; (iii) gas, if applicable; (iv) elevator or lift service, if any; (v) electricity; (vi) telephone, computer, communications; (vii) trash pick-up; and (viii) any other materials, services, or utilities (individually and collectively, the "Services").
4.2. Conservation and Use Policies. Tenant, at its expense, shall comply with federal, state, or local governmental controls, rules, regulations, or restrictions on the use or consumption of energy or other utilities during the Term.
5. TAXES .
5.1. Taxes. Tenant represents and warrants that Tenant is a not for profit organization and is exempt from possessory interest tax.
6. INSURANCE.
6.1. Landlord. Landlord shall maintain insurance or an insurance equivalent insuring the Premises (excluding Tenant's Property and any Tenant Improvements) on an occurrence basis against fire and extended coverage (including, "all risk" coverage, earthquake/volcanic action, flood and/or surface water insurance) similar in type and coverage limits to that carried by Landlord on its other properties. At Landlord's option, such insurance or insurance equivalent
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3 may be carried under any blanket or umbrella policies or other insurance or insurance equivalent which Landlord has in force for other buildings or projects. Landlord may also carry such other insurance as Landlord may deem prudent or advisable, in such amounts and on such terms as Landlord shall determine. All such insurance or insurance equivalent maintained by Landlord pursuant to this Section 6.1 is referred to herein as "Landlord's Insurance."
6.2. Tenant.
6.2.1 Tenant at its cost shall maintain public liability and property damage insurance with a single combined liability limit of $2,000,000, and property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision, including glass insurance and property damage limits of not less than $200,000 insuring against all liability of Tenant and its authorized representatives arising out of and in connection with Tenant's use or occupancy of the Premises. All such insurance shall insure performance by Tenant of the indemnity provisions set forth in Section 7. All insurance shall name the City of Berkeley, its officers, agents, volunteers and employees as additional insureds and shall provide primary coverage with respect to the City. All such insurance or insurance equivalent maintained by Tenant pursuant to this Section 6.2 is referred to herein as "Tenant's Insurance."
6.2.2 If the insurance referred to in this Section 6.2 is written on a Claims Made Form, then following termination of this Lease, coverage shall survive for a period of not less than five years. Coverage shall also provide for a retroactive date of placement coinciding with the effective date of this lease.
6.2.3 Tenant at its cost shall maintain on all its personal property, Tenant's Improvements, and alterations, in on, or about the Premises, a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements. This coverage shall be considered primary, and the proceeds from any such policy shall be used by Tenant for the replacement of personal property or the restoration of Tenant's Improvements or alterations.
6.2.4 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 (or, if the insurer will not agree to give such notice, Tenant must promptly notify the City of any such cancellation, termination or modification of coverage); 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, such approval not to be unreasonably withheld, conditioned or delayed.
6.2.5 Tenant shall forward copies of all insurance documents to: Department of Public Works, Real Property Division, 1947 Center Street, Fifth Floor, Ste. 521, Berkeley, California, 94704.
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4 6.2.6 Waivers of Subrogation. Notwithstanding every other provision of this Lease to the contrary, Landlord shall not be liable (by way of subrogation or otherwise) to Tenant (or to any insurance company insuring Tenant), and Tenant shall not be liable (by way of subrogation or otherwise) to Landlord (or to any insurance company insuring Landlord), for any loss or damage to any of the property of Landlord or Tenant, as applicable, with respect to the Building, the Property or the Premises or any addition or improvements thereto, or any contents therein, to the extent covered by insurance carried or required to be carried by Landlord or Tenant, as applicable, even though such loss might have been occasioned by the negligence or willful acts or omissions of Landlord or Tenant, as applicable, or their respective employees, agents, contractors or invitees. Landlord and Tenant shall give their respective insurance providers which issue policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and shall have such insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the amount of any deductible applicable to any loss or damage shall be deemed covered by, and recoverable by Landlord or Tenant, as applicable, under the insurance policy to which such deductible relates.
7. INDEMNITY; LIABILITY EXEMPTION .
7.1. Indemnity. Except to the extent claims are caused by Landlord's negligence or willful misconduct, Tenant shall indemnify, protect, defend, and hold harmless Landlord and its elected officials, officers, employees, volunteers, lenders, agents, representatives, contractors and each of their successors and assigns from and against any and all claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon, arising at any time during or after the Term as a result (directly or indirectly) of or in connection with (i) any default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, where the same continues beyond applicable notice and cure periods; (ii) Tenant's use of the Premises, the conduct of Tenant's business or any activity, work or thing done, permitted or suffered by Tenant in or about the Premises or the Property; (iii) all damages, liability, fines, penalties, and any other consequences arising from any noncompliance or violation of any laws, Ordinances, codes, or regulations, including but not limited to the Occupational Safety and Health Act of 1979 and the Americans with Disabilities Act of 1990; or (iv) any act, error or omission of Tenant in or about the Property or any portion thereof (collectively, the "Indemnification"). Tenant shall provide such Indemnification by and through counsel reasonably acceptable to Landlord; provided, additionally, that the Berkeley City Attorney’s Office may participate in the response to or defense of any Indemnification claim under this Section 7.1 at the City’s sole expense. Without limiting Tenant's Indemnification obligations, Landlord shall be entitled to participate in the defense of any third party claim that is reasonably likely to give rise to Indemnification claim under this Section 7.1.
Landlord shall indemnify, protect, defend, and hold harmless Tenant and its officers, employees, volunteers, lenders, agents, representatives, contractors and each of their successors and assigns from and against any and all claims, judgments, causes of action, damages, penalties, costs,
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5 liabilities, and expenses, including all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon, arising at any time during or after the Term as a result (directly or indirectly) of or in connection (1) the active negligence or willful misconduct of Landlord, or its officers, employees, volunteers, lenders, agents, representatives, contractors and each of their successors and assigns, and (2) any default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease. The obligations of Tenant and Landlord under this Section 7.1 shall survive the expiration or other termination of this Lease with respect to any claims or liability arising prior to such expiration or other termination.
7.2. Exemption of Landlord from Liability. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property including, but not limited to, Tenant's Property and any Tenant Improvements, and injury to or death of persons in, upon or about the Premises or the Property arising from any cause, and Tenant hereby waives all claims in respect thereof against Landlord, except to the extent such claims are caused by Landlord's active negligence or willful misconduct. Tenant hereby agrees that Landlord shall not be liable for injury to Tenant's business or any loss of income therefrom or for damage to the property of Tenant, or injury to or death of Tenant's officers, agents, or employees, or any other person in or about the Premises or the Property, whether such damage or injury is caused by fire, steam, electricity, gas, water or rain, or from the breakage, leakage or other defects of sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether said damage or injury results from conditions arising within or about the Premises or the Property or from other sources or places, except damage or injury caused by Landlord's active negligence or willful misconduct. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant or occupant, if any, of the Premises or the Property except to the extent such damages are caused by Landlord's failure to enforce the terms of any agreements or any applicable law with parties other than Tenant.
8. REPAIRS AND MAINTENANCE.
8.1. Landlord's Repair and Maintenance. During the Term, Landlord shall be responsible for maintaining in good order, condition, and repair the following elements of the Premises: the foundations and footings of the Premises; all structural elements of the Premises, including roof structure, exterior walls, and interior bearing walls. Landlord's repair and maintenance requirements under this Section 8.1 shall include the necessary replacement of any of the listed elements of the Premises; provided, however, the scope of such requirements shall be subject to whether landlords of comparable buildings in the City of Berkeley would make the replacements of the listed elements of the Premises.
8.1.1 Performance by Tenant. If Tenant determines that any elements of the Premises subject to this Section 8.1 require maintenance, repair, or replacement, Tenant shall provide written notice of such to Landlord. Should Landlord fail to perform, within a reasonable time after such notice by Tenant, any maintenance, repairs, or replacements subject to this Section 8.1 (and expressly including Landlord's reasonably discretion hereunder), Tenant shall have the right (but not the obligation) to undertake such actions as may reasonably be required to effect a cure of Landlord's failure to so perform. Prior to undertaking any such actions, however,
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6 Tenant shall consult with Landlord's Director of Public Works or their designee to determine the appropriate scope and cost of such actions. Landlord shall reimburse Tenant for all agreed upon, reasonable and necessary costs of cure within thirty (30) days after Tenant's delivery if an itemized statement of such costs, together with reasonable supporting documentation. Tenant may offset against Rent and other sums due to Landlord under the Lease any undisputed sums not timely paid by Landlord to Tenant, including interest thereon at the maximum lawful rate.
8.2. Parking, Exterior Lighting, Landscaping. Tenant shall maintain the exterior lighting system and landscaping of the Building, in good order, condition, and repair.
8.3. Security. Tenant shall maintain all locks and key systems used in the Premises.
9. TENANT IMPROVEMENTS.
9.1. Pre-Approved Tenant Improvements. Subject to obtaining all required permits and approvals, including from the Director of Public Works representing the Landlord, Tenant will perform all maintenance, repairs and replacements called for by the May 20, 2022 Building Inspection Report by E. A. Davidovits & Co., Inc. (including all appendices but with the exception of roof maintenance or replacement), attached hereto as Exhibit B at its sole cost and expense.
9.2. Further Tenant Improvements. Tenant may make future alterations and improvements to the Premises with Landlord's prior written consent, not to be unreasonably withheld, conditioned, or delayed. Tenant shall have no duty to remove any alterations or improvements unless they are not customary for medical office use and Landlord notifies Tenant of the removal requirement at the time Landlord gives its consent to the alterations or improvements. Tenant may, at its sole cost and expense, install, operate, maintain, upgrade, repair, or replace an alarm, access control, or other building security system. Tenant may, at its sole cost and expense, install, operate, maintain, upgrade, repair, or replace, a solar electric generating system, which may include rooftop solar panels and battery backups. Landlord expressly grants Tenant the right to install solar panels on the roof of the Premises, and Tenant shall have no duty to remove such solar panels.
9.3. Standard of Work. All work to be performed by or on behalf of Landlord and
Tenant shall be performed diligently and in a first-class, workmanlike manner, and in compliance with all applicable Laws and all insurance carrier requirements. Landlord shall have the right, but not the obligation, to periodically inspect such work and may require changes in the method or quality thereof. In no event shall such work materially obstruct access to the Property or any portion thereof.
9.4. Damage; Removal. Tenant shall repair all damage to the Premises, Property and any portions thereof caused by the installation or removal of alterations or other work performed by or on behalf of Tenant. If Landlord requires Tenant to remove improvements under Section
9.2, Tenant shall remove Tenant's trade fixtures and other improvements, alterations and additions and restore the Premises to their condition existing prior to the construction or installation of any such items and perform any closure work, investigation and environmental remedial work required by the presence or suspected presence of any Hazardous Materials under
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7 Hazardous Materials Laws (as hereinafter defined) or by any other applicable Laws, but only to the extent Tenant, and not the Landlord or BFC (or their respective officers, employees, volunteers, lenders, agents, representatives, contractors and each of their successors and assigns), is responsible for causing the presence or suspected presence of Hazardous Materials in violation of Hazardous Materials Laws. All such removals and restoration shall be accomplished in a good and workmanlike manner so as not to cause any damage to the Premises or the Property whatsoever and in strict accordance with all applicable Laws.
9.5. Liens. Tenant shall promptly pay and discharge all claims for labor performed, supplies furnished and services rendered at the request of Tenant and shall keep the Premises and Property and all portions thereof free of all mechanics' and materialmen's liens in connection therewith. Tenant shall provide at least ten (10) business days' prior written notice to Landlord before any labor is performed, supplies furnished or services rendered on or at the Premises and Landlord shall have the right to post on the Premises notices of non-responsibility. If any lien is filed, Tenant shall cause such lien to be released and removed within twenty (20) days after the date of filing, and if Tenant fails to do so, Landlord may take such action as may be necessary to remove such lien, without the duty to investigate the validity of it, and Tenant shall pay Landlord such amounts expended by Landlord together with interest thereon, at the Applicable Interest Rate, from the date of expenditure.
9.6. Bonds. Landlord may require Tenant to provide Landlord, at Tenant's sole cost and expense, lien, performance, and payment completion bonds in an amount equal to one and one-half times the estimated cost of any alterations, additions, or improvements to insure Landlord, the Premises and the Property against any liability for mechanic's and materialmen's liens, and to ensure completion of the work and payment of any contractors or subcontractors.
10. USE; JOINT POSSESSION; INSPECTION; QUIET ENJOYMENT.
10.1. Usage. The Premises shall be used only for the permitted uses set forth in Section 5 of the Basic Lease Information and for no other purpose without the prior written consent of Landlord. Tenant acknowledges that, except as expressly set forth in this Lease, neither Landlord nor any of Landlord's agents has made any representation or warranty with regard to the Premises, any Tenant Improvements, or the Property with respect to their suitability for the conduct of Tenant's business. Tenant, at Tenant's expense, shall comply with all applicable Hazardous Materials Laws, statutes, laws, codes, rules, orders, zoning, ordinances, directions, regulations, regulations, permits, or other requirements of federal, state, county, municipal, or other governmental authorities having jurisdiction, now in force or which may hereafter be in force (individually "Law" and collectively "Laws"), which shall impose any duty upon Landlord or Tenant with respect to the use, occupancy, or alteration of the Premises; provided, however, if the Hazardous Materials was pre-existing prior to the Commencement Date, then Landlord, at its sole cost and expense, shall remedy such condition to comply with all Laws, and further provided that Tenant shall not be required under this Lease to remedy any such condition to the extent it is caused by BFC. Tenant shall be responsible for obtaining any permit or license required by any governmental agency permitting Tenant's use of the Premises.
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8 10.2. Joint Possession of and Operations on the Premises. Landlord and Tenant acknowledge and agree that, Landlord shall enter into a separate lease for the Premises with Berkeley Free Clinic ("BFC") to run concurrently with this Lease. Landlord and Tenant further acknowledge and agree that concurrently with the execution of this Lease, Tenant, and BFC will enter into a joint operating agreement ("JOA") under which Tenant will occupy the Premises between the hours of 8:00 a.m. and 5:30 p.m. Monday through Friday, and BFC will occupy the Premises on weekends and during the weekday hours not devoted to Tenant's use. It is understood that BFC shall be required under the JOA to operate in a manner consistent with the terms of this Lease. The JOA, as it may be revised or amended from time to time, shall be subordinate to the terms of this Lease. The parties agree their usage of the Premises space shall comply with any and all applicable requirements under the Health Insurance Portability and Accountability Act and other legal and health care regulatory requirements. In the event that the lease between Landlord and BFC terminates or expires, then Tenant shall have exclusive possession of the Premises twenty-four (24) hours a day, seven (7) days a week with no reduction in the Maintenance Fee. Upon the termination of expiration of the lease between Landlord and BFC, the JOA shall be automatically terminated.
10.3. Inspection. Landlord, or its representative or contractor, may enter the Premises by prior appointment with at least two business days’ written notice between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday, holidays excepted, to determine that (i) the Premises is being reasonably cared for, (ii) no waste is being made and that all actions affecting the Premises are done in the manner best calculated to preserve the Premises, and (iii) Tenant is in compliance with the terms and conditions of this lease.
10.4. Quiet Enjoyment. Tenant may not commit, or suffer to be committed, any waste upon the Premises, or any nuisance or other act or thing that may disturb the quiet enjoyment of any other occupant of the Building. For so long as Tenant is in compliance with the material terms of this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment and possession of the Premises during the Term. Tenant acknowledges and agrees that possession or use of the Premises by BFC in a manner consistent with the terms of any JOA pursuant to Section 10.2 and any applicable laws shall not constitute a violation of this Section 10.4.
11. ENVIRONMENTAL MATTERS.
11.1. Hazardous Materials Defined. As used in this lease, the term "Hazardous Materials" refers to any and all pollutants, wastes, flammables, explosives, radioactive materials, hazardous, biohazardous, or toxic materials, hazardous, biohazardous, or toxic wastes, hazardous, biohazardous, or toxic substances, carcinogenic materials or contaminants, and all other materials governed, monitored, or regulated by any Federal, State or local law or regulation, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Substances Account Act, and/or the Resources Conservation and Recovery Act.
11.2. Warranty; Hold Harmless. Landlord warrants that Landlord has no knowledge of the presence of any Hazardous Materials or other contamination in or under the Premises or Property in violation of any laws, codes, rules, orders, ordinances, directives, regulations,
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9 permits, or other requirements of federal, state, county, municipal or governmental authorities having jurisdiction, now in force or which may hereafter be in force concerning the management, use, generation, storage, transportation, presence, discharge or disposal of Hazardous Materials.
Landlord shall defend, save, protect and hold Tenant harmless from any loss arising out of the presence of any Hazardous Materials on the Property that was not brought to the Property by or at the request of Tenant, its agents, contractors, invitees or employees. Landlord acknowledges and agrees that Tenant has no obligation to clean up or remediate, or contribute to the cost of clean-up or remediation, of any Hazardous Materials unless such Hazardous Materials are released, discharged or spilled on or about the Property by Tenant or any of its agents, employees, contractors, invitees or other representatives. The obligations of this Section shall survive the expiration or earlier termination of this Lease.
