Berkeley City Council
October 3, 2023

Tuesday, October 3, 2023 AGENDA Page 1

AG E N D A

BERKELEY CITY COUNCIL MEETING
Tuesday, October 3, 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/1600539994 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 -833-568-8864 (Toll Free) and enter Meeting ID: 160 053 9994. If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.

Please be mindful that the meeting will be recorded and all rules of procedure and decorum apply for in-person attendees and those participating by teleconference or videoconference.

To submit a written communication for the City Council’s consideration and inclusion in the public record , email [email protected].

This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953 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 th is 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, October 3, 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. “Inform ation” 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, October 3, 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. Utility Easement: Bolivar Drive – East Bay Municipal Utility District From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,883–N.S. authorizing and directing the City Manager to convey a utility easement to the East Bay Municipal Utility District along Bolivar Drive at Aquatic Park.

First Reading Vote: Vote: All Ayes.

Financial Implications: None
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

2. 2024 Tax Rate: Transportation Network Company User Tax From: City Manager
Recommendation: Adopt a second reading of an Ordinance No. 7,886–N.S. 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.

First Reading Vote: Vote: Ayes – Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Humbert, Arreguin; Noes – None; Abstain – None; Absent – Harrison.

Financial Implications: See report
Contact: Henry Oyekanmi, Finance, (510) 981-7300

3. Authorizing a Lease of 830 University Avenue to Lifelong Medical Care From: City Manager
Recommendation: Adopt a second reading of an Ordinance No. 7,887–N.S authorizing the City Manager to enter into a lease for 830 University with Lifelong Medical Care (Lifelong).

First Reading Vote: Vote: Ayes – Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Humbert, Arreguin; Noes – None; Abstain – None; Absent – Harrison.

Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400

Consent Calendar
Tuesday, October 3, 2023 AGENDA Page 4

4. Police Accountability Board – Appointment of New Member From: City Manager
Recommendation: Adopt a Resolution appointing a new member to the Police Accountability Board nominated by Councilmember Robinson.

Financial Implications: See report
Contact: Mark Numainville, City Clerk, (510) 981-6900

5. Revenue Contract with City of Emeryville for Animal Care Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to enter into a revenue contract and all necessary amendments with the City of Emeryville for a term of 33 months (Oct 6, 2023 – June 30, 2026) at a total amount not to exceed $235,548.

Financial Implications: See report
Contact: Peter Radu, City Manager's Office, (510) 981-7000

6. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on October 3, 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: See report
Contact: Henry Oyekanmi, Finance, (510) 981-7300

7. Contract No. 9791 Amendment: Environmental Systems Research Institute, Inc. (ESRI) for Enterprise Graphical Information Systems (GIS) Software License Maintenance and Support
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9791 with Environmental Systems Research Institute, Inc. (Esri) for Enterprise GIS software license maintenance and support, increasing the amount by $279,750 for a not- to-exceed total of $900,750 for the period of July 1, 2023 through June 30, 2026.

Financial Implications: See report
Contact: Kevin Fong, Information Technology, (510) 981-6500

Consent Calendar
Tuesday, October 3, 2023 AGENDA Page 5

8. Contract No. 114382-1 Amendment: M.C. Dean for UPS Maintenance From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 114382-1 with M.C. Dean, Inc. for Uninterrupted Power Supply (UPS) maintenance, increasing the amount by $115,016 for a total not to exceed $261,922 from July 1, 2014 to June 30, 2026.

Financial Implications: IT Cost Allocations Fund - $115,016.

Contact: Kevin Fong, Information Technology, (510) 981-6500

Action Calendar
The public may comment on each item listed on the agenda for action as the item is taken up. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the t ime the matter is taken up during the Action Calendar.

The Presiding Officer will request that persons wishing to speak use the "raise hand" function to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.

Action items may be reordered at the discretion of the Chair with the consent of Council.

Action Calendar – 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.

Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. For certain hearings, this is followed by five-minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak use the "raise hand" function to be recognized and to determine the number of persons interested in speaking at that time.

Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker.

The Presiding Officer may with the consent of persons representing both sides of an issue allocate a block of time to each side to present their issue.

When applicable, 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 i n the office of the City Clerk.

Action Calendar – Public Hearings
Tuesday, October 3, 2023 AGENDA Page 6

9. Ambulance Transport Fee Increase
From: City Manager
Recommendation: Conduct a public hearing and upon conclusion, adopt a Resolution adjusting the Ambulance User Fee to match Alameda County’s approved ambulance user fee schedule made effective July 1, 2023, for the Cities of Alameda, Albany, Berkeley, and Piedmont. The increase would be included as an updated addendum to the Ambulance Provider Agreement, and rescinding Resolution 70,726–N.S.

Financial Implications: See report
Contact: David Sprague, Fire, (510) 981-3473

10. 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 September 19, 2023) (Item contains revised and supplemental material)
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

Action Calendar – Old Business

11. Status Report - Berkeley’s Financial Condition (FY 2012 – FY 2021): Pension Liabilities and Infrastructure Need Attention (Continued from June 27, 2023) From: City Manager
Contact: Sharon Friedrichsen, Budget Manager, (510) 981-7000

Information Reports

12. Sanctuary City Contracting Compliance Report for FY 2023 From: City Manager
Contact: Henry Oyekanmi, Finance, (510) 981-7300

13. Update on the Implementation of Fair and Impartial Policing Task Force Recommendations
From: City Manager
Contact: Jennifer Louis, Police, (510) 981-5900

Public Comment – Items Not Listed on the Agenda
Adjournment

Tuesday, October 3, 2023 AGENDA Page 7

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.

Communications to the City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service 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, October 3, 2023 AGENDA Page 8

Captioning services are provided at the meeting, on B -TV, and on the Internet. In addition, assisted listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to be returned before the end of the meeting.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the agenda for this meeting of the Berkeley City Council 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 21, 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.

Garbage Rates

1. Melanie Lawrence and John Smail

2274 Shattuck

2. Melanie Lawrence

Tool Lending Library

3. David Lerman

Ohlone Park

4. Walter Wood

Police Matters

5. Janice Schroeder

Berkeley Marina

6. Peter Kuhn

Berkeley Commissioners

7. Cameron Woo

BART

8. Jack Kurzweil

9. Melinda Howard-Herrarte, on behalf of the Sierra Club

Staff Shortages

10. Eric Friedman

Lights and Paving

11. Kathleen Davis

Tuesday, October 3, 2023 AGENDA Page 9

BioTech Labs

12. Ryian Adam Matthews

Senior Citizen

13. Sharon Turnoy

Marina Dock Replacement

14. Camille Antinori

United Artist Theater

15. Allen Michaan

Gasoline Leaf Blowers

16. Nina Sprecher

Berkeley Diversity

17. Sacha

Longfellow School

18. Anthony Vidal

19. Mara Greenaway

20. Liz Linden

21. James Angus

Ohlone Greenway

22. Mary Behm-Steinberg

Hopkins Corridor

23. Robion Kirby

McGee Avenue and Allston Way

24. Cheng Zhang

Landlords

25. Diana Bohn

Waterfront Specific Plan

26. Jim McGrath

Youth Peace

27. Youth Peace Program

Fight Inequity

28. Sylvia Mendez

Tuesday, October 3, 2023 AGENDA Page 10

Berkeley Flag

29. Aditya Prathap

URL’s Only

30. Vivian Warkentin
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.

Ordinance No. 7,883-N.S. Page 1 of 1
ORDINANCE NO. 7,883-N.S.

AUTHORIZING AND DIRECTING CITY MANAGER TO CONVEY UTILITY EASEMENT: BOLIVAR DRIVE – EAST BAY MUNICIPAL UTILITY DISTRICT BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. Conveyance of property authorized.

The City Manager is hereby authorized to convey to the East Bay Municipal Utility District a utility easement for Bolivar Drive, substantially in the form attached hereto as Exhibit A, for the real property described therein.

Section 2. Posting.

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.

At a regular meeting of the Council of the City of Berkeley held on September 12, 2023, this Ordinance was passed to print and ordered published by posting by the following vote:

Ayes: Bartlett, Hahn, Harrison, Humbert, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.

Noes: None.

Absent: None.

RECORDING REQUESTED BY
East Bay Municipal Utility District

AND WHEN RECORDED MAIL TO
East Bay Municipal Utility District
P. O. Box 24055 - MS #903
Oakland, CA 94623
Attn: Real Estate Services (RK)
EA 23-001 – RW 5769 - Out of Tract Easement

SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 60-2521-3-1
Pursuant to Government Code Section 27383, Grantee is exempt from paying recording fees.

R&T 11911 - Consideration is less than $100
Certificate of Acceptance Attached

GRANT OF EASEMENT
THIS INDENTURE, made by and between City of Berkeley, a California municipal corporation, hereinafter called the Grantor, and EAST BAY MUNICIPAL UTILITY DISTRICT, a public corporation organized and existing under the laws of the State of California, hereinafter called the Grantee,
WITNESSETH:

THAT the Grantor, for a good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, hereby grants to the Grantee and to its successors and assigns a perpetual easement and right-of-way for the purpose of laying down, constructing, reconstructing, removing, replacing, repairing, maintaining, operating and using, as the Grantee may see fit, any facilities necessary for the transmission of utilities, including all necessary braces, connections, fastenings and other appliances and fixtures, in, under, along and across that certain real property described in Exhibit "A" and shown on Exhibit "B", attached hereto and made a part hereof.

TOGETHER with the right of ingress to and egress from said right-of-way and the right at all times to enter in, over and upon said right-of-way and every part thereof and also to use said right-of-way for all purposes connected with the laying down, constructing, reconstructing, replacing, removing, repairing, maintaining, operating and using said utilities.

The Grantor and the Grantor's heirs, successors, or assigns shall not place or permit to be placed on said right-of-way any building or structure, including but not limited to houses, garages, outbuildings, swimming pools, tennis courts, retaining walls, decks, and patios nor allow to be done anything which may interfere with the full enjoyment by the Grantee of the rights herein granted.

The above paragraph notwithstanding Grantor reserves the right to landscape the EXHIBIT APage 2 of 8

easement area in a manner consistent with the Grantee's use; however, such use by Grantor shall not include the planting of trees nor a change in the existing surface elevation (grade) of the easement area by more than one (1) foot without first having prior written consent of the Grantee.

The Grantee agrees that said utilities shall be constructed and maintained at a depth of at least eighteen (18) inches below the present surface of the ground.

The Grantee agrees upon the completion of any of its works hereunder to restore as near as possible the surface of the ground to the condition in which it was prior to the commencement of said work.

TO HAVE AND TO HOLD, all and singular, the rights above described unto the Grantee and the Grantee's successors and assigns forever.

IN WITNESS WHEREOF, the Grantor has executed this indenture this ______ day of _________________, 20____.

City of Berkeley, a California municipal corporation

By: ___________________________________

[AUTHORIZED SIGNER(S), TITLE]

Ordinance No. 7,886-N.S. Page 1 of 1
ORDINANCE NO. 7,886-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.

At a regular meeting of the Council of the City of Berkeley held on September 19, 2023, this Ordinance was passed to print and ordered published by posting by the following vote:

Ayes: Bartlett, Hahn, Humbert, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.

Noes: None.

Absent: Harrison.

Ordinance No. 7,887-N.S. Page 1 of 1
ORDINANCE NO. 7,887-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.

At a regular meeting of the Council of the City of Berkeley held on September 19, 2023, this Ordinance was passed to print and ordered published by posting by the following vote:

Ayes: Bartlett, Hahn, Humbert, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.

Noes: None.

Absent: Harrison.

Internal
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

Internal
i

TABLE OF CONTENTS
Page
[TOC]

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.

Internal
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_______

Internal
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.

Internal
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:

Internal
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

Internal
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

Internal
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

Internal
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

Internal
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

Internal
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]

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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.

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2

Internal
Exhibit A-2
EXHIBIT A-2
Depiction of Premises

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Exhibit B

EXHIBIT B
May 20, 2022 Building Inspection Report by E. A. Davidovits & Co., Inc

Internal

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
October 3, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Mark Numainville, City Clerk
Subject: Police Accountability Board – Appointment of New Member

RECOMMENDATION
Adopt a Resolution appointing a new member to the Police Accountability Board nominated by Councilmember Robinson.

FISCAL IMPACTS OF RECOMMENDATION
All commissioners are eligible to receive a stipend of $100 per meeting.

CURRENT SITUATION AND ITS EFFECTS
In June of 2021 the Mayor and Members of the City Council nominated and appointed the initial nine members of the PAB and also appointed one alternate commissioner.

There are currently three seats on the PAB that are vacant. The alternate seat is also vacant.

Councilmember Robinson has nominated Joshua Cayetano to serve on the Police Accountability Board. Mr. Cayetano meets the eligibility criteria in the City Charter and may be appointed by a majority vote of the Council.

Commissioner Nominated By
vacant Mayor Arreguin
vacant Councilmember Kesarwani
Regina Harris Councilmember Taplin
John Moore Councilmember Bartlett
Kitty Calavita Councilmember Harrison
Leah Wilson Councilmember Hahn
Juliet Leftwich Councilmember Wengraf
vacant Councilmember Robinson
Brent Blackaby Councilmember Humbert
vacant Alternate

Police Accountability Board – Appointment of Members CONSENT CALENDAR October 3, 2023

The City Charter provides for the appointment of members to the Police Accountability Board. Article XVIII, Section 125, Part 6 states, “The Mayor and each City Councilmember shall nominate one candidate from an applicant pool at a meeting of the City Council and that each individual nominee must be approved by a majority vote of the City Council.”
Members of the Police Accountability Board must:
 Be a resident of the City;
 Be at least 18 years of age
 Not be an employee, officer, or contractor with the City, a current sworn police officer from any agency, or a current employee, official, or representative of an employee association representing sworn police officers; and
 Be fair minded and objective with a demonstrated commitment to community service.

The City Charter indicates that desirable qualities of a Board member are familiarity with human resources, law, police procedures, police oversight, or involvement in civil rights or community organizations and that the City Council shall endeavor to establish a Board that is broadly inclusive and reflective of race, ethnicity, age, gender identity, sexual orientation, economic status, neighborhoods, and various communities of interest in the City.

BACKGROUND
Measure II was adopted on November 3, 2020 by the voters of Berkeley to establish an Office of the Director of Police Accountability and create a new Police Accountability Board (hereafter “Board”), both of which are independent of the City Manager. The members of the Board are approved by vote of the full Council.

All applicants are reviewed and their eligibility is verified by city staff against the requirements of the Charter.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable effects on sustainability or the environment associated with the recommendation in this report.

RATIONALE FOR RECOMMENDATION
The appointment is provided for by the City Charter and pursuant to the nomination submitted by Councilmember Robinson.

ALTERNATIVE ACTIONS CONSIDERED
None.

Police Accountability Board – Appointment of Members CONSENT CALENDAR October 3, 2023

CONTACT PERSON
Mark Numainville, City Clerk, (510) 981-6900
Attachments:
1: Resolution

RESOLUTION NO. -N.S.

APPOINTMENT OF JOSHUA CAYETANO TO THE POLICE ACCOUNTABILITY BOARD
WHEREAS, Measure II was adopted on November 3, 2020 by the voters of Berkeley to create a new Police Accountability Board; and
WHEREAS, Article XVIII, Section 125, Part 6 provides for the Council’s appointment of board members; and
WHEREAS, the Councilmember Robinson submitted a nominee for appointment by the full council; and
NOW THEREFORE BE IT RESOLVED by the Council of the City of Berkeley that the following applicant is hereby appointed to the Police Accountability Board:

Nominee Nominated By
Joshua Cayetano Councilmember Robinson

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
October 3, 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: Revenue Contract with City of Emeryville for Animal Care Services

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to enter into a revenue contract and all necessary amendments with the City of Emeryville for a term of 33 months (Oct 6, 2023 – June 30, 2026) at a total amount not to exceed $235,548.

FISCAL IMPACTS OF RECOMMENDATION
If approved, this recommendation will result in $235,548 in revenue over 33 months for the City’s general fund. Because this contract is strictly for Animal Care Services operations and supports, the funding will be added to the Berkeley Animal Care Services baseline budget into revenue code 011-21-203-000-0000-000-000444310- as follows:
 Year 1 (Oct 6, 2023 – June 30, 2024) - $61,094
 Year 2 (July 1, 2024 – June 30, 2025) - $85,938
 Year 3 (July 1, 2025 – June 30, 2026) - $88,516

CURRENT SITUATION AND ITS EFFECTS
Since 2014, the City of Berkeley Animal Care Services (BACS) has contracted directly with the City of Piedmont to provide limited animal care services (mainly sheltering of animals) for animals coming from the Cities of Piedmont and Emeryville. In turn, Piedmont has contracted directly with Emeryville for the costs associated with Emeryville’s share of the contract, which included sheltering at BACS as well as field call support provided by Piedmont’s Animal Control Officers. Due to changes in Piedmont’s staffing structure and capacity, Piedmont will be canceling their long-standing contract with Emeryville effective October 5, 2023, leaving the City of Emeryville and its animals with no options.

The scope of the proposed contract, which is included as an attachment to this report, includes sheltering and feeding animals from Emeryville and includes other services including limited field support (responding to deceased and injured animals as well as animal bites) and animal quarantining. Costs are based on actual costs associated with these services at BACS and projected based on call volume data received from the City of Emeryville.

Encampment Resolution Funding Round 2 Grant Award CONSENT CALENDAR October 3, 2023

BACKGROUND
Since 2014, the City of Berkeley has contracted with the City of Piedmont to cover limited animal care services for both the City of Piedmont and the City of Emeryville. On Oct 5, 2023, the City of Piedmont will be canceling their contract with Emeryville.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are minimal environmental impacts associated with this contract, which simply shifts the responsibility and associated costs of status quo work already being performed by Piedmont for Emeryville over to Berkeley; if anything, it will result in fewer vehicle miles traveled, given Emeryville’s closer proximity to BACS than Piedmont.

