Berkeley City Council
July 23, 2024

Tuesday, July 23, 2024 AGENDA Page 1

A G E N D A

BERKELEY CITY COUNCIL MEETING
Tuesday, July 23, 2024
6:00 PM
SCHOOL DISTRICT BOARD ROOM - 1231 ADDISON STREET, BERKELEY, CA 94702

JESSE ARREGUIN, MAYOR
Councilmembers:

DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – CECILIA LUNAPARRA DISTRICT 4 – IGOR TREGUB DISTRICT 8 – MARK HUMBERT
This meeting will be conducted in a hybrid model with both in -person attendance and virtual participation . 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, iPad, iPhone, or Android device: Please use this UR L: https://cityofberkeley- info.zoomgov.com/j/1600197323. 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: 160 019 7323. 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.

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 public participation may be addressed to the City Clerk Department (510) 981-6900. The City Council may take action related to any subject listed on the Agenda.

Pursuant to the City Council Rules of Procedure and State Law, the presiding officer may remove, or cause the removal of, an individual for disrupting the meeting. Prior to removing an individual, the presiding officer shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. The presiding officer may then remove the individual if they do not promptly cease their disruptive behavior. “Disrupting” means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, a failure to comply with reasonable and lawful regulations adopted by a legislative body, or engaging in behavior that constitutes use of force or a true threat of force.

Tuesday, July 23, 2024 AGENDA Page 2
Preliminary Matters
Roll Call:

Land Acknowledgement Statement: The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch-yoon)), the ancestral and unceded land of the Chochenyo (Cho-chen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000 -year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay. We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of this unceded stolen land since the City of Berkeley’s incorporation in 1878. As stewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today. The City of Berkeley will continue to build relationships with the Lisjan Tribe and to create meaningful actions that uphold the intention of this land acknowledgement.

Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.

City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.

Public Comment on Non-Agenda Matters: Persons will be selected to address matters not on the Council agenda. If five or fewer persons wish to speak, each person selected will be allotted two minutes each. If more than five persons wish to speak, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. Persons attending the meeting in-person and wishing to address the Council on matters not on the Council agenda during the initial ten-minute period for such comment, must submit a speaker card to the City Clerk in person at the meeting location and prior to commencement of that meeting. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda.

Public Comment by Employee Unions (first regular meeting of the month): This period of public comment is reserved for officially designated representatives of City of Berkeley employee unions, with five minutes allocated per union if representatives of three or fewer unions wish to speak and up to three minutes per union if representatives of four or more unions wish to speak.

Consent Calendar
The Council will first determine whether to move items on the agenda for “Action” or “Information” to the “Consent Calendar”, or move “Consent Calendar” items to “Action.” Three members of the City Council must agree to pull an item from the Consent Calendar or Information Calendar for it to move to Action.

Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.

No additional items can be moved onto the Consent Calendar once public comment has commenced. At any time during, or immediately after, public comment on Information and Consent items, any Councilmember may move any Information or Consent item to “Action.” Following this, the Council will vote on the items remaining on the Consent Calendar in one motion.

For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.

Tuesday, July 23, 2024 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. FY 2025 Special Tax Rate: Fund the Provision of Library Services From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,927-N.S. to recommend that the Berkeley City Council set the FY 2025 tax rate for funding the provision of Library Services in the City of Berkeley at $0.2800 (28.00 cents) per square foot for dwelling units and $0.4233 (42.33 cents) per square foot for industrial, commercial, and institutional buildings.

First Reading Vote: All Ayes
Financial Implications: See report
Contact: Tess Mayer, Library, (510) 981-6100, Henry Oyekanmi, Finance, (510) 981- 7300

2. Youth Voting in Berkeley School Board Elections; Ordinance providing for voting by persons aged 16 and 17 years old for office of School Director From: City Attorney
Recommendation: Adopt second reading of Ordinance No. 7,928-N.S. providing for youth voting by persons aged 16 and 17 years old for office of School Director pursuant to Article III, Section 5(3) of the City Charter.

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

Financial Implications: None
Contact: Farimah Brown, City Attorney, (510) 981-6950

3. Municipal Code Amendments for Measure KK Compliance and Updated Settlement Authority
From: City Attorney
Recommendation: Adopt first reading of an Ordinance amending Chapter 2.56 and Sections 2.36.040, 4.04.100, 4.04.110, and 7.12.020 of the Municipal Code to conform to Section 113 of the City Charter (Measure KK), and to increase the City Attorney’s authority to settle claims up to $50,000.

Financial Implications: None
Contact: Farimah Brown, City Attorney, (510) 981-6950

Consent Calendar
Tuesday, July 23, 2024 AGENDA Page 4

4. Contract: Downtown Berkeley YMCA for Fitness Center Memberships for City Employees
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with the Downtown Berkeley YMCA in the amount of $161,280 for fitness center memberships for City employees for the period July 1, 2024 through June 30, 2025.

Financial Implications: See report
Contact: Sharon Friedrichsen, Budget Manager, (510) 981-7000

5. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on July 23, 2024
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.

Financial Implications: Various Funds - $4,525,000
Contact: Henry Oyekanmi, Finance, (510) 981-7300

6. Public Facility Improvement Program Funds for Insight Housing’s (formerly Berkeley Food and Housing Project) Dwight Way Center
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to: 1. Reallocate $549,785 of FY24 Measure P funds from Insight Housing’s (IH) Russel Street Residence rehabilitation project to their Dwight Way Center (DWC) rehabilitation project; and 2. Execute all resultant agreements and amendments with IH for the above-mentioned funds.

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

7. Appointment of Priscilla Villanueva to the Board of Library Trustees From: City Manager
Recommendation: Adopt a Resolution appointing Priscilla Villanueva to the Board of Library Trustees (“BOLT”) for a term of four years beginning September 4, 2024.

Financial Implications: None
Contact: Tess Mayer, Library, (510) 981-6100

8. License Agreement: Masaba LLC., DBA Roaming Bean Coffee Vendor at the Waterfront
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a license agreement with Roaming Bean Coffee to operate at the Berkeley Waterfront for a three-year term, ending July 31, 2027.

Financial Implications: $11,498 - Revenue
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

Consent Calendar
Tuesday, July 23, 2024 AGENDA Page 5

9. Lease Agreement: Youth Musical Theater Company for the properties at 2925 and 2945 Bolivar Drive, Aquatic Park
From: City Manager
Recommendation: Adopt first reading of an Ordinance authorizing the City Manager to execute a lease agreement with Youth Musical Theater Company (YMTC) for the use and management of the City’s properties at 2925 and 2945 Bolivar Drive in Aquatic Park for a term of ten years, anticipated to begin September 1, 2024 and ending August 31, 2034, with one five-year option.

Financial Implications: See report
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

10. Assembly Bill 481, 2023 Annual Military Equipment Report From: City Manager
Recommendation: Adopt a Resolution approving the 2023 Annual Military Equipment Report.

Financial Implications: Staff time
Contact: Jennifer Louis, Police, (510) 981-5900

11. Contract: Alta Planning & Design for Adeline Street Transportation Improvements Project
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with Alta Planning & Design for Preliminary Engineering and Environmental Studies for the Adeline Street Transportation Improvements Project for an amount not-to-exceed $1,256,120.

Financial Implications: See report
Contact: Terrance Davis, Public Works, (510) 981-6300

12. Contract: Buhler Commercial for FY 2023 Retaining Wall and Storm Drain Improvement Project (Specification No. 23-11616-C & 23-11614-C) From: City Manager
Recommendation: Adopt a Resolution: 1. Approving plans and specifications for the FY 2023 Retaining Wall and Storm Drain Improvement Project; 2. Accepting the bid of Buhler Commercial as the lowest responsive and responsible bidder; and 3.

Authorizing the City Manager to execute a contract and any amendments, extensions, or other change orders until project completion, in accordance with the approved plans and specifications in an amount not to exceed $1,973,708.

Financial Implications: See report.

Contact: Terrance Davis, Public Works, (510) 981-6300

Consent Calendar
Tuesday, July 23, 2024 AGENDA Page 6

13. Contract No. 31900102 Amendment: Nute Engineering for On-Call Civil Engineering Services for the Sanitary Sewer Program
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 31900102 with Nute Engineering (Nute) for On-Call Civil Engineering Services for the Sanitary Sewer Program, increasing the contract by $500,000, for a total amount not to exceed $900,000, and extending the term of the contract from June 30, 2024 to June 30, 2025.

Financial Implications: See report
Contact: Terrance Davis, Public Works, (510) 981-6300

14. Amending the 1956 Maintenance Agreement with Caltrans to include new I-80 Gilman Interchange
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to negotiate and execute an amendment to the 1956 Freeway Maintenance Agreement between the City and Caltrans to include new I- 80/Gilman Interchange facilities.