12. DAMAGE AND DESTRUCTION .
12.1. Perilous Condition. If, during the Term, Landlord's Director of Public Works becomes aware of a perilous condition on the Premises that, in his or her opinion, substantially and significantly threatens the health and safety of Tenant's employees or invitees (a "Perilous Condition"), the Director of Public Works, or his or her designee, will immediately notify Tenant of such Perilous Condition, and Tenant shall use best efforts to promptly eliminate the Perilous Condition. Tenant shall immediately address any condition reasonably constituting an emergency, whether Tenant learns of the condition through Landlord or otherwise. If Tenant fails to address a Perilous Condition within thirty six (36) hours after Landlord's notice or to immediately address an emergency situation, Landlord may attempt to resolve the Perilous Condition or emergency situation. Subject to repair and maintenance obligations set forth in Section 8, Tenant shall reimburse Landlord for any costs incurred by Landlord in addressing the Perilous Condition or emergency situation promptly upon receipt of any Landlord's invoice for such costs.
12.2. Insured Casualty. If, during the Term, the Premises are totally or partially destroyed or utility services are cut off from any cause rendering the Premises totally or partially inaccessible or unusable (the "Casualty"), and if the restoration can be made under then existing Laws and can be completed within one hundred twenty (120) days after obtaining all necessary permits therefor and if the costs of such restoration are compensable by Landlord's insurance (an "Insured Casualty"), then Landlord shall restore the Premises (excluding Tenant's Property and any Tenant Improvements) to substantially the same condition as they were in immediately before destruction. If the existing Laws do not permit the restoration or if the costs of such restoration are not compensable by Landlord's insurance, either party may terminate this Lease by giving ninety (90) days' prior written notice to the other party. In case of Insured Casualty, there shall be an abatement or reduction of Maintenance Fees owed to Landlord, between the date of
Insured Casualty and the date of completion of restoration if restoration takes place, or the earliest allowed date of termination if restoration does not take place and whether or not the Lease is terminated, based on the proportion to which the destruction renders the Premises unusable by Tenant for the ordinary conduct of business.
12.3. Tenant's Fault. If the Premises, the Property, or any portion thereof, are damaged resulting from the negligence or breach of this Lease by Tenant or any of its agents, employees,
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10 contractors, invitees or other representatives and Tenant fails to cure such damage within a reasonable amount of time following written notice from Landlord, Maintenance Fees owed to Landlord shall not be reduced during the repair of such damage, Tenant shall have no right to terminate this Lease as provided in Section 12.1, and Tenant shall be liable to Landlord for the cost of the repair caused thereby to the extent such cost is not covered by insurance proceeds.
12.4. Repair Limitation. Notwithstanding anything in this Lease to the contrary, Landlord shall not be required to repair any injury or damage, by fire or other cause, to Tenant's Property or any Tenant Improvements, if any, or to rebuild, repair or replace any decorations, alterations, partitions, fixtures, trade fixtures, additions or other improvements installed on the Premises by or for Tenant, unless and to the extent Landlord has received insurance proceeds from Tenant's property insurance as provided in Section 6.2 above, and neither Tenant or Landlord has opted to terminate this Lease as provided in Section 12.1.
12.5. Waiver. The provisions of this Lease contain an express agreement between Landlord and Tenant that applies in the event of any Casualty. Tenant fully waives the provisions of any statute or regulation, including California Civil Code sections 1932(2) and 1933(4) (as amended from time to time, and successor statutes thereto) for any rights or obligations concerning a Casualty.
13. EMINENT DOMAIN.
13.1. Effect on Rights and Obligations. If the whole or any substantial part of the Premises, or if the Property or any portion thereof which would leave the remainder of the Property unsuitable for the Permitted Uses, or if the land on which the Property is located or any material portion thereof, shall be taken or condemned for any public or quasi public use under governmental law, ordinance or regulation, or by right of eminent domain, or by private purchase in lieu thereof (each a "Taking"), then Landlord may, at its option, terminate this Lease and Maintenance Fees shall be abated during the unexpired portion of this Lease, effective when the physical taking of said Premises or said portion of the Property or land shall occur. However, if Landlord does not, in its sole discretion, opt to terminate this Lease in accordance with this Section 13, then this Lease shall remain in effect. Landlord shall maintain or terminate the leases of all other tenants in the Property who are similarly situated to Tenant consistent with its option with regard to Tenant. Notwithstanding the foregoing, if the whole of the Premises is subject to the Taking, or if the portion of the Premises not affected by the Taking is not in Tenant's business judgment reasonably suitable for Tenant's continued occupancy, Tenant may terminate this Lease as of the date of the Taking and be relieved of all obligations thereafter accruing under this Lease. If Tenant elects to terminate this Lease, Tenant must exercise its right to terminate by giving written notice to Landlord within 30 days after the Taking, as of the date of termination, which date shall not be earlier than 30 days nor later than 90 days after Tenant has notified Landlord of its election to terminate; except that this Lease shall terminate on the date of Taking if the date of Taking falls on a date before the date of termination as designated by Tenant. If Tenant does not terminate this Lease within the 30-day period, this Lease shall continue in full force and effect, except that the Maintenance Fees owed to Landlord thereafter to be paid shall be reduced on a pro-rata basis. Tenant shall notify Landlord in writing of any condemnation or threatened condemnation within ten (10) days after Tenant receives notice of said action or
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11 threatened action. Where only a portion of the Premises is subject to a Taking and neither Landlord nor Tenant terminates this Lease, Landlord shall promptly restore the remainder of the Premises into an architectural whole and functional condition and the Maintenance Fees for any portion of the Premises subject to (or rendered unusable by) the Taking shall be abated during the unexpired Term effective when the physical taking of said portion of the Premises shall occur. Provided that Landlord complies with the preceding sentence, the Taking shall not be construed to constitute an actual or constructive eviction of Tenant or a breach of any express or implied covenant of quiet enjoyment.
13.2. Award. In connection with any condemnation, Landlord shall be entitled to receive all compensation and anything of value awarded, paid, or received in settlement or otherwise ("Award") and Tenant hereby irrevocably assigns and transfers to Landlord all rights to and interests in the Award and fully waives, releases, and relinquishes any claim to, right to make a claim on, or interest in the Award, including any amount attributable to any excess of the market value of the Premises for the remainder of the Term over the present value as of the termination date of the Rent payable for the remainder of the Term (commonly referred to as the "bonus value" of the Lease). Notwithstanding the foregoing, any portions of such award or proceeds which are specifically allocated by the condemning or purchasing party for the taking of or damage to trade fixtures of Tenant and moving and relocation costs shall be reserved specifically for Tenant.
14. DEFAULT.
14.1. Events of Default. The occurrence of any of the following events shall, at Landlord's option, constitute an "Event of Default:"
14.1.1 As to Tenant: (i) Tenant's failure to pay Maintenance Fees within ten business days after receipt of a written notice of such failure from Landlord to Tenant; (ii) Tenant's failure to comply with any other material term or provision of this Lease if such failure is not remedied within thirty (30) days after receipt of a written notice specifying the nature of the breach in reasonably sufficient detail; provided, however, if such default cannot reasonably be remedied within such thirty day period, then a default will not be deemed to occur until the occurrence of Tenant's failure to comply within the period of time that may be reasonably required to remedy the default, up to an aggregate of ninety days (90), provided Tenant commences curing such default within thirty (30) days and thereafter diligently proceeds to cure such default.
14.1.2 As to Landlord: Landlord's failure to perform any obligation under this Lease if such failure is not remedied within thirty (30) days after receipt of a written notice from Tenant to Landlord specifying the nature of the breach in reasonably sufficient detail; provided, however, if such breach cannot reasonably be remedied within such thirty (30) day period, then a default will not be deemed to occur until the occurrence of Landlord's failure to perform within the period of time that may be reasonably required to remedy the breach, up to an aggregate of ninety (90) days, provided Landlord commences curing such breach within thirty (30) days and thereafter diligently proceeds to cure such breach. Notwithstanding the foregoing, if Landlord's failure to perform any obligation under this Lease renders the Premises wholly or partially
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12 unusable by Tenant for the ordinary conduct of business for more than two (2) consecutive business days, then Landlord shall remedy such failure within five (5) business days after receiving written notice from Tenant to Landlord and Tenant shall be entitled to an abatement of Maintenance Fees owed to Landlord, to be prorated on the basis of a 30-day month, for the number of days such failure is not remedied after Landlord receives written notice from Tenant.
For the avoidance of doubt, the abatement of rent provided for under this Section shall not be Tenant’s sole remedy for Landlord’s failure to perform Lease obligations.
14.2. Remedies.
14.2.1 Termination. In the event of the occurrence of any Event of Default, Landlord shall have the right to give a written termination notice to Tenant and, on the date specified in such notice (which date shall be at least three (3) business days following the date of delivery of such notice), this Lease shall terminate unless on or before such date all arrears of Rent and all other sums payable by Tenant under this Lease and all costs and expenses incurred by or on behalf of Landlord hereunder shall have been paid by Tenant and all other Events of Default at the time existing shall have been fully remedied to the satisfaction of Landlord.
A. Repossession. Following termination, without prejudice to other remedies Landlord may have, Landlord may (i) peaceably re-enter the Premises upon voluntary surrender by Tenant, or remove Tenant therefrom and any other persons occupying the Premises following reasonable written notice, using such legal proceedings as may be available; (ii) repossess the Premises or relet the Premises or any part thereof for such term (which may be for a term extending beyond the Term), at such rental and upon such other terms and conditions as Landlord in Landlord's sole discretion shall determine, with the right to make reasonable alterations and repairs to the Premises; and (iii) remove all personal property therefrom.
14.3. Cumulative. Each right and remedy of Landlord provided for herein or now or hereafter existing at Law or in equity, by statute or otherwise shall be cumulative and shall not preclude Landlord from exercising any other rights or remedies provided for in this Lease or now or hereafter existing at Law or in equity, by statute or otherwise. No payment by Tenant of a lesser amount than the Maintenance Fees nor any endorsement on any check or letter accompanying any check or payment of Maintenance Fees shall be deemed an accord and satisfaction of full payment thereof; and Landlord may accept such payment without prejudice to Landlord's right to recover the balance of such Maintenance Fees or to pursue other remedies.
15. ASSIGNMENT AND SUBLETTING.
15.1. Landlord's Consent. Tenant shall not assign, sublet or otherwise transfer, whether voluntarily or involuntarily or by operation of Law, this Lease, the Premises or any part thereof, without Landlord's prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. Upon the assignment of the Lease by Tenant, the Tenant will have no further obligation under the Lease.
15.2. Joint Possession not a Sublease.
Landlord and Tenant acknowledge and agree that
the JOA shall not constitute a sublease or assignment under this Section 15.
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13 16. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES
16.1. If Tenant provides any aid, service or benefit to others on the City'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 City.
16.2. If Tenant is or becomes a "public accommodation" as defined in Title III 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 Tenant's activities must be in accordance with these laws, Ordinances, codes, and regulations, and Tenant shall be solely responsible for complying therewith.
17. CITY NON-DISCRIMINATION ORDINANCE
17.1. Tenant agrees to comply with the provisions of Berkeley Municipal Code Chapter
13.26 as amended from time to time. In the performance of this lease, the Tenant agrees as follows:
17.1.1 The 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.
17.1.2 The Tenant shall permit the Landlord access to records of employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the opinion of the Landlord, are necessary to monitor compliance with this non-discrimination provision, and will, in addition, fill-out in a timely fashion, forms supplied by the Landlord to monitor these non-discrimination provisions.
18. NUCLEAR FREE BERKELEY
18.1. Tenant agrees to comply with Berkeley Municipal Code Chapter 12.90, the Nuclear Free Berkeley Act, as amended from time to time.
19. OPPRESSIVE STATES
19.1. In accordance with Resolution No. 59,853-N.S., Tenant certifies that it has no contractual relations with, and agrees during the term of this Lease to forego contractual relations to provide personal services to or to purchase, sell, lease or distribute commodities in the conduct of business with, the following entities:
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14 (1) The 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 its contract with the City), for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State
19.2. For purposes of this lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.
19.3. Tenant’s failure to comply with this section following thirty (30) days’ written notice from Landlord shall constitute a default of this lease and Landlord may terminate this lease pursuant to Section 14. In the event that the City terminates this lease due to a default under this provision, City may deem Tenant a non-responsible bidder for five (5) years from the date this lease is terminated.
20. BERKELEY LIVING WAGE ORDINANCE
20.1. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance. If Tenant employs six (6) or more part-time, full-time or stipend 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.
20.2. Tenant shall be required to maintain all reasonable records and documents that would establish whether Tenant is subject to Berkeley's Living Wage Ordinance (LWO). If Tenant is 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 property, 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 an Event of Default. The City shall (i) handle such records and documents in accordance with any and all applicable requirements under the Health Insurance Portability and Accountability Act and other legal and health care regulatory requirements and (ii) not disclose Tenant’s Confidential Information, except as expressly permitted in this Lease or otherwise required by law.
The term “Confidential Information” shall include non-public information about the Tenant’s business or activities that is proprietary and/or confidential, including, without limitation, all business, financial, technical, and other information of a party marked or designated as “confidential” (or some similar designation) or that, by its nature or the circumstances
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15 surrounding its disclosure, should reasonably be regarded as confidential. Landlord hereby agrees to (i) use the Confidential Information of the Tenant solely for the purpose of performing its obligations under this Agreement; (ii) hold the Tenant’s Confidential Information in strict confidence, and; (iii) not disclose such Confidential Information or any part thereof, to any person, except those officers, employees, agents or professional advisors (or those of its Affiliates) with a strict “need to know” in order for the Landlord to perform its obligations hereunder, provided that such officers, employees, agents or professional advisors shall prior to any disclosure, have agreed by signed writing or otherwise to be bound by confidentiality obligations no less strict than those described herein. Confidential Information shall not include (i) any information already rightfully in the public domain at the time of its disclosure or subsequently released into the public domain by the Tenant; (ii) any information already rightfully in the possession of the Landlord at the time of its disclosure by the Tenant without an obligation to maintain its confidentiality; (iii) any information that is independently developed by the Landlord without use of or reference to any Confidential Information of the Tenant, in either case such fact being proven through documentary evidence; (iv) information obtained by the Landlord from a third Party not in breach of any confidentiality obligations to the Tenant (v) information required to be disclosed by law, a court order or competent government authority, provided that in such case the Landlord shall, to the extent permitted by law, promptly inform the Tenant of such requirement of disclosure such that the Tenant has an opportunity to object to the production or disclosure by seeking a protective order.
Landlord acknowledges that the Tenant considers its Confidential Information to contain confidential, proprietary, trade secret information of the Tenant and that any unauthorized use or disclosure of such information would cause the Tenant irreparable harm for which its remedies at law would be inadequate. Accordingly, Landlord acknowledges and agrees that the Tenant will be entitled in addition to any other remedies available to it at law or in equity, to seek the issuance of injunctive relief, enjoin any breach or threatened breach of the Landlord’s obligations hereunder with respect to the Confidential Information of the Tenant, in addition to such further injunctive relief as any court of competent jurisdiction may deem just and proper.
20.3. 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 Premises.
20.4. 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 20, in addition to any rights and remedies provided by law or equity.
20.5. Tenant's failure to comply with this Section 20 shall constitute an Event of Default. 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 any 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
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16 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.
21. BERKELEY EQUAL BENEFITS ORDINANCE
21.1. 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 employees 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.
21.2. 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 an Event of Default. The City shall (i) handle such records in accordance with any and all applicable requirements under the Health Insurance Portability and Accountability Act and other legal and health care regulatory requirements and (ii) not disclose Tenant’s Confidential Information, except as expressly permitted in this Lease or required by law.
21.3. If Tenant fails to comply with the requirements of this Section 21, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
21.4. Tenant’s failure to comply with this Section 21 shall constitute an Event of Default. 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 21. 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.
22. SANCTUARY CITY CONTRACTING ORDINANCE
22.1. 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
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17 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.
23. CONFLICT OF INTEREST PROHIBITED
23.1. 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 committee or commission member of Landlord, who has directly or indirectly influenced the making of this Lease.
23.2. 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).
23.3. Interpretation of this paragraph shall be governed by the definitions and provisions use 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.
24. RIGHT OF FIRST REFUSAL
24.1. First Refusal Notice. If, during the Term, Landlord desires to sell or otherwise dispose of the Property, except as part of an Excluded Transaction (a "Proposed Transfer"), Tenant shall have a right of first refusal to purchase the Property in accordance with this Section 24 ("ROFR"), and Landlord shall not consummate the sale unless Landlord shall first deliver to Tenant a notice (the "First Refusal Notice") setting forth: (a) the identity of the proposed purchaser (the "Offeree"); (b) the sale price and each of the material terms of the proposed
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18 transaction, including but not limited to financial terms, use restrictions, or other covenants (the "Purchase Terms"); and (c) the proposed closing date of the Proposed Transfer (the "Closing Date").