RATIONALE FOR RECOMMENDATION
Emeryville has actively contracted with the City of Piedmont since 1974 for Animal Services. With changes to Piedmont’s capacity resulting in the termination of this contract, Emeryville has no options for animal welfare services, some of which Berkeley has already been performing on their behalf, making this contract absorbable at the negotiated price.

ALTERNATIVE ACTIONS CONSIDERED
Berkeley could choose not to enter into this contract or enter into a more limited scope contract. Given Emeryville’s lack of other options for needed animal welfare services and the fact that Emeryville and Berkeley city staff have negotiated a mutually agreeable scope of work and cost, we recommend against these alternative options.

CONTACT PERSON
Mike St Pierre, Animal Care Services Manager, (510) 681-6603.

Attachments:
1: Resolution
2: Revenue contract with City of Emeryville

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

ENTERING INTO A REVENUE CONTRACT AND ALL NECESSARY

AMENDMENTS WITH THE CITY OF EMERYVILLE FOR ANIMAL CARE

SERVICES
WHEREAS, the City of Berkeley Animal Care Services (BACS) provides animal sheltering, field services, and other supports not just to the City of Berkeley, but also to the cities of Albany, Piedmont and Emeryville through contracts with those cities, establishing BACS as a regional animal welfare provider for Northern Alameda County; and
WHEREAS, the City of Piedmont, since 1974, has contracted with the City of Emeryville for animal care services including field service calls and sheltering (the latter provided by BACS); and
WHEREAS, the City of Piedmont will cancel their contract with the City of Emeryville effective October 5, 2023, leaving the City of Emeryville with no options for needed animal welfare services; and
WHEREAS, the needs and welfare of animals is not subject to arbitrary jurisdictional borders.

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager to enter into a revenue contract and all necessary amendments with the City of Emeryville for a term beginning an amount not to exceed $235,548 for a term beginning October 6, 2023 and ending June 30, 2026.

BE IT FURTHER RESOLVED that these revenues shall be added to the Berkeley Animal Care Services annual baseline budget to offset the direct costs of providing the services outlined in the contract.

CALIFORNIA

PROFESSIONAL SERVICES CONTRACT

FOR CITY USE ONLY
Contract No. CIP No.

Resolution No. Project No.

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THIS PROFESSIONAL SERVICES CONTRACT (“Contract”) is effective as of ____________________ (the “Effective Date”), by and between THE CITY OF EMERYVILLE, a municipal corporation, (“City”) and CITY OF BERKELEY (“Contractor”), individually referred to as a “Party” and collectively as the “Parties”.

WITN

ESSETH THAT

WHEREAS, the City desires to engage
Contractor for Animal Control Services; and

WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to render the services necessary to do the work contemplated under this Contract; and

WHEREAS, the City has determined that the Contractor is qualified by training and experience to render such services; and

WHEREAS, the Contractor desires to provide such services; and,

WHEREAS, the public interest will be served by this Contract; and

NOW, THEREFORE, the Parties hereto do mutually agree as follows:

1. SCOPE OF SERVICES AND TERMINATION DATE

1.1 Project Description
A complete project description is set forth in the Scope of Work, attached hereto as Exhibit A and incorporated herein by this reference.

1.2 Services
The services to be completed under this Contract (“Services”) are described in the Scope of Work set forth in Exhibit A. The Services shall be performed in accordance with terms, conditions, and specifications set forth herein. To the extent there is a conflict between the Scope of Work, and the terms, conditions, and specifications set forth herein, the terms, conditions, and specifications set forth herein shall govern.

1.3 Schedule and Completion Date
The Services to be provided by Contractor under this Contract shall commence on the Effective Date and terminate on JUNE 30, 2026. The Parties may, by mutual, written consent, extend the term of this Contract.

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2. WORK CHANGES

2.1 City Rights to Change
The City reserves the right to order changes in the Services to be performed under this Contract by altering, adding to or deducting from the Scope of Work. All such changes shall be incorporated in amendments executed by the Contractor and the City. Such amendments shall specify the changes ordered and any necessary adjustment of compensation and completion time.

2.2 Additional Work Changes
Any work added to the Scope of Work by an amendment shall be executed under all the applicable conditions of this Contract. No claim for additional compensation or extension of time shall be recognized unless contained in an amendment duly executed on behalf of the City and the Contractor.

2.3 City Manager Execution
The City Manager has authority to execute without further action of the Emeryville City Council, any number of amendments so long as their total effect does not materially alter the terms of this Contract or increase the total amount to be paid under this Contract, as set forth in Section 3.2 below.

3. COMPENSATION AND METHOD OF PAYMENT

3.1 Compensation for Services Performed
City agrees to pay the Contractor for the Services performed and costs incurred by Contractor upon certification by the City that the Services were actually performed and costs actually incurred in accordance with the Contract. Compensation for Services performed and reimbursement for costs incurred shall be paid to the Contractor upon receipt and approval by the City of invoices setting forth in detail the Services performed and costs incurred. The City shall pay the Contractor within forty-five (45) days after approval of the invoice by City staff.

3.2 Total Compensation Amount
The total amount paid under this Contract as compensation for Services performed and reimbursement for costs incurred shall not, in any case, exceed TWO HUNDRED

THIRTY FIVE THOUSAND FIVE HUNDRED FORTY EIGHT DOLLARS AND NO CENTS ($235,548.00), except as outlined in Section 2.3 above. The compensation for Services performed shall be as set forth in Exhibit A. Reimbursement for costs incurred shall be limited as follows. Long distance telephone and telecommunications, facsimile transmission, normal postage and express mail charges, photocopying and microcomputer time shall be at cost. Supplies and outside services, transportation, lodging, meals and authorized subcontracts shall be at cost plus no more than a 10% administrative burden. Automobile mileage shall be no more than the current deductible rate set by the Internal Revenue Service.

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4. COVENANTS OF CONTRACTOR

4.1 Assignment of Contract
The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Contract, without the prior express written consent of the City. As to any approved subcontractors, the Contractor shall be solely responsible for reimbursing them and the City shall have no obligation to them.

4.2 Responsibility of Contractor and Indemnification of City To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City and City’s members, officers, agents, employees and volunteers, from and against any and all claims, losses, liabilities of every kind, nature and description, damages, injury (including without limitation injury to or death of an employee of Contractor or subcontractors as well as any claim by any employee, agent, Contractor or independent contractor hired or employed by Contractor that such persons or individuals are entitled to any benefit otherwise provided to employees of the City, including coverage under the California Public Employee Retirement System), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, reasonable attorneys’ fees, litigation expenses, and fees of expert contractors or expert witnesses incurred in connection therewith and the costs of investigation, arising out of, pertaining to, or relating to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Contractor, any subcontractor, anyone directly or indirectly employed by them or anyone that they control. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Contractor. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Contract.

If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.

4.3 Independent Contractor
The Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the Services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the Services are performed; the instrumentalities, tools, supplies and/or materials necessary to complete the Services; hiring of contractors, agents or employees to complete the Services; and the payment of

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employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible for its own acts and those of its subordinates and employees during the term of this Contract.

4.4 Insurance
Contractor shall not commence Services under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under Exhibit B, attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under Exhibit B. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.

4.5 Records, Reports and Audits

4.5.1 Records
A. Records shall be established and maintained by the Contractor in accordance with requirements prescribed by the City with respect to all matters covered by this Contract. Except as otherwise authorized, such records shall be maintained for a period of three years from the date that final payment is made under this Contract. Furthermore, records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later.

B. All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Contract shall be clearly identified and readily accessible.

4.5.2 Reports and Information
Upon request, the Contractor shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Contract in the form requested by the City.

4.5.3 Audits and Inspections
At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Contract. The Contractor will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Contract.

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4.6 Conflicts of Interest
The Contractor covenants and declares that, other than this Contract, it has no holdings or interests within the City of Emeryville, nor business holdings, contracts or agreements with any official, employee or other representative of the City. For the duration of this Contract, in the event the Contractor or its principals, agents or employees acquire such a holding, interest, contract, or agreement within the City of Emeryville or with any official, employee or representative of the City in the future, the Contractor will immediately notify the City of such holding, interest, contract, or agreement in writing.

4.7 Confidentiality
The Contractor agrees that such reports, information, opinions or conclusions shall not be made available to or discussed with any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether deemed confidential or not.

4.8 Discrimination Prohibited
The Contractor covenants and agrees that in performing the Services required under this Contract, the Contractor shall not discriminate against any person on the basis of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin or ancestry, age or disability, except as provided in section 12940 of the Government Code.

4.9 Licenses, Certifications and Permits
The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, county, city or local boards, agencies, commissions, committees or other regulatory bodies in order to perform the Services contracted for under this Contract.

All work performed by Contractor under this Contract shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals.

4.10 Key Personnel
The Project Manager is / Key Personnel are necessary for the successful prosecution of the Services due to their unique expertise and depth and breadth of experience. There shall be no change in Contractor’s Project Manager or members of the project team without the City’s approval. Contractor recognizes that the composition of this team was instrumental in the City’s decision to award the work to Contractor and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Contractor’s obligations under this Contract and shall be grounds for termination.

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4.11 Authority to Contract
The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Contract, if applicable.

4.12 Ownership of Work
All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the Services to be performed by the Contractor (“Materials”) shall be and are the property of the City and the City shall be entitled to full access and copies of all such Materials. Any such Materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the work shall be delivered immediately to the City. The Contractor assumes all risk of loss, damage or destruction of or to such Materials. If any Materials are lost, damaged or destroyed before final delivery to the City, the Contractor shall replace them at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment.

4.13 City Labor Requirements

4.13.1 Compliance
At the Effective Date, compliance with the City’s living wage ordinance is  required /  not required for this Contract. If this Contract provides for compensation to Contractor of $25,000 or more within a single fiscal year for providing Services to the City, then Contractor shall comply with the requirements of the City’s Living Wage Ordinance set forth in Chapter 31 of Title 5 of the Emeryville Municipal Code, unless (i) Contractor is a governmental entity, (ii) this Contract is subject to a higher prevailing wage rate as defined in the California Labor Code, or (iii) this Contract is subject to federal or state laws or regulations that would preclude the application of the City’s laws.

4.13.2 A pplicability
Compliance with the Living Wage Ordinance, if applicable, shall be required during the term of the Contract for all employees of Contractor who perform at least twenty-five percent (25%) of the work arising from this Contract, unless said employees are otherwise exempt from the application of the Living Wage Ordinance pursuant to Section 5-31.08 of the Emeryville Municipal Code
. Contractor shall promptly provide to
the City documents and information verifying compliance with the requirements of the Living Wage Ordinance within ten (10) working days following a written request for such documentation and information from the City.

4.13.3 Non-Compliance
Failure to comply with the Living Wage Ordinance provides that a person claiming a violation thereof may bring an action against Contractor for back pay, reinstatement and

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compensatory damages, as well as a penalty up to three times the amount of damages for a willful violation, plus reasonable attorney’s fees and costs. In addition, the City may terminate the Contract and pursue any other remedies available to the City, including debarment, for violations of the Living Wage Ordinance.

4.13.4 Living Wage
Contractor shall notify each of its affected employees with regards to wages that are required to be paid pursuant to this Contract. “Living Wage” means no less than $18.00 PER HOUR (which is subject to increase annually on July 1st to reflect the twelve-month average increase to the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose Metropolitan Statistical Area for the preceding year from May to April, not to exceed three percent (3%) in any one year) including wages and health benefits. If employer contributions for health benefits are not paid on an hourly basis, the employer must demonstrate to the City the hourly value of such benefits in order to receive credit for such payments to covered employees.

4.13.5 Minimum Wage and Paid Sick Leave
In addition to the Living Wage Ordinance, the Contractor may be required to comply with the
City’s Minimum Wage, Paid Sick Leave, and Other Employment Standards Ordinance, as set forth in Chapter 37 of Title 5 of the Emeryville Municipal Code, to the extent it is applicable.

4.14 California Labor Requirements

4.14.1 Prevailing Wage Requirements
Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

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4.14.2 R egistration
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Contract and require the same of any subcontractors, as applicable.

Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

4.14.3 Labor Compliance Oversight
This Contract may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

4.14.4 Workers’ Compensation
Pursuant to the requirements of section 1860 of the California Labor Code, Contractor will be required to secure the payment of workers’ compensation to his employees in accordance with the provisions of section 3700 of the Labor Code. By signing this Contract, Contractor certifies the following:

“I am aware of the provisions of section 3700 of the California Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”

4.14.5 Event of Default
Failure by Contractor to comply with any provision of this Section shall constitute a default of this Contract and shall be grounds for termination as provided in this Contract.

5. TERMINATION
A. The City shall have the right to terminate this Contract for any reason whatsoever by providing written notice thereof at least five (5) calendar days in advance of the termination date.

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B. All termination notice periods triggered pursuant to written notice shall begin to run from the date of the United States Postal Service postmark.

C. Upon termination, City shall provide for payment to the Contractor for Services rendered and expenses incurred prior to the termination date.

D. Upon receipt of a termination notice the Contractor shall: (1) promptly discontinue all Services affected, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Contractor in performing this Contract, whether completed or in process, in the form specified by the City.

E. Notwithstanding anything to the contrary, this Contract is subject to immediate termination in the event the City Council does not appropriate sufficient funds for this Contract.

F. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Contract or at law or in equity.

6. NO PERSONAL LIABILITY
No member, official or employee of the City shall be personally liable to the Contractor or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Contractor or successor or on any obligation under the terms of this Contract.

7. ENTIRE AGREEMENT
This Contract constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of this Contract not contained in this Contract shall be valid or binding. This Contract may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization.

8. SUCCESSORS AND ASSIGNS
Subject to the provisions of this Contract regarding assignment, this Contract shall be binding on the heirs, executors, administrators, successors and assigns of the respective Parties.

9. APPLICABLE LAW AND ATTORNEY’S FEES; VENUE
If any action at law or in equity is brought to enforce or interpret the provisions of this Contract, the rules, regulations, statutes and laws of the State of California will control.

The prevailing party shall be entitled to reasonable attorney's fees in addition to any

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other relief to which said party may be entitled. The exclusive venue for any legal action taken pursuant to this Contract shall be the State of California Superior Court for the County of Alameda or the United States District Court for the Northern District of California.

10. SEVERABILITY
The caption or headnote on articles or sections of this Contract are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this Contract nor in any way affect this Contract. Should any article(s) or section(s), or any part thereof, later be deemed unenforceable by a court of competent jurisdiction, the remainder of this Contract shall remain in full force and effect to the extent possible.

11. BUSINESS TAX CERTIFICATE
Prior to commencement of the Services to be provided hereunder, Contractor shall apply to the City of Emeryville Finance Department for a business tax certificate, pay the applicable business tax and maintain said business tax certificate during the term of this Contract, as provided in Article 1 of Chapter 1 of Title 3 of the Emeryville Municipal Code.

12. NOTICES

12.1 Communications Relating to Daily Activities
All communications relating to the day-to-day activities of the work and invoices shall be exchanged between Pedro Jimenez for the City and Mike St. Pierre for the Contractor:

CITY CONTRACTOR
Pedro Jimenez, Assistant City Manager
Phone No: 510-596-3770
E-Mail : [email protected]
Mike St. Pierre, Animal Services Manager
Phone No: 510-981-6600
E-Mail : [email protected]

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12.2 Official Notices
All other notices, writings or correspondence as required by this Contract shall be directed to the City and the Contractor, respectively, as follows:

CITY CONTRACTOR
Paul Buddenhagen, City Manager
1333 Park Ave
Emeryville, California 94608
Phone No: 510-596-4371
E-Mail :
[email protected]

with a copy to:

Pedro Jimenez, Assistant City Manager
1333 Park Ave
Emeryville, California 94608
Phone No: 510-596-3370
E-Mail : [email protected]
Dee Williams-Ridley, City Manager
2180 Williams-Ridley
Berkeley, Ca 94704
Phone No: 510-981-7000
E-Mail : DWilliams-
[email protected]

13. C OUNTERPARTS
This Contract may be signed in counterparts, each of which shall constitute an original. It is expressly agreed that each Party to this Contract shall be bound by its own telecopied, scanned, electronic or digital signature and shall accept the telecopied, scanned, electronic or digital signature of the other Party to this Contract.

14. NO THIRD-PARTY BENEFICIARIES
Except to the extent expressly provided for herein, there are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

15. N ON-EXCLUSIVITY
City reserves right to employ other contractors in connection with the Services covered under this Contract.

16. ASSIGNMENT OR TRANSFER
Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Contract or any interest herein without the prior written consent of the City.

Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

City of Emeryville | Professional Services Contract
REV09/2022

17. WAIVER
The City’s failure to enforce any provision of this Contract or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default.

18. OTHER REQUIREMENTS
Compliance with terms and conditions set forth in Exhibit C is  required /  not required for this Contract. Contractor shall also fully and adequately comply with the provisions included in Exhibit C (“Other Requirements”) when attached hereto and incorporated herein by reference (“Other Requirements”). With respect to any conflict between such Other Requirements and the terms of this Contract and/or the provisions of state law, Exhibit C shall control.

SIGNATURES ON FOLLOWING PAGE

City of Emeryville | Professional Services Contract
REV09/2022

19. SIGNATURE PAGE TO PROFESSIONAL SERVICES CONTRACT
IN WITNESS WHEREOF the City and the Contractor have executed this Contract, which shall become effective as of the date first written above.

Approved As To Form:

City Attorney

Dated: CITY OF EMERYVILLE

City Manager

Dated: CITY OF BERKELEY

(Signature)
Dee Williams-Ridley, City Manager
Attach:

W-9 Form
Attach:

Business License Certificate

Exhibit A

Scope of Services

A. The City of Berkeley shall provide the following services to and on behalf of the City of Eme
ryville:

 Shelter and feed animals brought to the Berkeley Animal Shelter by employees of the City of Emeryville Police Department or by residents of the City of Emeryville  Euthanize, after the legal holding period and only as necessary, animals brought to the Berkeley Animal Shelter by the City of Emeryville.
 Quarantine animals, as necessary, for rabies observation for and on behalf of the City of Emeryville and its residents.
 Disposal of deceased animals brought to Berkeley Animal Care services by employees or residents of the City of Emeryville.
 Respond to calls from the City of Emeryville about deceased, injured, and bite animals, and provide necessary field service.