Financial Implications: See report
Contact: Terrance Davis, Public Works, (510) 981-6300

15. Change Football Game Day Parking Restrictions in Residential Preferential Parking Zones
From: City Manager
Recommendation: Adopt a Resolution modifying parking restrictions in specified Residential Preferential Parking (RPP) zones on University of California, Berkeley (UC Berkeley) home football game days as follows:

1. Remove game day parking restrictions and enforcement in RPP zones G and F north of UC Berkeley campus;

2. Allow visitor parking on game days in RPP zones B and D for up to two-hours with enhanced fines (per Resolution No. 69,089-N.S., adopted September 10, 2019, enhanced fines on football game days are $225);

3. Allow parking on game days on a one-block stretch of Bancroft Way between College Avenue and Bowditch Street for up to two-hours;

4. Allow parking on game days on College Avenue between Dwight Way and Parker Street for up to two-hours with enhanced fines;

5. Allow parking on game days on Oxford Street between Hearst Avenue and Center Street.

Financial Implications: See report
Contact: Terrance Davis, Public Works, (510) 981-6300, Eleanor Hollander, Economic Development, (510) 981-7530

Consent Calendar
Tuesday, July 23, 2024 AGENDA Page 7

16. Lease for Office Space for the Office of the Director of Police Accountability (ODPA) at 1900 Addison Street
From: Director of Police Accountability
Recommendation: Adopt first reading of an Ordinance authorizing the City Manager to execute a ten-year lease agreement with The Shamszad Family Living Trust for the property located at 1900 Addison Street, Suites 300 and 350, with a lease term beginning on September 1, 2024.

Financial Implications: See report
Contact: Hansel Aguilar, Police Accountability Board, (510) 981-4950

Action Calendar
The public may comment on each item listed on the agenda for action. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again during one of the Action Calendar public comment periods on the item. Public comment will occur for each Action item (excluding public hearings, appeals, and/or quasi-judicial matters) in one of two comment periods, either 1) before the Action Calendar is discussed; or 2) when the item is taken up by the Council.

A member of the public may only speak at one of the two public comment periods for any single Action item.

The Presiding Officer will request that persons wishing to speak line up at the podium, or use the "raise hand" function in Zoom, to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an iss ue, 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 line up at the podium, or use the "raise hand" function in Zoom, to be recognized and to determine the number of persons interested in speaking at that time.

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

Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may with the consent of persons representing both sides of an issue allocate a block of time to each side to present their issue.

Action Calendar – Public Hearings
Tuesday, July 23, 2024 AGENDA Page 8
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 in the office of the City Clerk.

17. Substantial Amendments to the PY2018, PY2019, PY2020, and PY2021 Annual Action Plans to Reallocate Community Development Block Grant (CDBG) Funding to the City’s Public Facility Improvement Program From: City Manager
Recommendation: Conduct a public hearing on:

1. Substantial amendments to the federal Program Years (PY) 2018, 2019, 2020, and 2021 Annual Action Plans (AAP), which propose a total reallocation of $478,500 of Community Development Block Grant (CDBG) funds from the Senior Disabled (Home) Loan Rehabilitation Program (SDLRP) to the Public Facility Improvement Program;

2. Allocating $450,000 of the reallocated funds to Insight Housing’s (IH) existing public facility rehabilitation project at 2140 Dwight Way, and

3. Allocating $52,775 to Larkin Street Youth Services’ (LSYS) existing public facility rehabilitation project at 3404 King St ($28,500 from above reallocated funds and $24,275 from available PY 2024 funds).

Upon conclusion of the hearing, adopt a Resolution authorizing the City Manager or her designee to:
a. Approve the CDBG public facility funding allocations for two public facility improvement projects, $450,000 for IH and $52,775 for LSYS; b. Submit the Substantial Amendments to the PY 2018, 2019, 2020, and 2021 Annual Action Plans to the U.S. Department of Housing and Urban Development (HUD); and
c. Execute all resultant agreements and amendments with IH and LSYS and for the above-mentioned funds.

Financial Implications: See report.

Contact: Scott Gilman, Health, Housing, and Community Services, (510) 981-5400

Council Action Items

18. Adopt a Resolution Approving Peaceful and Lawful Use of the Dwight Triangle as Public Open Space
From: Councilmember Lunaparra (Author)
Recommendation: Adopt a Resolution Approving Peaceful and Lawful Use of the Dwight Triangle at the intersection of Dwight Way and Telegraph Avenue as Public Open Space Pursuant to BMC chapter 6.42.

Financial Implications: None
Contact: Cecilia Lunaparra, Councilmember, District 7, (510) 981-7170

Information Reports
Tuesday, July 23, 2024 AGENDA Page 9

19. LPO NOD: 8 Greenwood Common, #LMSAP2024-0001
From: City Manager
Contact: Jordan Klein, Planning and Development, (510) 981-7400

20. Alameda County Transportation Commission Rail Safety Enhancement Program – Phase A
From: City Manager
Contact: Terrance Davis, Public Works, (510) 981-6300

21. Annual Report on Landmarks Preservation Commission (LPC) Actions From: Landmarks Preservation Commission
Contact: Fatema Crane, Commission Secretary, (510) 981-7400 Public Comment – Items Not Listed on the Agenda
Adjournment
NOTICE CONCERNING YOUR LEGAL RIGHTS : If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90 -day period will be barred. 2) In any lawsuit that may be filed against a City 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]

Tuesday, July 23, 2024 AGENDA Page 10
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.

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 July 11, 2024.

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.

Bike Lane Construction

1. D.A. (2)

2. Tom

3. Julia (2)

4. Voters

Traffic Control Signage

5. David Lerman

Longfellow Middle School Relocation

6. Liz Lutzker

Tuesday, July 23, 2024 AGENDA Page 11
Berkeley Federation of Teachers

7. Matt Meyer

Ohlone Dog Park

8. Ohlone Dog Park Neighbors

Fair and Open Bargaining

9. Jamie Cooney

10. Moni Law

UC Master Leasing

11. Barbara Gilbert

Aurora Theater

12. Josh

Civic Center Park

13. Anna Weinstein

Restaurant Inspection Results

14. David Lerman

Panoramic Way

15. Lisa and Ilana Handwerker (2)

16. Nick Thurlow

Café

17. Barbara Gilbert

18. Isabelle Gaston

Diversity and Inclusion

19. Moni Law

Sidewalk Safety Concern

20. Max

Lime Scooters

21. Laarni Mathias (2)

22. Summer Brenner

Water Drainage

23. Maha Parameswaran

Tesla, Harrison St.

24. John Craner, CEO, Downtown Berkeley Association

Tuesday, July 23, 2024 AGENDA Page 12
Grizzly Peak Blvd.

25. Bruce Brody

Shipping Containers at 2556 Haste St.

26. Tobias Damm-Luhr

World Skate

27. Jerry Bekkers, World Skate Facility Department Director

North Berkeley Affordable Housing

28. Kim Klein

29. Dorothea Dorenz

Crime in Berkeley

30. Nina Lyons

Arson Fires

31. Barbara Gilbert

CROP Invitations

32. Eugene Dey (6)

Middle East Conflict

33. Aaron

34. Shanna Bowie

35. Jessica Kim

36. Erwan Illian (3)

37. Russbumper (2)

Towing Concern

38. William Race

Rental Board

39. Scott

Flag Hanging from Civic Building

40. Jessica Pearlman

41. Dorothea Dorenz

URLs Only

42. Russbumper (6)

43. Erwan Illian

Newsletter

44. Berkeley Art Center

45. Russbumper (2)

Tuesday, July 23, 2024 AGENDA Page 13

46. 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. 7,927-N.S. Page 1 of 1
ORDINANCE NO. 7,927-N.S.

SETTING THE FISCAL YEAR 2025 SPECIAL TAX RATE TO FUND LIBRARY

SERVICES TAX IN THE CITY OF BERKELEY
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. The FY 2025 Tax Rate to support usual and current expenses of operating library services is set at $0.2800 per square foot for dwelling units and $0.4233 per square foot for industrial, commercial and institutional buildings.

Section 2. The cost to taxpayers during FY 2025 will be $419.95 for a 1,500 square foot dwelling and $635.00 for all other property of similar size.

Section 3. This tax rate will result in estimated total collections of $25,905,893.

Section 4. The tax imposed by this ordinance does not apply to any property owner whose total personal income, from all sources for the previous calendar year, does not exceed that level which shall constitute a very low income, as established by resolution of City Council.

Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way. Within 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 June 25, 2024, this Ordinance was passed to print and ordered published by posting by the following vote:

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

Noes: None.

Absent: None.

Ordinance No. 7,928-N.S. Page 1 of 3
ORDINANCE NO. 7,928-N.S.

ADDING BERKELEY MUNICIPAL CODE CHAPTER 2.15 ELECTIONS – YOUTH VOTING
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Chapter 2.15 is hereby added:

2.15.010 Definitions.

2.15.020 Findings.

2.15.030 Authorization.

2.15.040 Cost and Terms of Implementation.

2.15.050 Election Procedures if Youth Voting is Not Used.

2.15.060 Severability.

2.15.010 Definitions.
“Youth Voting” means voting for the office of School Director by persons aged 16 or 17 years old who would otherwise be eligible to be voters under the California Elections Code.
“Youth Voter” means a person aged 16 or 17 who is registered to vote for the office of School Director.

2.15.020 Findings.

In 2016, Berkeley voters adopted Measure Y1, which amended the City Charter to enable the City Council to adopt an ordinance providing for voting for the office of School Director by persons ages 16 and 17 years old who otherwise meet the requirements for voting in California.

2.15.030 Authorization.

The City Council hereby authorizes the use of Youth Voting for the office of Berkeley School Director. Youth Voting shall be conducted and administered in accordance with City Charter Article III, Section 5.