24.2. Response Period. Tenant shall, for sixty (60) days following receipt of the First Refusal Notice, have the exclusive right to purchase the Premises on terms and conditions set forth in the First Refusal Notice ("ROFR Response Period"). If Tenant notifies Landlord in writing of its decision to exercise its right of first refusal on or before 5:00 p.m. on the last day of the ROFR Response Period, then Tenant shall be bound to purchase from Landlord, and Landlord shall be bound to sell to Tenant, the Property on the Purchase Terms.
24.3. Waiver of ROFR. If Tenant shall either: (a) deliver written notice of rejection of the First Refusal Notice to Landlord; or (b) fail to deliver written notice of acceptance of the First Refusal Notice within the ROFR Response Period, Tenant's ROFR hereunder shall conclusively be deemed to be waived with respect to the sale disclosed in the First Refusal Notice and Landlord shall be free, for a period of one (1) year from the end of the ROFR Response Period, to complete the Proposed Transfer to the Offeree or to any other third party on the Purchase Terms, and the Offeree or such other third party shall acquire the Property free and clear of the Tenant's ROFR (which shall be extinguished, null, void, and of no further force or effect upon such sale). In addition, if as of the Closing Date, Tenant has failed to complete its purchase of the Property due to any act or omission by Tenant, including but not limited to any failure to deliver funds or otherwise meet the Purchase Terms, than Tenant's ROFR shall be extinguished, null, void, and of no further force or effect as to any future sale, transfer, or disposition of the Property.
24.4. Excluded Transactions. Notwithstanding anything to the contrary contained in this Section 24, Tenant's right of first refusal shall not apply to the following transactions (the "Excluded Transactions"):
(a) any condemnation of all or part of the Property;
(b) any transfer, conveyance, covenant, or restriction by Landlord to change or limit the use of the Property for any public purpose.
24.5. Lease Termination. Upon the completion of such any purchase pursuant to this Section 24, this Lease and all obligations and liabilities of Landlord and Tenant hereunder shall terminate, except for those obligations which by their terms survive the termination hereof.
25. MISCELLANEOUS.
25.1. General.
25.1.1 Integration. This Lease, together with all exhibits and attachments hereto, the separate lease between Landlord and BFC, and the JOA, set forth all the agreements
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19 between Landlord and Tenant concerning the Property and the Premises, and there are no agreements either oral or written other than as set forth therein.
25.1.2 Time of Essence. Time is of the essence of this Lease.
25.1.3 Attorneys' Fees. If any action is commenced which arises out of or related to this Lease, the prevailing party shall be entitled to recover from the other party such sums as the court may adjudge to be reasonable attorneys' fees, expert fees, and expenses in the action, in addition to costs and expenses otherwise allowed by Law. In all other situations, including any matter arising out of or relating to any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships, Tenant agrees to pay all of Landlord's costs and expenses, including attorneys' fees and expert fees, which may be incurred in enforcing or protecting Landlord's rights or interests.
25.1.4 Severability. If any provision of this Lease or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Lease and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated.
25.1.5 Law. This Lease shall be construed and enforced in accordance with the Laws of the State of California, without reference to its choice of law provisions.
25.1.6 Interpretation. The titles to the sections of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease. As used in this Lease, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Lease shall be interpreted as though prepared jointly by both parties.
25.1.7 No Option. Submission of this Lease to Tenant for examination or negotiation does not constitute an option to lease, offer to lease or a reservation of, or option for, the Premises; and this Lease shall become effective and binding only upon the execution and delivery hereof by Landlord and Tenant.
25.1.8 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord and, subject to compliance with the terms of Section 15, Tenant.
25.1.9 Third Party Beneficiaries. Nothing herein is intended to create any third party benefit.
25.1.10 No Agency, Partnership or Joint Venture. Nothing contained herein nor any acts of the parties hereto shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture by the parties hereto or any relationship other than the relationship of landlord and tenant.
Internal
20 25.1.11 Merger. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof or a termination by Landlord shall not work a merger and shall, at the option of Landlord, terminate all or any existing subtenancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies.
25.2. Business License. Tenant certifies that it has obtained or applied for a City of Berkeley business license number as required by Berkeley Municipal Code Chapter 9.04; or Tenant claims that it is exempt from the provisions of B.M.C. Ch. 9.04 and has written below the specific B.M.C. section under which it is exempt.
25.3. Fixtures and Signs. Tenant may (i) make any lawful and proper minor alterations to the Premises; (ii) attach fixtures and interior signs in and on the Premises; and attach signage on the exterior of Building ("Tenant Fixtures"). Any signs referring to the name of the Premises shall include the term "Ann Chandler" consistent with the requirements of Section 1.3. Any Tenant Fixtures will remain the property of Tenant and may be removed from the Premises by Tenant at any time during the Term. All alterations and Tenant Fixtures are subject to Landlord's approval, which shall not be unreasonably withheld, conditioned, or delayed, and must comply with existing code requirements. All Tenant Fixtures shall be at Tenant's sole cost and expense.
Installations and removals of Tenant Fixtures shall be made in such manner as to avoid injury or defacement of the Premises, and Tenant shall repair any injury or defacement, including discoloration caused by such installation or removal. All signs on the Premises shall conform to the provisions of Berkeley Municipal Code Chapter 20.04. Tenant shall be responsible for all fees, costs and expenses associated with installation and removal of Tenant Fixtures. In the event any such fees, costs or expenses are incurred by Landlord (whether directly or indirectly), Landlord shall deliver to Tenant an invoice, with reasonable supporting documentation, and Tenant shall reimburse Landlord for those amounts within thirty (30) days after receipt of such invoice.
25.4. Pesticides. All use of pesticides on the Premises shall be in compliance with the City of Berkeley's Pesticide Use Policy as it exists at the time of such use.
25.5. Prior Possession. Prior to the Commencement Date, Tenant has the right to (i) undertake Tenant Improvements, and (ii) store supplies and equipment in the Premises.
25.6. Waiver. No waiver of any default or breach hereunder shall be implied from any omission to take action on account thereof, notwithstanding any custom and practice or course of dealing. No waiver by either party of any provision under this Lease shall be effective unless in writing and signed by such party. No waiver shall affect any default other than the default specified in the waiver and then such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant shall not be construed as a waiver of any subsequent breach of the same.
25.7. Limitation of Liability. Whenever Landlord transfers its interest, Landlord shall be automatically released from further performance under this Lease and from all further liabilities and expenses hereunder and the transferee of Landlord's interest shall assume all liabilities and obligations of Landlord hereunder from the date of such transfer.
Internal
21 25.8. Notices. All notices to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or delivered by personal or courier delivery, or sent by facsimile (immediately followed by one of the preceding methods), to Landlord's address and Tenant's address set forth in Sections 1 and 2 of the Basic Lease Information, or to such other place as Landlord or Tenant may designate in a written notice given to the other party. Notices shall be deemed served upon the earlier of receipt or three (3) days after the date of mailing.
25.9. Brokerage Commission. Landlord and Tenant each represents that they have not been represented by any broker in connection with this Lease, and that no real estate broker's commission, finder's fee or other compensation (individually and collectively, "Commission") is due or payable. Tenant agrees to indemnify and hold harmless Landlord from any claims or liability, including reasonable attorneys' fees, in connection with a claim by any person for a Commission based upon any statement, representation or agreement of Tenant.
25.10. Authorization. Each individual or entity executing this Lease on behalf of Tenant represents and warrants that he or she or it is duly authorized to execute and deliver this Lease on behalf of Tenant and that such execution is binding upon Tenant.
25.11. Holding Over. If, with Landlord's express written consent, Tenant holds over the Premises or any part thereof after expiration or earlier termination of the Term, such holding over shall constitute a month-to-month tenancy on all the other terms and conditions of this Lease, except that any obligations resulting from any JOA shall only hold over to the extent the JOA is still in effect. This section shall not be construed as Landlord's permission for Tenant to hold over. Acceptance of Maintenance Fees by Landlord following expiration or termination shall not constitute a renewal of this Lease or extension of the Initial Term or the Renewal Term, as the case may be, except as specifically set forth above. If Tenant remains in possession of the Premises after expiration or other termination of this Lease without Landlord's express written consent, Tenant's continued possession shall be on the basis of a tenancy at sufferance and Tenant shall pay Maintenance Fees of two thousand dollars ($2,000) per month. If Tenant fails to surrender the Premises upon expiration or other termination of this Lease, Tenant shall indemnify and hold Landlord harmless from and against all loss or liability resulting from or arising out of Tenant's failure to surrender the Premises, including, but not limited to, any amounts required to be paid to any tenant or prospective tenant who was to have occupied the Premises after the expiration or other termination of this Lease and any related attorneys' fees and brokerage commissions.
25.12. Surrender.
Upon the expiration or other termination of this Lease or Tenant's right to possession of the Premises, Tenant shall peaceably and quietly leave and surrender to Landlord the Premises, along with appurtenances and fixtures at the Premises (except Tenant Fixtures), all in good condition, ordinary wear and tear, damage by casualty, condemnation, acts of God, and Landlord's failure to make repairs required of Landlord excepted.
25.13. Joint and Several. If Tenant consists of more than one person, the obligation of all such persons shall be joint and several.
Internal
22 25.14. Covenants and Conditions. Each provision to be performed by Tenant or Landlord hereunder shall be deemed to be both a covenant and a condition.
25.15. Intentionally Omitted.
25.16. Accessibility; Disability Laws. To Landlord's actual knowledge, the Premises have not undergone an inspection by a Certified Access Specialist. "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. " Since compliance with the ADA and other federal and state disability laws (collectively, "Disability Laws") is dependent upon Tenant's specific use of the Premises, Landlord makes no warranty or representation as to whether or not the Premises comply with Disability Laws, except as otherwise expressly provided in this Lease. In the event that Tenant's specific and particular use of the Premises, as distinguished from uses generally associated with those permitted under Section 5, requires modifications or additions to the Premises in order to be in compliance with Disability Laws, Landlord agrees to make any such necessary modifications and/or additions at Tenant's sole cost and expense.
25.17. OFAC Compliance. Tenant represents and warrants to Landlord that Tenant is not a party with whom Landlord is prohibited from doing business pursuant to the regulations of the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, including those parties named on OFAC’s Specially Designated Nationals and Blocked Persons List.
Tenant is currently in compliance with, and shall at all times during the term of this Lease remain in compliance with, the regulations of OFAC and any other governmental requirement relating thereto. In the event of any violation of this section, Landlord shall be entitled to immediately terminate this Lease and take such other actions as are permitted or required to be taken under law or in equity. TENANT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS
LANDLORD FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES,
RISKS, LIABILITIES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS)
INCURRED BY LANDLORD ARISING FROM OR RELATED TO ANY BREACH OF THE FOREGOING CERTIFICATIONS. These indemnity obligations shall survive the expiration or earlier termination of this Lease.
[SIGNATURES FOLLOW ON NEXT PAGE]
Internal
23 IN WITNESS WHEREOF, the parties have executed this Lease as of the Effective Date.
TENANT:
LIFELONG MEDIAL CARE, a non-profit
corporation,
By:
Print Name: David B. Vliet
Its: Chief Executive Officer
--AND--
LANDLORD:
CITY OF BERKELEY, a California municipal
corporation
By:
Print Name: Dee Williams-Ridley
Its: City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Internal
Exhibit A-1
EXHIBIT A-1
Legal Description of Property
APN: 56-1066-1
All those certain lots, pieces or parcels of land situate, lying and being in the City of Berkeley, County of Alameda, State of California, described as follows:
Beginning at the point of intersection of the Southern line of University Avenue with the Eastern line of 6th Street, as said Avenue and Street are shown on the Map hereinafter referred to; running thence Easterly along said line of University Avenue One Hundred and Forty-Seven feet; thence at right angles Southerly One Hundred feet; thence at right angles Westerly One Hundred Forty-Seven feet to the point of intersection thereof with said Eastern line of 6th Street; thence Northerly along said line of 6th Street One Hundred feet to the point of beginning.
Being all of Lots Numbered 1, 2, 3, and the Western Three feet of Lot Numbered 4, in Block Numbered 96, as said Lots and Block are delineated and so designated upon that certain Map entitled, “Map of the Sisterna Tract, Berkeley” – filed May 15, 1880 in Liber 7 of Maps, at page 43, in the office of the County Recorder of Alameda County.
Internal
2
Internal
Exhibit A-2
EXHIBIT A-2
Depiction of Premises
Internal
Exhibit
B
EXHIBIT B
May 20, 2022 Building Inspection Report by E. A. Davidovits & Co., Inc
Internal
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Tony Ng, Director of Facilities Management June 3, 2022 Shad Klein, Project Manager, New Initiatives
Lifelong Medical Care
PO Box 11247
Berkeley, CA 94712
Re. ROM Pricing Estimate
830 University Ave.
Berkeley, CA 94712
Gentlemen,
Please see the following ROM Pricing Estimate based upon the Building Inspection performed.
This ROM is intended as a Preliminary Estimate and should not be considered final pricing.
This is based upon the visual inspection of the property and historical pricing estimates. EA Davidovits reserves the right to modify the scope of work and pricing should additional information become available in the future. ROM makes several assumptions pertaining to the building structure, condition and capacities that may not have been able to be concluded during the brief site visit process.
This ROM is not intended to present guarantees or assurances. In order to confirm pricing, additional inspections, plans, details and review would need to be performed. Thank you for the opportunity to submit this Preliminary ROM estimate.
• Structural Report Follow Up. Includes removal of wall finishes at one location to assess substrate construction and condition. Includes replacement of sheetrock, finished to match existing, and paint touch up. Does not include structural reinforcement if necessary. ROM estimate also includes 24 additional man hours of minor (non structural) crack repair and associated touch up paint. ROM does not include waterproofing or leak repair as further evaluation is necessary.
Estimated Cost: $ 7,850.
• Roof. ROM Estimated pricing below
o General Maintenance of Roof System Estimated Cost: $ 14,500. o Stucco Repair Estimated Cost: $ 5,250.
o Gutter Repair Estimated Cost: To Be Determined
o Replacement of Flat Roofs (if deemed necessary) Estimated Cost: $ 65,000.
• Plumbing. Per plumbing inspection, general condition of plumbing components is good. No major improvements are recommended without first considering future usage and plans.
• Electric. No electrical improvements were recommended as a result of the electrical inspection.
• Termite treatment for the control of subterranean termites. Includes soil treatment at foundation Estimated Cost: $ 6,500.
Daniel May, EA Davidovits & Co.
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
September 19,2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer A. Louis, Chief of Police
Subject: Revenue Grant: California Office of Traffic Safety (OTS) for the 2024 “Selective Traffic Enforcement Program (STEP) Grant
RECOMMENDATION
Adopt a Resolution authorizing the Chief of Police to accept the "Selective Traffic Enforcement Program (STEP)" grant and enter into the resultant grant agreement and any amendments, with the California Office of Traffic Safety. This OTS grant is for $269,000 for the period of October 1, 2023 through September 30, 2024, which is Federal Fiscal Year 2024.
FISCAL IMPACTS OF RECOMMENDATION
The total of this project will not exceed $269,000. Grant revenues will be deposited into budget code 309-71-703-812-0000-000-000-431-110 to offset expenditures.
Appropriation of the expenditures is being included in the First Amendment to the Appropriations Ordinance. This grant will fund overtime, benefits, equipment, training costs, and reduce additional General Fund expenditures.
CURRENT SITUATION AND ITS EFFECTS
Securing OTS grant funding is a Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city.
Currently the Traffic Bureau at the Berkeley Police Department is staffed by one Motor Officer, one Traffic Data Analyst, a Provisional Sergeant, and a Provisional Lieutenant.
Motor officers’ responsibilities include injury-collision investigations and traffic enforcement; however, resources often deplete rapidly due to ancillary duties and personnel shortages in the operations/patrol division. OTS funding builds upon our current traffic safety efforts by allowing patrol and motor officers opportunities to address traffic safety issues-most significantly pedestrian and bicycle safety, distracted and impaired driving- in addition to and outside of their regularly scheduled duties.
Additionally, the funds provide opportunities for leadership development and learning in traffic safety and DUI/impaired driving enforcement, and enhance the department's overall mission of public safety. This grant year’s funding also provides for the replacement of the department’s 2004 DUI Checkpoint Trailer.