B. The City of Emeryville agrees to:

 Provide all necessary pre-shelter and after-hours veterinary care through direct arrangements with clinics and/or emergency veterinarians. In the event that a City of Berkeley ACO picks up the injured animal, the City of Emeryville will advise which clinic to take the animal to.
 Reimburse the City of Berkeley for the actual costs of providing care, plus an administrative fee of 15%, if the City of Emeryville fails to provide the necessary pre- shelter veterinary care.
 Make payments to the City of Berkeley in which annual fees are due under this agreement on or before June 30th of each calendar year.  Not bring healthy wildlife to the Berkeley Animal Shelter under any circumstances.  Not deliver to the shelter in excess of 15 animals in a period of a day, or more than 30 animals per week unless prior arrangements have been made between both parties.  Be responsible for payment of testing fees for rabid animals. In the event that an animal must be immediately euthanized upon delivery to the shelter, a Berkeley Animal Shelter employee will humanely euthanize the animal and obtain the specimen required by the laboratory, however, it will be up to the City of Emeryville to pursue any necessary testing and taking delivery of said specimen to the laboratory.  Follow the procedures for bringing an animal to Berkeley Animal Care Services, including all required paperwork and history.
 Responsible for their own record keeping of Emeryville animals brought to BACS.  Oversee all aspects of the licensing of animals residing in the City of Emeryville.

 Enforce and uphold the mandatory spay or neutering of all animals being returned to their owners, pursuant to Emeryville Municipal Code 6-1.304 and Berkeley Municipal Code

10.4.206. In the event that the animal owner requests a hearing, it shall be the responsibility of the City of Emeryville to schedule and conduct the hearing.

C. Under the agreement, the City of Berkeley shall not be obligated to provide any of the following services:

 Emergency veterinary care (pre-shelter or after hours).  Patrolling of the City of Emeryville by a Berkeley Animal Care Services ACO.  Collection of fees penalties, or monies of any kind or on behalf of the City of Emeryville.  Field Services unrelated to deceased, injured, or bite animals, for or on behalf of the City of Emeryville, including but not limited to stray animals, barking dogs, animal left in vehicle, and unattended/unleashed animals.
 Investigation into bite cases, pursuing dangerous dog designation, and any other follow on the animal.
 Maintenance of records for or on behalf of the City of Emeryville

The budget info for the contract term: 33 months (Oct 6, 2023 – June 30, 2026)

FY24- $61,094 (prorated)
FY25- $85,938
FY26- $88,516
$235,548 (includes prorated FY24)

C A L I F O R N I A

REV 08/2020 Page 1 of 5

E X H I B I T B
Contract Insurance Requirements

As used in this Exhibit B, Contractor refers to CITY OF BERKELEY.

1. MINIMUM REQUIREMENTS
Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work or Services required by the Contract hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage, as checked below:

1.1 Minimum Scope of Insurance
Coverage shall be at least as broad as the latest version of the following:

 General Liability
Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01).

 Automobile Liability
Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto) or if Contractor owns no vehicles, this requirement may be met through a non-owned auto endorsement to the General Liability Policy.

 Professional Liability / Errors and Omissions
Written on a policy form specifically designed to protect against acts, errors or omissions of the Contractor wherein “Covered Professional Services” as designated in the policy must specifically include Services performed under this Contract.

 Workers’ Compensation and Employer’s Liability
Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. Policies shall not contain exclusions contrary to this Contract.

 Pollution Liability Insurance
Pollution Liability insurance for claims arising from the discharge, dispersal release or escape or any irritant or contaminant into or upon land, any structure, the atmosphere, watercourse or body of water, including groundwater. This shall

City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020

include on and off-site clean up and emergency response costs and claims arising from above ground and below ground storage tanks.

1.2 Minimum Limits of Insurance
Contractor shall maintain limits no less than:

 General Liability

All Contract Types

$1,000,000.00 per occurrence and $2,000,000.00 aggregate for bodily injury, personal injury and property damage, including without limitation, blanket contractual liability.

OR

Construction Specific

$2,000,000.00 per occurrence and $4,000,000.00 aggregate for bodily injury, personal injury and property damage, including without limitation, blanket contractual liability, and coverage for explosion, collapse and underground property damage hazards.

 Automobile Liability
$2,000,000.00 per accident for bodily injury and property damage.

 Professional Liability / Errors and Omissions
$2,000,000.00 per claim and aggregate.

 Workers’ Compensation and Employer’s Liability
Workers’ compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000.00 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease.

 Pollution Liability Insurance
$2,000,000.00 per occurrence and $2,000,000.00 aggregate.

Except for the professional liability / errors and omissions policy, defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the Parties required to be named as additional insureds pursuant to this Contract.

2. INSURANCE ENDORSEMENTS
The insurance policies shall contain the following provisions, if checked, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions, if checked, to the insurance policies:

City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020

 General Liability
(1) Such policy shall provide the City, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 or CG20 37, or endorsements providing the exact same coverage, with respect to the work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it; and (4) the insurance coverage shall contain standard separation of insureds provisions.

 Automobile Liability
(1) Such policy shall provide the City, its officials, employees, agents and authorized volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.

 Professional Liability Coverage
Any policy inception date, continuity date, or retroactive date must be before the effective date of this Contract and Contractor agrees to maintain continuous coverage through a period no less than three years after termination of the Contract.

City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020

 Workers’ Compensation and Employer’s Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and authorized volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.

 Pollution Liability Coverage
(1) Such policy shall give the City, its officials, employees, agents and authorized volunteers additional insured status with respect to claims arising from the discharge, dispersal release or escape or any irritant or contaminant into or upon land, any structure, the atmosphere, watercourse or body of water, including groundwater; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.

ALL COVERAGES
Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and authorized volunteers.

3. NO SPECIAL LIMITATIONS
The required insurance shall not contain any special limitations on the scope of protection afforded to the City, its officials, employees, agents and authorized volunteers.

4. DEDUCTIBLES AND SELF-INSURANCE RETENTIONS
Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020

5. ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.

6. VERIFICATION OF COVERAGE
Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

7. SUBCONTRACTORS
All subcontractors shall meet the requirements of this Section before commencing any work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.

8. REPORTING OF CLAIMS
Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the work performed under this Contract.

Attach:

Insurance Certificate and Endorsements

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
October 3, 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 October 3, 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 $9,284,266 PROJECT Fund Source Amount
Housing Inspection
Software 129 Rental Housing Safety Program $150,000
FY24 Sidewalk Repair
Project
127
133
134
149
State Transportation Tax
Measure F
Measure BB
Private Party Sidewalks
$1,181,266
Whistleblower Hotline 011 General Fund $100,000
Library Technology
Roadmap 101 Library Tax $100,000
Berkeley Marina Docks D
& E Replacement Project
011
606
511
608
501
General Fund
State Coastal Conservancy Grant Fund
Measure T1 P2
Marina Fund
CIP Fund
$7,753,000
Total: $9,284,266

Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council October 3, 2023 Approval on October 3, 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

Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council October 3, 2023 Approval on October 3, 2023
Attachments:
1: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on October 3, 2023
a. Housing Inspection Software
b. FY 24 Sidewalk Repair Project
c. Whistleblower Hotline
d. Library Technology Roadmap
e. Berkeley Marina Docks D & E Replacement Project
Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.

NEXT 30 DAYS
DATE SUBMITTED: OCTOBER 3, 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
24-11628-C Housing
Inspection
Software
9/21/23 10/24/2023 Cloud-based government
software for code enforcement
and proactive housing
inspections
$ 150,000.00 129-53-585-635-0000-
000-441-613130
Planning / Building
Safety
Jenny McNulty,
x7451
DEPT. TOTAL $ 150,000.00
24-11629-C FY 2024 Sidewalk
Repair Project
10/12/23 10/31/2023 Repair sidewalk from the 50-
50 Sidewalk Program waitlist
$ 1,181,266.00 $985,000 in Funding
entered in BA
2024/02/944
$100,000 IN 127,
$100,000 IN 134,
$200,000 in 133, and
$50,000 in 149 in
AAO1 Carryover
request.
2024/02/353.

Public Works/
Engineering
Srinivas Muktevi
981-6402
Terrence Salonga
981-6447
DEPT. TOTAL $ 1,181,266.00
24-11630-C Whistleblower
Hotline
1/1/24 Feb-24 Whistleblower Hotline $ 100,000.00 011-12-122-000-0000-000- 411-612990-
Auditor/Performance Erin Mullen, 6756
DEPT. TOTAL $ 100,000.00
24-11632-C
Library Technology
Roadmap
11/1/2023 12/1/2023 Consultant to map out future of
Library technology $ 100,000.00
101-22-242-271-0000-
000-463-612990- Library / Director
Henry Bankhead
981-6109
DEPT. TOTAL $ 100,000.00
24-11633-C Berkeley Marina
Docks D & E
Replacement
Project
Oct-23 Nov-23 Replacement of Marina Docks D
& E, including demolition of
existing
docks, procurement and
installation new dock float system,
gangway, concrete piling, utilities
and other accessories.
$ 7,753,000.00 PRWT122013
General Fund –
$5.5M
011-52-545-000-0000-
000-461-663110-
State Coastal
Conservancy Grant Fund
–
$1.5M
606-52-545-000-0000-
000-461-663110-
Measure T1 P2-
$168,000
511-52-545-000-0000-
000-461-663110-
Marina Fund - $485,000
608-52-545-000-0000-
000-461-663110-
CIP Fund-
$100,000
501-52-545-000-0000-
000-461-663110-
Parks, Recreation, &
Waterfront / Capital
Projects-WF
Nelson Lam
6395
Jesus Espinoza
6708
DEPT. TOTAL $ 7,753,000.00
TOTAL $ 9,284,266.00
1 of  2

Office of the City Manager

CONSENT CALENDAR
October 3, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Kevin Fong, Director, Department of Information Technology Subject:

Contract No. 9791 Amendment: Environmental Systems Research Institute, Inc. (ESRI) for Enterprise Graphical Information Systems (GIS) Software License Maintenance and Support

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 9791 with Environmental Systems Research Institute, Inc. (Esri) for Enterprise GIS software license maintenance and support, increasing the amount by $279,750 for a not- to-exceed total of $900,750 for the period of July 1, 2023 through June 30, 2026.

FISCAL IMPACTS OF RECOMMENDATION
Funding is allocated in the Department of Information Technology's Cost Allocation Budget and is subject to Council's approval of the proposed city-wide Budget and Annual Appropriation Ordinances:
$93,250 FY 2024: Fund 680
Information Technology Cost Allocation Fund
$93,250 FY 2025: Fund 680
Information Technology Cost Allocation Fund
$93,250 FY 2026: Fund 680
Information Technology Cost Alloca
tion Fund
$279,750 Total FY 2024-2026 Software Maintenance
$621,000 Current Contract Value
$900,750 Not-to-Exceed Total through June 30, 2026
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

Contract No. 9791 Amendment: Esri, Inc. for GIS Software Licenses CONSENT CALENDAR October 3, 2023

CURRENT SITUATION AND ITS EFFECTS
Environmental Systems Research Institute, Inc. provides essential Geographic Information System (GIS) services and software to City staff and community members through internal and external websites. Esri is an international supplier of GIS services and software and their ArcGIS software is an open and interoperable technology platform that provides mapping, analysis, and data management.

The City uses Esri services and software to provide authoritative data, map services and web services. Esri map services are integrated into essential business applications used for public safety dispatch, licensing, permitting, asset management, Customer Relationship Management (CRM), and vehicle routing. Its use by many departmental staff such as Permit Center counter staff, customer service representatives, public safety dispatchers, crime analysts, planners, engineers, and solid waste supervisors is increasing. Specific examples of use include:
• Reviewing and approving development related projects that require the issuance of building permits.
• Identifying addresses to send out information about community programs and events.
• Sending out bills, submitting property tax assessment data to Alameda County and for business license renewals.
• Responding to service calls and fire inspections.

The City's current GIS enterprise license agreement (ELA) with Esri expires June 30, 2023. This contract will continue use of Esri's online GIS services as well as renew the City’s enterprise GIS software license, which includes maintenance and support for July 1, 2023 through June 30, 2026.

BACKGROUND
City staff began using Esri GIS software in 2000. Initially, this use was confined to single projects on a few desktops. Often, GIS gave staff better tools for analyzing land use when preparing a general plan and as the benefits of GIS became more widely known, GIS services expanded to other departments such as Public Safety, Public Works, Planning and Development.

In 2005, the Department of Information Technology (IT) began using Esri data and web server software to build the city's current Enterprise GIS, making GIS technology accessible throughout the organization.

In 2008, IT consolidated various departmental Esri software maintenance agreements into an enterprise license agreement (ELA), the Small Municipal and County Government

Contract No. 9791 Amendment: Esri, Inc. for GIS Software Licenses CONSENT CALENDAR October 3, 2023
ELA program, which allows an unlimited number of users to access Esri GIS products and services.

In 2015 , the City launched the Open Data Portal that uses GIS data in Esri format, including parcels, streets, council districts, police beats, bikeways and City trees. The data is available for download from the City's Open Data portal.

In 2016, IT migrated its Enterprise GIS data from a legacy data model to Esri's "Local Government Information Model " (LGIM) in order to leverage generic services, applications, and workflows made available by Esri for deployments that use the LGIM.

In 2019, IT launched the GIS Community Portal: https://www.cityofberkeley.info/gisportal.

This portal allows community members to enter an address and receive regulation information for the entered property.

Additionally, the City uses Esri services and software to provide GIS solutions to the Berkeley community including a parcel conditions viewer, redistricting maps and data, zoning maps and numerous other maps. The Esri online GIS site, ArcGIS Online, hosts the city's story maps for capital improvement projects and City parks, as well as web maps for bicycle parking, tobacco retailer's restricted areas and solar installations.

ENVIRONMENTAL SUSTAINABILITY
Esri GIS provides the technological and scientific support necessary to create programs and processes that increase environmental sustainability. Public Works uses Esri desktop software to increase the efficiency of fleet vehicles by optimizing standard routes and subsequently reducing fuel consumption. Planning uses Esri's ArcGIS Online to promote investment in solar energy. The GIS Community Portal allows residents, businesses, city officials, and developers the ability to better understand what zoning and land use policies apply to properties of interest to them, without the need to call staff necessarily.

Esri GIS services and software support the city's digital map room. This reduces paper usage and the need for community members to visit the City to purchase paper maps.

Contract No. 9791 Amendment: Esri, Inc. for GIS Software Licenses CONSENT CALENDAR October 3, 2023

RATIONALE FOR RECOMMENDATION
GIS is integral to City operations, decision making, and communication. Esri GIS services and software provide geographic information to analysts, decision makers, field staff, and the public through mobile, Web, and desktop clients. Esri's ELA program provides a cost- effective way to deploy GIS into city operations and business processes such as permitting, licenses, CRM, asset management and public safety dispatch. The ELA program provides numerous benefits including:
• A lower cost per unit for licensed software and substantially reduced administrative and procurement expenses
• Maintenance on all Esri software deployed under the agreement • Complete flexibility to deploy software products when and where needed • ArcGIS for Desktop software and extensions including ArcGIS Spatial Analyst and 3D Analyst, ArcGIS for Server software for interactive mapping and data management, and ArcGIS Online subscription (Esri's online GIS site for hosted mapping, routing and demographics analyses)
• 4 user conference passes for staff, and Web Training
• Authorized Technical Support Callers

ALTERNATIVE ACTIONS CONSIDERED
Staff considered not renewing Esri's licenses; however, Esri retains exclusive rights to their software. Esri is an industry leader of GIS software who has developed a platform that includes an expansive network of third-party software solutions that the City utilizes.

These solutions include but are not limited to Accela, RouteSmart, and New World computer aided dispatch (CAD). Furthermore, Esri software is used by most jurisdictions in the region, which offers potential GIS data sharing for regional coordination initiatives.

CONTACT PERSON
Kevin Fong, Director, Department of Information Technology, 510-981-6541 Attachments:
1: Resolution
Page4

RESOLUTION NO. ## ,'l#f.#-N.S.

CONTRACT NO. 9791 AMENDMENT: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (ESRI), FOR GIS ENTERPRISE SOFTWARE LICENSE

MAINTENANCE AND SUPPORT
WHEREAS, the City of Berkeley's current enterprise license agreement with Esri expires June 30, 2023; and
WHEREAS, Esri provides essential GIS services and software to City staff and community members; and
WHEREAS, the City of Berkeley has identified the need to continue use of Esri's GIS professional services and software; and
WHEREAS, the Esri licensing agreement, the Small Municipal and County Government Enterprise License Agreement program provides a cost-effective way to deploy GIS into the city operations and business processes; and
WHEREAS, the contract scope of services and payment will coincide with an Esri licensing agreement, the Small Municipal and County Government Enterprise License Agreement program; and
WHEREAS, In May 2017, The City Council adopted Resolution No. 67,965 to authorize City Manager to execute Contract No. 9791 with Environmental Systems Research Institute, Inc. (Esri) in the amount by $225,000 for a not-to-exceed total of $396,000 for the period of July 1, 2014 through June 30, 2020; and
WHEREAS, In January 2020, The City Council adopted Resolution No. 69,255 to authorize City Manager to execute Contract No. 9791 with Environmental Systems Research Institute, Inc. (Esri) in the amount by $225,000 for a not-to-exceed total of $621,000 for the period of July 1, 2020 through June 30, 2023; and
WHEREAS, funding has been identified in the Department of Information Technology's Fiscal Year 2024 Cost Allocation Budget and the funding for FY 25 and FY 26 is subject to Council's approval of the proposed citywide Fiscal Year 2025 and Fiscal Year 2026 Budget and Annual Appropriation Ordinances.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute any amendment to Contract No. 9791 with Environmental Systems Research Institute, Inc. (Esri) for online Geographic Information System (GIS) software license maintenance and support increasing the amount by $279,750 for a not-to-exceed total of $900,750 for the period of July 1, 2023 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
October 3, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Kevin Fong, Director, Department of Information Technology Subject: Contract No. 114382-1 Amendment: M.C. Dean for UPS Maintenance

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to amend Contract No. 114382-1 with M.C. Dean, Inc. for Uninterrupted Power Supply (UPS) maintenance, increasing the amount by $115,016 for a total not to exceed $261,922 and extending the term to June 30, 2026.