2.15.040 Cost and Terms of Implementation.

A. In no event shall the City pay any of the direct or indirect costs for Youth Voting, nor shall City funds be used to replace or reimburse funds used for such purposes by any public agency or private entity.

B. The City may enter into agreements with the County of Alameda and/or other jurisdictions implementing Youth Voting setting forth the terms by which Youth Voting will be implemented, including by specifying the manner, method, or times in which Youth Voting may be conducted and such votes may be cast. The manner, method or time for Youth Voting need not be the same as for other persons voting in City elections.

Ordinance No. 7,928-N.S. Page 2 of 3
C. The procedures developed by the California Secretary of State for pre-registration under state law shall be the exclusive means by which a person aged 16 or 17 may register to vote for Berkeley School Director. Any person aged 16 or 17 who is pre- registered to vote with the California Secretary of State and a resident of Berkeley will automatically be registered to vote for the office of Berkeley School Director.

D. Notwithstanding any other provision of the Charter or Berkeley Municipal Code, youth voting will only be permitted in a given election for Berkeley School Director if so authorized via a resolution passed by the City Council and filed with the Alameda County Registrar of Voters on or before 88 days prior to the election, or as otherwise filed as required by law. No such authorization shall be provided in a particular election if the Berkeley Unified School District Board of Education passes a resolution specifying that Youth Voting shall not be permitted in a given election.

E. Unless otherwise required by state or federal law, the Alameda County Registrar of Voters, in fulfilling a request from the City for election services consistent with the provisions of this chapter, may choose to release only deidentified Youth Voter information for the purposes of candidate campaigns under California Elections Code section 2194.

F. This Chapter shall apply only to the ability to cast a ballot in elections for Berkeley School Director. This chapter shall not authorize Youth Voters to qualify or be a candidate, including a write-in candidate, for the office of Berkeley School Director, pursuant to Article V, Section 10 of the Berkeley City Charter. This section shall not authorize Youth Voters to sign nominating petitions or qualifications statements for candidates pursuant to Article III, Section 6.1 of the Berkeley City Charter. Nothing in this Chapter shall alter the definition of “voters” or “qualified elector” as generally used in the Berkeley Charter or Berkeley Municipal Code.

G. A request for election services submitted to the Alameda County Registrar of Voters for the purposes of implementing this chapter may request that the Registrar provide public notice of the procedures for how Youth Voters may vote in elections for Berkeley School Director.

2.15.050 Election Procedures if Youth Voting is Not Used.

In the event that Youth Voting is not implemented or is suspended at any time, for any reason, including but not limited to administrative, technical, or financial infeasibility, the voting and election for School Director shall be conducted in accordance with standard election procedures as prescribed in the City Charter, Municipal Code, and state law.

2.15.060 Severability.

If any word, phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof in any circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void,

Ordinance No. 7,928-N.S. Page 3 of 3
unconstitutional or invalid, shall remain in full force and effect. The Council of the City of Berkeley hereby declare that they would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional.

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

At a special meeting of the Council of the City of Berkeley held on July 9, 2024, this Ordinance was passed to print and ordered published by posting by the following vote:

Ayes: Hahn, Humbert, Kesarwani, Lunaparra, Taplin, Tregub, and Arreguin.

Noes: None.

Absent: Bartlett, Wengraf.

Office of the City Attorney
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/

CONSENT CALENDAR
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Farimah Faiz Brown, City Attorney
Bren Darrow, Assistant City Attorney
Subject: Municipal Code Amendments for Measure KK Compliance and Updated Settlement Authority

RECOMMENDATION
Adopt first reading of an Ordinance amending Chapter 2.56 and Sections 2.36.040,

4.04.100, 4.04.110, and 7.12.020 of the Municipal Code to conform to Section 113 of the City Charter (Measure KK), and to increase the City Attorney’s authority to settle claims up to $50,000.

FISCAL IMPACTS OF RECOMMENDATION
No fiscal impacts have been identified; these amendments merely bring the Municipal Code into conformity with existing law.

CURRENT SITUATION AND ITS EFFECTS
The Charter provides that the City Attorney is appointed by the City Council, the budget of the City Attorney’s Office is directly approved by the City Council, and the City Attorney has administrative control over the City Attorney’s Office. These Charter provisions took effect on January 1, 2021, and the City has complied with them, but outdated and superseded language remains in the Municipal Code. The City Attorney’s authority to settle claims without Council approval is currently limited to $15,000.

BACKGROUND
On November 3, 2020, Berkeley voters approved Measure KK, which amended the City Charter to make the City Attorney a Charter Officer, removing the City Attorney from the supervision of the City Manager. Section 113 of the City Charter provides, in relevant part:

Section 113: The City Attorney shall be an officer of the City of Berkeley, appointed by a vote of five members of the Council, serving at the will of the Council for an indefinite period, and removed only by a vote of five members of the Council, and shall receive such salary as may be fixed by the Council. Upon presentation of a proposed budget by the City Attorney, the Council shall provide funds sufficient to carry out the responsibilities of the office of City Attorney and for the City Attorney’s department

Municipal Code Amendments for Measure KK Compliance CONSENT CALENDAR July 23, 2024

(subject to available resources), which shall be under the administrative control of the City Attorney.

The City Council took action to formally appoint Farimah Faiz Brown as City Attorney on April 20, 2021, by Resolution 69,787-N.S. The Council subsequently approved the City Attorney’s Office budget as part of the ordinary budget cycle. However, conflicting provisions of the Municipal Code, which are superseded by the language of the City Charter, have not yet been amended to conform to Measure KK.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
No environmental sustainability or climate impacts have been identified; these amendments merely bring the Municipal Code into conformity with existing law.

RATIONALE FOR RECOMMENDATION
These amendments will bring the Municipal Code into compliance with existing provisions of the City Charter. Increasing the City Attorney’s settlement authority will allow the City Attorney to expeditiously resolve meritorious claims below $50,000 that would otherwise require Council approval.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Farimah Faiz Brown, City Attorney, 510-981-6998
Attachments:
1: Ordinance

ORDINANCE NO. -N.S.

AMENDMENTS TO CONFORM TO CHARTER ARTICLE XVI, SECTION 113.

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

Section 1. That Berkeley Municipal Code Chapter 2.56 is amended to read as follows:

2.56.010 City Attorney’s Office.

A City Attorney’s Office is created which shall be under the direction and administrative control of the City Attorney, subject to the general administrative direction of the City ManagerCouncil, and shall consist of the City Attorney and such other employees as the City Manager Attorney may assign to the departmenthire into the department.

2.56.020 City Attorney--Duties.

The City Attorney shall be the chief administrative officer of the City Attorney’s Office, and shall prosecute and defend for the City of Berkeley, the Redevelopment Agency of the City and the Housing Authority of the City all actions at law or in equity, and all special proceedings for or against the City, except in the case of the Berkeley Housing Authority, the Board of Education, the Rent Stabilization Board and any other boards whose members are elective officers pursuant to the City Charter.the Redevelopment Agency or the Housing Authority. The City Attorney shall commence any legal proceedings when directed to do so by the City ManagerCouncil, or the council, and shall give legal advice verbally or in writing to the Mayor, the City councilCouncil, the City Manager, chief officials, departments, boards and commissions, the Redevelopment Agency or the Housing Authority, when requested to do so by them, upon questions of law arising in their separate departmentsofficial capacities, involving the rights and liabilities of the City, the Redevelopment Agency or the Housing Authority, or take an appeal to any appellate court, unless ordered not to do so by the City council Councilor the City Manager.

2.56.030 City Attorney--Document drafting responsibilities--Council meeting attendance.

The City Attorney shall draw such ordinances, resolutions and contracts, or other instruments, as shall be requested by the City council Councilor the City Manager, and shall attend the meetings of the City council Council when requested to do so by the Mayor or members members of the council, or the City Managerwhere necessary to carry out the duties detailed in Section 2.56.020.

2.56.040 Reserved.City Attorney – Sole Legal Advisor; Exclusive Contracting Authority.

The City Attorney shall be the sole legal advisor to the City of Berkeley. Whenever the interests of the City require it, in the sole professional judgment of the City Attorney, outside legal counsel may be employed at the expense of the City. Neither the City Manager, nor any other officials, departments, boards or commissions may enter into a contract with a licensed attorney except with the express authorization of the City Attorney, and only where the scope of the contract expressly excludes legal services.

All contracts whose scope includes legal services to be rendered to the City must be made by the City Attorney or their authorized designee. Contracts entered into in violation of this provision are void and unenforceable.

2.56.050 City Attorney--Recordkeeping and delivery of documents to successor required.

The City Attorney shall keep on file in their office all written communications and opinions, briefs and papers used in cases wherein they appear, subject to reasonable records retention policies. The City Attorney shall deliver all books, records, papers, documents and property of every description, belonging to the City, to the attorney’stheir successor in office.

2.56.060 City Attorney--Action as ex officio prosecuting attorney.

The City Attorney shall be ex officio prosecuting attorney and shall prosecute all criminal violations of the provisions of the Charter or any City ordinance.