Revenue Grant: California Office of Traffic Safety Grant for the 2024 STEP Grant CONSENT CALENDAR
September 19, 2023
BACKGROUND
Office of Traffic Safety (OTS) rankings place the City of Berkeley number one for the past seven years in pedestrian and bicycle related injury collisions when compared to fifty-nine other cities with comparable populations. Each year hundreds of people are injured in traffic collisions that occur in the City of Berkeley. Berkeley maintains a high ranking in total fatal and injury collisions, hit and run injury collisions, speed related collisions, nighttime collisions, and motorcycle involved collisions. With assistance from the 2024 Office of Traffic Safety Grant, the department will continue our efforts to reduce the number of community members injured in collisions whether they choose to walk, drive, bike or ride a motorcycle in our city.
In 2020, the City of Berkeley was number three (3/61) for injury collisions involving pedestrians; number two (2/61) for collisions involving bicyclists; number four (4/61) for collisions involving pedestrians 65+, and twelfth (12/61) for collisions involving motorcyclists. Based on these statistics and OTS rankings, the City of Berkeley is one of the most dangerous cities in the State of California to be a pedestrian or bicyclist.
Between 2012-2022, there have been thirty-three fatal auto collisions in the City of Berkeley. Sixteen of those involved pedestrians, and four of those sixteen were pedestrians 65+. Five fatal collisions involved a bicyclist, three involved DUI, and two involved a motorcycle.
The OTS Grant and the City Council’s Vision Zero Program have shared ideologies.
BPD’s participation directly supports two of three of Vision Zero’s tenets. BPD’s efforts directly support Public Awareness Education and Traffic Enforcement. Public Awareness through our social media, departmental messaging, and direct contact with the public (in the field and at community meetings) and data-driven enforcement of primary collision factor offenses in areas where they have the highest probability of occurring.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City of Berkeley continues to have one of the highest bicycle and pedestrian usage rates in the County of Alameda and, as a result, there are a large number of bicyclists and pedestrians sharing the roadway with motorists. This grant will support the City of Berkeley's efforts to promote more sustainable forms of transportation, reducing greenhouse gas emissions-with the goal of reducing traffic injuries and fatalities related to all modes of transportation.
RATIONALE FOR RECOMMENDATION
The Police Department requests this funding be approved to enhance our current mission of providing a safer environment for pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways.
Revenue Grant: California Office of Traffic Safety Grant for the 2024 STEP Grant CONSENT CALENDAR
September 19, 2023
ALTERNATIVE ACTIONS CONSIDERED
The California Office of Traffic Safety currently provides the only known grant funding specific to traffic enforcement and related education. Not accepting this OTS grant would require additional overtime expenditures from General Fund resources or could result in a decrease in the overall safety of the citizens of Berkeley.
CONTACT PERSON
Provisional Lieutenant Andrew Frankel, Police Traffic Bureau, (510) 981-5982 Attachment:
1: Resolution
RESOLUTION NO. ##,###-N.S.
REVENUE GRANT: SELECTIVE TRAFFIC ENFORCEMENT PROGRAM (STEP)
GRANT FROM THE OFFICE OF TRAFFIC SAFETY TO FUND STRATEGIES TO
REDUCE THE NUMBER OF INJURIES AND DEATHS RELATED TO TRAFFIC
COLLISIONS IN THE CITY OF BERKELEY
WHEREAS, the Police Department is committed to providing a safe and secure environment through law enforcement within the City of Berkeley; and WHEREAS, the Office of Traffic Safety (OTS) has made grant funding available to the Police Department to assist them in their mission of increasing traffic safety; and WHEREAS, this grant will provide funding to support efforts to reduce injury and fatal collisions involving pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways; and
WHEREAS, grant revenues will be deposited into budget code 309-71-703-812-0000- 000-000-431110, in the DUI Enforcement Education Program Fund.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Chief of Police is authorized to accept the Selective Traffic Enforcement Program (STEP) Grant and enter into the resultant grant agreement and any amendments, with the Office of Traffic Safety (OTS) to fund increased levels of impaired or distracted driving enforcement, nighttime seatbelt enforcement, motorcycle safety enforcement, and educational programs regarding bicycle and pedestrian collisions in the amount of $269,000 for the period of October 1, 2023 to September 30, 2024.
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer A. Louis, Chief of Police
Subject: Revenue Grant: Cannabis Tax Fund Grant Program (CTFGP)
RECOMMENDATION
Adopt a Resolution authorizing the Chief of Police to accept the CTFGP grant and enter into the resultant grant agreement and any amendments, with the California Highway Patrol. This grant is for $59,168.30 for the period of July 1, 2023 through June 30, 2024.
FISCAL IMPACTS OF RECOMMENDATION
The total of this project will not exceed $59,168.30. Grant revenues will be deposited into budget code 336-71-703-812-0000-000-000-432110 to offset expenditures.
Appropriation of the expenditures is being included in the First Amendment to the Appropriations Ordinance. This grant will fund overtime, benefits, training costs, and reduce additional General Fund expenditures.
CURRENT SITUATION AND ITS EFFECTS
Securing CTFGP grant funding is a Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city.
Currently the Traffic Bureau at the Berkeley Police Department is staffed by one motor officer, one traffic data analyst, a Provisional Sergeant, and a Provisional Lieutenant.
Motor officers’ responsibilities include injury-collision investigations and traffic enforcement; however, resources often deplete rapidly due to ancillary duties and personnel shortages in the operations/patrol division. CTFGP funding builds upon our current traffic safety efforts by allowing patrol and motor officers opportunities to address traffic safety issues-most significantly impaired driving- in addition to and outside of their regularly scheduled duties. Additionally, the funds provide opportunities for leadership development and learning in traffic safety and DUI/impaired driving enforcement, and enhance the department's overall mission of public safety.
BACKGROUND
Office of Traffic Safety (OTS) rankings place the City of Berkeley number one for the past seven years in pedestrian and bicycle related injury collisions when compared to fifty-nine other cities with comparable populations. Each year hundreds of people are injured in traffic collisions that occur in the City of Berkeley. Berkeley maintains a high
Revenue Grant: Cannabis Tax Fund Grant Program Grant
for 2024 CONSENT CALENDAR
September 19, 2023
ranking in total fatal and injury collisions, hit and run injury collisions, speed related collisions, nighttime collisions, and motorcycle involved collisions. With assistance from the 2024 CTFGP Grant, the department will continue our efforts to reduce the number of community members injured in collisions whether they choose to walk, drive, bike or ride a motorcycle in our city.
The CTFGP Grant and the City Council’s Vision Zero Program have shared ideologies.
BPD’s participation directly supports two of three of Vision Zero’s tenets. BPD’s efforts directly support Public Awareness Education and Traffic Enforcement. Public Awareness through our social media, departmental messaging, and direct contact with the public (in the field and at community meetings) and data-driven enforcement of primary collision factor offenses in areas where they have the highest probability of occurring.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City of Berkeley continues to have one of the highest bicycle and pedestrian usage rates in the County of Alameda and, as a result, there are a large number of bicyclists and pedestrians sharing the roadway with motorists. This grant will support the City of Berkeley's efforts to promote more sustainable forms of transportation, reducing greenhouse gas emissions-with the goal of reducing traffic injuries and fatalities related to all modes of transportation.
RATIONALE FOR RECOMMENDATION
The Police Department requests this funding be approved to enhance our current mission of providing a safer environment for pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways.
ALTERNATIVE ACTIONS CONSIDERED
The California Highway Patrol currently provides grant funding specific to traffic enforcement and related education. Not accepting this grant funding would require additional overtime expenditures from General Fund resources or could result in a decrease in the overall safety of the citizens of Berkeley.
CONTACT PERSON
Provisional Lieutenant Andrew Frankel, Police Traffic Bureau, (510) 981-5982 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
REVENUE GRANT: CANNABIS TAX FUND GRANT PROGRAM GRANT (CTFGP)
FROM THE CALIFORNIA HIGHWAY PATROL TO FUND STRATEGIES TO REDUCE
THE NUMBER OF INJURIES AND DEATHS RELATED TO TRAFFIC COLLISIONS IN
THE CITY OF BERKELEY
WHEREAS, the Police Department is committed to providing a safe and secure environment through law enforcement within the City of Berkeley; and WHEREAS, the California Highway Patrol (CHP) has made grant funding available to the Police Department to assist them in their mission of increasing traffic safety; and WHEREAS, this grant will provide funding to support efforts to reduce injury and fatal collisions involving pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways; and
WHEREAS, grant revenues will be deposited into budget code 336-71-703-812-0000- 000-000-432110, in the One-time Grant Program Fund.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Chief of Police is authorized to accept the CTFGP Grant and enter into the resultant grant agreement and any amendments, with the CHP to fund increased levels of impaired driving enforcement in the amount of $59,168.30 for the period of July 1, 2023 to June 30, 2024.
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Public Works
Subject: License Agreement – RM Ventures, LLC, d.b.a, In the Wood Grill & Bar for Nonexclusive Use of the Elmwood Parking Lot Pedestrian Paseo
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a ground license agreement with RM Ventures LLC d.b.a., In the Wood Grill and Bar (In the Wood Grill & Bar) for the nonexclusive use of a portion of the Elmwood Parking Lot Pedestrian Access Path (“Paseo”), a City-owned midblock pedestrian path connecting the City’s Elmwood Parking Lot to College Avenue in the Elmwood Neighborhood Shopping District, for an initial term of five (5) years and authorize the City Manager to execute a renewal of this license, under the same terms, after the termination of the initial term.
FISCAL IMPACTS OF RECOMMENDATION
This license agreement for nonexclusive use of 557 square feet anticipates total revenue of $8,871 for the initial five (5) year term. The initial monthly price per square foot is $0.25 with an annual adjustment of 3% beginning the second year after the Commencement Date of the lease. The tenant is also required to maintain the entire width and length of the Paseo, including the pedestrian path, clean and free of trash on a daily basis. Rent will be deposited into the Off-Street Parking Fund for Surface Parking Lot Revenue.
CURRENT SITUATION AND ITS EFFECTS
Prospective licensee, In the Wood Grill & Bar, a restaurant located at 2930 College Avenue currently uses a portion of the Elmwood Parking Lot Paseo, a midblock paved pedestrian path connecting the City’s Elmwood Parking Lot to College Avenue in the Elmwood Neighborhood Shopping District, to serve food and drinks including beer and wine. Owners of In the Wood Grill and Bar recently applied and had approved a Planning Use Permit to add license for service of distilled spirits, in addition to beer and wine at the restaurant and outdoor dining area. Approval of this license will correct a prior incorrect determination that the area is public right of way, ensure tenant has sufficient liability insurance coverage for the nonexclusive use of the property, and
License Agreement: RM Ventures LLC CONSENT CALENDAR
September 19, 2023
ensure conformance with an existing easement requiring a pedestrian access path at all times.
BACKGROUND
In 2022, RM Ventures applied for a Planning Use Permit to add license for service of distilled spirits at In the Wood Grill and Bar, a restaurant with outdoor dining area.
During the application review process, City staff determined that previous approvals for the outdoor dining area incorrectly categorized the area as public right of way and issued approval for the use with a sidewalk café permit. Sidewalk café permits are only for public right of way.
The area is the Elmwood Parking Lot Paseo and is private property owned by the City of Berkeley. It consists of a portion of two parcels (APNs 052-156800700 and 052- 156800601) that combined with six other parcels are the City’s Elmwood Parking Lot.
The portion of interest is a midblock, paved passageway between the parking lot and College Avenue. The Planning Use Permit (ZP2022-0139) to add a license for distilled spirits included Outdoor Dining Conditions and was approved February 23, 2023 and the outdoor dining area is shown in Exhibit A (Premises). With input from the City Attorney’s Office it was determined that a land lease granting nonexclusive use of the Paseo to RM Ventures, LLC is the solution that ensures appropriate liability protections and a fair rent is collected by the City.
If approved, the restaurant’s use of the area is nonexclusive because during nonoperational hours In the Wood Grill and Bar will remove all tables and chairs in the outdoor dining area and store them in a 60 square foot area at the west end of the Paseo. To ensure conformance with the existing easement agreement, the potential licensee and Public Works will work together to clearly mark the limits of the patio dining area to ensure no encroachment into the six-foot wide public access path at all times.
This ensures adjacent business owners and operators, their customers, City maintenance staff, and the general public will have a generous access path at all times as required by the easement. The storage area and pedestrian path are shown in Exhibit A to License Agreement (Premises).
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
The Elmwood Parking Lot Paseo is not public right of way. Approval of this license will correct a prior incorrect determination that the area is public right of way, ensure tenant has sufficient liability insurance coverage for the nonexclusive use of the property, and
License Agreement: RM Ventures LLC CONSENT CALENDAR
September 19, 2023
ensure conformance with an existing easement requiring a pedestrian access path at all times.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Dionne Early, Community Development Project Coordinator, Public Works Department, (510) 981-6453
Attachments:
1: Resolution
Exhibit A: License Agreement
RESOLUTION NO. ##,###-N.S.
LICENSE AGREEMENT BETWEEN CITY OF BERKELEY AND RM VENTURES, LLC, D.B.A., IN THE WOOD GRILL AND BAR
WHEREAS, the City owns six parcels upon which the Elmwood Parking Lot and Paseo, a midblock pedestrian pathway is located. The Paseo (located on APNs 052-156800700 and 052-156800601) connects visitors from the parking lot to College Avenue and back; and
WHEREAS, an easement established when the City purchased the properties guarantees access through the Paseo and throughout the parking lot for all property and business owners adjacent to the Lot; and
WHEREAS, the City previously, and incorrectly, issued a sidewalk café permit agreement for partial use of the Paseo for dining and flower sales and seeks to correct the matter with this License; and
WHEREAS, the City and Licensee, RM Ventures, LLC d.b.a., In the Wood Grill and Bar agreed to enter into this nonexclusive use land license agreement which replaces the previous sidewalk café permit and designates 497 square feet along the southern property line of 2930 College be used as an outdoor dining area, 60 square feet be used for storage of outdoor furniture during restaurant closures, and the remainder to be a minimum six-foot-wide pedestrian path maintained at all times; and WHEREAS, the initial term of this License shall be for a five-year term beginning retroactively on March 1, 2023 with the City Manager authorized to execute renewals of this license after the initial term. The total revenue for the initial five-year term of the agreement will be $8,871 which will be entered into Off-Street Parking Fund for Surface Parking Lot Revenue.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is hereby authorized to enter into a five-year lease agreement with RM Ventures, LLC d.b.a., In the Wood Grill and Bar for real property located on parcels designated sections of APNs 052-156800700 and 052-156800601, with the authority execute renewals of this License after the initial term. Such license shall be on substantially the terms set forth in Exhibit A.
Exhibits
A: License Agreement
LICENSE AGREEMENT
This LICENSE is entered into by and between the CITY OF BERKELEY, a Charter City organized and existing under the laws of the State of California ("City") and RM Ventures, a limited liability corporation d.b.a, In the Wood Grill & Bar ("Licensee"), who agrees as follows:
1. LICENSE
a. City hereby grants a license to Licensee, subject to all the terms and conditions herein, for the nonexclusive use of a portion of the City's property, a site that measures approximately 557 (five hundred fifty-seven) square feet located on portions of assessor parcel numbers (APN) 052-156800700 and 052-1568601, adjacent to the southern property line of 2930 College Avenue, Berkeley, California and further described in Exhibit A - Premises, attached hereto and made part of this License. b. This License is not a lease; Licensee does not by this License obtain an exclusive right, against the City or the public, to any part of the Property. c. This License is granted for the purpose of Licensee using 497 square feet of land for outdoor food and beverage service during In the Wood Grill & Bar’s hours of operation and using an additional 60 square feet of space for storage of the outdoor dining furniture during hours of nonoperation as described in Exhibit B – Use o f Premises, attached
hereto and made a part of this License. If Licensee fails to use the Premises for such purposes, or to provide the services described herein, or uses the Premises for unauthorized purposes, City may, in its sole discretion, immediately terminate this License.
d. Business may be conducted with the public on the licensed premises at any time on any day, provided that, to do business after 10:00 p.m. on any day Licensee shal l have
obtained any permit required by federal, state or local law. Licensee shall operate the outdoor dining area with sufficient staff to serve patrons and only during the hours of operation of the associated restaurant and in conformance with any and all permits required by federal, state, or local law.
e. In addition to Licensee’s agreement to abide by all other restrictions on Licensee’s use, Licensee shall maintain at all times a minimum six-foot wide pedestrian path parallel to the outdoor dining and storage area to ensure a midblock pedestrian path to and from the Elmwood Parking Lot and College Avenue is continuously maintained in the Paseo, further described in Exhibit A and Exhibit B, attached hereto. f. Licensee acknowledges that this License does not convey an estate in land or a leasehold interest in the Premises and is not a lease.
2. TERM
a. This License shall commence retroactively on March 1, 2023. The effective date of the resolution provides and shall be for a period of five (5) years and terminate February 29, 2028, as shown in Exhibit B – Term and Payment, attached hereto and made a part of this License. Either party may terminate this License for any reason with thirty (30) days prior written notice to the other party.
b. Additionally, City Council authorizes the City Manager to amend and renew this License after the first five-year term under the same terms set forth in this agreement. Licensee must notify the Landlord in writing no more than one year and no less than six months prior to the termination of the Licenses initial term as shown in Exhibit C, attached hereto and made a part of this License.