FISCAL IMPACTS OF RECOMMENDATION
Funding for the additional $115,016 is budgeted in the Department of Information Technology’s Fiscal Year (FY) 2024-2026 IT Cost Allocation Fund as itemized below.

Ongoing funding in future fiscal years is subject to Council approval of the proposed citywide budget and annual appropriation ordinances.

Summary:
$36,484 FY 2024 Total UPS Maintenance Fund 680-IT Cost Allocation $38,308 FY 2025 Total UPS Maintenance Fund 680-IT Cost Allocation $40,224 FY 2026 Total UPS Maintenance Fund 680-IT Cost Allocation $115,016 FY 2024-2026 Total UPS Maintenance

CURRENT SITUATION AND ITS EFFECTS
Uninterrupted Power Supplies (UPS) provide continued operation of critical network equipment and servers during planned and unplanned power outages, including the PG&E Public Safety Power Shutoff (PSPS) program, while also protecting network equipment and servers from damage in the event of a power irregularity (such as a spike or brownout). Routine health checks and maintenance, including battery replacement, is critical to ensure that UPS equipment functions as designed to protect City assets and help maintain continuity of service. The Department of Information Technology (IT) has been using M.C. Dean for routine UPS maintenance since 2014, and has been satisfied with the quality of service they provide.

Contract No. 114382-1 Amendment with MC Dean, Inc. for
UPS Maintenance CONSENT CALENDAR October 3, 2023

BACKGROUND
In July 2014, The City Manager approved a contract with M.C. Dean, Inc. (formerly Tima Power Systems) based on Request for Proposal#: 14-10797, for services and hardware for the Uninterrupted Power Supply (UPS) system.

In April 2017, The City Manager approved an amendment and assignment of the original contract with Tima Power Systems, Inc., assigning the contract to M.C. Dean, Inc.

In June 2017, The City Council approved an amendment with M.C. Dean, Inc. (formerly Tima Power Systems), for Uninterrupted Power Supply (UPS) Maintenance and Repair.

In September 2020, The City Council approved an amendment with M.C. Dean, Inc., for Uninterrupted Power Supply (UPS) Maintenance and Repair.

RATIONALE FOR RECOMMENDATION
M.C. Dean, Inc. provides comprehensive service in the critical power industry, providing UPS maintenance, repair, and battery replacement for commercial, government, industrial, institutional, and educational clients for more than 50 years. M.C. Dean is very familiar with the City’s IT UPS configuration, and has provided maintenance since 2014.

IT has been satisfied with the quality of service M.C. Dean provides.

ALTERNATIVE ACTIONS CONSIDERED
IT considered foregoing scheduled maintenance on the UPS systems, however due to the critical nature of the equipment being protected by the UPS systems, and the implementation of the PG&E Public Safety Power Shutoff (PSPS) program, IT considers it necessary to keep this equipment on a regular maintenance schedule.

ENVIRONMENTAL SUSTAINABILTY
M.C. Dean follows Environmental Protection Agency (EPA) standards for proper disposal of replacement batteries.

CONTACT PERSON
Kevin Fong, Director, Department of Information Technology, 981-6500 Attachments:
1: Resolution

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

CONTRACT NO. 114382-1 Amendment: M.C. Dean for UPS Maintenance WHEREAS, Uninterrupted Power Supplies (UPS) provide continued operation of critical network equipment and servers during a power outage, while also protecting network equipment and servers from damage in the event of a power spike; and WHEREAS, the PG&E Public Safety Power Outage (PSPS) Program increases the chances of a planned power outage in the area; and
WHEREAS, In July 2014, The City Manager approved a contract with M.C. Dean, Inc. (formerly Tima Power Systems) based on Request for Proposal#: 14-10797, for services and hardware for the Uninterrupted Power Supply (UPS) system.

WHEREAS, In April 2017, The City Manager approved an amendment and assignment of the original contract with Tima Power Systems, Inc., assigning the contract to M.C.

Dean, Inc.; and
WHEREAS, In June 2017, The City Council approved an amendment with M.C. Dean, Inc. (formerly Tima Power Systems), for Uninterrupted Power Supply (UPS) Maintenance and Repair; and
WHEREAS, In September 2020, by Resolution No. 69,553-N.S., The City Council approved an amendment with M.C. Dean, Inc. (formerly Tima Power Systems), for Uninterrupted Power Supply (UPS) Maintenance and Repair; and WHEREAS, M.C. Dean, Inc. provides comprehensive service in the critical power industry, providing UPS maintenance, repair, and battery replacement for commercial, government, industrial, institutional, and educational clients for more than 50 years; and WHEREAS, funding for the additional $115,016 is budgeted in the Department of Information Technology’s Fiscal Year (FY) 2024-2026 IT Cost Allocation Fund, and funding in future fiscal years is subject to council approval of the proposed citywide budget and annual appropriation ordinances.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to amend the City’s agreement with M.C. Dean, Inc., increasing the amount by $115,016 for UPS Maintenance for a total contract amount not to exceed $261,922 for the period July 1, 2014 to 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

PUBLIC HEARING
October 3, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: David Sprague, Fire Chief
Subject: Ambulance Transport Fee Increase

RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt a Resolution adjusting the Ambulance User Fee to match Alameda County’s approved ambulance user fee schedule made effective July 1, 2023, for the Cities of Alameda, Albany, Berkeley, and Piedmont. The increase would be included as an updated addendum to the Ambulance Provider Agreement, and rescinding Resolution 70,726–N.S.

FISCAL IMPACTS OF RECOMMENDATION
The Alameda County Health Care Services Agency notified the City on July 12, 2023 that they had approved an increase in the Bundled Base Rate User Fee that may be charged by the County’s 911 Ambulance Transport Service Provider. Under the terms of the of Berkeley’s Emergency Medical Services Ambulance Transport Services Agreement, the City may increase its Bundled Base Rate to $3,664.87, Mileage to $82.69, Oxygen to $273.79, and Treatment/Non-Transport to $735.01 beginning July 1, 2023. The City will increase its rate effective November 1, 2023 and will not apply the increase retroactively. These adjustments account for the increased cost of ambulance transport, paramedic services, and medical equipment/supplies.

Existing Proposed
Base Rate $3,331.40 $3,664.87
Mileage $75.17 $82.69
Oxygen $248.88 $273.79
Treatment / Non-Transport * $668.13 $735.01
*This rate shall be limited to patients who receive a medical intervention, such as intravenous medication administration, and subsequently refuse transport. Patient assessment, including ECG monitoring, does not constitute treatment.

Ambulance Transport Fee Increase PUBLIC HEARING
October 3, 2023

CURRENT SITUATION AND ITS EFFECTS
Under the terms of the Alameda County Ambulance Provider Agreement, Alameda County Board of Supervisors is responsible for setting and approving any fees that are applicable to all providers. The increases are either COLA or base rate adjustments.

For the City of Berkeley, the last rate increase was approved by the City Council on March 14, 2023 (Resolution 70,726–N.S.); and the rate increase was made effective April 1, 2023. Rate increases occur annually, the City adopted the 2022 rate almost one year late (on March 14, 2023) due to the impacts of the pandemic on fire administrative staffing. While this will be the second rate increase in 2023, it will bring the City back in line with the cycle of rate increases.

BACKGROUND
Alameda County EMS is responsible for the procurement of emergency ambulance services for the local EMS system. The Berkeley Fire Department has an agreement with Alameda County to be the emergency transport provider for Berkeley since 1977.

Albany, Piedmont, Alameda City, and Falck serve as the ambulance transport providers for other parts of Alameda County. Under the current agreement, all transport providers, including Berkeley, are in the Alameda County Emergency Medical Services District.

Since 1986, the Berkeley Fire Department has provided ambulance transport service at the Advanced Life Support (ALS) or paramedic level.

Under the terms of the Alameda County Ambulance Provider Agreement, Alameda County Board of Supervisors is responsible for setting and approving any fees that are applicable to all agencies. The increases are either COLA or base rate adjustments.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the action requested in this report.

RATIONALE FOR RECOMMENDATION
The Berkeley Fire Department is seeking Council approval to increase the base rate for ambulance user fees to match those approved by Alameda County and made effective on July 1, 2023. Periodic rate increases help to recoup increasing costs incurred for providing ambulance services.

Government Code Section 6062(a) dictates the manner of publication for fee increase public hearings.

ALTERNATIVE ACTIONS CONSIDERED
Continue with the existing User Fee Schedule which was approved by the Alameda County Board of Supervisors and made effective July 1, 2022 and adopted by the City on March 14, 2023, implemented on April 1, 2023.

CONTACT PERSON
David Sprague, Fire Chief, (510) 981-3473

Ambulance Transport Fee Increase PUBLIC HEARING
October 3, 2023

Attachments:
1: Resolution
2: Public Hearing Notice

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

AMBULANCE USER FEE ADJUSTMENT
WHEREAS, the County of Alameda and the City of Berkeley are in an Ambulance provider Agreement dated June 1, 1984; and
WHEREAS, the County of Alameda Board of Supervisors sets the rates for emergency ambulance transport; and
WHEREAS, the revenue collected will be deposited into General Fund revenue account 010-6405-341-7900, and
WHEREAS, the County of Alameda Board of Supervisors established and approved a new Contractor’s User Fee schedule for ambulance transport providers. The rates were made effective July 1, 2023.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the new ambulance user fee schedule is adopted in accordance with the rates established by the County of Alameda, effective July 1, 2023, as follows:

User Fee
Schedule
Base Rate $3,664.87
Mileage $82.69
Oxygen $273.79
Treatment / Non-Transport $735.01
BE IT FURTHER RESOLVED that the new ambulance user fee schedule shall be effective November 1, 2023.

BE IT FURTHER RESOLVED that Resolution No. 70,726-N.S. is rescinded, effective November 1, 2023.

October 3, 2023

NOTICE OF PUBLIC HEARING BERKELEY CITY COUNCIL

AMBULANCE USER FEE ADJUSTMENT
The public may participate in this hearing by remote video or in-person.

Notice is hereby given by the City Council of the City of Berkeley that a public hearing will be conducted by said city council of the City of Berkeley at which time and place all persons may attend and be heard upon the following:

The Fire Department is proposing to increase the Ambulance User Fee rates to match the ambulance transport provider fees set forth and approved by the County of Alameda. Collected ambulance fees are deposited into a General Fund revenue account.

The County of Alameda has established and approved a new base rate Contractor’s User Fee schedule for ambulance transport providers effective July 1, 2023. The City of Berkeley fee increase would be effective November 1, 2023. For the City of Berkeley, the last rate increase was approved by the City Council on March 14, 2023 (Resolution 70,726–N.S.); and the rate increase was made effective April 1, 2023.

Existing Proposed
Base Rate $3,331.40 $3,664.87
Mileage $75.17 $82.69
Oxygen $248.88 $273.79
Treatment / Non-Transport * $668.13 $735.01
*This rate shall be limited to patients who receive a medical intervention, such as intravenous medication administration, and subsequently refuse transport. Patient assessment, including ECG monitoring, does not constitute treatment.

The hearing will be held on October 3, 2023 at 6:00 p.m. in the School District Board Room, 1231 Addison Street, Berkeley CA 94702.

For further information, please contact David McPartland, EMS Assistant Chief, at (510) 981-3473.

A copy of the staff report for this hearing will be available on the City’s website at https://berkeleyca.gov as of September 21, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.

October 3, 2023

Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.

Communications to the Berkeley 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 or in person to the City Clerk. 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 at (510) 981-6900 or [email protected] for further information.

If you challenge the above in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Berkeley at, or prior to, the public hearing. Background information concerning this proposal will be available at the City Clerk Department and posted on the City of Berkeley webpage at least 10 days prior to the public hearing.

Published: September 22 and September 29, 2023 – The Berkeley Voice Per Government Code 6062A
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing 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 21, 2023.

Mark Numainville, City Clerk

ACTION CALENDAR: Public Hearing
SEPTEMBER 19, 2023

Councilmember Sophie Hahn
City of Berkeley, District 5
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7150 TDD: 510.981.6903 Fax: 510.981.7155 E-Mail: [email protected]

SUPPLEMENTAL

AGENDA MATERIAL
for Supplemental Packet 2

Meeting Date: September 19, 2023

Item Number: 17

Item Description: 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

Submitted by: Mayor Arreguin and Councilmembers Wengraf and Hahn

Recommending that ADU Policy Alternatives 1, 2 and 3, as proposed in Staff’s Supplemental 1 filing, be adopted and submitting AC Transit bus schedules to the record.

With respect to Policy Alternative 1, addressing ADUs sited within front setbacks, slightly amended language is proposed for adoption, as provided by the City Attorney’s Office. The amended language is for clarity of drafting and does not change the operation of the Policy Alternative. Policy Alternatives 2 and 3, which restore policies previously adopted by the City Council on conversion of non-conforming Accessory Buildings and Structures and Neighborhood Noticing, are recommended for adoption as presented in the Staff’s Supplemental 1 Report.

AC Transit Schedules for lines 7, 65, and 67, which serve areas in the Hillside Overlay, are submitted to demonstrate limited weekday headways and non-existent hours of operation nights, weekends, and holidays, as referenced in Section (C)(2) of the Ordinance Findings.

Also included is documentation to support use of Public Resources Code definition of Transit.

Policy Alternative 1:

ADUs are an important way to bring gentle density into residential neighborhoods. Laws passed at the state level enable the production of ADUs through conversions, additions, and new-build. One element of these laws allows ADUs to be placed within a front setback if an 800 square foot ADU cannot be accommodated elsewhere on the parcel.

This opens the entire front setback - not just a small portion that may be needed to achieve 800 square feet - for siting of the ADU, including the potential to site the ADU directly on the front lot line.

This is what happened at the 2915 Harper Street location in South Berkeley.

An ADU was placed directly at the front lot line because other areas of the parcel could not accommodate an 800 square foot ADU. The outcome at Harper Street has been a significant concern for the community and some Councilmembers.

Policy Alternative 1 (page 28 of Staff’s Supplemental 1 Report) proposes an objective standard that fixes the Harper Street “problem” while still complying with State law. This Policy Alternative allows intrusions into the front setback in a graduated manner, with siting of an ADU at the front lot line available only as a last resort.

• Step 1: If an 800 square foot ADU cannot be accommodated on the parcel, an ADU may be sited in the existing front setback but must still maintain a reduced 10-foot setback.
• Step 2: If an 800 square foot ADU cannot be sited within the reduced 10-foot setback, a 5 foot, further-reduced setback is allowed.
• Step 3: If a 5-foot setback precludes an 800 square foot ADU, the ADU may be sited at the front lot line.

Staff’s language was simplified by the City Attorney’s office, and their more succinct version is proposed here for adoption, with identical effect:

Section 23.306.030 (A)(4)
Front Setback, New Construction. An ADU shall not occupy area within the front setback, unless the requirement would preclude an ADU of 800 square feet. Should an ADU require area within the front setback, the ADU shall maintain a minimum 10- foot setback from the front lot line, unless such setback would preclude an ADU of 800 square feet. If a 10-foot setback would preclude an ADU of 800 square feet, the ADU shall maintain a 5-foot setback from the front lot line. If a 5-foot setback would preclude an ADU of 800 square feet, the ADU may be sited up to the front lot line.

This easily implemented objective standard balances the need to allow ADUs to occupy area within a front setback while still preserving as much of a front setback as possible.

The graduated reduced front setback alternative has the same effect as all setbacks – the buildable area on the parcel will be a different shape from what would be possible with other or no setbacks. The purpose, as with all setbacks, is to mitigate impacts on the

public right of way and on adjacent parcels and to conform more closely with the normal expectation that in Berkeley’s residential areas, a front setback will exist.

Policy Alternative 2:

Policy Alternative 2 addresses the circumstance of an ADU converted from a non- conforming Accessory Building or Structure such as a shed or garage. It re-introduces a concept already included in Berkeley’s ADU Ordinance, which staff has proposed to eliminate in the main staff report.

By limiting conversion of non-conforming Accessory Buildings and Structures to structures at least 3 years old, Council previously closed a loophole whereby a new Accessory Building or Structure that would not comply with ADU standards is constructed and immediately converted into a non-conforming ADU, thereby circumventing ADU requirements. Staff’s main report eliminates this currently existing requirement and proposes reinstating it as a “Policy Alternative.”

Nothing in State ADU Laws nor in the State Department of Housing and Community Development (HCD) ADU handbook precludes or addresses this loophole-closing measure, which does not preclude or constrain construction of a legally conforming ADU.

This supplemental recommends reinstating the existing measure to close this loophole, using language provided in the Staff Supplemental 1, Policy Alternative 2.

Policy Alternative 3:

Additionally, Berkeley’s existing ADU code includes a neighbor noticing requirement that includes adjacent, confronting, and abutting properties. Staff’s recommendation removes these noticing requirements and proposes them as Policy Alternative 3. This Supplemental recommends adoption of Policy Alternative 3, as presented by staff in their Supplemental 1 Report, to maintain the currently existing requirement of notice to owners and tenants of adjacent, confronting, and abutting properties. Staff has already updated the City’s noticing document to ensure neighbors understand that notice is a courtesy and does not imply any right to contest or appeal an ADU permit.