2.56.070 Persons authorized to act when City Attorney absent or disabled.

In the absence or disability of the City Attorney, the Deputy Assistant City Attorney shall perform the duties and exercise the powers of the City Attorney. In case of the absence or disability of both the City Attorney and the Deputy Assistant City Attorney, the City ManagerMayor shall appoint a n employeeDeputy City Attorney as Acting City Attorney who shall perform the duties and exercise the duties and powers of the City Attorney until such time as the City Attorney or Assistant City Attorney is able to return or the City Council approves the appointment of a new City Attorney.

2.56.080 City Attorney’s Office--Assistant counsel--Employment authorized when.Funding
Whenever the interests of the City require it, assistant counsel may be employed at the expense of the City, upon such terms as are prescribed by the council or the City Manager.

A. In order to ensure that the legal needs of the City are met, the Charter states that upon presentation of a proposed budget by the City Attorney, the City Council shall

provide funds sufficient to carry out the responsibilities of the office of City Attorney and for the City Attorney’s department, subject to available resources.

B. The City Attorney’s Office shall be exempt from any City Manager or City Council policy to require City departments to save a portion of their budget as targeted savings, except where Council determines otherwise. The City Attorney shall be authorized to transfer budgeted funds between personnel and non-personnel line items, to the extent that those resources are needed to perform the duties of the City Attorney, and remains within the budget adopted by the City Council.

C. Funds allocated to the City Attorney’s Office shall not be returned to the General Fund for other purposes except at the express direction of the City Council.

Section 2. That Berkeley Municipal Code 2.36.040 is amended to read as follows:

2.36.040 City Manager--Jurisdiction--Exemptions.

All officers and employees of the City shall be under the general administrative direction of the City Manager, with the exception of , except the Auditor, the employees of the Auditor’s Office, the City Attorney, the employees of the City Attorney’s Office, the Office of the Director of Police Accountability, the Rent Stabilization Board, the five library trustees, and the employees of the public libraries., shall be under the general administrative direction of the City Manager.

Section 3. That Berkeley Municipal Code 4.04.100 is amended to read as follows:

4.04.100 City Manager--Powers generally.

In addition to the City Manager’s powers under the Charter, and except in the case of the Auditor, the City Attorney’s Office, the Rent Stabilization Board, and the Office of the Director of Police Accountability, , the City Manager shall make transfers, promotions, demotions, reinstatements, layoffs, and shall hire, suspend or dismiss employees, subject to the provisions of this chapter, the personnel rules and applicable memorandum agreements, it being the intent to provide a fair and just approach to municipal employment in order that City employees may be selected and promoted on a merit basis, but in no sense impair the efficiency of a public service.

Section 3. That Berkeley Municipal Code 4.04.110 is amended to read as follows:

4.04.110 City Manager--Duties and responsibilities designated.

The City Manager shall administer the City personnel system and may delegate any of the powers and duties set forth in this chapter to a personnel director or any other officer or employee except as otherwise prohibited by the Charter of the City. Subject to the limited exemptions articulated below, Tthe City Manager shall:

A. Act as the appointing authority for the City;

B. Attend all meetings of the Personnel Board;
C. Administer all provisions of the personnel ordinance and of the personnel rules not specifically reserved to the Personnel Board;
D. Prepare the personnel rules and revisions and amendments to such rules for the Personnel Board’s consideration, and after consideration by the board, submit the rules, revisions and amendments, together with the recommendations of the board and their own recommendations, to the City Council for consideration and adoption by the council;
E. Prepare a position class plan, including class specifications and revisions of the plan for the Personnel Board’s consideration, and after consideration by the board, submit a position class plan and revisions, together with the recommendations of the board and their own recommendations, to the City Council for consideration and adoption by the council;
F. Prepare a salary and wage plan and revisions and amendments to the plan for consideration by the Personnel Board, and after consideration by the board, submit the salary and wage plan and revisions and amendments, together with the recommendation of the board and their own recommendation, to the City Council for consideration and adoption.

The City Attorney, City Auditor, Director of Police Accountability and Executive Director of the Rent Stabilization Board, shall act as the appointing authority for those personnel over whom they have administrative control, and shall have the ability to make recommendations directly to the Personnel Board (regarding rules, positions, class specifications, wages, etc.) specifically applicable to those personnel.

Section 4. That Berkeley Municipal Code 7.12.020 is amended to read as follows:

7.12.020 Expenditures authorized when.

Expenditures from the public liability fund shall be made solely for the purposes of paying public liability claims investigation and adjustment costs, legal defense costs, costs for legal advice obtained to prevent lawsuits, costs to file lawsuits, and payment of any settled public liability claim or judgment. Such payments are hereby authorized to be made without further authorization from the City Council, except that payment of any settled public liability claim, the amount of which is more than fifteen fifty thousand dollars, shall be authorized by the City Council.

Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be

filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

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

CONSENT CALENDAR
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Sharon Friedrichsen, Budget Manager
Subject: Contract: Downtown Berkeley YMCA for Fitness Center Memberships for City Employees

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with the Downtown Berkeley YMCA in the amount of $161,280 for fitness center memberships for City employees for the period July 1, 2024 through June 30, 2025.

FISCAL IMPACTS OF RECOMMENDATION
Fiscal Year Members Monthly Rate Annual Rate
FY 2025 280 $ 48 $ 161,280
FY 2024 226 $ 48 $ 130,176
The cost of the FY2025 contract is budgeted at $161,280, which represents the City’s monthly cost of membership ($48) for 280 members for 12 months. The FY 2025 contract represents an increase of $31,104 from the FY 2024 contract. The increase is due to the number of memberships increasing from 226 members to 280 members.

Although the contract cost of $161,280 for FY 2024 is based on 280 memberships, this amount is a flat fee for the duration of the fiscal year regardless of whether memberships increase or decrease during the fiscal year. The FY 2025 Budget includes funding for this contract in fringe benefit accounts in department budgets that is collected and paid out from the Payroll Deduction Trust Fund (Fund 013). The General Fund will cover approximately $72,278 of the contract cost and the remaining $89,002 will be covered by other funds.

CURRENT SITUATION AND ITS EFFECTS
The current agreement began on July 1, 2023 and ends on June 30, 2024. A new contract is needed for FY 2025, which will continue the memberships for City employees and Legislative Assistants at a low cost.

Contract: Downtown Berkeley YMCA for Fitness Center Memberships CONSENT CALENDAR for City Employees July 23, 2024

BACKGROUND
Since 1989, the City has had an agreement with the YMCA to provide low cost fitness memberships for City employees and officials.

The City’s labor contracts require the City to pay 75% of the total membership cost and employees pay the remaining 25%. Beginning on July 1, 2023, the full membership cost was $64 per month, which meant the City’s share was $48 per month and the employee’s share was $16 per month. For FY 2025, the membership cost will remain at $64 per month.

This benefit is included in all of the collective bargaining agreements and would terminate at the same time as the longest union contract containing the benefit. The City would need to hold meet and confer sessions with the unions if it wishes to eliminate this benefit.

The Downtown Berkeley YMCA contract is a Strategic Plan Priority, advancing our goal to attract and retain a talented and diverse City government workforce.

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

RATIONALE FOR RECOMMENDATION
City contracts for personal services over $50,000 require authorization from the City Council before the City Manager can execute the contract.

ALTERNATIVE ACTIONS CONSIDERED
None

CONTACT PERSON
Sharon Friedrichsen, Budget Manager, 981-7000
Aram Kouyoumdjian, Director of Human Resources, 981-6800 Attachments:
1: Resolution

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

CONTRACT: DOWNTOWN BERKELEY YMCA FOR LOW COST FITNESS CENTER

MEMBERSHIPS FOR CITY EMPLOYEES
WHEREAS, the City has had an agreement with the Downtown Berkeley YMCA to provide low cost fitness memberships for City employees and legislative assistants; and WHEREAS, the City’s labor contracts require the City to pay 75 percent of the total membership cost; and
WHEREAS, the current agreement began on July 1, 2023 and ends on June 30, 2024 and a new contract is proposed for FY 2025; and
WHEREAS, the FY 2025 Budget includes funding for this contract in fringe benefit accounts in department budgets that is collected and paid out from the Payroll Deduction Trust Fund (Fund 013).

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that that the City Manager is authorized to execute a contract and any amendments with the Downtown Berkeley YMCA for low cost fitness center memberships for City of Berkeley employees and legislative assistants for the period July 1, 2024 to June 30, 2025 in the amount not to exceed $161,280. A record signature copy of said contract and any amendments to be on file in the Office of the City Clerk.

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

CONSENT CALENDAR
July 23, 2024
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 July 23, 2024

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 $4,525,000 PROJECT Fund Source Amount
Workers’ Compensation
Claims Administration
Services
676 PROF SVCS - MGMT
CONSULTING $2,500,000
Portable Toilet Services 138
011
PROF SVCS – MISC
PROF SVCS - MISC $900,000
Analysis of ARPA
Recovery Investment in
the Berkeley Arts Sector
and Economic Impact of
the Arts in Berkeley
354 ARPA RCVRY 125,000
On-Call Planning and
Environmental Services 621 PERMIT SVCS FUND $1,000,000
Total: $4,525,000

Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council July 23, 2024 Approval on July 23, 2024

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
Roopreet Soorma, Senior Buyer, Finance, 510-981-7311
Attachments:
1) Workers’ Compensation Claims Administration Services 2) Portable Toilet Services
3) Analysis of ARPA Recovery Investment in the Berkeley Arts Sector and Economic Impact of the Arts in Berkeley
4) On-Call Planning and Environmental Services
Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.