3. LICENSE FEE
In consideration for the rights conveyed by this License, Licensee shall pay to City an initial fee of $0.25 per square foot per year with an annual increase of 3.0 percent (3%) each year beginning year two. Payment for the first year, March 1, 2023 to February 28, 2024 in the amount of One thousand, six hundred seventy-one Dollars ($1,671.00) is due immediately upon City Council approval of the License and receipt of a fully executed License. License Fee is due no later than March 1
st of each year of the License. Licensee shall make payments to City in accordance with the provisions described in Exhibit C, attached hereto.
4. SECURITY DEPOSIT
City and Licensee acknowledge that there shall be no security deposit.
5. NOTICES
A written notice shall be deemed served upon mailing said notice to the other party and depositing the same with the U.S. Post Office, first class mail, with postage paid. For purposes of this License, all notices to the City shall be addressed to:
City of Berkeley
Publ
ic Works Real P
roperty
1947 Center Street, 5th Floor, Suite 521
Berkeley, CA 94704
For purposes of this License, all notices to Licensee shall be addressed to below. Licensee shall promptly notify City of any change of address within two weeks of any such change.
RM Ventures, LLC – In the Wood Grill & Bar
2930 College Avenue
Berkeley, CA 94705
6. MAINTENANCE AND ALTERATIONS
a. Licensee is responsible for ensuring that the Premises meet all applicable City of Berkeley codes and regulations during the term of this License, and that they are in good order, condition and repair and present no safety issues or hazards. a. Licensee shall, t
o the City's satisfaction, keep and maintain the P
remises and Licensee's
equipment, furniture, and any other personal property of Licensee in good order, condition and repair. Licensee shall keep the Premises and the property immediately adjacent to the Premises reasonably free and clean of all debris and trash that is generated by Licensee or Licensee's customers.
b. Licensee shall not construct any facilities or improvements, permanently install any equipment, or make any alterations to the Premises without the City's prior written consent, which consent shall be within the sole discretion of City to grant or withhold.
Upon termination of this License, Licensee shall at its own expense remove all of its equipment and shall surrender the Premises to City in the same condition as at the commencement of this License, subject to reasonable wear and tear. c. Licensee shall keep any public and/or common areas adjacent to the Premises free and clear of any obstructions, barricades or barriers placed or created by Licensee or resulting from Licensee's operations or use of the Premises. This includes Licensee's employees, contractors, and customers, garbage cans, and any other impacts of the Licensee's business.
7. ACCESS AND ENTRY TO THE PREMISES BY OTHERS
g. City, its agents, employees, and representatives, have the right to inspect the Premises at any time, provided such entry does not cause unreasonable interference with Licensee's activities.
h. City at all times shall have the right and privilege of making such changes in and to the Premises or adjacent areas owned by City 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.
i. Nothing contained herein shall be deemed to create any liability to the City for any personal injury, or any damage to any furniture, equipment, or other property of Licensee, or its employees or others, unless solely caused by the gross negligence or willful misconduct of City, its agents, servants. or employees. Licensee is solely responsible for the security of the Premises, and for the safety of those using the Premises.
j. City reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, though, across or on the Premises in locations that will not unreasonably interfere with Licensee's access to or use of the Premises. Any interference shall be temporary, and all work on the Premises shall proceed expeditiously. Licensee shall be given reasonable notice before commencement of any work on the Premises.
9. TAXES, ASSESSMENTS, AND OT
HER CHARGES
Licensee shall pay all applicable personal property taxes lawfully levied on· account of personal property owned by Licensee on the Premises, and pay any in-lieu, possessory interest, or use taxes lawfully imposed by reason of Licensee's use or occupancy of the Premises. Licensee shall obtain and pay for all local, state and federal permits and licenses necessary for the operation of its business.
11. ASSIGNMENT AND SUBLICENSING PROHIBITED
This License is personal to Licensee. Notwithstanding references to assignees and/or sub licensees elsewhere in this License, if any, Licensee may not assign or sublicense this
License in whole or in part, and any attempt to assign or sublicense this License shall terminate it.
12. INDEMNIFICATION
Licensee, for itself and its successors and assigns, agrees to release, defend, indemnify arid hold harmless City, its officers, agents, volunteers and employees from and against any and all claims, demands, liability, damages, lawsuits or other actions, including without limitation actions for personal injury or death or property damage arising out of or caused by Licensee's operations under this License, or the performance of this License by Licensee or its officers, employees, partners, directors, agents, invitees, or guests.
13. INSURANCE
k. Licensee at its cost shall maintain public liability and property damage insurance with a single combined liability limit of $2,000,000 and property damage limits of not less than $200,000 insuring against all liability of Licensee and its authorized representatives arising out of and in connection with Licensee's use of the Premises. All such insurance shall insure performance by Licensee of the preceding indemnity provisions. All insurance shall name the City of Berkeley, its officers, agents, volunteers and employees as additional insureds and shall provide primary coverage with respect to the City. l. If the insurance referred to above is written on a Claims Made Form, then following ter
mination of this License, coverage shall survive for a period of not less than five years.
Coverage shall also provide for retroactive date of placement coinciding with the effective date of this License.
m. Licensee at its cost shall maintain on all its personal property, Licensee's improvements, and alterations, in on, or about the premises, a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements. This coverage shall be considered primary, and the proceeds from any such policy shall be used by Licensee for the replacement of personal property or the restoration of Licensee's improvements or alterations.
n. If
Licensee employees any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the City. 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 City; provide for a waiver of any right of subrogation against City to the extent permitted by law; and be approved as to form and sufficiency by the City's Risk Manager.
o. Licensee shall forward all insurance documents to:
City of Berkeley
Public Works Real Property
194 7 Center Street, 5
th Floor, Suite 521
Berkeley, CA 94704
14. RISK OF LOSS
Licensee bears all risk of loss under this License.
15. CONFORMITY WITH LAW
p. Licensee shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal and local governing bodies having jurisdiction over any or all of the activities of Licensee hereunder, including the Occupational Safety and Health Act of 1979 as amended, all California Occupational Safety and Health regulations, and all applicable federal, state, municipal and local regulations relating to health, safety, noise, environmental protection, waste disposal, hazardous materials, and water and air quality. All activities conducted by Licensee on the Premises must be in accordance with these laws, ordinances, codes. and regulations. Licensee shall defend, indemnify and hold harmless City, its officers, agents, volunteers and employees from any and all damages, liability, fines, penalties and consequences from any noncompliance or violation by Licensee, or its officers, Employees, partners, directors, agents, invitees, or guests, of any laws, ordinances, codes or regulations.
q. If a death, serious personal injury or substantial property damage occurs in connection with the performance of this License, Licensee shall immediately notify the City's Risk Manager by telephone at 510.981.6998. If any accident occurs in connection with this License, Licensee shall promptly submit a written report to City, in such form as the City may require. This report shall include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Licensee's liability insurance carrier; and 3) a detailed description of the accident, including whether any of City's equipment, tools or materials were involved.
r. If a release of hazardous materials or hazardous waste occurs in connection with the performance of this License, Licensee shall immediately notify the Berkeley Police Department and the City's Toxics Management office, in addition to complying with all other obligations imposed by law, ordinance, code or regulation. Licensee shall not store hazardous materials or hazardous waste within the City of Berkeley without a proper permit from the City.
16. MATERIAL SAFETY DATA SHEETS
a. To comply with the City’s Hazard Communication Program, Licensee agrees to submit Material Safety Data Sheets (MSDS) for all “hazardous substances” Licensee intends to use in the performance of work under this License in any City facility. “Hazardous substances” are defined as those substances so designated by the Director of Industrial Relations pursuant to the Hazardous Substances Information and Training Act (Labor Code sec. 6360 et seq.). The MSDS for all products must be submitted to the City before commencing work. The MSDS for a particular product must be reviewed and approved by the City’s Risk Manager before Licensee may use that product. b. City will inform Licensee about hazardous substances to which it may be exposed while on the job site and protective measures that can be taken to reduce the possibility of exposure.
17. INDEPENDENT CAPACITY
For purposes of this License, and for the duration of this License, Licensee, including its agents and employees shall be, and are, an independent Licensee and not an agent or employee of the City. Licensee has and shall retain the right to exercise full control and supervision of the services, and full control over the employment, direction, compensation and discharge of all persons assisting Licensee in the performance of this License. Licensee shall be solely responsible for all matters relating to the payment of its employees, including compliance with Social Security withholding taxes and all other regulations governing such matters, and shall be solely responsible for its own acts and those of its agents and employees
18. CITY NON-DISCR
IMINATION ORDINANCE
Licensee hereby agrees to comply with the provisions of the Berkeley Municipal Code (B.M.C.) Chapter 13.26 as amended from time to time. In the performance of this License, Licensee agrees as follows:
a. Licensee 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. b. Lice
nsee shall permit the City access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the opinion of the City, are necessary to monitor compliance with this non-discrimination provision. In addition, Licensee shall fill-out, in a timely fashion, forms supplied by the City to monitor this non-discrimination provision.
19. CITY NON-DISCR
IMINATION AGAINST PERSONS WITH DISABILITIES
a. If Licensee provides any aid, service or benefit to others on the City's behalf, Licensee 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. Licensee 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 City.
b. If Licensee is or becomes a "public accommodation" as defined in Title III of the Americans with Disabilities Act of 1990, Licensee 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 Licensee.
All Licensees' activities must be in accordance with· these laws, ordinances, codes and regulations and Licensee shall be solely responsible for complying therewith.
20. CONFLICT OF INTEREST PROHIBITED
a. In accordance with Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64, neither Licensee nor any employee, officer, director, partner or
member of Licensee, or immediate family member of any of the preceding, shall have served as an elected officer, an employee, or a City board, committee or commission member, who has directly or indirectly influenced the making of this License. b. In accordance with 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 the Licensee, or immediate family member of any of the preceding, shall make or participate in a decision made by the City or a City board, commission or committee, 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 Licensee.
c. Interpretation of this section 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.
21. NUCLEAR FREE BERKELEY
a. Licensee agrees to comply with B.M.C. Chapter 12.90, the Nuclear Free Berkeley Act, as amended from time to time.
22. OPPRESSIVE STATES
a. In accordance with Resolution No. 59,853-N.S., Licensee certifies that it has no contractual relations with, and agrees during the term of this License to forego contractual relations to provide personal services to, the following entities:
1. The 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 its License with the City), 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 License, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.
c. Licensee’s failure to comply with this section shall constitute a default of this License and City may terminate this License pursuant to Section 3. In the event that the City terminates Licensee due to a default under this provision, City may deem Licensee a non- responsible bidder for not more than five (5) years from the date this License is terminated.
23. BERKELEY LIVING WA
GE ORDINANCE
a. Licensee agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance. If Licensee employs six (6) or more part-time, full-time or
stipend employees, and generates $350,000 or more in annual gross receipts, Licensee 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. Licensee shall be required to maintain all reasonable records and documents that would establish whether Licensee is subject to Berkeley's Living Wage Ordinance (LWO). If Licensee is subject to the LWO, as defined therein, Licensee shall be further required to maintain monthly records of those employees located on the licensed premises. These records shall include the total number of hours worked, the number of hours spent providing service on the licensed property, the hourly rate paid, and the amount paid by Licensee for health benefits, if any, for each of its employees providing services under the license. 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.
c. If Licensee is subject to the LWO, Licensee shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all sublicenses in which Licensee enters with regard to the subject premises. Sublicensees shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the licensed property.
d. If Licensee fails to comply with the requirements of this the LWO and this license, the City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
e. Licensee's failure to comply with this Section shall constitute default of the license, upon which City may terminate this license.
In addition, at City's sole discretion, Licensee 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 Licensee's failure to pay any 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 Licensee's breach.
24. SANCTUARY CITY CONTRACTING
Licensee agrees to comply with the provisions of the Sanctuary City Contracting Ordinance, B.M.C. Chapter 13.105. In accordance with this Chapter, Licensee 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:
i. 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; or
ii. 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 the City’s computer-network health and performance tools.
25. BERKELEY EQU AL BENEFITS ORDINANCE
a. Licensee hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Licensee is currently subject to the Berkeley Equal Benefits Ordinance, Licensee will be required to provide all eligible employees with City mandated equal benefits during the term of this license, as defined in B.M.C. Chapter
13.29, as well as comply with the terms enumerated herein.
b. If Licensee is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Licensee 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.
c. If Licensee fails to comply with the requirements of this Section, City shall have the
rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
d. Licensee’s failure to comply with this Section shall constitute default of the license, upon which City may terminate this license.
e. In addition, at City’s sole discretion, Licensee 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 Licensee’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 Licensee’s breach.
26. RECYCLED PAPER FOR WRITTEN REPORTS
If Licensee is required by this License to prepare a written report or study, Licensee shall use recycled paper for said report or study when such paper is available at a cost of not more than ten percent more than the cost of virgin paper, and when such paper is available at the time it is needed. For the purposes of this License, recycled paper is paper that contains at least 50% recycled product. If recycled paper is not available, Licensee shall use white paper. Written reports or studies prepared under this License shall be printed on both sides of the page whenever practical.
27. AUDIT
Pursuant to Section 61 of the Berkeley City Charter, the City Auditor’s Office may conduct an audit of Licensee’s financial, performance and compliance records maintained in connection with the operations and services performed under this License. In the event of such audit,
Licensee agrees to provide the City Auditor with reasonable access to Licensee’s employees and make all such financial, performance and compliance records available to the Auditor’s Office.
City agrees to provide Licensee an opportunity to discuss and respond to any findings before a final audit report is filed.
28. SETOFF AGAINST DEBTS
Licensee agrees that City may deduct from any payments due to Licensee under this License any monies that Licensee owes City under any ordinance, License or resolution for any unpaid taxes, fees, licenses, unpaid checks or other amounts.
29. GOVERNING LAW
This License shall be deemed to have been executed in Alameda County. The formation, interpretation and performance of this License shall be governed by the laws of the State of California, excluding its conflict of laws rules. Venue for all litigation relative to the formation, interpretation and performance of this License shall be in Alameda County, California.
30. AMENDMENTS
The terms and conditions of this License or any attachments hereto shall not be altered or otherwise modified except by a written amendment to this License executed by City and Licensee.
31. SEVERABILITY
If any part of this License or the application thereof is declared invalid for any reason, such invalidity shall not affect the other provisions of this License which can be given effect without the invalid provision or application, and to this end the provisions of this License are declared to be severable.
32. WAIVER
Failure of City to insist on strict performance shall not constitute a waiver of any of the provisions of this License or a waiver of any other default of Licensee.
33. ASSIGNMENT
Licensee may not assign this License without the prior written consent of the City, except that Licensee may assign its right to any money due or to become due hereunder.
34. SURRENDER OF PROPERTY, REMOVAL OR PERSONAL PROPERTY At the termination of this License, Licensee shall: 1) give up and surrender the Premises, in as good state and condition as reasonable use and wear and tear thereof will permit, damage by fire and the elements excepted; and 2) remove all property which is not a fixture of or permanent attachment to the Premises and which is owned and was installed by Licensee during the term of fire and the elements excepted; and 2) remove all property which is not a fixture of or permanent attachment to the Premises and which is owned and was installed by Licensee during the term of this License.
35. EFFECT ON SUCCESSORS AND ASSIGNS
This License shall be binding on and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto.
36. PESTICIDES
All use of pesticides on the Premises shall be in compliance with the City of Berkeley's Pesticide Use Policy as it exists at the time of such use.
37. SIGNS
Licensee shall not install or letter any signs on the Premises without the prior written consent of City. All signs on the Premises shall conform to the provisions of B.M.C. Chapter 20.04 and the Marina design guidelines for signs.
38. REVIEW OF AGREEMENT BY COUNSEL; F
AMILIARITY WITH CONTENTS
AND EFFECTS
Licensee and City each represent that in entering into this Agreement, it has relied upon the legal advice of its attorneys, if it so chooses. Licensee further represents that the terms of this Agreement. have been completely read by it, and that these terms are fully understood and voluntarily accepted by it, and if applicable, its attorneys.
39. ENTIRE AGREEMENT
a. The terms and conditions of this License, all exhibits attached and any documents expressly incorporated by reference represent the entire agreement between the parties with respect to the subject matter of this License. This License shall supersede any and all prior agreements, oral or written, regarding the subject matter between City and Licensee.
No other agreement, statement, or promise relating to the subject matter of this License shall be valid or binding except by a written amendment to this License. b. If any conflicts arise between· the terms and conditions of this License and the terms and conditions of the attached exhibits or any documents expressly incorporated, the terms and conditions of this License shall control.