Documentation to Further Support Staff’s Recommendation to use the Public Resources Code Definition of Transit:

The definition of public transit used in Public Resources Code Section 21155 and 21064.3 is consistent with the state laws and regulations for ADU construction in California and has become the standard definition for recently passed housing legislation. It is also the definition being proposed by staff in the City of Berkeley’s “Missing Middle” legislation. The following state laws that support development of ADUs use the Public Resources Code definition:

SB 9, Atkins. Housing development: approvals. (2021-2022) SB 897, Wieckowski. Accessory dwelling units: junior accessory dwelling units. (2021-2022) AB 2221, Quirk-Silva. Accessory dwelling units. (2021-2022) AB 68, Quirk-Silva. Department of Housing and Community Development: California Statewide Housing Plan: annual reports. (2021-2022)

AC TRANSIT

SCHEDULE
7 EFFECTIVE:

August 6, 2023
Every day
7 Monday through Friday except holidays
To El Cerrito Del Norte BART
Emeryville
Amtrak
Ash
by
Ave. & San
Pablo Ave. Ashby BART
Bancroft Way
& Telegraph
Ave.

Allston Way
& Shattuck
Ave.

Solano
Ave. & The
Alameda
Arlington
Blvd. &
Moeser Lane
El Cerrito Del
Norte BART
6:00a 6:05a 6:12a 6:25a 6:29a 6:36a 6:46a 7:03a
6:30a 6:35a 6:4 2a 6:55a 6:59a 7:06a 7:16a 7:33a
7:00a 7:05a 7:12 a 7:25a 7:29a 7:36a 7:46a 8:03a
7:30a 7:35a 7:42 a 7:55a 7:59a 8:06a 8:16a 8:33a
8:00a 8:05a 8:12 a 8:25a 8:29a 8:36a 8:46a 9:03a
8:30a 8:35a 8:4 2a 8:55a 8:59a 9:06a 9:16a 9:33a
9:00a 9:05a 9:12 a 9:24a 9:29a 9:37a 9:47a 10:04a
9:30a 9:35a 9:4 2a 9:54a 9:59a 10:07a 10:17a 10:34a
10:00a 10:05a 10: 12a 10:24a 10:29a 10:37a 10:47a 11:04a 10:30a 10:35a 10: 42a 10:54a 10:59a 11:07a 11:17a 11:34a 11:00a 11:05a 11:1 2a 11:24a 11:29a 11:37a 11:47a 12:04p 11:30a 11:35a 11:4 2a 11:54a 11:59a 12:07p 12:17p 12:3 4p 12:00p 12:05p 12:11p 12:24p 12:29p 12:37p 12:47p 1:04p
12:30p 12:35p 12:41p 12:54p 12:59p 1:07p 1:17p 1:34p
1:00p 1:05p 1:11p 1:24p 1:29p 1:37p 1:47p 2:04p
1:30p 1:35p 1:41p 1:54p 1:59p 2:07p 2:17p 2:34p
2:00p 2:05p 2:11p 2:24p 2:29p 2:37p 2:47p 3:04p
2:30p 2:35p 2:41p 2:54p 2:59p 3:07p 3:17p 3:34p
3:00p 3:05p 3:12p 3:25p 3:30p 3:38p 3:47p 4:04p
3:30p 3:35p 3:42p 3:55p 4:00p 4:08p 4:17p 4:34p
4:00p 4:05p 4:12p 4:25p 4:30p 4:38p 4:47p 5:04p
4:30p 4:35p 4:42p 4:55p 5:00p 5:08p 5:17p 5:34p
5:00p 5:05p 5:12p 5:25p 5:30p 5:38p 5:47p 6:04p
5:30p 5:35p 5:42p 5:55p 6:00p 6:08p 6:17p 6:34p
6:00p 6:05p 6:11p 6:22p 6:27p 6:35p 6:44
p 7:00p
6:30p 6:35p 6:41p 6:52p 6:57p 7:05p 7:14p 7:30p
7:00p 7:05p 7:11p 7:22p 7:27p 7:35p 7:44p 8:00p
7:30p 7:35p 7:41p 7:52p 7:57p 8:05p 8:14p 8:30p
8:00p 8:05p 8:11p 8:22p 8:27p 8:35p 8:44p 9:00p
8:30p 8:35p 8:41p 8:52p 8:57p 9:05p 9:14p 9:30p
9:00p 9:05p 9:11p 9:22p 9:27p 9:35p 9:44p 10:00p
9:30p 9:35p 9:41p 9:52p 9:57p 10:05p 10:14p 10:30p
10:00p 10:05p 10:11p 10:22p 10:27p 10:35p 10:44p 11:00p ▸ Emeryville
Emeryville Amtrak
Hollis St.
▸ Berkeley
Ashby Ave.

College Ave.

UC Berkeley
Downtown Berkeley BART
Shattuck Avenue
The Circle
▸ Kensington
Arlington Avenue
▸ El Cerrito
Arlington Blvd.

Barrett Avenue
El Cerrito del Norte BART

page 2
7 Monday through Friday except holidays
To Emeryville Amtrak
El Cerrito Del
Norte BART
Arli
ngton
Blvd. &
Moeser Lane
Solano
Ave. & The
Alameda
Allston Way
& Shattuck
Ave.

Durant Ave.
& Telegraph
Ave. Ashby BART
Ashby
Ave. & San
Pablo Ave.

Emeryville
Amtrak
6:00a 6:15a 6:26a 6:35a 6:39a 6:48a 6:54a 7:00a
6:30a 6:45a 6:5 6a 7:05a 7:09a 7:18a 7:24a 7:30a
7:00a 7:15a 7:26 a 7:35a 7:39a 7:48a 7:54a 8:00a
7:30a 7:45a 7:56 a 8:05a 8:09a 8:18a 8:24a 8:30a
8:00a 8:15a 8:25a 8 :34a 8:39a 8:49a 8:55a 9:01a
8:30a 8:45a 8:55 a 9:04a 9:09a 9:19a 9:25a 9:31a
9:00a 9:14a 9:24 a 9:33a 9:38a 9:48a 9:54a 10:00a
9:30a 9:44a 9:5 4a 10:03a 10:08a 10:18a 10:24a 10: 30a
10:00a 10:14a 10: 24a 10:33a 10:38a 10:48a 10:54a 11:00a 10:30a 10:44a 10: 54a 11:03a 11:08a 11:18a 11:24a 11:30a 11:00a 11:14a 11:2 4a 11:33a 11:38a 11:48a 11:54a 12:00p 11:30a 11:44a 11:5 4a 12:03p 12:08p 12:1 8p 12:24p 12:30p 12:00p 12:14p 12:24p 12:33p 12:38p 12:48p 12:54p 1:00p
12:30p 12:44p 12:54p 1:03p 1:08p 1:18p 1:24p 1:30p
1:00p 1:14p 1:24p 1:33p 1:38p 1:48p 1:54p 2:00p
1:30p 1:44p 1:54p 2:03p 2:08p 2:18p 2:24p 2:30p
2:00p 2:14p 2:24p 2:33p 2:38p 2:48p 2:54
p 3:00p
2:30p 2:44p 2:54p 3:03p 3:08p 3:18p 3:24p 3:30p
3:00p 3:15p 3:25p 3:35p 3:41p 3:52p 3:58p 4:04p
3:30p 3:45p 3:55p 4:05p 4:11p 4:22p 4:28p 4:34p
4:00p 4:15p 4:25p 4:35p 4:41p 4:52p 4:58p 5:04p
4:30p 4:45p 4:55p 5:05p 5:11p 5:22p 5:28p 5:34p
5:00p 5:15p 5:25p 5:35p 5:41p 5:52p 5:58p 6:04p
5:30p 5:45p 5:54p 6:04p 6:10p 6:21p 6:26p 6:32p
6:00p 6:14p 6:23p 6:33p 6:38p 6:48p 6:53p 6:59p
6:30p 6:44p 6:53p 7:03p 7:08p 7:18
p 7:23p 7:29p
7:00p 7:14p 7:23p 7:33p 7:38p 7:48p 7:53p 7:59p
7:30p 7:44p 7:53p 8:03p 8:08p 8:18p 8:23p 8:29p
8:00p 8:14p 8:23p 8:33p 8:38p 8:48p 8:53p 8:59p
8:30p 8:44p 8:53p 9:03p 9:08p 9:18p 9:23p 9:29p
9:00p 9:14p 9:23p 9:33p 9:38p 9:48p 9:53p 9:59p
9:30p 9:44p 9:53p 10:03p 10:08p 10:18p 10:23p 10:29p
10:00p 10:14p 10:23p 10:33p 10:38p 10:48p 10:53p 10:59p

page 3
7 Saturdays, Sundays and holidays
To El Cerrito Del Norte BART
Emeryville
Amtrak
Ash
by
Ave. & San
Pablo Ave. Ashby BART
Bancroft Way
& Telegraph
Ave.

Allston Way
& Shattuck
Ave.

Solano
Ave. & The
Alameda
Arlington
Blvd. &
Moeser Lane
El Cerrito Del
Norte BART
6:00a 6:05a 6:11a 6:22a 6:26a 6:33a 6:40a 6:55a
6:30a 6:35a 6:4 1a 6:52a 6:56a 7:03a 7:10a 7:25a
7:00a 7:05a 7:11 a 7:22a 7:26a 7:33a 7:40a 7:55a
7:30a 7:35a 7:42 a 7:53a 7:57a 8:04a 8:12a 8:28a
8:00a 8:05a 8:12 a 8:23a 8:27a 8:34a 8:42a 8:58a
8:30a 8:35a 8:4 2a 8:53a 8:57a 9:04a 9:12a 9:28a
9:00a 9:05a 9:12 a 9:23a 9:27a 9:34a 9:42a 9:58a
9:30a 9:35a 9:4 2a 9:53a 9:57a 10:04a 10:12a 10: 28a
10:00a 10:05a 10: 12a 10:23a 10:27a 10:34a 10:42a 10:58a 10:30a 10:35a 10: 42a 10:53a 10:57a 11:04a 11:12a 11:28a 11:00a 11:05a 11:1 2a 11:23a 11:27a 11:34a 11:42a 11:58a 11:30a 11:35a 11:4 2a 11:53a 11:57a 12:04p 12:12p 12:2 8p 12:00p 12:05p 12:12p 12:23p 12:27p 12:34p 12:42p 12:58p 12:30p 12:35p 12:42p 12:53p 12:57p 1:04p 1:12p 1:28p
1:00p 1:05p 1:12p 1:23p 1:27p 1:34p 1:42p 1:58p
1:30p 1:35p 1:42p 1:53p 1:57p 2:04p 2:12p 2:28p
2:00p 2:05p 2:12p 2:23p 2:27p 2:34p 2:42p 2:
58p
2:30p 2:35p 2:42p 2:53p 2:57p 3:04p 3:12p 3:28p
3:00p 3:05p 3:12p 3:23p 3:27p 3:34p 3:42p 3:58p
3:30p 3:35p 3:42p 3:53p 3:57p 4:04p 4:12p 4:28p
4:00p 4:05p 4:12p 4:23p 4:27p 4:34p 4:42p 4:58p
4:30p 4:35p 4:42p 4:53p 4:57p 5:04p 5:12p 5:28p
5:00p 5:05p 5:12p 5:23p 5:27p 5:34p 5:42p 5:58p
5:30p 5:35p 5:42p 5:53p 5:57p 6:04p 6:12p 6:28p
6:00p 6:05p 6:11p 6:22p 6:26p 6:33p 6:40p 6:55p
6:30p 6:35p 6:41p 6:52p 6:56p 7:03
p 7:10p 7:25p
7:00p 7:05p 7:11p 7:22p 7:26p 7:33p 7:40p 7:55p
7:30p 7:35p 7:41p 7:52p 7:56p 8:03p 8:10p 8:25p
8:00p 8:05p 8:11p 8:22p 8:26p 8:33p 8:40p 8:55p
8:30p 8:35p 8:41p 8:52p 8:56p 9:03p 9:10p 9:25p
9:00p 9:05p 9:11p 9:22p 9:26p 9:33p 9:40p 9:55p
9:30p 9:35p 9:41p 9:52p 9:56p 10:03p 10:10p 10:25p
10:00p 10:05p 10:11p 10:22p 10:26p 10:33p 10:40p 10:55p

page 4
7 Saturdays, Sundays and holidays
To Emeryville Amtrak
El Cerrito Del
Norte BART
Arli
ngton
Blvd. &
Moeser Lane
Solano
Ave. & The
Alameda
Allston Way
& Shattuck
Ave.

Durant Ave.
& Telegraph
Ave. Ashby BART
Ashby
Ave. & San
Pablo Ave.

Emeryville
Amtrak
6:00a 6:15a 6:24a 6:34a 6:38a 6:46a 6:52a 6:57a
6:30a 6:45a 6:5 4a 7:04a 7:08a 7:16a 7:22a 7:27a
7:00a 7:15a 7:24a 7: 34a 7:38a 7:46a 7:52a 7:57a
7:30a 7:45a 7:55 a 8:05a 8:12a 8:21a 8:27a 8:32a
8:00a 8:15a 8:25a 8 :35a 8:42a 8:51a 8:57a 9:02a
8:30a 8:45a 8:55 a 9:05a 9:12a 9:21a 9:27a 9:32a
9:00a 9:15a 9:25a 9 :35a 9:42a 9:51a 9:57a 10:02a
9:30a 9:45a 9:55 a 10:05a 10:12a 10:21a 10:27a 10: 32a
10:00a 10:15a 10:2 5a 10:35a 10:42a 10:51a 10:57a 11:02a 10:30a 10:45a 10: 55a 11:05a 11:12a 11:21a 11:27a 11:32a 11:00a 11:15a 11:2 5a 11:35a 11:42a 11:51a 11:57a 12:02p 11:30a 11:45a 11:5 5a 12:05p 12:12p 12:2 1p 12:27p 12:32p 12:00p 12:15p 12:25p 12:35p 12:42p 12:51p 12:57p 1:02p
12:30p 12:45p 12:55p 1:05p 1:12p 1:21p 1:27p 1:32p
1:00p 1:15p 1:25p 1:35p 1:42p 1:51p 1:57p 2:02p
1:30p 1:45p 1:55p 2:05p 2:12p 2:21p 2:27p 2:32p
2:00p 2:15p 2:25p 2:35p 2:42p 2:51p 2:57
p 3:02p
2:30p 2:45p 2:55p 3:05p 3:12p 3:21p 3:27p 3:32p
3:00p 3:15p 3:25p 3:35p 3:42p 3:51p 3:57p 4:02p
3:30p 3:45p 3:55p 4:05p 4:12p 4:21p 4:27p 4:32p
4:00p 4:15p 4:25p 4:35p 4:42p 4:51p 4:57p 5:02p
4:30p 4:45p 4:55p 5:05p 5:12p 5:21p 5:27p 5:32p
5:00p 5:15p 5:25p 5:35p 5:42p 5:51p 5:57p 6:02p
5:30p 5:45p 5:55p 6:05p 6:12p 6:21p 6:27p 6:32p
6:00p 6:15p 6:25p 6:35p 6:42p 6:51p 6:57p 7:02p
6:30p 6:45p 6:55p 7:05p 7:12p 7:2
1p 7:27p 7:32p
7:00p 7:15p 7:25p 7:35p 7:41p 7:49p 7:54p 7:59p
7:30p 7:45p 7:55p 8:05p 8:11p 8:19p 8:24p 8:29p
8:00p 8:15p 8:25p 8:35p 8:41p 8:49p 8:54p 8:59p
8:30p 8:45p 8:55p 9:05p 9:11p 9:19p 9:24p 9:29p
9:00p 9:15p 9:25p 9:35p 9:41p 9:49p 9:54p 9:59p
9:30p 9:45p 9:55p 10:05p 10:11p 10:19p 10:24p 10:29p
10:00p 10:15p 10:24p 10:34p 10:39p 10:47p 10:52p 10:57p

page 5

ADDISON ST

KENSINGTON

BERKELEY

EMERYVILLE

EL CERRITO

RICHMOND
El Cerrito
Del Norte
BART
Berkeley
BART
Ashby
BART

MACDONALD AV

CENTER ST

DANA ST

FULTON ST

TELEGRAPH AV

TELEGRAPH AV

SHATTUCK AV

SACRAMENTO ST

MLK JR WY

ADELINE ST

SAN PABLO AV

CUTTING BLVD

MOESER LN

HEARST AV

HENRY ST

MARIN AV
THE
CIRCLE

SHATTUCK
PL

ALLSTON WY

THE ALAMEDA

CUTTING BLVD

M O N T E R E Y A V

SUTTER S T

SHATTUCK AV

UNIVERSITY AV

SOLANO AV

ARLINGTON
AV

ARLINGTON BLVD

BARRETT AV

SAN PABLO AV

DURANT AV

COLLEGE AV

ASHBY AV

ASHBY AV

FOLGER AV
7TH ST
59TH ST
65TH ST

HOLLIS ST

HORTON ST

BANCROFT WY
76, 376
72, 72M, 72R, 800, L
72, 72R, L
72M, 800
79 18, 79
F
52, 65, 67, F
6 65, 67 36, 52, 79, F
36, 79
6,F
6 51B, 851
6 800, F
12, 800, F
6, 800
18 72, 72M, 72R, 802
36 29, 36, J
72, 72M, 72R, 802
29 18
1288, J
88 66, 18, 36, 51B, 52, 79, 800, 851, F
51B, 52, 79, 88, 800, FS
88 Alta Bates
Summit
Hospital
Civic Ctr.

Berkeley
City College
Post Office
Comm. Ctr.

University of
California
Berkeley
Emeryville
Amtrak
Live Oak
Rec. Ctr.