NEXT 30 DAYS
DATE SUBMITTED: JULY 23, 2024
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
24-11669-C Workers’
Compensation Claims
Administration
Services
July 22, 2024 August 22, 2024 The City is looking for a third- party administrator that will
reduce the cost and duration of
workers’ compensation claims,
process claims in a timely and
professional manner, actively
pursue subrogation, help return
injured employees back to work,
assist with lost time calculations
and injury reporting, and maintain
strong communications with the
injured worker and the City.
$ 2,500,000.00 676-99-900-900-0000-000-
472-612240
Human Resources/
Workers’ Compensation
Benita Torres
510-981-6809
DEPT. TOTAL $ 2,500,000
24-11670-C Portable Toilet
Services
07/24/24 08/20/24 Rental and service of portable units
for three years with two optional
years of extension
$110,000/year
(Parks services)
$10,000/year
(Special events)
$60,000/year
(Misc. addl services)
____________
$180,000/year
____________
$900,000/five years
138-52-542-567-0000-000-
461-612990-
011-52-542-567-0000-000-
461-612990-
011-52-541-598-5002-000-
461-612990-
PRW / Parks Bruce Pratt
981-6632
DEPT. TOTAL $ 900,000
24-11671-C Analysis of ARPA
Recovery Investment
in the Berkeley Arts
Sector and Economic
Impact of
the Arts in
Berkeley
August 1, 2024 September 16, 2024 Contract with Consultant for Analysis of ARPA Recovery
Investment in the Berkeley Arts
Sector and Economic Impact of
the Arts in Berkeley
$ 125,000 Fund 354 CMO/OED Jennifer Lovvorn
981-7533
DEPT. TOTAL $ 125,000
24-11672-C ON-CALL

PLANNING AND

ENVIRONMENTAL

SERVICES
July 30, 2024 August 30, 2024 On-call consulting services to provide planning and
environmental services,
development application review,
environmental review pursuant to
the California Environmental
Quality Act (CEQA), and
technical report preparation.
$ 1,000,000 Fund 621 Planning Department Claudia Garcia, cgarcia@berkeleyc
a.gov, (510)
981.7412
DEPT. TOTAL $ 1,000,000
TOTAL $ 4,525,000
1 of  2

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/

CONSENT CALENDAR
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Gilman, Interim Director, Health, Housing, and Community Services Subject: Public Facility Improvement Program Funds for Insight Housing’s (formerly Berkeley Food and Housing Project) Dwight Way Center

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or her designee to:

1. Reallocate $549,785 of FY24 Measure P funds from Insight Housing’s (IH) Russel Street Residence rehabilitation project to their Dwight Way Center (DWC) rehabilitation project; and

2. Execute all resultant agreements and amendments with IH for the above- mentioned funds.

FISCAL IMPACTS OF RECOMMENDATION
On June 13, 2023 City Council authorized $4,500,000 to support the costs of purchasing and rehabilitating 1741, 1743, and 1747 Russell Street. Insight Housing purchased these Russell Street properties for $3,950,214.14 leaving $549,785 for rehabilitation, which is currently unspent. The remaining funding is in the Fiscal Year 2024 (FY24) Measure P budget (Fund# 011). The unspent FY 24 funds will be carried forward into FY25 as part of the year-end close and encumbrance rollover process.

CURRENT SITUATION AND ITS EFFECTS
Insight Housing is in the process of rehabilitating its Dwight Way Center (DWC) at 2140 Dwight Way, a three-story building that will provide permanent and interim housing once completed. Since the initial budget was developed, IH has experienced several unforeseen conditions requiring additional funding, including needing additional structural reinforcement to meet current code seismic reinforcement requirements, replacing the sewer line, and additional regulatory compliance requirements. In addition, the scope of the project was expanded to replace some of the bunk beds at the Women’s Shelter with single beds in order to increase accessibility for people with limited mobility. This bed reconfiguration required a redesign of the 1st floor, including relocating the industrial kitchen. The additional requirements and expanded scope have resulted in a significant increase in construction costs. While IH’s development team

Public Facility Improvement Program Funds for Insight Housing’s CONSENT CALENDAR (formerly Berkeley Food and Housing Project) Dwight Way Center JULY 23, 2024

engaged in value engineering to mitigate the increased cost, these changes also increased costs associated with architect and engineering services. Since the initial budget, the total project budget has increased to $3.2 million leaving a funding gap of more than $1.7 million.

While IH’s Russell Street buildings need repairs and system upgrades due to their age and condition, IH reports that they have non-City funding to address the most urgent repairs that are needed now. The remaining rehabilitation will be initiated once funding becomes available. Due to the urgency and substantial funding gap for the DWC renovations, IH requested the City consider reallocating the remaining rehabilitation funds for their Russel Street buildings to the DWC project. Insight Housing intends to apply for Prop 1 funding to support Russel Street Residences when applications are released in early July 2024.

The City has an existing contract with IH in the amount of $680,196.50 to cover a portion of the costs associated with the rehabilitation of the 2nd floor at DWC. To decrease the funding gap, IH is requesting $1,387,086 in additional funds. The City has $450,000 available in Community Development Block Grants (CDBG), which is included in the CDBG specific recommendation for Council to consider at its July 23, 2024 meeting. The addition of the $549,785 in Measure P funds will bring the total contribution to Dwight Way Center to $1,679,981.50.

BACKGROUND
On June 13, 2023, City Council authorized $4.5M to IH to purchase and rehabilitate two adjacent parcels (located at 1741, 1743, and 1747 Russell Street). Insight Housing has since purchased these Russell Street properties.

Insight Housing’s DWC has been closed to staff and participants since November 2022 due to a fire and subsequent rehabilitation/construction needs. Insight Housing’s Women’s Shelter was relocated to a temporary shelter in Emeryville. The City previously allocated $680,000 of CDBG public facility funds to this project on June 27, 2023 (Resolution #70,904 – N.S.) to address the major repairs needed, accessibility barriers, and safety issues throughout the building.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The IH DWC renovation project will increase energy efficiency by updating the electrical system, installing new windows, exhaust fans upgrade, and upgrading the light fixtures.

It will also help preserve an existing historic building.

RATIONALE FOR RECOMMENDATION
The DWC is an important resource in Berkeley that has been unoccupied since November 2022 due to fire damage. Once completed, it will provide 73 beds for interim and permanent housing, including 15 Board and Care beds for adults with a severe

Public Facility Improvement Program Funds for Insight Housing’s CONSENT CALENDAR (formerly Berkeley Food and Housing Project) Dwight Way Center JULY 23, 2024

mental health diagnosis, 26 beds for Military Veterans, and 32 beds for unsheltered women, as well as an industrial kitchen to provide daily hot meals to all residents.

ALTERNATIVE ACTIONS CONSIDERED
Without additional funding the building rehabilitation will be further delayed, resulting in 73 less interim and permanent housing beds in Berkeley’s system. Given the importance of completing this project as soon as possible, staff has not considered an alternative.

CONTACT PERSON
Jennifer Vasquez, Program Manager, HHCS, 510-981-5431
Attachments:
1: Resolution

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

APPROVAL OF CONTRACT WITH INSIGHT HOUSING FOR DWIGHT WAY CENTER

REHABILITATION
WHEREAS, on July 13, 2021, City Council endorsed All Home’s Regional Action Plan on Homelessness that includes a goal to reduce unsheltered homelessness by 75% by 2024; and
WHEREAS, on January, 16 2024, City Council extended Berkeley’s Declaration of Homeless Shelter Crisis through January 17, 2029; and
WHEREAS, Insight Housing’s Dwight Way Center is a significant permanent and interim housing resource in Berkeley and the completion of rehabilitation project will be significantly delayed without additional funding; and
WHEREAS, On June 13, 2023 City Council authorized $4,500,000 to support the costs of purchasing and rehabilitating 1741, 1743, and 1747 Russell Street; and Whereas Insight Housing purchased the Russell Street properties for $3,950,214.14 leaving $549,785.86. The remaining funding is in the FY 2024 Measure P budget (Fund# 011); and
WHEREAS, Insight Housing will apply for Prop. 1 construction funding in July 2024 to complete repairs needed at Russell Street properties.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley and the City Manager or her designee is authorized to reallocate $549,785 of FY2024 Measure P funds from Insight Housing’s (IH) Russel Street Residence rehabilitation project to their Dwight Way Center rehabilitation project; and
BE IT FURTHER RESOLVED that the City Manager, or her designee, is hereby authorized to execute all original or amended documents or agreements to effectuate this action; a signed copy of said documents, agreements and any amendments will be kept on file in Office of the City Clerk.

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7150 ● TDD: (510) 981-6903 E-Mail: [email protected]

CONSENT CALENDAR
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Tess Mayer, Director of Library Services
Submitted by: Tess Mayer, Director of Library Services
SUBJECT: Appointment of Priscilla Villanueva to the Board of Library Trustees

RECOMMENDATION
Adopt a Resolution appointing Priscilla Villanueva to the Board of Library Trustees (“BOLT”) for a term of four years beginning September 4, 2024.