40. CONSULTANTS TO SUBMIT STATEMENTS OF ECONOMIC INTEREST The City’s Conflict of Interest Code, Resolution No. 60,788-N.S., as amended, requires consultants who make a governmental decision or act in a staff capacity as defined in 2 Cal.
Code of Regs. §18700, as amended from time to time, to disclose conflicts of interest by filing a Statement of Economic Interest (Form 700). Consultants agree to file such statements with the City Clerk at the beginning of the License period and upon termination of the Licensee’s service.
41. SECTION HEADINGS
The sections and other headings of this License are for convenience of reference only and shall be disregarded in the interpretation of this License.
42. CITY BUSINESS LICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER Licensee has obtained a City business license as required by B.M.C. Chapter 9.04, and its license number is written below; or, Licensee is exempt from the provisions of B.M.C. Chapter 9.04 and has written below the specific B.M.C. section under which it is exempt. Licensee shall pay all
state and federal income taxes and any other taxes due. Licensee certifies under penalty of perjury that the taxpayer identification number written below is correct.
[SIGNATURES FOLLOW ON NEXT PAGE]
CITY OF BERKELEY
Richard Tapp, on behalf of RM Ventures,
LLC
By: ____________________________
City Manager
By: ____________________________
Richard Tapp, Managing Member
Berkeley Business
License No.: BL-008950
Taxpayer ID No.: ____________________
Exhibit A
Premises
(E) BAR
(E)
WAIT
STATION
(E)
WOOD OVEN(E) WALK IN
REFRIGERATOR
(E) WALK IN
FREEZER
(E) WASH & PREPARATION
(E) EXIT
(E) COOKING
(E) ENTRY
(E) BANQUET
(E)
WAIT
STATION
(E) HCP
TOILET (E) HALL
(E) DINING
(E) DINING
LOCKED CABINET
(E) SIDEWALK
(E) LANDSCAPING
(E) PUBLIC PARKING LOT
COLLEGE AVENUE
(E) ADJACENT BUILDING
(E) PROPERTY LINE
(E) PROPERTY LINE
(E) PROPERTY LINE
(E) 6' CLEARANCE
(E) ADJACENT TENANT
(E) ENTRY
(E) TREE
(E) PUBLIC ALLEY
(E) PROPERTY LINE
(E) AWNING ABOVE
(E) TRASH
(E) POST
(E) POST
(E) BOLLARD
HEATER
(E) 6' CLEARANCE
(E) METERS PGE
(E) PLANTER
6'-0"
388 SF 109 SF
717 SF
53'
3.3'
93'
24'
6'
17'
6.6'
(E) APPROVED PATIO30%
PROPOSED EXTENDED PATIO13%
(E) PUBLIC ALLEY57%
60 SF 6'
9.5'
Richard Tapp Associates
Architecture • Planning • Interior Design
2 COMMODORE DR. UNIT 383, EMERYVILLE CA. 94707
(510) 701-8277 - [email protected]
T
C-26561
R
L R K.DAHC
ICENSED A
PPA
CHITECT
IR
A
S
CFOETAT AINROFIL
RENEWAL DATE
Feb. 2023
SITE PLAN
EXTERIOR SEATS PLAN WITH AREAS
SEATING SCHEDULE
INTERIOR SEATS: 58
EXTERIOR SEATS: 28
TOTAL SEATS: 86
2930 COLLEGE AVE.
BERKELEY, CA
01/11/23
TENANT IMPROVEMENTS
Exhibit B
Use of Premises
In addition to the terms and condition set forth in the License, Licensee shall use the Premises described on Exhibit A attached in conformity with the following:
a. L icensee ag
rees and understands the premises is licensed in its “AS IS” condition and that use of the premises is nonexclusive. b. Licensee wi
ll use the premises for the purpose of outdoor dining including service of beer, wine, and spirits as detailed in approved Use Permit #ZP2022-0139 for the restaurant located at 2930 College Avenue and storage of furniture used for that outdoor dining area and agrees to continuously and uninterruptedly occupy and use the entire licensed premises for said purpose and to maintain adequate personnel for the efficient service of clients or customers. Licensee shall not use nor permit the use of the whole or any part of the premises for any other purpose without the Landlord's prior written consent. c. Business may be conducted with the public on the licensed premises at any time on any day, provided that, to do business after 10:00 p.m. on any day Licensee sh all have
obtained any permit required by federal, state or local law. Licensee shall operate the outdoor dining area with sufficient staff to serve patrons and only during the hours of operation of the associated restaurant and in conformance with any and all permits required by federal, state, or local law. Licensee shall serve beer, wine, and spirits in conformance with City of Berkeley Use Permit #ZP2022-0139 for a Type 47 ABC license.
d. In addition to Licensee’s agreement to abide by all other restrictions on Licensee’s use, Licensee shall maintain at all times a minimum six-foot wide pedestrian path parallel to the outdoor dining and storage area to ensure a midblock pedestrian path to and from the Elmwood Parking Lot and College Avenue is continuously maintained in the Paseo.
Licensee agrees that any violation of this use restriction shall constitute a default by Licensee under the license, and that Landlord’s notice to Lessee of this specific use restriction shall not be deemed a waiver by Landlord of any other use restriction imposed on the Licensee for the use of the demised premises.
Exhibit C
Term and Payment
1. The License Fee described in Paragraph 3.a of the License shall be paid in advance every year on or before March 1st and pro-rated for any partial month. Payments must be received no later than five (5) calendar days from the start of each year. Any payment received after this time period will be assessed a ten percent (10%) late penalty.
2. Payments shall be made payable to the '"City of Berkeley" and paid in person or by mail to the
City of Berkeley
Public Works Real Property
1947 Center Street, 5th Floor, Suite 521
Berkeley, CA 94704
3. Please include the following account number in the notes section of checks, money orders, or other payments made to the City of Berkeley: 627-54-622-6665-3004-000-000- 462110-
4. Failure of Licensee to make full payments on time is grounds for termination of this License by the City.
PAYMENT SCHEDULE FOR ELMWOOD PASEO OUTDOOR DINNING & DRINKING SPACE YEAR 2023-2024 2024-2025 2025-2026 2026-2027 2027-2028
MARCH 1 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ APRIL 2 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ MAY 3 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ JUNE 4 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ JULY 5 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ AUGUST 6 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ SEPTEMBER 7 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ OCTOBER 8 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ NOVEMBER 9 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ DECEMBER 10 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ JANUARY 11 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ FEBRUARY 12 139.25$ 143.43$ 147.73$ 152.16$ 156.73$ ANNUAL TOTAL: 1,671.00$ 1,721.13$ 1,772.76$ 1,825.95$ 1,880.73$ 8,871.57$ FIVE YEAR TOTAL:
PREMISES AREA (SQFT):
MONTHLY RATE PER SQFT:
INITIAL MONTHLY RENT:
ANNUAL INCREASE:
LEASE START DATE:
INITIAL TERM:
INITIAL TERM TERMINATION DATE:
NOTIFY LANDLORD FOR RENEWAL BY
February 29, 2028
September 1, 2027
60 MONTHS
March 1, 2023
139.25$
557
0.25$
3.00%
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Public Works
Subject: Contract No. 32200073 Amendment: Toole Design Group for Engineering Design and Construction Support Services for the Southside Complete Streets Project
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32200073 with Toole Design Group for engineering design and construction support services for the Southside Complete Streets Project, increasing the contract by $508,602, for a total amount not to exceed $1,790,213, and extending the term of the contract from December 31, 2023 to June 30, 2025.
FISCAL IMPACTS OF RECOMMENDATION
Funds for the additional scope of work in the amount of $508,602 for this amendment are available in the FY 2024 budget for Fund 134, Alameda County Measure BB - Local Streets & Roads pending the first Amendment to the Annual Appropriations Ordinance.
Current contract amount $ 1,281,611
Contract amendment $ 508,602
Total revised not-to-exceed amount $ 1,790,213
The average cost associated with the development, routing, and approvals of a consent calendar item such as this is approximately $3,200. The average cost for an action or work session item is approximately $6,200.
CURRENT SITUATION AND ITS EFFECTS
The contract amendment will expand the scope of services with Toole Design Group (Toole) to include additional services during the design and construction phases of the Southside Complete Streets Project (Project).
The City contracted with Toole to perform planning and engineering design services for a scope of work that was based key elements derived from the City of Berkeley’s Pedestrian and Bicycle Plans and the City’s Transit-First Policy. Toole and City staff conducted extensive outreach efforts with the public, outside agencies, and City
Contract No. 32200073 Amendment: Toole Design Group for Engineering Design CONSENT CALENDAR and Construction Support Services for the Southside Complete Streets Project September 19, 2023
departments which resulted in a substantially updated and expanded understanding of the needs and expectations of both public agency stakeholders and the Berkeley community. This process culminated in a conceptual design that was approved by City Council on February 22, 2022, requiring significantly higher level of design effort than originally envisioned. Consequently, City staff negotiated with Toole to develop a scope and fee for additional design and construction support services to augment the current contract, commensurate with the actual scope of the Project.
The final conceptual design resulted in the following additional work, which focused on improvements to safety, accessibility, optimization, and sustainable design: project management (including numerous meetings to discuss and coordinate additional design components) and changes to design documents, including:
a. traffic signal modifications at four additional locations and a new signalized intersection at Bancroft Way/Barrow Way,
b. preparation of exhibits to facilitate expedited decisions on curb space usage and paratransit loading/unloading locations,
c. extensive pavement analysis and design for bus lanes and to accommodate the new generation of heavier electric buses,
d. redesign of roadway layout features due to revised comments from crucial stakeholders,
e. evaluating approximately 90 curb ramps for compliance with current standards and designing new curb ramps where needed,
f. revised environmental clearance documents as a result of the changed Project scope, and
g. coordination with Caltrans (the grant funding administrator) to expedite review of documents in order to meet grant funding deadlines.
The actual scope of the Project also necessitates an increase in Toole’s estimated design-related services during the construction phase, which will likely involve review of contractor’s technical submittals and requests for information; on-site meetings involving subsurface utility coordination, work around buried rail lines, and traffic signal phasing and coordination; and revisions to the plans and/or technical specifications as a result of unanticipated changes to the design such as unforeseen subsurface site conditions.
Toole, as the design consultant and engineer of record, has the requisite knowledge and background to provide these services, which are necessary in order for the City to efficiently manage the construction and reduce the effects of construction on residents, local businesses, UC Berkeley, transit, pedestrians, bicyclists, and motorists.
The contract amendment will also extend the duration of this contract to conform with the anticipated completion of all construction and subsequent Project close-out activities in mid-2025.
The Southside Complete Streets Project is one of the Public Works Department’s Top Projects for FY 2023, advancing the City’s Strategic Plan Priorities to (1) provide state-
Contract No. 32200073 Amendment: Toole Design Group for Engineering Design CONSENT CALENDAR and Construction Support Services for the Southside Complete Streets Project September 19, 2023
of-the art, well-maintained infrastructure, amenities, and facilities, (2) create a resilient, safe, connected, and prepared city, and (3) be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.
BACKGROUND
In recent years, the Southside neighborhood has experienced continuing growth in both commercial activity and residential occupancy, with increased walking, biking, transit use, ride-hailing, and freight and small package delivery. The Southside Complete Streets Project aims to meet these challenges by taking the visions laid out in City plans and other documents and coupling them with a community- and data-driven approach to design transportation improvements.
The goals of the Southside Complete Streets Project are:
(1) Ensure safety for all street users consistent with the City’s Vision Zero policy, which relies in large part on the City’s Pedestrian and Bicycle plans; (2) Improve transit reliability consistent with the City’s Transit-First policy; and (3) Support the economic and cultural vitality of Berkeley’s Southside neighborhood consistent with the Economic Development goals of the City’s Southside Plan.
Several previous City Council actions are relevant to this report:
On June 27, 2017, City Council authorized the filing of an application and subsequent acceptance of funds for the Southside Complete Streets Project. In 2018, the City received an $8,335,000 Federal-aid grant from Alameda County Transportation Commission (Alameda CTC) and the California Department of Transportation (Caltrans) for transportation improvements in Berkeley’s Southside neighborhood. Of this grant, $1 million is allocated for preliminary engineering (planning, conceptual design, and public engagement); environmental compliance; plans, specifications and estimates (detailed engineering design and preparation of construction documents); and construction bid and engineering support. The remaining $7,335,000 of the grant is for construction of transportation improvements.
On January 26, 2021, City Council authorized the City Manager to execute a contract with Toole for planning, design, and engineering of the Project. The contract was subsequently executed on August 2, 2021. Planning and community outreach efforts immediately began in earnest, culminating in recommended conceptual design options that were approved by Council on February 22, 2022; on that same date, City Council directed the City Manager to direct staff to proceed with detailed engineering design of the Project.
Detailed design documents were prepared by Toole and City staff, and Caltrans (as the grant funding administrator) reviewed and approved these documents in February 2023.
Contract No. 32200073 Amendment: Toole Design Group for Engineering Design CONSENT CALENDAR and Construction Support Services for the Southside Complete Streets Project September 19, 2023
The Project advertisement and bid period ensued, and bids were received by construction contractors in May 2023.
On June 27, 2023, City Council took the following actions: (a) approve plans and specifications for the Southside Complete Streets Project (“Project”); (b) accept the bid of Bay Cities Paving & Grading, Inc. (Bay Cities), the lowest responsive and responsible bidder; and (c) authorize the City Manager to execute a contract with Bay Cities for construction of the Project, in an amount not to exceed $12,973,925, which included a contingency for unforeseen circumstances.
The construction contract with Bay Cities has since been executed, and construction of the project has recently begun. On-site construction of the Project is anticipated to be complete in late 2024 and subsequent grant funding close-out is anticipated to extend into mid-2025.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Installation of protected bikeways and improved pedestrian crossings is anticipated to increase walking and biking, which is consistent with the 2009 Berkeley Climate Action Policy that calls for expanding and improving Berkeley’s bicycle and pedestrian infrastructure. Installation of transit-only lanes is anticipated to improve bus reliability and decrease travel times, making on-street transit a more attractive mode of transportation.
The 2009 Berkeley Climate Action Plan sets targets of reducing transportation emissions 33% below year 2000 levels by 2020, and 80% below year 2000 levels by 2050. The Plan further states that transportation modes such as public transit, walking, and bicycling must become the primary means of fulfilling the City’s mobility needs in order to meet those targets.
RATIONALE FOR RECOMMENDATION
In order to design and construct the Project in accordance with the Council-approved conceptual design, which was developed with significant input from the community, an amendment to Toole’s contract is required. Successful completion of the Project requires contracted design and construction support services, as the City does not possess the necessary background information or specific technical expertise.
ALTERNATIVE ACTIONS CONSIDERED
If City Council chooses not to take the proposed actions at this time and instead defer the item to a future Council agenda, construction of the Project would likely be delayed and could result in increased costs to the Project.
CONTACT PERSON
Hamid Mostowfi, Acting Transportation Manager, Public Works Department 510-981- 6403
Kenneth Jung, Supervising Civil Engineer, Public Works Department 510-981-7028 Eric Anderson, Principal Planner, Public Works Department 510-981-7062
Contract No. 32200073 Amendment: Toole Design Group for Engineering Design CONSENT CALENDAR and Construction Support Services for the Southside Complete Streets Project September 19, 2023
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32200073 AMENDMENT:
TOOLE DESIGN GROUP FOR ENGINEERING DESIGN AND CONSTRUCTION
SUPPORT SERVICES FOR THE SOUTHSIDE COMPLETE STREETS PROJECT WHEREAS, on January 26, 2021 via Resolution No. 69,708-N.S., City Council authorized the City Manager to enter into a contract with Toole Design Group for planning, design, and engineering of the Southside Complete Streets Project for an amount not to exceed $1,281,611; and
WHEREAS, the City Manager executed Contract No. 32200073 with Toole Design Group for an amount not to exceed $1,281,611 for the period August 2, 2021 through December 31, 2023; and
WHEREAS, on June 27, 2017 via Resolution No. 68,061-N.S., City Council authorized the filing of an application (and subsequent acceptance of funds) to the Metropolitan Transportation Commission for funding for the Southside Complete Streets Project, which includes federal funding; and
WHEREAS, in 2018, the City received an $8,335,000 Federal-aid grant from Alameda County Transportation Commission and the California Department of Transportation for the Southside Complete Streets Project, which includes $1 million for preliminary engineering, environmental compliance; detailed engineering design, and design-related construction support services, and $7,335,000 for construction work; and WHEREAS, the contract with Toole Design Group was based on an assumed Project scope with key elements derived from the Berkeley Pedestrian Plan, Berkeley Bicycle Plan, and the Berkeley Transit-First Policy; and
WHEREAS, City staff and Toole Design Group conducted an extensive community outreach effort in which input was received from various stakeholders including nearby businesses, residents, UC Berkeley, transit agencies, and various City departments, and conceptual design options were prepared that incorporated comments into the Project as additional scope items; and
WHEREAS, on February 22, 2022 via Resolution No. 70,241-N.S., City Council approved selected conceptual options for the Southside Complete Streets Project and authorized the City Manager direct staff proceed with the detailed engineering design; and WHEREAS, on June 27, 2023 via Resolution No. 70,919-N.S., City Council approved plans and specifications for the Southside Complete Streets Project, accepted the lowest responsive and responsible bid for the construction, and authorized the City Manager to execute a contract with said bidder; and
September 19, 2023
WHEREAS, the Southside Complete Streets Project is one of the Public Works Department’s Top Projects for FY 2023; and
WHEREAS, Toole Design Group, as the design consultant and engineer of record, has the requisite knowledge and background to provide the design services for the aforementioned additional scope items plus corresponding additional design-related services during the construction phase, which are necessary in order for the City to efficiently manage the project; and
WHEREAS, the construction and subsequent project close-out period is anticipated to be complete in mid-2025; and
WHEREAS, funding of $508,602 is available in the FY 2024 budget from the Alameda County Measure BB - Local Streets & Roads Fund (Fund 134) pending approval via the first Amendment to the Annual Appropriations Ordinance.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32200073 with Toole Design Group for engineering design and construction support services for the Southside Complete Streets Project, increasing the contract by $508,602, for a total amount not to exceed $1,790,213, and extending the term of the contract from December 31, 2023 to June 30, 2025.