John Hinkel Park
Amphitheater
Library
Post Office
Library
Library
Post
Office
Library
El Cerrito del
Norte BART
7 72 72M 72R
76 376 800 L
6 7 18 51B 52
65 67 79 88
800 851 F
Downtown
Berkeley BART
Ashby BART
7 12 800 F
Line 7

AC TRANSIT

SCHEDULE
65 EFFECTIVE:

August 6, 2023
Monday through Friday except
holidays
65 Monday through Friday
except holidays
To Senior Ave. loop
Allston Way
& Shattuck
Ave.

E
uclid Ave.
& Grizzly
Peak Blvd.

Lawrence
Hall of
Science
Grizzly Peak
Blvd. &
Senior Ave.
7:15a 7:27a 7:35a
7:55a 8:07a — 8:15a
8:35a 8:47a 8:55 a
9:15a 9:27a — 9:35a
9:55a 10:07a 10: 15a
10:35a 10:47a — 10:55a
11:15a 11:27a 11:3 5a
11:55a 12:07p — 12:1 5p
12:35p 12:49p 12:58p
1:15p 1:29p — 1:37p
1:55p 2:09p 2:18p
2:35p 2:50p — 2:58p
3:15p 3:30p 3:38p
3:55p 4:10p — 4:18p
4:35p 4:50p 4:58p
5:15p 5:30p — 5:38p
5:55p 6:10p 6:18p
6:35p 6:50p — 6:58p
7:15p 7:29p 7:37p
65 Monday through Friday except
holidays
To Downtown Berkeley
Lawrence
Hall of
Scien
ce
Grizzly Peak
Blvd. &
Senior Ave.

Euclid Ave.
& Grizzly
Peak Blvd.

Allston Way
& Shattuck
Ave.
7:35a — 7:47a 8:04a
— 8:15a 8:27a 8:44 a
8:55a — 9:07a 9:24a
— 9:35a 9:47a 10: 06a
10:15a — 10:28a 10:47a
— 10:56a 11:08a 11:2 7a
11:36a — 11:49a 12:08p
— 12:1
6p 12:28p 12:47p
12:58p — 1:11p 1:30p
— 1:38p 1:50p 2:09p
2:18p — 2:31p 2:50p
— 2:58p 3:10p 3:27p
3:38p — 3:50p 4:07p
— 4:18p 4:30p 4:47p
4:58p — 5:10p 5:27p
— 5:38p 5:50p 6:07p
6:18p — 6:30p 6:47p
— 6:58p 7:10p 7:27p
7:37p — 7:48p 8:05p
▸ Berkeley
Downtown Berkeley BART
Hearst Avenue
Euclid Avenue
Grizzly Peak Blvd.

Lawrence Hall of Science
Senior Avenue
Campus Drive

page 2

ADDISON ST

BERKELEY

BERKELEY
Downtown Berkeley BART
Downtown
Berkeley
BART

UNIVERSITY AV

SHASTA RD

SHATTUCK AV

CENTER ST

ADDISON ST

OXFORD STOXFORD ST

KALABAGAIWY

SHATTUCK AV

HEARST AV

EUCLID AV
EUCLID
AV
BLVD
PEAK

GRIZZLY

CENTENNIAL
DR

SENIOR AV SENIOR
AV

HEARST AV

EUCLID AV
BLVD
PEAK

GRIZZLY
EUCLID
AV

CENTENNIAL
DR

AVENIDA DR
CAMPUS

SHASTA RD
DR

ALLSTON WYALLSTON WY

UNIVERSITY AV
67 52, F
8516, 7, 18, 51B, 52, 79, 800, 851, F
6, 7, 18, 51B, 52, 62, 79, 800, 851, F
6, 7, 18, 51B, 52, 79, 800, 851, F
67, F51B, 52, 79, 88, 800, F
67 F
52, F
6,
851
67 52, F
88 Lawrence
Hall of
Science
Tilden Regional Park
Berkeley
Rose
Garden
University of
California
Berkeley
Post Office
Civic Center
Lawrence
Hall of
Science
Tilden Regional Park
Berkeley
Rose
Garden
University of
California
Berkeley
Civic Center
Post Office
6 7 18 51B 52
65 67 79 88
800 851 F
Downtown
Berkeley BART
6 7 18 51B 52
65 67 79 88
800 851 F
Downtown
Berkeley BART
Line 65 to Lawrence Hall of Science
or Senior Avenue Loop
Line 65 to Downtown Berkeley
Line 65
Line 65
Line 65 Lawrence Hall of Science
Line 65 Senior Avenue Loop
Line 65
Line 65 Lawrence Hall of Science
Line 65 Senior Avenue Loop
6, 851

AC TRANSIT

SCHEDULE
67 EFFECTIVE:

December 5, 2021
Monday through Friday except
holidays
67 Monday through Friday
except holidays
To Downtown Berkeley
Spruce St.
& Grizzly
Peak
Blvd.

Kenyon Ave.
& Trinity Ave.

Vassar Ave.
& Spruce St.

Allston Way
& Shattuck
Ave.
7:35a 7:37a 7:41a 7:56a
8:05a 8:07a 8:11 a 8:26a
8:35a 8:37a 8:4 1a 8:56a
9:05a 9:07a 9:11 a 9:26a
9:35a 9:37a 9:4 1a 9:56a
10:05a 10:07a 10: 11a 10:26a
10:35a 10:37a 10: 41a 10:56a
11:05a 11:07a 11:11 a 11:26a
11:35a 11:37a 11:4 1a 11:56a
12:05p 12:0 7p 12:11p 12:26p
12:35p 12:37p 12:41p 12:56p
1:05p 1:07p 1:11p 1:26p
1:35p 1:37p 1:41p 1:56p
2:05p 2:07p 2:11p 2:26p
2:35p 2:37p 2:41p 2:56p
3:05p 3:07p 3:11p 3:26p
3:35p 3:37p 3:41p 3:56p
4:05p 4:07p 4:11p 4:26p
4:35p 4:37p 4:41p 4:56p
5:05p 5:07p 5:11p 5:26p
5:35p 5:37p 5:41p 5:56p
6:05p 6:07p 6:11p 6:26p
6:35p 6:37p 6:41p 6:56p
7:05p 7:07p 7:11p 7:26p
67 Monday through Friday except
holidays
To Spruce St. & Grizzly Peak
Blvd.

Allston Way
& Shattuck
Ave.

S
pruce St.
& Grizzly
Peak Blvd.
8:12a 8:22a
8:42a 8:53a
9:12a 9:23a
9:42a 9:53a
10:12a 10:23a
10:42a 10:53a
11:12a 11:23a
11:42a 11:53a
12:12
p 12:23p
12:42p 12:53p
1:12p 1:24p
1:42p 1:54p
2:12p 2:24p
2:42p 2:55p
3:12p 3:25p
3:42p 3:55p
4:12p 4:25p
4:42p 4:56p
5:12p 5:26p
5:42p 5:56p
6:12p 6:26p
6:42p 6:56p
▸ Berkeley
Downtown Berkeley BART
Oxford Street
Spruce Street
Beloit Avenue

page 2
Berkeley
Downtown
Berkeley
BART
HEARST AV.

CENTER ST

ADDISON ST

OXFORD ST

ROSE ST

SPRUCE ST

SPRUCE ST

KENYON AV

PURDUE AV

BELOIT AV

TRINITY
AV

ALLSTON WY SHATTUCK AV

KALA BAGAI WY

UNIVERSITY AV
7, F
51B, 52, 79, 88, 800, FS
88 52, 65, F
6, F
6, 18, 51B, 79, 800, 851, F
7, 18, F, FS
Civic
Center
Comm.

Ctr.

Berkeley
Rose
Garden
University of
California
Berkeley6 7 18 51B 52
65 67 79 88
800 851 F
Downtown
Berkeley BART
Line 67

Rashi Kesarwani
Councilmember District 1
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]

SUPPLEMENTAL

AGENDA MATERIAL
for Supplemental Packet 2

Meeting Date: September 19, 2023

Item Number: #17

Item Description: Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) and Repeal of Chapter 12.99 to Confo0rm to State Law and Respond to Guidance from the California Department of Housing and Community Development

Submitted by: Rashi Kesarwani

This supplemental item recommends rejecting the three policy alternatives outlined in Supplemental 1 due to the undue burden placed on homeowners seeking to create Accessory Dwelling Units (ADUs) and the additional administrative complexity for City staff.

Further, recommend pausing parking requirement for Hillside Overlay specified in TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS and TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL DISTRICTS (EXCLUDING C-T) pending: 1) preparation of a written analysis from the City Attorney’s Office for the City Council’s consideration specifying the legal risk, 2) additional City of Berkeley Planning and Development Department consultation with California Housing and Community Development Department (HCD), and 3) Fire Department completion of an evacuation study specific to ADUs, as requested by HCD in its enforcement letter dated Oct. 17, 2022.

1 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

Rashi Kesarwani
Councilmember, District 1

ACTION CALENDAR
September 19, 2023

TO: Honorable Mayor and Members of the City Council

FROM: Councilmember Rashi Kesarwani (Author)

SUBJECT: Supplemental 2 Recommendations on Policy Alternatives and Parking in Hillside Overlay District for Accessory Dwelling Units (ADUs)

RECOMMENDATION
Recommend Council reject the three policy alternatives outlined in Supplemental 1 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 (pgs. 28-29 of 57) due to the undue burden placed on homeowners seeking to create ADUs and the additional administrative complexity for City staff:

● Reject Policy Alternative 1. Additional prescriptive standards for New Construction ADUs within the front setback (Section 8 of the Recommended Draft Ordinance)

● Reject Policy Alternative 2. Converted ADUs: Maintain time limit based on when the accessory building or structure was created (Section 8 of Recommended Draft Ordinance)

● Reject Policy Alternative 3. Keep Neighbor Noticing Procedures as-is except removing noticing to owner(s) of subject property (Section 8 of Recommended Draft Ordinance)

Further, recommend pausing parking requirement for Hillside Overlay specified in TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS and TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL DISTRICTS (EXCLUDING C-T) pending: 1) preparation of a written analysis from the City Attorney’s Office for the City Council’s consideration specifying the legal risk, 2) additional City of Berkeley Planning and

2 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

Development Department consultation with California Housing and Community Development Department (HCD), and 3) Fire Department completion of an evacuation study specific to ADUs, as requested by HCD in its enforcement letter dated Oct. 17, 2022 and as described below.

CURRENT SITUATION AND ITS EFFECTS
The City Council adopted ADU Ordinance Nos. 7,797-N.S. and 7,799-N.S. on Feb. 8, 2022. In a letter dated Oct. 17, 20221, HCD provided written findings to the City of Berkeley Planning and Development Department that Ordinance No. 7,799-N.S. (Wildfire Hazard Evacuation Risk Mitigation Ordinance) did not comply with state ADU law—Government Code Section 65852.2. The state HCD writes in part:

Section 12.99 – Wildfire Hazard Evacuation Risk Mitigation Ordinance – To restrict ADUs and Junior Accessory Dwelling Units (JADUs) in the Hillside Overlay District, the Ordinance relies on a local agency’s ability to designate areas where ADUs may be permitted based on the impact on traffic flow and public safety per Government Code 65852.2, subdivision (a)(1)(A). The Ordinance provides general information regarding the Hillside Overlay District and its topography and location within Berkeley’s Very High Fire Hazard Severity Zone (VHFHSZ). In addition, the Ordinance refers to a study published by UC Berkeley, and upon further communication by HCD with the City on March 4, 2022, the City provided information regarding a traffic simulation study (Developing Transportation Response Strategies for Wildfire Evacuations via an Empirically Supported Traffic Simulation of Berkeley, California, Wong, 2021) conducted within the Hillside Overlay District.

However, while HCD is sympathetic to concerns about fire safety and the need to ensure adequate evacuation in the event of a fire, the City has not adequately demonstrated that new ADUs will actually impact public safety in the VHFHSZ.

The traffic simulation study is not specific to ADUs and JADUs, and therefore its information and conclusions do not adequately justify the restriction of ADUs in the Hillside Overlay District per Government Code 65852.2, subdivision (a)(1)(A).

Specifically, the City relies on the study, which looks at total vehicular use, to conclude that additional ADUs will create an evacuation hazard. This study, however, does not provide data on how many lots are likely to add ADUs or what specific impact new ADUs might have on evacuations. Moreover, the City does not account for the potential for ADUs to be excluded from requiring a parking space given the availability of public transit in the Hillside Overlay District. HCD is aware that AC Transit serves the Berkeley

1 City Manager, 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, https://berkeleyca.gov/city-council-regular-meeting-eagenda- september-19-2023, Regular City Council Meeting Item #17, Sept. 19, 2023, pgs. 71-73 of 88

3 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

Hills location, exempting many, if not all, potential lots from parking space requirements for new ADUs (emphasis added).

Furthermore, even if the City would provide adequate justification for this restriction on ADUs under this subdivision, the City may not justify such a restriction on ADUs that fall under subdivision (e), as local development standards (such as an area restriction based on VHFHSZ designation) provided by the Ordinance pursuant to Government Code section 65852.2, subdivisions (a) through (d), do not apply to ADUs created under Government Code section 65852.2, subdivision (e). In summary, the City must remove these restrictions and permit applications pursuant to Government Code 65852.2, subdivisions (a) and (e).

This aforementioned section of the HCD enforcement letter references state ADU law, Government Code Section 65852.2, which states in part:

(d) Notwithstanding any other law, and whether or not the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), all of the following shall apply:
(1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances:
(A) Where the accessory dwelling unit is located within one-half mile walking distance of public transit.

The entire City of Berkeley is within one-half mile walking distance of public transit, and the plain language of the state Government Code Section 65852.2(d)(1)(A) indicates that it is generally not legally allowable to require off-street parking for ADUs anywhere in the City of Berkeley. It is unclear why the ordinance—as proposed in Supplemental 1—requires off-street parking in the Hillside Overlay District without: 1) providing a written legal analysis, inclusive of consultation with HCD, to the City Council for the basis for violating the plain language of Government Code Section 65852.2 above and 2) completion of an evacuation study specific to ADUs, as described in the HCD Oct. 17, 2022 enforcement letter.

The staff report 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 provides the following information: “Staff revised the requirements to use the Public Resource Code (PRC) Section 21155 definition of a major public transit or high- quality transit corridor, instead of subdivision (d)(1)4 and (j)(11)5 of Government Code Section 65852.2, as proposed in the July 25th recommended draft ordinance.

This change relies on a different interpretation of the definition of “public transit” in Government Code 65852.2, supported by the use of the phrase “including, but not limited to,” which may allow for use of the PRC definition in the parking context, in

4 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

addition to the height context. Staff are unclear whether or not HCD would support this interpretation” (emphasis added).

In fact, the HCD ADU Handbook (updated July 2022)2 appears to be clear on this point, as shown in Exhibit 1. Public transit is defined as any location where an individual may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the general public. The handbook is silent about the availability of “major public transit or high-quality transit corridor” for the purposes of imposing parking requirements for ADUs.

Exhibit 1: HCD ADU Handbook Clearly States that a Local Agency Cannot Impose Off-Street Parking Requirements Within One-Half Mile Walking Distance of Public Transit, As Defined

Because of the lack of clarity as to whether the proposed change in parking requirements for ADUs in certain areas of the Hillside Overlay District is legally allowable pursuant to state law, it is recommended that this action is paused until more written legal analysis can be provided, inclusive of consultation with HCD, and an evacuation study specific to ADUs in the hills can be conducted. One of the primary goals of adopting a revised ordinance is to comply with state law, as described in the HCD enforcement letter dated Oct. 17, 2022. It is therefore

2 California Department of Housing and Community Development, Accessory Dwelling Unit Handbook, https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf, Updated July 2022

5 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

reasonable for the City Council to receive more information about whether the proposed ordinance is creating new legal risk.

RATIONALE FOR RECOMMENDATION
Reject Policy Alternative 1. Additional prescriptive standards for New Construction ADUs within the front setback (Section 23.306.030 Development Standards, p. 12 of 57). Additional prescriptive standards for the front setback create unnecessary burdens for homeowners who are likely creating an ADU in the front yard due to insufficient space or other constraints in the backyard. The proposed ordinance language is adequate:

4. Front Setback, New Construction. An ADU shall not occupy area within the front setback, unless the requirement would preclude an ADU of 800 square feet.

Reject Policy Alternative 2. Converted ADUs: Maintain time limit based on when the accessory building or structure was created (Section 23.306.030 Development Standards, p. 12 of 57). A time limit of three years for a homeowner to submit an ADU application for a legally established accessory building or accessory structure would place an unreasonable burden on a homeowner who may be in immediate need of the additional living space or rental income associated with an ADU. The proposed ordinance language is adequate:

3. Accessory Building or Accessory Structure Conversion. An ADU converted from a legally established accessory building or accessory structure is allowed to maintain non-conformity to the same location and dimensions of the existing accessory building or accessory structure, provided that the ADU meets fire and safety standards set forth in the California Building Standards Code adopted in BMC Title

19. Any physical additions to the existing accessory building or accessory structure shall comply with the development standards in Table 23.306-2 ADU Development Standards.

Reject Policy Alternative 3. Keep Neighbor Noticing Procedures as-is except removing noticing to owner(s) of subject property (23.306.040 Permit Procedures, p. 14-15 of 57). Planning staff reported in the May 3, 2023 Planning Commission agenda packet3 that the neighbor noticing requirement is burdensome to staff and frustrates neighbors who may be unaware that ADUs are not subject to a public review process. Specifically, staff reported the following in the Planning Commission packet: “ADU permits are building permits, and cannot be printed out or shared online with members of the public (unlike zoning permits). For neighbors

3 Planning Commission Agenda, Item #11 Public Hearing: Accessory Dwelling Unit Amendments, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-05- 03%20PC_Agenda%20Packet.pdf, May 3, 2023, p. 72 of 147

6 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

interested in seeing proposed ADU plans, this means that they must visit the Permit Service Center in-person and look at the plans accompanied by a staff member.