FISCAL IMPACTS OF RECOMMENDATION
No fiscal impacts.

CURRENT SITUATION AND ITS EFFECTS
At the June 5, 2024 regular meeting of the Board of Library Trustees, Trustees voted to recommend that the City Council appoint Priscilla Villanueva for a 4-year term on the Board.

BACKGROUND
Pursuant to Section 30 of the Charter of the City of Berkeley, “[f]ive Library Trustees shall be appointed and may be removed by a vote of five members of the Council.” BMC Section 3.04.010 further provides that “[t]he term of office of the members of the board shall be four (4) years.” In addition, it is traditional that BOLT formally recommends to the City Council a preferred candidate for appointment.

The process BOLT undertakes to identify and recommend a candidate is to broadly promote the Board vacancy to the general public, review questionnaire responses, interview all candidates at a public meeting or meetings, and vote to recommend an applicant to the City Council for appointment. The Board of Trustees Vacancies Policy most recently updated in December 2023 outlines the process for selecting a nominee for appointment.

Trustee Selawsky’s term formally ended on May 16, 2024. President Amy Roth appointed an ad hoc nominating subcommittee at the regular March 6 BOLT meeting:

President Roth, Trustee Greene, and Secretary Mayer. The recruitment was originally open from March 18 to April 8, and extended through May 10 by the subcommittee. 24 total people applied: ten between March 18 and April 8, and another 14 between April 23 and May 10. The committee met on May 13 to review the applicant pool and to

Appointment of Priscilla Villanueva to the Board of Library Trustees CONSENT CALENDAR July 23, 2024
recommend to the Board five candidates to interview, per the Board of Library Trustees Vacancies Policy.

CURRENT SITUATION AND ITS EFFECTS
Five people participated in the interviews scheduled on May 30, 2024.

On June, BOLT engaged in an informal discussion of the candidates, followed by a vote.

BOLT’s recommendation will be referred to City Council. A majority vote of all the members of the City Council is required to appoint a member to the board.

The new Trustee’s term is anticipated to begin November 8, 2023.

After thoughtful consideration, BOLT voted to approve Resolution No. R24-080 (Attachment 2), recommending that the City Council appoint the preferred candidate, Priscilla Villanueva, to the Board of Library Trustees. Vote: Ayes: Trustees Ami, Hahn, Roth. Noes: None. Abstentions: Greene, Selawsky.

ENVIRONMENTAL SUSTAINABILITY
Not applicable.

RATIONALE FOR RECOMMENDATION
The City Council needs to appoint a new Trustee for a 4-year term to fill the current vacancy, fulfilling the Charter requirement that the Board consist of five members.

Priscilla Villanueva has been recommended by the BOLT and exceeds the stated qualifications and experience desired in a Trustee, including (1) a demonstrated commitment to equity, diversity and inclusion, (2) executive leadership, business, financial and administrative skills, (3) leadership experience in community-based, non- profit, or government agencies, and (4) strong public library advocacy and a passion for lifelong learning and community engagement.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Tess Mayer, Director of Library Services and Secretary to the Board of Library Trustees 510-981-6195
Attachments:

1. Trustee Appointment Process Report from June 5 meeting

2. Board of Library Trustees Resolution No. R24-080

3. Priscilla Villanueva BOLT application

4. Board of Library Trustees Vacancies Policy

5. BOLT Selection Criteria Summary

Appointment of Priscilla Villanueva to the Board of Library Trustees CONSENT CALENDAR July 23, 2024
RESOLUTION NO. ##,###-N.S.

APPOINTMENT OF PRISCILLA VILLANUEVA TO THE BOARD OF LIBRARY TRUSTEES WHEREAS, the Board of Library Trustees consists of five members appointed by the City Council to serve four-year terms; and
WHEREAS, the Board of Library Trustees currently has an open position to be filled by the City Council; and
WHEREAS, the Board of Library Trustees undertook a robust recruitment effort to identify a candidate to recommend for appointment by the City Council to fill the current opening on the Board; and
WHEREAS, Trustee Selawsky’s four-year term ended on May 16, 2024; and WHEREAS, during the March 6, 2024 meeting of the Board of Library Trustees (BOLT), the Board instructed staff to begin solicitation for applications to fill the upcoming vacancy; and WHEREAS, the Board of Library Trustees directed staff to issue a press release, advertise on website, at all library locations, in newsletter, and as an insert with City Councilmember communications to constituents; and
WHEREAS, the City Clerk’s Office of the City of Berkeley received 24 applications from interested parties; and
WHEREAS, the Board of Library Trustees interviewed 5 of the applicants during a special BOLT meeting on May 30, 2024; and
WHEREAS, the Board of Library Trustees held discussion, shared nominations, and voted on the nominees during a regular BOLT meeting on June 5, 2024; and WHEREAS, the Board recommends Council set the conditions for this appointment as a 4-year term with the effective date of September 4, 2024; and
NOW, THEREFORE, BE IT RESOLVED that the preferred candidate Priscilla Villanueva be appointed to the Board of Library Trustees beginning September 4, 2024.

ADOPTED by the City Council of the City of Berkeley during a regular meeting held on July 23, 2024.

IV Action Calendar
Item A

ACTION CALENDAR
June 5, 2024
2090 Kittredge Street, Berkeley, CA 94704 ● Tel: (510) 981-6195 ● Website: www.berkeleypubliclibrary.org To: Board of Library Trustees
From: Tess Mayer, Director of Library Services
Subject: Recommendation to City Council on appointment of Trustee to serve a four-year term to fill vacancy left by the ending of Trustee Selawsky’s second term.

INTRODUCTION
With the end of Trustee Selawsky’s term scheduled to occur in mid-May, the Board initiated the process to fill this vacancy in March. Under the revised Board of Library Trustees Vacancies Policy, the President of BOLT appointed an ad hoc trustee nominating sub-committee to initiate the process. The process has continued and candidate interviews were conducted on May 30, 2024.

FISCAL IMPACT
None.

BACKGROUND
Trustee Selawsky’s term was scheduled to end on May 16, 2024. Although the City Council reserves the right to appoint and remove Library Trustees by a vote of five members of the Council, BOLT assists in the process by submitting a recommendation for appointment to the City Council for approval. The Board of Trustees Vacancies Policy most recently updated in December 2023 outlines the process for selecting a nominee for appointment.

CURRENT SITUATION AND ITS EFFECTS
President Amy Roth appointed the ad hoc nominating subcommittee at the regular March 6 BOLT meeting.

The recruitment was originally open from March 18 to April 8. Committee members President Roth, Trustee Greene, and Secretary Mayer met on April 19 to review the applicant pool and discuss. They decided to reopen the recruitment for three more weeks, through Friday, May 10, in order to allow time for additional outreach to prospective candidates and ensure as diverse an applicant pool as possible. 24 total people applied: ten between March 18 and April 8, and another 14 between April 23 and May 10.

The committee met again on May 13 to review the applicant pool and to recommend to the Board five candidates to interview, per the Board of Library Trustees Vacancies Policy.

A special meeting was scheduled in May to allow for the Board to meet and establish the tax rate for the upcoming fiscal year. Candidate interviews were held on May 30, at the same meeting. Five people were scheduled to be interviewed.

At the June 5 regular BOLT meeting, the trustees will vote on which candidate they recommend for nomination to the City Council, following discussion.

The voting will proceed as follows, as enumerated in the Board of Library Trustees Vacancies Policy:

BERKELEY PUBLIC LIBRARY

ACTION CALENDAR
Trustee Recruitment Process Page 2
1) The President calls for nominations for the Trustee vacancy. Every Board member has the opportunity to share their nomination for the vacancy at this time, in the beginning of the process.

No one is required to make a nomination.
2) A random voting order for each name is established.
3) Each Trustee receives one vote per round.
4) When each name is called, Trustees may vote yes, no, or abstain. 5) Any candidate that receives three votes will be the nominee for the BOLT vacancy that will be submitted to City Council.
6) The candidates that follow the candidate having received three votes will not be the nominee. 7) If no one receives a majority of the votes, the President will call for nominations for a second round. 8) A random voting order for each name will be established again. 9) The process will continue until a candidate receives a majority (three) of the votes.

The new Trustee’s term is anticipated to begin in Fall of 2024.

FURTHER ACTION
BOLT’s recommendation will be referred to City Council. A majority vote of all the members of the City Council is required to appoint a member to the board.

CONTACT PERSON
Tess Mayer, Director of Library Services, 510-981-6195
Attachments:

1. Resolution

2. Candidate list

3. BOLT Selection Criteria Summary

4. Board of Library Trustees Vacancies Policy updated 12/06/23

BERKELEY PUBLIC LIBRARY

POLICIES

SUBJECT: Board of Library Trustees Vacancies
Policy

ORIGINAL DATE: 05/04/2022
BOLT Resolution #: R22-025
REVISED DATE: 12/06/2023
BOLT Resolution #: R23-056
PAGE: 1 of 3

I. PURPOSE
Pursuant to Section 30 of the Charter of the City of Berkeley (the “Charter”), “five Library Tr
ustees shall be appointed and may be removed by a vote of five members of the Co uncil and
one of such trustees must be appointed by the Council from its own members.”