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
September 19, 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: Agreement with Goldsmiths for Strawberry Creek Culvert Repair
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a Cost Sharing Agreement and Release with Steven and Cathy Goldsmith for repair of a section of Strawberry Creek Culvert. The culvert was reported to have failed on or about October 24, 2021 and the extents of the failure is alleged to include area in both City right-of-way and private property under the Goldsmiths’ home. Per the agreement, the City would expend an amount not to exceed $75,000 toward repair of the creek culvert in exchange for a release of claims relating to the October 24, 2021 culvert failure.
FISCAL IMPACTS OF RECOMMENDATION
Per the proposed cost sharing agreement, the City’s expenditure is not to exceed $75,000 for repair of the culvert. This funding is available in Fiscal year (FY) 2024 in the Capital Improvement Fund (501).
CURRENT SITUATION AND ITS EFFECTS
On or about October 24, 2021, a segment of Strawberry Creek culvert was reported to have failed causing damage to property located at 1749 Allston Way (“Allston Property”).
Steven and Cathy Goldsmith (“Goldsmiths”), owners of the Allston Property, performed initial repairs to the culvert to secure the Allston Property. The Goldsmiths intend to perform additional repairs to repair the creek culvert. These repairs are estimated to cost approximately $125,000, plus additional fees for permits, material testing, and third-party inspections.
The full scope of the culvert failure repair includes a section of culvert within the City right-of-way. Staff recommends that City enter into a cost sharing agreement with the Goldsmiths and expend a payment not to exceed the amount of $75,000 toward the repair of the portion of the culvert within the right-of-way. As a condition of the agreement, the Goldsmiths will release the City from future claims arising from the October, 24, 2021, culvert failure. Additional considerations of the agreement are outlined in the attached Cost Sharing Agreement and Release. The City Attorney’s Office has reviewed the proposed agreement and approved it as to form.
Agreement with Goldsmiths for Strawberry Creek Culvert Repair CONSENT CALENDAR September 19, 2023
Repair of the creek culvert supports the Strategic Plan goals of providing state-of-the-art, well-maintained infrastructure, amenities, and facilities, and of creating a resilient, safe, connected, and prepared City.
BACKGROUND
Strawberry Creek Watershed begins on the western slope of the Berkeley Hills with a series of springs and tributaries which converge and flow through the University of California, Berkeley campus. The confluence of the creek enters a culvert at Oxford Street at the edge of campus. Downstream of the campus, the watershed is highly urbanized and the creek is mostly confined to culverts. The City owns and maintains only those sections of Strawberry Creek culvert which run through City right-of-way or City- owned properties.
ENVIRONMENTAL SUSTAINABILITY
Collaborating with the Goldsmiths on the repair of the creek culvert supports sustainable practices outlined by the City in its 2009 Climate Action Plan by eliminating greenhouse gas emissions associated from City performing a separate creek culvert repair project for the portion of the culvert located within the City right-of-way.
RATIONALE FOR RECOMMENDATION
The cost sharing and release agreement allows City to provide funding for repair of a City owned creek culvert as part of a private creek culvert project. The agreement eliminates duplication of efforts associated with the design, permitting, and construction of separate City and private projects, conserving staff, financial, and material resources.
The agreement protects the City’s legal interests by obtaining a release for potential claims relating to the October 24, 2021 culvert failure.
ALTERNATIVE ACTIONS CONSIDERED
Perform the creek culvert repair in City right-of-way as a separate City project. This approach would require additional staff resources and cost, and would potentially delay completion of the repairs for the City-owned portion of the creek culvert.
CONTACT PERSON
Ron Nevels, Interim City Engineer/Manager of Engineering, Department of Public Works, 981-6439
Srinivas Muktevi, Supervising Civil Engineer, Department of Public Works, 981-6402 Ricardo Salcedo, Associate Civil Engineer, Department of Public Works, 981-6407 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
COST SHARING AND RELEASE AGREEMENT WITH GOLDSMITHS FOR
STRAWBERRY CREEK CULVERT REPAIR
WHEREAS, on or about October 24, 2021, a segment of Strawberry Creek culvert was reported to have failed causing damage to property located at 1749 Allston Way (“Allston Property”). Steven and Cathy Goldsmith (“Goldsmiths”), owners of the Allston Property, at their own expense performed initial repairs to the culvert to secure their property; and WHEREAS, the Goldsmiths intend to perform additional repairs to the creek culvert and these repairs are estimated to cost approximately $125,000, plus additional fees for permits, material testing, and third-party inspections; and WHEREAS, the Goldsmiths proposed creek culvert repair extends beyond the Allston Property limits and into City right-of-way; and
WHEREAS, City staff recommends that the City enter into a cost sharing agreement (Agreement) with the Goldsmiths for repair of the creek culvert, to address the adjacent portion of City owned culvert; and
WHEREAS, the Agreement would allow the Goldsmiths to include repair of City owned infrastructure as part of their project and would eliminate duplication of efforts associated with the design, permitting, and construction of a separate City project; and WHEREAS, the Agreement includes a release of the Goldsmiths’ potential claims against the City relating to the October 24, 2021 culver failure; and WHEREAS, the agreed upon City contribution is not to exceed Seventy-Five Thousand Dollars ($75,000) and funding is available in Fiscal Year (FY) 2024 in the Capital Improvement Fund (501).
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute the Agreement by and Between the City of Berkeley and Steven and Cathy Goldsmith for repair of the Strawberry Creek Culvert failure.
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Public Works Department Subject: Amendment to the Agreement for Maintenance of State Highways in the City of Berkeley between the California Department of Transportation and the City of Berkeley
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to the Agreement with the California Department of Transportation (Caltrans) for maintenance of the State highways within the City of Berkeley. The amendment will address three new traffic signals: 1) a new pedestrian hybrid beacon (PHB) at San Pablo Avenue and Virginia Street 2) a new PHB at San Pablo Avenue and Hearst Street, and 3) a new rectangular rapid flashing beacon (RRFB) at Ashby Avenue and California Street.
FISCAL IMPACTS OF RECOMMENDATION
This amendment would modify the City’s existing maintenance agreement with Caltrans to include two new PHBs at the intersections of San Pablo/Virginia and San Pablo/Hearst and a new RRFB at Ashby/California. Under this amendment there would be no change to the current maximum annual authorized amount that Caltrans reimburses the City for maintenance of State Highway 13 (Tunnel Road and Ashby Avenue) and 123 (San Pablo Avenue).
Due to a persistently high vacancy rate and other pressing priorities, negotiations with Caltrans to update annual maximum reimbursement amount to align with the City's costs of providing maintenance services of State-owned right-of-way has been on hold.
CURRENT SITUATION AND ITS EFFECTS
Maintaining State highways within the City is a Strategic Plan Priority Project, advancing our goal to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.
Caltrans recently completed construction of pedestrian safety improvements along San Pablo Corridor. As part of these improvements two new PHBs have been installed along San Pablo Avenue, one at Virginia Street and the other at Hearst Street, in addition to a RRFB at Ashby Avenue and California Street. The new signals will provide for a safer crossing of pedestrians and bicycles at these three intersections.
Amendment to the Agreement for Maintenance of State Highways in the City of Berkeley between the California Department of Transportation and the City of Berkeley CONSENT CALENDAR
September 19, 2023
The new traffic signals are within the State’s right of way. Caltrans requires that the existing maintenance agreement be amended to include the improvements prior to turning control and maintenance of these signals to the City.
BACKGROUND
The City's current maintenance agreement with Caltrans was executed on December 1, 1988. City Council authorized execution of this Agreement on September 6, 1988, under Resolution No. 54,423-N.S. This Agreement replaced the previous Agreement from July 1, 1973, which was authorized by Council under Resolution No. 40,114-N.S.
Maintenance, as defined by Caltrans, is the preservation and keeping of right-of-way, and each type of roadway structure and component in safe and usable condition to which it had been improved or constructed, but does not include reconstruction or other major improvement. Under the current maintenance Agreement, the City is responsible for performing maintenance work and the State will reimburse the City for the actual cost of specified work up to a maximum annual expenditure level.
The subject amendment to the maintenance Agreement complies with the City's strategic plan to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Modifying the maintenance agreement to include three new traffic signals along the San Pablo Avenue corridor and Ashby Avenue corridor is not anticipated to have any negative environmental or climate impacts.
RATIONALE FOR RECOMMENDATION
Because these new Caltrans installed signals will become part of the State Highway which the City will maintain, the City of Berkeley is required to amend the existing maintenance agreement with Caltrans to extend the maintenance coverage to include these new signals.
ALTERNATIVE ACTIONS CONSIDERED
There is no alternative that would allow City of Berkeley to maintain and make necessary adjustments to these traffic signals. It is a Caltrans requirement that the 1988 maintenance agreement be modified before turning over maintenance of a traffic signal to the City.
CONTACT PERSON
Hamid Mostowfi, Acting Transportation Manager, Public Works Department (510) 981-6403
Amendment to the Agreement for Maintenance of State Highways in the City of Berkeley between the California Department of Transportation and the City of Berkeley CONSENT CALENDAR
September 19, 2023
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
AMENDMENT TO THE AGREEMENT FOR MAINTENANCE OF STATE HIGHWAYS
IN THE CITY BETWEEN THE CALIFORNIA DEPARTMENT OF TRANSPORTATION
AND CITY OF BERKELEY
WHEREAS, the California Department of Transportation (Caltrans) recently completed construction of pedestrian safety improvements as part of their San Pablo Corridor safety improvement project; and
WHEREAS, as part of these improvements two new pedestrian hybrid beacons and one rectangular rapid flashing beacon have been installed along San Pablo Avenue, and Ashby Avenue; and
WHEREAS, the new signals will provide for a safer crossing of pedestrians and bicycles at these two intersections; and
WHEREAS, Caltrans requires the existing 1988 Maintenance Agreement for maintenance of the State highways within the City be amended to include traffic signal improvements at San Pablo/Virginia, San Pablo/Hearst, and at Ashby Avenue /California Street as a precondition to turn over the maintenance and control of the signals to City of Berkeley; and
WHEREAS, the proposed amendments would not change the current maximum annual authorized amount that Caltrans reimburses the City for maintenance of State highways within the City; and
WHEREAS, the City Council authorized execution of the current Citywide maintenance Agreement between the City and Caltrans on September 6, 1988, under Resolution No. 54,423-N.S., and amended it on November 16, 2021 with Resolution 70,108-N.S; and WHEREAS, City staff and Caltrans are negotiating the terms of an upcoming revision to the Citywide maintenance Agreement, which will replace the current Agreement and the subject amendment by (1) updating the improvements that have been implemented in the State right of way since the Agreement was executed and (2) correspondingly updating the maximum annual reimbursement amount that the City would receive from Caltrans for said maintenance work.
NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute an amendment to the Agreement between the City and Caltrans originally executed on September 6, 1988 under Resolution No. 54,423-N.S., and as amended on November 16, 2021 with Resolution 70,108-N.S, for maintenance of the State highways within the City of Berkeley to include traffic signal improvements at
San Pablo/Virginia, San Pablo/Hearst, and at Ashby Avenue/California. A record signature copy of said amendment will 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
September 19, 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 No. 9977C Amendment: Portable Computer Systems dba PCS Mobile for Parking Permit and Citation Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9977C with Portable Computer Systems dba PCS Mobile, increasing the contract amount by $1,650,000 for a total amount not-to-exceed of $3,700,000 and extending the contract term through June 30, 2029.
FISCAL IMPACTS OF RECOMMENDATION
Funding of $1,650,000 is subject to appropriation in FY 2024-FY 2029 in the Parking Meter Fund.
Current Contract Amount ................................................................$2,050,000 Amended Contract Amount ...............................................................$1,650,000 Total NTE $3,700,000 The average cost associated with the development, routing, and approvals of a consent calendar item such as this is approximately $3,200. The average cost for an action or work session item is approximately $6,200.
CURRENT SITUATION AND ITS EFFECTS
The City currently uses Automated License Plate Reader (ALPR) systems for issuance of parking citations, with the license plate reading capabilities used to conduct time limit enforcement and verify permits in Residential Preferential Parking (RPP) areas.
The contract with PCS Mobile was last amended in April 2022 via Resolution 70,323- N.S., increasing the contract not to exceed amount to $2,050,000 and extending the contract term. The contract is currently set to expire on June 30, 2024.
While the ALPR units are operated by Parking Enforcement staff, the contract is managed by the Transportation Division’s Parking Services Unit. The City has been using ALPR systems for parking enforcement since 2015, and with the introduction of digital license plate based residential permits, the City is now reliant on ALPR for important baseline programs. By November 2023, all 22 systems operated by the City will have reached this tool’s end of useful life. This increases the risk of system failure
Contract No. 9977C Amendment: Portable Computer Systems dba CONSENT CALENDAR PCS Mobile September 19, 2023
and makes ongoing maintenance by PCS Mobile challenging as replacement parts are increasingly difficult to find.
Due to a vacancy rate above 20% in the Transportation Division and funding challenges, it remains infeasible to issue a new request for proposals (RFP) for ALPR equipment and support at this time. Additionally, City staff are satisfied with the quality of customer service and support provided by PCS Mobile, and are familiar with the equipment after years of use. The budget increase includes one-time costs for a full replacement of the obsolete equipment, funding for extended warranties, and funding for yearly costs associated with daily operations, including preventative maintenance, support services, and cellular network connectivity fees. Amending the contract with PCS Mobile for an extension of five (5) years would ensure that existing parking permit and enforcement processes continue to run without a gap in service.
BACKGROUND
Effective management of Berkeley’s public parking resources improves access to local businesses and reduces traffic congestion and safety hazards caused by drivers as they search for parking. In particular, ALPR technology enables Parking Enforcement Officers (PEOs) to cover more ground faster, allowing for more efficient patrols. In addition, ALPR is now the foundation of the City’s digital parking permit management system: license plates now function as annual permits, allowing faster yearly renewals and eliminating the need for the City to purchase and distribute physical bumper decals.
On January 27, 2015, Council authorized Contract No. 9977 with PCS Mobile to install and maintain five Genetec ALPR systems as part of the goBerkeley parking management pilot program. The contract with PCS Mobile was first amended in December 2017 via Resolution 68,085-N.S, to fund the purchase of fifteen (15) additional ALPR systems, bringing the City’s total to twenty (20) systems, as well as yearly costs associated with daily operations, including preventative maintenance, support services, and cellular network connectivity fees through June 30, 2022.
On May 14, 2019 via Resolution No. 68,877-N.S., Council authorized the purchase of fifteen (15) new Westward Industries “GO-4” parking enforcement vehicles. These new vehicles replaced older GO-4s that were already outfitted with ALPR systems.
Removing ALPR systems from the old vehicles and reinstalling them onto the new GO- 4s incurred costs beyond what was originally budgeted. The May 2020 contract amendment provided funding to replenish the contract budget so operations could run smoothly through the duration of the contract. Finally, on April 26, 2022 Council authorized an amendment to the contract via Resolution No. 70,323-N.S. extending the term and adding budget to allow for operations to continue while staff could conduct a procurement process for ALPR equipment and services. Unfortunately, due to persistent funding and staff capacity constraints, such a procurement was infeasible.
The use of ALPR equipment is guided by the Berkeley Police Department’s Policy #1302, Surveillance Use Policy for Automated License Plate Readers.