Additionally, ADU permits are non-discretionary permits, so members of the public ultimately do not have a means of providing feedback on or appealing a proposed ADU. Staff have found there is often an expectation from public posting or receiving notice of a proposed ADU that there is a public review process involved, and there is not.” The current neighbor noticing requirement, including neighbors visiting the Permit Service Center in-person to view plans with staff—for ADUs that are not subject to a public review process—is using valuable staff time that could go toward more productive uses, such as processing permit applications in a timely manner.

Further, the cost of materials, postage, and staff time is significant for a homeowner:
a fee of $460. The proposed ordinance language strikes an appropriate balance— recommended by the Planning Commission—to limit notification to only occupants on the subject property. The proposed language is adequate:

B. Noticing.

1. Scope and Timing of Notice. Notice of an ADU application shall be mailed to all occupants of the subject property, excepting the property owner(s), within ten working days of submission of the building permit to the City.

2. Content of Notice. Notice shall provide the address of the project and include allowable hours of construction, a link to the City’s ADU webpage identifying permit and construction resources, and contact information for a Rent Board Housing Counselor.

3. Mailing Fees. The applicant shall be responsible for the cost of materials, postage, and staff time necessary to process and mail the notices.

Recommend Pausing Parking Requirement for Hillside Overlay Specified in TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS and TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL DISTRICTS (EXCLUDING C-T) Pending Additional Written Legal Analysis, Consultation with HCD, and Evacuation Study Specific to ADUs in Hillside Overlay. In its enforcement letter to the City of Berkeley Planning and Development Department dated Oct. 17, 2022, HCD provided clear interpretation of state ADU law as it relates to parking: “…the City does not account for the potential for ADUs to be excluded from requiring a parking space given the availability of public transit in the Hillside Overlay District. HCD is aware that AC Transit serves the Berkeley Hills location, exempting many, if not all, potential lots from parking space requirements for new ADUs.”

7 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]

The HCD interpretation that parking requirements cannot be required for parcels located near public transit (regardless of the frequency of such public transit) derives from Government Code Section 65852.2(d)(1)(a):
(d) Notwithstanding any other law, and whether or not the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), all of the following shall apply:
(1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances:
(A) Where the accessory dwelling unit is located within one-half mile walking distance of public transit.

Additional information is respectfully requested before adoption of ordinance provisions which may be found to be in continued violation of state ADU law.

CONTACT PERSON
Councilmember Rashi Kesarwani, District 1 (510) 981-7110

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: https://berkeleyca.gov/

REVISED

AGENDA MATERIAL
for Supplemental Packet 1

Meeting Date: September 19, 2023

Item Number: 17

Item Description: 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)

Submitted by: Jordan Klein, Director, Planning and Development

Planning & Development staff are submitting revised materials for City Council’s consideration:

1. A revised recommended draft ordinance (Attachment 1);

2. A revised policy alternatives attachment related to: New Construction ADUs within the front setback; Time limit for accessory structure conversions; and Neighbor Noticing Procedure (Attachment 2); and

3. A revised table outlining the sources of proposed ADU ordinance amendments (Attachment 3).

4. A report from the Berkeley Fire Department regarding the impact of Zoning on wildfire risk within the Hillside Overlay (Attachment 4).

Revisions to the Recommended Draft Ordinance
Staff propose revisions to the recommended ADU ordinance, and are providing additional reference materials, based on further discussions with City Councilmembers, Building and Safety staff, and Fire Department staff. The revisions since the July 25, 2023 version of the ordinance are highlighted in the supplemental recommended draft

ordinance in grey (Attachment 1). Additional revisions from the materials published on September 7, 2023 are as follows:

1. Sections 1 and 2 – General and Specific Findings. Staff added information to the general and specific findings sections.

2. Section 6 - Building Separation Measurement. Staff revised the definition of building separation measurement to remove the term “neighboring” to increase clarity.

3. Section 8 - Table 23.306-2: Building Height, Maximum, Detached, New Construction, outside the Hillside Overlay. Staff revised the measurement to clarify that the maximum height for all detached new construction ADUs outside of the Hillside Overlay will remain 20 feet.

4. Section 8 – Table 23.306-2: Building Separation for Detached ADU. Staff revised the minimum building separation distance for ADUs within the Hillside Overlay from 5 feet to 8 feet based on Fire Department recommendation, with an exception where an 8-foot separation would preclude an ADU of 800 square feet, in which case the minimum building separation is reduced to 5 feet.

5. Section 8 – Table 23.306-3: ADU Building Height – Detached New Construction.

Staff revised the header of Table 23.306-3 to clarify that distance to public transit is measured as within or not within one-half mile walking distance of a major transit stop or high-quality transit corridor as defined by California Public Resources Code 21155.

6. Section 8 – Attached ADU, New Construction Height. Staff simplified the language for new construction attached ADUs to allow for a height up to 25 feet with a Zoning Certificate.

7. Section 10 – Table 23.322-1: Required Off Street Parking in Residential Districts.

Staff revised the parking requirements for ADUs within the Hillside Overlay to clarify that distance to public transit is measured as within or not within one-half mile walking distance of a major transit stop or high-quality transit corridor.

Policy Alternatives
Staff revised the policy alternatives document (Attachment 2) since the materials published on September 7, 2023 to remove an alternative related to building separation, which was incorporated into the revised recommended draft ordinance.

ORDINANCE NO. -N.S.

REPEAL OF THE WILDFIRE HAZARD EVACUATION RISK MITIGATION ORDINANCE (BMC 12.99), AND AMENDMENTS TO THE RULES OF
MEASUREMENT (BMC 23.106), ACCESSORY DWELLING UNIT (ADU) ORDINANCE (BMC 23.306), PARKING AND LOADING (BMC 23.322), EXEMPTIONS TO NONCONFORMING USES, STRUCTURES, AND BUILDINGS (BMC 23.324.060), AND DEFINED TERMS (BMC 23.502.020) RELATING TO ADUS

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

Section 1. General Findings

A. California Government Code Sections 65852.1, 65852.2 and 65852.22 provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use.

1. California Government Code Section 65852.2(d)(1)(A) and (j)(11) finds that a local agency shall not impose any parking standards for an accessory dwelling unit where the accessory dwelling unit is located within one half-mile walking distance of public transit.

2. California Government Code Section 65852.2(c)(2)(D)(ii) uses the proximity of parcels to major transit stops and high quality transit corridors as defined in Section 21155 of the California Public Resources Code.

B. Accessory dwelling units are statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h).

C. Policy H-18 of the City of Berkeley’s 2023-2031 Housing Element encourages the addition of accessory dwelling units on properties with single-family and multi-unit homes.

D. On October 17, 2022, the City received a letter from the State Department of Housing and Community Development (HCD) stating that the City’s current ADU ordinances (BMC Sections 23.306 and 12.99, the “Ordinances”) do not comply with Government Code Section 65852.2.

1. HCD found a discrepancy between the definition of “Efficiency Kitchen” contained within Ordinance No. 7,797-N.S. (Chapter 23.306) and Government Code §65852.22(a)(6)(A) and requested that the City remove the sink requirement from its zoning definition, as well as the reference to a working refrigerator in the definition of a “Junior Accessory Dwelling Unit.”

2. Regarding Ordinance No. 7,799-N.S (Chapter 12.99), HCD found that the City did not make adequate findings with respect to ADU and Junior ADU

development impacts on traffic flow and public safety when the City adopted limitations on ADU and Junior ADU development in the Hillside Overlay zoning district.

E. In light of the HCD’s letter, Policy H-18 of the City of Berkeley’s 2023-2031 Housing Element, and Government Code Sections 65852.1, 65852.2 and 65852.22, the Planning Commission held a public hearing on May 3, 2023, to consider proposed amendments to Title 23 relating to ADUs. The Commission unanimously recommended staff’s proposal with three modifications, which were incorporated with modifications into the proposed amendments: (1) Regulating bay window and balcony projections using setback requirements; (2) Revising Neighbor Noticing requirements to subject property tenants; (3) Permitting ADUs to reach maximum allowable height without requiring an Administrative Use Permit.

Section 2. Specific Findings

A. The intent of Berkeley’s Hillside Overlay zone, as set forth in BMC 23.210.020, is to protect the safety and health of residents in an area comprised of Berkeley’s Very-High Fire Hazard Severity Zones and Wildland-Urban Interface (WUI) Fire Areas. The Hillside Overlay has unique conditions, including limited transit access, steep topography, proximity to forested wild land, and vegetation that create a high risk of wildfires, earthquakes, and landslides. These hazards put residents of the Hillside Overlay at greater risk than residents of other parts of the City.

1. On December 10, 2019, the City adopted a Hazard Mitigation Plan that identifies Earthquake and Wildland-Urban Interface Fire as "Likely" and "Catastrophic" events.

2. The earthquake risk in the Hillside Overlay is exceptionally high because the Hayward Fault bisects the Hillside Overlay, traversing the full length of these zones, with violent (Level 9 of 10) shaking predicted in the US Geologic Services Hayward Fault earthquake scenario (HayWired).

3. The 2014 Working Group on California Earthquake Probabilities calculated that there is a 33 percent likelihood of a large (magnitude 6.7 or greater) earthquake occurring on the Hayward Fault within three decades.

On March 9, 2015, a report published by the U.S. Geological Survey found that the Bay Area has a 72 percent chance of having at least a magnitude

6.7 earthquake in the same time period.

4. The risk of a wind-driven wildfire is also very high within the Hillside Overlay because of the City’s unique topography, which is flat along the San Francisco Bay in the west but turns into steeper, sloped terrain approaching 1,000 feet in elevation along the City’s eastern edge, as well as strong winds that develop in the late spring and early fall.

Vegetation/wildland fires tend to burn more intensely and spread faster

when burning uphill and up-canyon, unless they are wind-driven, which can then cause intense and rapid burning downhill.

5. The high fire risk within the Hillside Overlay is demonstrated by Berkeley’s history of catastrophic wildfires. Wildfires that occurred in Berkeley in 1905, 1923, 1946, 1970 and 1991 resulted in loss of injury, loss of life, extensive damage and destruction of property and enormous economic impacts. The two most notable are:
i. In 1923, a wildfire swept out of Tilden Park through Berkeley, ultimately destroying approximately 600 homes, as well as churches, schools, libraries, and student living quarters. At that time, the population of Berkeley was 52,000. One thousand residents were displaced or left homeless. The fire traveled across the then sparsely populated ridge line to what is now Tunnel Road and down to the intersection of Shattuck and Hearst in the downtown.
ii. In 1991, the Tunnel Fire burned over 1,500 acres, claiming 25 lives and destroying approximately 3,000 structures in southeast Berkeley and Oakland. Had the wind direction not shifted, many more people could have died, and more of Berkeley would have been destroyed.

6. The number of large wind-driven wildfires will only continue to grow as the climate changes. According to CalFIRE, 14 of the 20 most destructive California wildfires ever recorded have occurred in the past 10 years. In the 67 years between 1932 and 1999, 572,000 acres burned in California.

In the 20 years from 2000 to 2020, over 4,000,000 acres have burned.

B. Structure Separation Distance (SSD) is related to the number of structures per acre. These are two measurements that play a key role in affecting the speed of a fire’s spread. According to recognized industry models from the National Institute of Standards and Technology (NIST), California Department of Forestry and Fire Protection (CAL FIRE), and Insurance Institute for Business & Home Safety (IBHS), the closer together two structures are situated, and the higher the number of structures per acre, the higher the likelihood that a fire will rapidly spread between structures, creating a risk of a large-scale urban conflagration.

1. SSD is categorized into three risk profiles; Low Density with an SSD of greater than 50 feet, Moderate Density with an SSD of 25 feet to 50 feet, and High Density with an SSD of less than 25 feet.

2. The majority of the Hillside Overlay in in the highest risk category with less than 25 feet SSD between structures. Over 3,000 structures in the Hillside Overlay have less than 11 feet of separation and over 1,700 structures have less than 5.5 feet SSD. High-density communities with closely spaced structures create a high risk of rapid, uncontrolled fire spread.

3. The structural density of a Wildland Urban Interface is categorized into one of seven risk profiles with the highest-density communities having 8 housing units per acre (HU/ac), and being 320 times denser than the lowest-density WUI areas, which have 0.02 HU/ac (1 HU on 40 acres).

Almost the entire Hillside Overlay is in one of the two highest risk categories with between 4 and 6 structures per acre.

4. As more open space on a parcel is filled with structures, fire can spread along features including primary structures, auxiliary structures, fences, wood piles, decks, and vehicles. This fuel agglomeration may have an impact on structure-to-structure fire spread during an urban, wind-driven conflagration.

5. On June 10, 2021, a study published by UC Berkeley researchers concluded that continued development in the wildland-urban interface will make California’s supply of housing more vulnerable, undermine state efforts to curb carbon emissions, further degrade the state’s wildland habitats, and create fiscal challenges for state and local governments in the event of post-disaster recovery.

C. Due to the risk of earthquakes, fires, and other hazards, it is essential that emergency responders have ready accessibility to injured persons and damaged property, and that residents be able to evacuate quickly and efficiently.

Nonetheless, conditions within the Hillside Overlay combine to compromise emergency access egress and accessibility for emergency responders.

1. A majority of streets in the Hillside Overlay are less than 26 feet in width, and include conditions such as steep slopes, sharp curves and acute- angled corners. This increases the chance that, in the event that a large- scale evacuation is initiated, residents will become trapped in clogged exiting traffic and succumb to smoke, heat and fire, as seen in recent wildfires.

2. The majority of transit within the Hillside Overlay does not meet the definition of major transit stops and high quality transit corridors as defined in Section 21155. Bus service (AC Transit Lines 7, 65 and 67) runs at headways of 30 minutes or longer, with limited or no service on evenings, weekends and holidays. The lack of available transit exacerbates the hazardous conditions that currently exist with respect to traffic flow and public safety in the likely event of a catastrophic wildfire or earthquake.

3. Increased vehicle density will add to these risks, as the Hillside Overlay does not have the capacity to have additional vehicles parked on the street without jeopardizing access and ingress during emergencies. On August 10, 2021, a study published by UC Berkeley researchers concluded that in the best-case scenario, if each household evacuated from the Berkeley hills with one vehicle, estimated evacuation time would be two hours and 245 vehicles would be exposed to immediate fire danger. However, if each household evacuated with 1.7 vehicles,

evacuation time would increase to three hours and 782 vehicles would be exposed to immediate fire danger.

D. All of these conditions necessitate reasonable limitations on development, including on ADUs, within the Hillside Overlay in order to reduce exposure to hazardous conditions.

Section 3. That Berkeley Municipal Code Chapter 12.99 is hereby repealed.

Section 4. That Berkeley Municipal Code 23.106.020(B) is amended to read:

Exclusions. The lot coverage calculation excludes:

Uncovered porches, landings and stairs;
Uncovered decks, except that a deck on the roof of a building or accessory structure or over an enclosed space or paved ground area is included in the lot coverage calculation; and
The area of the roof of a subterranean structure, when such a structure is not more than 3 feet above finished grade.

The area of any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.

Section 5. That Berkeley Municipal Code 23.106.030(D) is amended to read:

Excluded Areas. The following areas are excluded from gross floor area calculation:

Covered or uncovered areas used for off-street parking or loading spaces.

Driveways ramps between floors and maneuvering aisles of a multi-level parking garage.

Mechanical, electrical, and telephone equipment rooms below finished grade.

Areas which qualify as usable open space.

Arcades, porticoes, and similar open areas for non-residential uses which are:
(a) Located at or near street level;
(b) Accessible to the general public; and
(c) Are not designed or used as sales, display, storage, service, or production areas.

The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.

Section 6. That Berkeley Municipal Code 23.106.080(A) is amended to read:

A. Measurement. Building separation is measured as the distance between the surface of a main building’s or ADU’s outer wall and the outer wall surface of the closest neighboring main building.

Section 7. That Berkeley Municipal Code 23.106.090(A)(1) through (3) is amended to read:

Average Building Height.

Average Building Height: The vertical distance from the average level of the highest and lowest point of that portion of the lot covered by the building (or, in the case of residential additions, that portion of the lot covered by the addition) to the roof features shown in Table 23.106-1: Average Building Height Measurement. See Figure 23.106-4: Average Building Height.

Figure 23.106-4: Average Building Height.

Dormers are not included in the average building height calculation.

Attached accessory dwelling units are not included in the average building height calculation.

Section 8. That Berkeley Municipal Code 23.306 is amended to read:

Sections:

23.306.010– Purposes

23.306.020– Applicability and Definitions

23.306.030– Development StandardsPermit Procedures

23.306.040– Permit ProceduresDevelopment Standards

23.306.050– Deed Restrictions

23.306.060– Neighbor Noticing

23.306.070– Rooftop Decks and Balconies

23.306.010 Purposes.

The purposes of this Chapter are toThis Chapter establishes accessory dwelling unit (ADU) and junior accessory dwelling unit (Junior ADU) standards that:

Implement California Government Code Section 65852.1, 65852.2 and 65852.22.

Increase overall supply and range of housing options in Berkeley.

Expedite small-scale infill development.

Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.

Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.

Reduce potential impacts of new development in Very-High Fire Hazard Severity Zones and Wildland-Urban Interface Fire Areas as designated in the BMC Chapter

19.48 and as may be amended from time to time, and the Hillside Overlay District (HOD) due to unique conditions and hazards within these areas that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety consistent with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."

23.306.020 Applicability and Definitions.

The provisions of this chapter apply to zoning districts where residential uses are permitted, on lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.

For purposes of this Chapter the Hillside Overlay District (HOD) includes all lots within Berkeley’s designated Very-High Fire Hazard Severity Zones and Wildland- Urban Interface Fire Areas that are zoned R-1H (Single-Family Residential— Hillside Overlay), R-2H (Restricted Two-Family Residential— Hillside Overlay), R- 2AH (Restricted Multiple-Family Residential—Hillside Overlay), or ES-R (Environmental Safety-Residential).