When a Board of Library Trustees (“BOLT”) vacancy has occurred or is planned to occur, the Board of Library Trustees can assist the City Council by facilitating a nomination process. This policy enumerates that process.

II. POLICY
A. Ad-hoc Trustee Nominating Sub-committee - When a BOLT vacancy has occurred or is planned to occur, the President of BOLT will appoint an ad hoc trustee nominating sub- committee to identify candidates. The Library Director as Secretary to BOLT will assist the sub-committee.

B. Candidate Search Objectives - The sub-committee’s purpose will be to ensure that nominations are inclusive and broadly represents the diverse perspectives of the community. The sub-committee will seek candidates with varied backgrounds, knowledge, abilities, expertise, and networks that can advance the Mission and Vision of the Library. The search objectives include finding candidates able to carry out the trustee role, functions, and duties, as described in the BOLT Bylaws.

C. Search Process - The sub-committee will convene to take account of current BOLT needs and to schedule the process for its purposes. The process will include the creation and posting of a vacancy announcement, the application period, the review of candidates, the recommendation to BOLT, and action taken by BOLT.

D. Vacancy Announcement - The sub-committee will write an announcement that BOLT is seeking interested parties, including the requirements thereof, the manner and form of applying, and the due date for submission of applications; the sub-committee, working with the Library Director and the City, and with the approval of BOLT, will advertise the call for interest.

E. Application Procedure - For consideration, any applicant must be a resident of the City of Berkeley, California. Applicants must submit a resume and a supplemental statement of interest that addresses questions or topics enumerated by the ad hoc trustee nominating sub-committee.

BERKELEY PUBLIC LIBRARY Board of Library Trustees Vacancies Policy Page 2

F. Review of Candidates - The sub-committee will review each application based on the applicant’s submitted information. The purpose of the review is to identify nominees that meet the search objectives, will be able to carry out the duties and functions of the Trustee as stated in the Bylaws, will advance the Vision and Mission of the Library, and will be a resource for collaboration and partnerships on behalf of the Library.

G. Nominations – The sub-committee will provide a summary of its process, evaluation, and recommendation of no more than five candidates to be interviewed by BOLT for action and furtherance to the Council. The vote on candidates for nomination will take place at the meeting following the meeting during which the candidates are interviewed. A recommendation from the ad hoc trustee nominating sub-committee or the full Board is not binding.

In the event that BOLT votes on multiple candidates, the voting will proceed as follows:

1. The President calls for nominations for the Trustee vacancy. Every Board member has the opportunity to share their nomination for the vacancy at this time, in the beginning of the process. No one is required to make a nomination.

2. A random voting order for each name is established.

3. Each Trustee receives one vote per round.

4. When each name is called, Trustees may vote yes, no, or abstain.

5. Any candidate that receives three votes will be the nominee for the BOLT vacancy that will be submitted to City Council.

6. The candidates that follow the candidate having received three votes will not be the nominee.

7. If no one receives a majority of the votes, the President will call for nominations for a second round.

8. A random voting order for each name will be established again.

9. The process will continue until a candidate receives a majority (three) of the votes.

If BOLT is voting on a motion to nominate a single candidate, the standard procedures to vote on a motion will be followed.

H. Inability to Serve - Should the recommended nominee be unable to serve, BOLT will follow the following procedure:

1. The President appoints a new nomination subcommittee

2. Staff sends a letter to all current applicants (or a specific subset) and asks if they would like to be considered again, due to the change in the original recommendation

3. The new Subcommittee reviews the applicants still in the pool, and either:
a. Recommends up to five for consideration by the full board - OR - b. Recommends that a new process be initiated, that would allow both past applicants, and new applicants, to participate

BERKELEY PUBLIC LIBRARY Board of Library Trustees Vacancies Policy Page 3

4. On the basis of the recommendation by the subcommittee, the staff either coordinates interviews for the next possible BOLT meeting, schedules a special meeting to conduct interviews, or reinitiates the recruitment process from the beginning.

III Action Calendar, Item B
Attachment 5
2090 Kittredge Street, Berkeley, CA 94704 ● Tel: (510) 981-6195 ● Website: www.berkeleypubliclibrary.org Board of Library Trustees,
Selection Criteria Summary
Desired Qualifications:
 Candidates should be public library champions, passionate about lifelong learning and community engagement.
 A demonstrated commitment to equity, diversity and inclusion is essential.  Candidates with executive leadership, technology, business, financial management and/or administrative skills are encouraged to apply.
 Candidates with leadership experiences in community-based, non-profit, or government agencies General Qualifications
 Demonstrated interest in and enthusiasm for the library  Readiness to devote time and effort
 An open mind coupled with respect for the opinion of others and, a steadfast belief in intellectual freedom and privacy.
 Ability to plan creatively.
 Courage to withstand pressures and resist influences based on prejudice  Ability to analyze the business and administrative procedures, and to be part of the accountability process to the public and provide oversight.
 Possession of common sense
 Reflects the diversity of the Berkeley community, including a diversity of experiences working in different sectors of the community as well as age, ethnicity, religion, gender identities, abilities, and sexual orientation
 Willing and able to work with management, staff and the union.

Practical background and/or direct experience in one or more of these areas is desirable:
 Involvement in community organizations
 An understanding of local government operations, of public boards, and commissions; previous experience highly valued
 An interest in long-range planning
 Personal experience in one or more of these areas:
o Education
o Architecture/Construction Accounting/Finance Business o Personnel management Technology Law/Government
o Humanities
o The Arts
 Availability and openness to the public

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
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks, Recreation & Waterfront Subject: License Agreement: Masaba LLC., DBA Roaming Bean Coffee Vendor at the Waterfront

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a license agreement with Roaming Bean Coffee to operate at the Berkeley Waterfront for a three-year term, ending July 31, 2027.

FISCAL IMPACTS OF THE RECOMMENDATION
The annual license fee for this agreement is $3,720 with an additional one-year option with a 3% escalator, generating a total of $7,552. Funds will be deposited into Marina Fund Budget Code 825-5903-363-80-00.

CURRENT SITUATION AND ITS EFFECTS
Roaming Bean Coffee (Masaba LLC) is currently in a month-to-month status under a Park Permit. Roaming Bean Coffee at the South Cove area has provided reliable customer service to the public at the Berkeley Waterfront in the form of bespoke coffee drinks, waters, and small prepackaged snacks, and is an appropriate public amenity at the Waterfront. Staff recommends Council approval of the new license agreement with Masaba LLC., DBA Roaming Bean Coffee Vendor at the Waterfront.

BACKGROUND
Roaming Bean Coffee has been operating at the Waterfront under a Park Permit since July, 2023 with good success. Waterfront visitors have shared with staff that Roaming Bean Coffee has enhanced their enjoyment of their visits. The Coffee Cart has also attracted new users to the Waterfront. Jasraj Sangha, owner of the Roaming Bean Coffee, has provided service at numerous PRW events, including the Waterfront Scavenger Hunt, the Berkeley Bay Festival, and the Ribbon Cutting event at the Waterfront in December.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The proposed license contains a requirement that tenants shall follow all environmental rules and regulations as they apply to City agencies. Specifically, licensee is required to

License Agreement: Masaba DBA Roaming Bean Coffee Cart at the Waterfront CONSENT CALENDAR July 23, 2024

minimize waste, recycle, and compost, as per Recycling and Composting Guidelines for City Buildings.

RATIONALE FOR RECOMMENDATION
Under a short-term permit, the Roaming Bean Coffee Cart at the Berkeley Waterfront has provided reliable customer service to the public in the form of coffee and other hot beverages, waters, and prepackaged snacks. A license agreement will allow the vendor to provide more service to the public.

CONTACT PERSON
Ali Endress, Waterfront Manager, (510) 981-6737
Attachments:
1: Resolution
Exhibit A: License Agreement

RESOLUTION NO. -N.S.

LICENSE AGREEMENT: MASABA, LLC. DBA ROAMING BEAN COFFEE TO

OPERATE A COFFEE SERVICE AT THE BERKELEY WATERFRONT FOR A THREE

YEAR TERM
WHEREAS, Masaba, LLC., DBA Roaming Bean Coffee has been operating at the Waterfront under a Park Permit since July, 2023, and remains in a month-to-month status until a license can be executed; and
WHEREAS, the Roaming Bean Coffee Cart at the Berkeley Waterfront has provided reliable customer service to the public in the form of coffee and other hot beverages, waters, and prepackaged snacks; and
WHEREAS, the annual license fee for this agreement is $3,720 with an additional one- year option with a 3% escalator, generating a total of $7,552. Funds will be deposited into Marina Fund Budget Code 825-5903-363-80-00.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a license agreement and any amendments with Masaba, LLC, DBA Roaming Bean Coffee, at the Berkeley Waterfront for one year with an additional one-year option. A record signature copy of said agreement and any amendments to be on file in the Office of the City Clerk (Exhibit A).

Exhibit A: License Agreement

1 IRV #4889-3895-0704 v6

LICENSE AGREEMENT
This LICENSE AGREEMENT (“Agreement”) dated for reference purposes as of the last signature date, below, (“Effective Date”), is entered into by and between the CITY OF BERKELEY, a charter city organized and existing under the laws of the State of California (“City”) and Masaba, LLC., a California limited liability company doing business as Roaming Bean Coffee, at 124 University Avenue, in Berkeley, California, with a Business mailing address of 1099 Regatta Point, Hercules, CA, 94547 (“Licensee”).