Contract No. 9977C Amendment: Portable Computer Systems dba CONSENT CALENDAR PCS Mobile September 19, 2023
The contract with Portable Computer Systems dba PCS Mobile addresses a Strategic Plan Priority, advancing our goal to create a resilient, safe, connected, and prepared city.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Effective parking enforcement increases compliance with parking rates and time limits, which are used to improve parking availability. Reducing greenhouse gas emissions produced by vehicular traffic is one of the City’s 2009 Climate Action Plan goals.
RATIONALE FOR RECOMMENDATION
ALPR is integral to current parking enforcement operations and residential permit management. In addition, Parking Enforcement Officers (PEOs) find the technology easy to use and effective at increasing enforcement capacity. This in turn increases compliance with existing parking management regulations, and reinforces Council- supported programs.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Hamid Mostowfi, Acting Transportation Manager, 510-981-6403 Noah Budnick, Senior Management Analyst, 510-981-7069
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 9977C AMENDMENT: PORTABLE COMPUTER SYSTEMS DBA
PCS MOBILE TO AUGMENT BUDGET AND EXTEND CONTRACT TERM TO
MAINTAIN PARKING PERMIT AND ENFORCEMENT SERVICES
WHEREAS, the City of Berkeley currently uses Automated License Plate Recognition (ALPR) systems to conduct parking enforcement operations; and WHEREAS, the City amended the contract on April 26, 2022 through Resolution No. 70,323-N.S., increasing the contract not to exceed amount to $2,050,000 and extending its term through June 30, 2024; and
WHEREAS, the City’s parking permit and enforcement system is fully reliant on ALPR equipment, and all 22 existing systems will have reached equipment End of Life by November 2023, making them susceptible to failure and difficult to maintain; and WHEREAS, the City does not have adequate staff or funding capacity to complete a new equipment solicitation process before the contract expiration; and WHEREAS, PCS Mobile provides satisfactory customer service and support for the City’s 22 ALPR systems, and the equipment is familiar to Parking Enforcement staff; and
WHEREAS, the contract amendment will provide funding for full equipment replacement, extended warranties, and yearly support costs for a contract term extension of five (5) years; and
WHEREAS, funding of $1,650,000 for this contract amendment is available from Parking Meter Fund budgets in FY 2024 - FY 2029.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 9977C with PCS Mobile, increasing the contract not to exceed amount to $3,700,000 and extending the contract term through June 30, 2029.
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
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Public Works
Subject: Contract No. 32000078 and Contract No. 32000093 Amendments DC Electric Group, Inc. for On-Call Electrical Services
RECOMMENDATION
Adopt two Resolutions authorizing the City Manager or designee to amend the contract, increasing the amounts as outlined below, and extending the contracts through June 30, 2026:
1. Increasing Contract No. 32000078 with DC Electric Group, Inc. for the Facilities Electrical Division for on-call electrical services in the amount of $300,000 for a total contract amount not to exceed $475,000.
2. Increasing Contract No. 32000093 with DC Electric Group, Inc. for the Transportation Division for on-call electrical services for traffic calming devices in the amount of $100,000 for a total contract amount not to exceed $600,000.
FISCAL IMPACTS OF RECOMMENDATION
Funding is available in the FY2024 baseline budget as follows:
Contract No. 32000078
Street Light Assessment District Fund 142 $150,000
Measure BB – Local Streets and Road Fund 134 $150,000
Contract No. 32000093
State Transportation Tax Fund 127
Measure BB – Local Streets and Road Fund 134
$50,000
$50,000
Additional funding will be appropriated as part of the Annual Appropriations Ordinance #1 and in future fiscal years as needed. This is an on-call contract and costs will be incurred when services are performed.
Contract No. 32000078 and Contract No. 32000093 Amendments CONSENT CALENDAR DC Electric Group, Inc. for On-Call Electrical Services September 19, 2023
The average cost associated with the development, routing, and approvals of a consent calendar item such as this is approximately $3,200. The average cost for an action or work session item is approximately $6,200.
CURRENT SITUATION AND ITS EFFECTS
Public Works’ Electrical Unit supports the City’s electrical needs and occasionally requires additional outside support or expertise. DC Electric Group, Inc. (DC Electric) provides emergency repairs for damaged street light poles, traffic signals and pedestrian signals, and assists with repairing/replacing Marina pier lights, electrical wiring, and electrical component installation as needed for City renovations and upgrades.
Public Works has been utilizing the service of DC Electric at an increased capacity over the last 6 months to correct a back log of damaged street lights and traffic signals which has resulted in a need for increased contract capacity. There are still several intersections and street lights that require additional work beyond the capacity of City Electricians and there will be additional knocked down equipment throughout the contract year due to unforeseen events.
In addition, the City is responsible for ensuring maintenance of electronic traffic calming devices, including rectangular rapid flashing beacons (RRFBs), pedestrian crossing flashing beacons, and speed feedback signs, and must ensure their operation for pedestrian, bicyclist, and driver safety.
These contract amendments support the Strategic Plan Priority of advancing our goal to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.
BACKGROUND
On November 3, 2016, Public Works issued a Request for Proposals, Specification No. 16-11076-C for electrical on-call services for the Public Works Facilities Electrical Division focusing on Traffic Signal, Pedestrian Signal and Street Light work. Four proposals were submitted and two vendors were selected to ensure the availability of these services in the event of an emergency. Both DC Electric and Colombia were selected and are contracted with the City.
Additionally, a Request for Proposal (RFP) was issued on June 26, 2019, and four contractors responded to the RFP on July 18, 2019, meeting all requirements of the proposal for On-Call Electronic Traffic Calming Devices Maintenance. Resolution No. 69,086-N.S. authorized the City Manager to execute a contract and any amendments with DC Electric Group, Inc. in an amount not to exceed $250,000 to repair, replace, maintain, and install electronic traffic calming devices for the period of October 16, 2019 to June 30, 2024 with an option for up to three one-year extensions. Contract no.
Contract No. 32000078 and Contract No. 32000093 Amendments CONSENT CALENDAR DC Electric Group, Inc. for On-Call Electrical Services September 19, 2023
32000093 was executed on November 4, 2019 for DC Electric Group, Inc. to maintain existing traffic calming devices and to install new devices as authorized by the City.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
This contract amendment is consistent with the City’s efforts to improve efficiency of movement of people and vehicles throughout the City’s roadway network. Traffic calming devices are expected to make the City of Berkeley a more pedestrian, bicycle, and transit friendly community, thus working to reduce greenhouse gases and pollutants that impact air quality.
RATIONALE FOR RECOMMENDATION
DC Electric continues to provide outstanding service to the City of Berkeley and are needed to supplement Public Works’ in-house Electrical Unit to keep up with the growing demand for traffic calming devices, signal modifications and repair of knocked down street lights and traffic signals.
ALTERNATIVE ACTIONS CONSIDERED
None. The City does not have adequate resources to provide the required repairs, replacement and maintenance in a timely and cost-effective manner.
CONTACT PERSON
Joy Brown, Operations Manager, Public Works, 510-981-6629 Hamid Mostowfi, Acting Transportation Manager, Public Works, 510-981-6403 Attachments:
1: Resolution – Contract No. 32000078
2: Resolution – Contract No. 32000093
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32000078 AMENDMENT DC ELECTRIC FOR ON-CALL
ELECTRICAL SERVICES
WHEREAS, the City periodically requires emergency and non-emergency on-call electric services for repair, maintenance, replacement and installation of various electrical equipment in City facilities, and for traffic signals, street lights and other infrastructure at various locations; and
WHEREAS, the City does not have sufficient resources to provide the required repairs, replacement and maintenance in a timely or cost-effective manner; and WHEREAS, the City issued a Request for Proposal (RFP) Specification No. 16-11076-C for on-call electrical services on November 3, 2016, four contractors responded to the RFP on December 8, 2016, and two contractors met all requirements and specifications of the proposal; and
WHEREAS, on July 26, 2022 City Council authorized the City Manager to execute a contract amendment to increase the contract by $100,000 for a new not to exceed amount of $100,000 and extend the contract through June 30, 2025; and WHEREAS, staff reviewed and evaluated all proposals submitted and contracted with DC Electric Group, Inc. and Columbia Electric, Inc.; and
WHEREAS, this is an on-call contract and no costs will be incurred until applicable emergencies or City projects emerge; and
WHEREAS funding is available in the Street Light Assessment District Fund 142 and Measure BB – Local Streets and Road Fund 134.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32000078 with DC Electric Group, Inc., increasing the current contract amount by $300,000 for a total not to exceed $475,000 and extending the contract through June 30, 2026.
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32000093 AMENDMENT: DC ELECTRIC GROUP, INC. FOR ON-
CALL ELECTRICAL SERVICES FOR TRAFFIC CALMING DEVICES
WHEREAS, the City must periodically maintain existing electronic traffic calming devices to ensure that they are in a good operating condition and install new devices for pedestrian, bicyclist, and motorist safety; and
WHEREAS, the City does not have internal recourses or technical expertise to provide the required repair, replacement, maintenance, and installation in a timely or cost- effective manner; and
WHEREAS, an invitation for a Request for Proposal (RFP) was advertised on June 26, 2019, and based on the selection criteria established in the RFP the highest scoring and selected contractor was DC Electric Group, Inc.; and
WHEREAS, Resolution No. 69,086-N.S. authorized the City Manager to execute a contract and any amendments with DC Electric Group, Inc. in an amount not to exceed $250,000 to repair, replace, maintain, and install electronic traffic calming devices for the period of October 16, 2019 to June 30, 2024; and
WHEREAS, DC Electric Group, Inc. was retained under contract no. 32000093 for On- Call Electrical Services for Traffic Calming Devices Maintenance; and WHEREAS, due to the increased need for new electronic traffic calming devices and signal modifications, an additional $100,000 in contract capacity is necessary to construct improvements in an efficient manner; and
WHEREAS, funding for the additional $100,000 will be identified and expended only for the actual services that are required. Therefore, funding will be subject to appropriation in the specific fiscal year that the services are needed.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32000093 with DC Electric Group, Inc. to increase the current contract by $100,000 for a total not to exceed amount of $600,000 and extend the contract through June 30, 2026.
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
September 19, 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: Turnstone Data Inc. for Parking Data Analytics Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a three-year contract with an option for two one-year extensions, that require no additional funding, with Turnstone Data Inc., to provide parking data analysis and visualization services in an amount not to exceed $375,000 for the period from January 1, 2024 through December 31, 2026.
FISCAL IMPACTS OF RECOMMENDATION
Funding is subject to appropriation in the FY 2024, FY 2025, FY2026 budgets from the Parking Meter Fund 631. Funding will be appropriated in FY 2027 and FY 2028 budgets if the contract is extended.
FY 2024..............................................................................................$75,000 FY 2025..............................................................................................$75,000 FY 2026_______________________________________________$75,000 Total Base Contract $225,000 FY 2027 (Option Yr 1)….…………………………………………………$75,000
FY 2028 (Option Yr 2)_____________________________________$75,000 Total Max Contract $375,000 The average cost associated with developing, routing, and approving a staff report for a consent calendar item such as this one is approximately $3,200. The average cost for an action or work session item is approximately $6,200.
CURRENT SITUATION AND ITS EFFECTS
The City currently manages parking at over 4,000 on-street metered spaces and three off-street garages using demand-responsive pricing under the goBerkeley program.
Staff periodically analyze parking occupancy rates and adjust prices up or down to achieve the optimum occupancy rate of 65-85%, roughly equivalent to 1-2 open spaces per block.
Contract: Turnstone Data Inc. for Parking Data Analytics Services CONSENT CALENDAR September 19, 2023
Since the outset of the program in 2013, staff have primarily relied on manual data collection (i.e., counting cars) to understand parking behavior and make program adjustments. With goBerkeley now citywide, the City needs a more efficient way to view and analyze parking activity to make informed decisions about parking prices and/or time limits in multiple different commercial districts.1 Over the past several years staff have experimented with using license plate readers for parking data collection, but despite some successful results, the analysis process has proven to be time-consuming and does not realize significant cost savings over manual data collection.2 With more and more cities choosing to manage their parking supplies using demand- responsive pricing, a market has emerged for Parking Data Analytics Services. (“Data analytics” describes the process of analyzing data to identify trends and meaningful findings.) Staff identified the need for a web-based system that would analyze on-street and off-street parking data from the City’s existing third-party payment systems3 to generate intuitive maps, graphs, and tables of parking occupancy, length of stay, revenue, and other key metrics over multiple time periods. This system would introduce a new way for City staff to review the entire parking system performance in one convenient location, and information would be easily exportable for public reporting.
On March 1, 2023, the City released Request for Proposals (RFP) Specification No. 23- 11578-C for Parking Data Analytics Services. Seven proposals were reviewed and assessed, and Turnstone received the highest overall score based on ability to meet all the City’s specifications and value for the service.
Due to recent departures in the Transportation Division, implementing the Parking Data Analytics System is not expected to occur until new parking services staff are hired. City Council authorization of this contract award is vital to allowing implementation to occur as soon as possible, given these known constraints.
Implementing a Parking Data Analytics System is a Strategic Plan Priority Project, advancing our goals to:
Provide state-of-the-art, well-maintained infrastructure, amenities, and facilities; and
Be a customer-focused organization that provides excellent, timely, easily- accessible service and information to the community.
1 January 26, 2021 Council Meeting, Item #15: Amend BMC Chapter 14.52 Authorizing goBerkeley Parking Program at All Parking Meters, https://bit.ly/3oTDUVw 2 Parking data from license plate readers may also be incorporated into the Parking Data Analytics System to improve accuracy of occupancy reporting, in accordance the City’s revised Surveillance Use Policy for Automated License Plate Readers. See Berkeley Police Department Policy Manual Policy #1302, pp. 908-915. https://bit.ly/3X19r4A
3 I.e., non-identifiable transaction data from IPS parking meters, ParkMobile pay-by-phone, and SKIDATA parking garage equipment.
Contract: Turnstone Data Inc. for Parking Data Analytics Services CONSENT CALENDAR September 19, 2023
BACKGROUND
The City uses parking meters to manage parking demand, particularly in commercial areas where parking availability and turnover are critical for visitor access and convenience. The goBerkeley program consists of a suite of strategies and initiatives designed to improve economic vitality and reduce greenhouse gas emissions. The program features improved parking availability that improves pedestrian and bicyclist safety by reducing the likelihood of incidents of distracted driving as drivers search for parking. Clearer signage and longer on-street parking time limits also provide better customer service.
ENVIRONMENTAL SUSTAINABILITY & CLIMATE IMPACTS
The goBerkeley parking program improves the City’s ability to manage its public parking resources, reducing traffic congestion and vehicle emissions as drivers are anticipated to spend less time searching for available parking spaces. The Parking Data Analytics System will allow staff to more comprehensively understand how the City’s paid parking system is being used, and more quickly identify where changes need to be made.
Demand-responsive parking pricing is a proven tool that will help the City meet its established Climate Action Plan goals, including reducing transportation emissions 80% below 2000 levels by 2050.4
RATIONALE FOR RECOMMENDATION
After careful consideration, City staff determined Turnstone would successfully meet the City’s full set of specifications for the parking data analytics service, offering multiple ways to visualize, interact with, and export parking occupancy data. Turnstone currently provides similar services in Seattle, Boston, and Denver, which, while larger in size, have similar parking systems to Berkeley.
ALTERNATIVE ACTIONS CONSIDERED
If Council chooses not to authorize this contract, City staff would not have the ability to view the entire paid parking system performance in a convenient location, and would continue to rely on existing methods of collecting and/or analyzing parking revenue and occupancy data, such as manual data collection efforts which take considerable time and resources.
CONTACT PERSON
Hamid Mostowfi, Acting Transportation Manager, 510-981-6403 Noah Budnick, Senior Management Analyst, 510-981-7069
Attachments:
1: Resolution
4 November 3, 2015 Council Worksession: http://bit.ly/1I1IYVV
RESOLUTION NO. ##,###-N.S.
CONTRACT: TURNSTONE DATA INC., FOR PARKING DATA ANALYTICS
SERVICES
WHEREAS, the City of Berkeley uses demand-responsive pricing to manage over 4,000 on-street metered spaces and three public parking garages under the goBerkeley program; and
WHEREAS, staff primarily rely on manual data collection to understand parking behavior and inform price and/or time limit adjustments in commercial districts across the City, which is costly and time-consuming; and
WHEREAS, City staff identified a need for a system that would analyze data from the City’s existing parking payment providers and produce intuitive maps, graphs, and tables of parking performance across the entire paid parking system; and WHEREAS, in March 2023, the City released Request for Proposals (RFP) Specification No. 23-11578-C for Parking Data Analytics Services, received seven proposals, and these were reviewed according to the RFP’s scoring criteria; and WHEREAS, Turnstone Data Inc. received the highest overall score based on ability to meet all the City’s specifications and value for the service.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a contract for an amount not to exceed $375,000, and optional two-year extensions, with Turnstone Data Inc. for Parking Data Analytics Services for the period from January 1, 2024 through December 31, 2026. A record signature copy of said contract and any amendments to be on file in the City Clerk Department.