Number of ADUs and JADUs Permitted Per Lot. See Table 23.306-1—ADU and Junior ADU Maximum Number of Units per Lot.Except as expressly modified by Chapter 12.99, the following number of ADUs and JADUs shall be the maximum number of accessory units permitted on lots subject to this Chapter.

Density Exemption. ADUs and Junior ADUs are not included in the minimum or maximum density established by the underlying zoning district.

TABLE 23.306-1—ADU AND JUNIOR ADU MAXIMUM NUMBER OF UNITS PER LOT Use, Primary ADU and Junior ADU, Maximum Per Lot
Single Family Dwelling, one unit on lot 1 ADU and 1 Junior ADU, both are permitted Single Family Dwelling, more than one
unit on lot
1 ADU
Duplex or Multi-Family Dwelling 2 detached ADUs and at least one interior ADU up to 25% of the total number of existing duplex or
multi-family dwelling units on the lot

Group Living Accommodation 1 ADU

Lot with one Single Family Dwelling: One ADU and/or one JADU.

Lot with more than one Single Family Dwelling: One ADU.

Lot with a Duplex or Multiple-Family Dwelling, either:
(a) Up to two detached ADUs; or
(b) At least one ADU converted from non-habitable portions of the existing Main Building that are not within the living space of a Dwelling Unit (e.g. basement, attic, garages storage room). The maximum number of ADUs converted from portions of the existing Main Building that are not within the living space of a Dwelling Unit shall not exceed 25% of the total number of existing Dwelling Units on the lot.

Lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory: One ADU

23.306.030 Permit Procedures.

Zoning Certificate. An application for an ADU or JADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including Development Standards, Deed Restrictions, and Neighborhood Noticing.

If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a Building Permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.

Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code Section 65852.2(e)(1).

Issuance of a Zoning Certificate for the construction or conversion of an ADU or JADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.

23.306.0340 Development Standards.

Basic Standards. See Table 23.306-21: ADU and JADU Development Standards.

TABLE 23.306-21. ADU AND JADU DEVELOPMENT STANDARDS
Basic Standards Supplemental Standards
Gross Floor Area, Maximum 23.306.030(A)(1);

23.306.030(A)(2); Studio or 1 bedroom 850 sq. ft.

2+ bedrooms 1,000 sq. ft. 23.306.030(A)(3)
Building Height, Maximum
Conversion Same as existing structure 23.306.030(A)(1);

23.306.030(A)(3)
Detached New Construction,
outside the Hillside Overlay
20 ft.

Detached, New
Construction, within the
Hillside Overlay
See Table 23.306-3
Attached, New Construction 25 ft. 23.306.030(A)(5);

23.306.030(A)(8)
Lot Line Setbacks, Minimum
Front of Interior Lot Same as underlying district 23.306.030(A)(3);

23.306.030(A)(4);

23.306.030(A)(6)
Front of Through Lot Same as underlying district or 10
ft. on the secondary frontage as
determined by the Zoning Officer
Rear 4 ft.

Interior Side 4 ft.

Street Side 4 ft.

Building Separation for Detached ADU, Minimum
Outside the Hillside Overlay 5 ft.

Within the Hillside Overlay 8 ft. 23.306.030(A)(7)
Required Off-Street Parking
Spaces
See 23.322.030– Required
Parking Spaces

TABLE 23.306-3. ADU BUILDING HEIGHT – DETACHED NEW CONSTRUCTION

Lot Consists of Existing Or
Proposed:

Within 0.5 mile walking
distance of a major transit
stop or a high quality
transit corridor [1]
Not within 0.5 mile walking
distance of a major transit
stop or a high quality
transit corridor [1]
Single-Family Dwelling(s),
one or more unit on a lot,
one or more stories
18 ft., with additional 2 ft. if
needed to align roof pitch of
ADU with the existing roof
pitch of the primary
dwelling(s)
16 ft.

Duplex or Multi-Family
Dwelling, single-story 16 ft.

Duplex or Multi-Family
Dwelling, multistory 18 ft.

Note:
[1] Major transit stop or a high-quality transit corridor as defined in Public Resources Code Section 21155.

Existing Building Conversion. An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development

standards for maximum gross floor area in Table 23.306-2. ADU Development Standards is allowed a physical addition of no more than 150 square feet. The addition must comply with maximum height and setback requirements.

Duplex or Multi-Family Dwelling Conversion. Interior ADU(s) must be created entirely through non-habitable residential portions of the existing main building that are not within the living space of a dwelling unit (e.g. basement, attic, garages, storage room).

Accessory Building or Accessory Structure Conversion. An ADU converted from a legally established accessory building or accessory structure is allowed to maintain non-conformity to the same location and dimensions of the existing accessory building or accessory structure, provided that the ADU meets fire and safety standards set forth in the California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing accessory building or accessory structure shall comply with the development standards in Table

23.306-2 ADU Development Standards.

Front Setback, New Construction. An ADU shall not occupy area within the front setback, unless the requirement would preclude an ADU of 800 square feet.

Attached ADU. An ADU shall be considered attached if sharing a common wall with a primary dwelling.

Detached ADU Setback Exceptions. If there is a lesser setback allowed in

23.304.060-Accessory Buildings and Enclosed Accessory Structures for a comparable accessory building or accessory structure in the underlying zoning district, that setback shall apply.

Building Separation for Detached ADU. A minimum 8-foot separation is required within the Hillside Overlay, except where such separation would preclude an ADU of 800 square feet, in which case the minimum building separation shall be reduced to 5 feet.

Attached ADU, New Construction Height. Attached ADUs with height up to 25 ft. allowed with a Zoning Certificate.

ADU1 JADU
Maximum Size Outside of HOD2 500 sf
Studio or 1 bedroom 850 sf
N/A
2 + bedrooms 1000 sf
Maximum Size Within HOD 800 sf 500 sf
Maximum Height Outside of HOD 20 ft.

N/A
Maximum Height Within HOD 16 ft.

ADU1 JADU
Front Yard Setback Same as underlying district
Rear Setback 4 ft3
Side Setback 4 ft3
Required Off-Street Parking
Outside of HOD None4
Required Off-Street Parking
Within HOD
The lesser of 1 space per
bedroom or ADU5, 6 None6
[1] An ADU converted from an Accessory Building or Accessory Structure legally established at least three years prior to submission of an ADU application that does not comply with the Maximum Height, Size, and/or Rear and Side Setback requirements is allowed to maintain non-conformity to the same dimensions of the existing Accessory Building or Accessory Structure, provided that the existing side and rear setbacks are sufficient for fire and safety as set forth in California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing Accessory Building or Accessory Structure shall comply with the development standards in this table. [2] An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development standards for Maximum Size in this table is allowed a physical addition of no more than 150 square feet. The addition must comply with Maximum Height and Setback requirements in this table.
[3] If there is a lesser setback allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district, that setback shall apply. [4] Replacement parking is not required. Replacement of off-street parking for the Main Building is allowed and does not need to comply with Parking Maximums (BMC 23.322.070) nor Parking Layout and Design (BMC 23.322.080).
[5] No off-street parking shall be required for ADUs that satisfy the criteria defined in subdivision (d) of California Government Code section 65852.2 or any successor provision thereto. [6] If an applicant provides off-street parking for an ADU or a JADU in the HOD, parking shall be allowed in any configuration on the lot, including within the front yard setback.

Junior ADUs.

Basic Standards. A Junior ADU shall be contained entirely within an existing or proposed single family dwelling or its attached garage, and have no more than 500 square feet in floor area.

Shared Sanitation Facility. If a Junior ADU shares a sanitary facility with a single- family dwelling, an internal connection between the Junior ADU and the main living area of the single family dwelling is required.

Junior ADU Floor Area. The Junior ADU gross floor area calculation excludes any shared sanitation facility with the single family dwelling.

Projections.

Except as limited by Paragraph B.2 of this Section, architectural features (Outside of the Hillside Overlay.

Attached ADU. Chimneys, wWater hHeater eEnclosures, fFlues, hHeating and cCooling eEquipment, eEaves, cCornices, cCanopies, aAwnings, bay windows, and balconies) may project two feet into the required front and side setbacks, so long as there remains at least a two-foot setback from property lines. Bay windows and balconies may not project into a required rear ADU setback.

Within the Hillside Overlay. No projections shall be allowed within athe required setback on lots that are within the Hillside Overlay District.

Rooftop Decks within the Hillside Overlay. Roofs on ADUs within the Hillside Overlay may not be designed, converted, or used as usable open space.

23.306.0450 Permit ProceduresDeed Restrictions.

Zoning Certificate. An application for an ADU or Junior ADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including development standards, deed restrictions, and neighborhood noticing.

If an application to create an ADU or Junior ADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a building permit shall not be issued for the ADU or Junior ADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired. See

23.404.060(A) Post-Decision Provisions (Effective Dates).

Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or Junior ADU that complies with the requirements of Government Code Section 65852.2(e)(1).

Issuance of a Zoning Certificate for the construction or conversion of an ADU or Junior ADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.

Noticing.

Scope and Timing of Notice. Notice of an ADU application shall be mailed to all occupants of owners and tenants of the subject, adjacent, confronting and abutting propertiesthe subject property, excepting the property owner(s), within

ten working days of submission of the building permit application to the Planning DepartmentCity.

Content of Notice. Notice shall provide the address of the project and include allowable hours of construction, a link to the City’s ADU webpage identifying permit and construction resources, and contact information for a Rent Board Housing Counselor.

Mailing Fees. The applicant shall be responsible for the cost of materials, postage, and staff time necessary to process and mail the notices.

Deed Restriction. The property owner shall file a deed restriction with the Alameda County Recorder which states:

The Junior ADU shall not be sold separately from the main building; The ADU shall not be sold separately from the main building unless the conditions of BMC 23.306.0450(D) ADUs Developed by a Qualified Nonprofit Developer B are met;
The ADU and/or Junior ADU shall not be rented for a term that is shorter than 30 days; and
If the property includes a Junior ADU, the Junior ADU, or the Single Family Dwelling in which the Junior ADU is located, shall be owner-occupied.

ADUs Developed by a Qualified Nonprofit Developer. An ADU built or developed by a "qualified nonprofit corporation" may be sold or conveyed separately from the mMain bBuilding to a "qualified buyer," as such terms are defined in subdivision (b) of Section 65852.26 of the California Government Code. The ADU must be held pursuant to a recorded tenancy in common agreement recorded on or after December 31, 2021 that includes the following elements:

Delineation of all areas of the property that are for the exclusive use of a cotenant;
Delineation of each cotenant’s responsibility for the costs of taxes, insurance, utilities, general maintenance and repair, and improvements associated with the property;
Procedures for dispute resolution among cotenants before resorting to legal action;
Allocates to each qualified buyer an undivided, unequal interest in the property based on the size of the dwelling each qualified buyer occupies; A repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation to buy the ADU or primary dwelling if the buyer desires to sell or convey the property;

A requirement that the qualified buyer occupy the ADU or primary dwelling as the buyer’s principal residence; and
Affordability restrictions on the sale and conveyance of the ADU or primary dwelling that ensure the ADU and primary dwelling will be preserved for low- income housing for 45 years for owner-occupied housing units and will be sold or resold to a qualified buyer.

If requested by a utility providing service to the primary residence, the ADU shall have a separate water, sewer, or electrical connection to that utility.

23.306.060 Neighbor Noticing.

A. Scope and Timing of Notice. Notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission to the Planning Department.

B. Content of Notice. Notice shall provide the address of the project, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor by e-mail or phone and any other resource information deemed relevant.

C. Mailing Fees. The applicant shall be responsible for the cost of materials, postage and staff time necessary to process and mail notices.

23.306.070 Rooftop Decks and Balconies.

A. Notwithstanding any provisions of this Title to the contrary, roofs on lots within the Hillside Overlay District may not be designed, converted or used as Usable Open Space.

Section 9. That Berkeley Municipal Code 23.322.020(C) is amended to read:

Changes of Use.

Commercial Districts. In the Commercial Districts, off-street parking is required for a change in use only when the structure is expanded to include new floor area.

Manufacturing and R-SMU Districts.
(a) In the Manufacturing and R-SMU districts, off-street parking is required for a change in use only when:
i. The structure is expanded to include new floor area; and/or ii. The use is changed to one with a numerical parking standard greater than the district minimum.

(b) If the new use is changed to one with a higher numerical parking standard than the district minimum, the new use must provide the incremental difference between the two numerical parking standards. A higher numerical parking standard may be reduced to the district minimum as provided in Section 23.322.050(.A)(.2) (Change of Use).
(c) As used in this section, the “district minimum” parking requirement is:
iii. 2 spaces per 1,000 square feet of floor area in the Manufacturing Districts; and
iv. 1 space per 1,000 square feet of floor area in the R-SMU district.

All Other Residential Districts. In all Residential Districts except for R-SMU, off- street parking spaces are required for all changes in use.

Location Exemption. Off-street parking spaces are not required for new uses or buildings, or an enlargement or intensification of an existing use or structure, that is located within 0.5 miles of a major transit stop, as defined by Section 21155 of the California Public Resources Code, unless otherwise authorized by Government Code Section 65863.2.

Section 10. That the section named; Residential Uses; in Berkeley Municipal Code Table 23.322-1, Required Off Street Parking in Residential Districts, within Berkeley Municipal Code 23.322.030, Required Parking Spaces, is amended to read:

TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS Land Use Number of Required Off-street Parking Spaces
Residential Uses
Accessory Dwelling
Unit
Junior ADU: None required
ADU outside of Hillside Overlay: None required
ADU within Hillside Overlay: 1 per ADU unless the parcel is located within 0.5 mile walking distance of a major transit stop or a high-quality transit corridor as defined in Public Resources Code Section 21155. See Chapter 23.306
Dwellings, including
Group Living
Accommodations
R-3, R-4, and R-5 Districts (1-9 units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit.

R-3, R-4, and R-5 District (10 or more units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per 1,000 sq. ft. of gross floor area
All Other Districts: If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required

Land Use Number of Required Off-street Parking Spaces
Dormitories, Fraternity
and Sorority Houses,
Rooming & Boarding
Houses, Senior
Congregate Housing

If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each 5 residents, plus 1 for manager.

All Other Locations: None required.

Rental of Rooms
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each two roomers
All Other Locations: None required

Section 11. That Berkeley Municipal Code Table 23.322-2 is amended to read:

TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL

DISTRICTS (EXCLUDING C-T)
Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit See Chapter 23.306None required
Dwellings, including
Group Living
Accommodations
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Hotel, Residential None required
Mixed-Use Residential
(residential use only) None required
Senior Congregate
Housing None required
Non-Residential Uses
All non-residential
uses except uses
listed below
C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Hospital 1 per each 4 beds plus 1 per each 3 employees
Library
C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 1 per 500 sq. ft. of publicly accessible floor area
Nursing Home 1 per 3 employees
Medical Practitioners C-DMU District: 1.5 per 1,000 sq. ft.

All Other Commercial Districts: 1 per 300 sq. ft.

Land Use Required Parking Spaces
Hotels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per 3 guest/sleeping rooms or suites plus 1 per 3 employees
All Other Commercial Districts: 2 per 1,000 sq. ft.

Motels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per guest/sleeping room plus 1 for owner or manager [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.

Large Vehicle Sales
and Rental
C-DMU District: 1.5 per 1,000 sq. ft.

C-SA District: 1 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Small Vehicle Sales
and Service
C-DMU District: 1.5 per 1,000 sq. ft.

C-SA District: 1 per 1,000 sq. ft.

All Other Commercial Districts: 2 per 1,000 sq. ft.

Manufacturing
C-DMU District: 1.5 per 1,000 sq. ft.

C-W District: 1 per 1,000 sq. ft [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.

Wholesale Trade
C-DMU District: 1.5 per 1,000 sq. ft.

C-W District: 1 per 1,000 sq. ft
All Other Commercial Districts: 2 per 1,000 sq. ft.

Live/Work
If workers/clients are permitted in work area, 1 per first 1,000 sq. ft. of work area and 1 per each additional 750 sq. ft. of work area
Notes:
[1] Spaces must be on the same lot as building it serves

Section 12. That the section named; Residential Uses; in Table 23.322-4, Required Off Street Parking in Manufacturing Districts, within Berkeley Municipal Code 23.322.030, Required Parking Spaces, is amended to read:

TABLE 23.322-4: REQUIRED OFF-STREET PARKING IN MANUFACTURING DISTRICTS Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit See Chapter 23.306None required
Dwellings None required
Group Living
Accommodation None required

Section 13. That Berkeley Municipal Code 23.322.080 is amended to read:

23.322.080– Parking Layout and Design

Traffic Engineering Requirements.

All off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way must conform to the City of Berkeley’s Traffic Engineering requirements.

The Traffic Engineer shall determine whether the size, arrangement, and design of off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way are adequate to create usable, functional, accessible, and safe parking areas, and are adequately integrated with Berkeley’s overall street pattern and traffic flows.

Dimensional Standards. Dimensional requirements and standards for off-street parking spaces, driveways, and other access improvements, and maneuvering aisles shall be incorporated in administrative regulations, subject to the review and approval by the City Manager and ZAB.

Access Orientation in Non-Residential Districts. Access to new parking areas in a Non-Residential District that serve commercial uses shall be oriented in such a way as to minimize the use of streets serving primarily residential uses.

Residential Parking Lots in Non-Residential Districts. Parking lots in a non- residential district used exclusively for residential parking must comply with standards in Section 23.322.080 that apply in Residential Districts.

Placement--Residential Districts.

Side Setback Areas.
(a) One new off-street parking space in a required side setback area, where none exists, is allowed by right.
(b) The space must be constructed of a permeable surface unless the Public Works Department or Office of Transportation determines it is infeasible. (c) The space must be screened as required by 23.322.080.IG (Screening). (d) The location of the space shall minimize impact on usable open space.

Other Setback Areas. No portion of an off-street parking space may be located in a required front, street side, or rear setback area unless:
(a) The parking space location is authorized by Chapter 23.306 (Accessory Dwelling Units); or