1. LICENSE
a. City hereby grants a non-exclusive license (“ License”) to Licensee, subject to all the terms and conditions herein, for the Licensee’s use of the City’s property located at the Premises at the South Cove Concrete Pad at 124 University Avenue, Berkeley, California, (the “License Area”), as more particularly described in and shown on the map attached hereto as Exhibit A and made a part hereof. City hereby reserves the right to use or allow third parties to use the License Area for Waterfront related activities and public restroom use, if deemed necessary by the City Manager or their designee.
b. Licensee may use the License Area solely for the operation of a small, non- permanent coffee stand to enhance the public space through the provision of for-sale coffee, cocoa and non-alcoholic beverages with pre-prepared food items and ancillary merchandise as more particularly described in Exhibit B, attached hereto and made a part hereof, and for no other purpose. If Licensee fails to use the License Area for such purposes or uses the License Area for unauthorized purposes, City may, in its sole discretion, immediately terminate this Agreement. c. Licensee acknowledges that this Agreement grants Licensee the personal privilege to occupy and use the License Area for the purposes stated herein, but does not convey an estate in land or a leasehold interest in the License Area, nor does it create a landlord/tenant relationship. d. Licensee agrees that neither City nor anyone acting on City’s behalf has made any representation or warranty of any kind or nature whatsoever respecting the physical condition of the License Area, its suitability for Licensee’s use, or any other matter relating to the License Area (including, but not limited to, the environmental condition of the License Area) or this Agreement, and Licensee accepts the License Area in its “AS-IS CONDITION AND WITH ALL FAULTS.”

2. TERM
This Agreement shall take effect only upon approval by the City Manager (the “ Effective Date”) and execution by both City and Licensee, subject to the following:

Exhibit A

2 IRV #4889-3895-0704 v6
a. The term of the License shall expire at midnight on September 30, 2025 (“Termination Date”). Each one-month period that ends on the last day of the calendar month shall be considered a “License Month” and the First License Month shall be the period from the Effective Date until August 31, 2024. For purposes of determining the fee under Section 3 below, any partial month shall be pro-rated based on the number of days in the month. b. Either party may terminate this Agreement for any reason or for no reason with ninety (90) days’ prior written notice to the other party. c. In addition, the City has the right to terminate this Agreement by written notice to Licensee in the event of Licensee’s failure to comply with any of the terms and conditions herein set forth or if, in the City Manager’s exercise of reasonable discretion, revocation is necessary in the interest of public health or safety.
d. Option to Extend Term. Tenant has an option to extend this license agreement for one (1) year. During option period, rent will increase by three percent (3%), to ($319.30/month).
e. If, after expiration of the term, Licensee continues in possession and the City does not object, all provisions of the Agreement shall continue in effect, subject to the following: (1) the Agreement and License shall be on a month-to-month basis, with a 3% escalation per year, and shall be terminable by either party upon thirty (30) days prior written notice..

3. FEE
In consideration for the rights conveyed by this Agreement, Licensee shall pay to City a fee of Three Hundred and Ten Dollars ($310) per month, payable in advance on the first day of each month of each License Year. Licensee shall make payments to City as provided in Exhibit C, attached hereto.

4. SECURITY DEPOSIT
A security deposit in the amount of one month’s Fee is required.

5. NOTICES
A written notice shall be deemed served upon (i) personal delivery or delivery by a nationally recognized overnight courier; or (ii) three days after mailing said notice to the other

3 IRV #4889-3895-0704 v6
party and depositing the same with the U.S. Post Office, first class mail, with postage paid. For purposes of this Agreement, all notices to the City shall be addressed to:

City of Berkeley
Real Property Administrator
1947 Center Street, 4th Floor, Suite 400
Berkeley, CA 94704
with a copy sent to:

Waterfront Manager
Parks Recreation and Waterfront Department
Marina Office
201 University Avenue
Berkeley, CA 94710
For purposes of this Agreement, all notices to Licensee shall be addressed to the address below. Licensee shall promptly notify City of any change of address.

Masaba, LLC.

Attn: Kanwar Jasraj Sangha
1099 Regatta Point
Hercules, CA, 94547

6. MAINTENANCE AND ALTERATIONS
a. Licensee shall, to the City’s satisfaction, maintain the License Area, and any improvements thereto, in good order, condition and repair and reasonably free and clear of all debris, trash and rubbish.
b. Except as set forth in this Section, Licensee shall not construct any facilities or improvements, install any equipment, or make any alterations to the License Area without the City’s prior written consent. Licensee, at its expense, may install the following improvements on the timetable indicated and will obtain all necessary approvals and permits, subject to compliance with applicable environmental laws, including the California Environmental Quality Act:
 Over the term of this License, Licensee may conduct the following non-permanent “placements” in the License Area, subject to the specifications in Exhibit E. i. Concession Stand:

1. Placement of a 10-foot long by 8.5-foot-deep by 9-foot tall non- permanent “Concession Stand” in the location described in Exhibit A.

4 IRV #4889-3895-0704 v6

2. Placement of an integrated closure of the gap between the Concession Stand and the walls of the adjacent structure.

3. A City-Approved power cord, painted to match the adjacent building or container color, and placed along the approved path for electrical, shown in Exhibit A.

4. Placement and plug-in of the power cord from the exterior of the adjacent building to the equipment within the Concession Stand.

5. Provision of a replacement vent panel for the adjacent structure, cut to include a 2x2 inch space for the power cord, and provided to the City to install. Licensee shall coordinate with the city to identify a vent substantially the same to existing.
ii. Coffee Cart:

1. Placement of a rolling “Roaming Bean Coffee Cart” under a 10x10 foot metal and fabric canopy is permitted in place of the “concession stand” described above.
iii. Solar Powered Vending Station:

1. Placement of a non-permanent solar powered vending station may be considered in place of the Container or Coffee Cart described above, if detailed plans and drawings are submitted to the City, and if the City issues subsequent authorization in writing. Approval shall be at the sole discretion of the City.
iv. All improvements shall be non-permanent and shall not leave any lasting impacts or changes on the premises. The Coffee Cart may exist within the Container or the Solar Powered Vending Station, but no two non-permanent structures serving the purpose of this Agreement may exist outside of the footprint of one another. This shall not preclude the Coffee Cart from operating under a special event permit elsewhere at the Waterfront at the same time as the coffee vendor use is operating out of the Container at South Cove.

Licensee shall be solely responsible for, and shall pay costs of, all approved “placements” at existing facilities used by Licensee. Upon termination or expiration of this Agreement, City may require Licensee to remove some or all approved “placements” upon the License Area by Licensee. If Licensee fails to remove such “placements” within 10 days following City’s demand therefor, City may arrange to have such alterations and improvements removed and may recover costs of such removal from Licensee. Any and all improvements to the License Area which City does not require to be removed shall remain in place and become the property of the City.

5 IRV #4889-3895-0704 v6

7. CITY ACCESS AND ENTRY TO THE LICENSE AREA
City, its agents, employees, and representatives, shall have the right to enter the License Area at any time, provided such entry does not cause unreasonable interference with Licensee’s activities.

8. USE OF PUBLIC PROPERTY; RISK OF LOSS
a. Licensee shall keep any public and/or common areas adjacent to the License Area free and clear of any obstructions, barricades or barriers placed or created by Licensee or resulting from Licensee’s operations or use of the License Area. Any line-queuing by customers shall be kept off the adjacent San Francisco Bay Trail.
b. Except as otherwise expressly provided in this Agreement, Licensee agrees that it is not a covenant or condition of this Agreement or of any other agreement between City and Licensee that City undertake or cause to be undertaken any development or redevelopment of the License Area or surrounding areas or any improvement thereto, and City shall incur no liability whatsoever to Licensee for failure to undertake such development or redevelopment. c. City at all times shall have the right and privilege of making such changes in and to the License Area and to the public and/or common areas adjacent to the License Area which City deems to be desirable or appropriate, including the location and relocation of stairways, sidewalks, pathways, driveways, streets, entrances, exits, automobile parking spaces, the direction and flow of traffic, designation of prohibited areas, landscaped areas, utilities and all other facilities; provided, however, that the foregoing is not intended to entitle City to unreasonably effect changes that would materially and adversely affect access to or visibility of the License Area, except temporarily during periods of construction. City shall have the right to establish, promulgate and enforce such reasonable rules and regulations concerning the License Area and adjacent areas as it may deem necessary or advisable for the proper, safe and efficient management, operation, maintenance and use thereof, and Licensee shall comply with the same. d. City at all times shall have the right to lease, license or permit the use of space within the License Area and adjacent areas to persons for water-related uses if deemed necessary for the management and operation of the Berkeley Waterfront. e. Nothing contained herein shall be deemed to create any liability to City for any personal or bodily injury or death, or any damage to motor vehicles, vessels, or other property of Licensee’s principals, partners, shareholders, members, employees, contractors or representatives, unless solely caused by the sole active negligence or willful misconduct of City, its agents, servants or employees. Licensee is solely responsible for the security of the License Area, and for the safety of those using the License Area. Licensee acknowledges that if City provides security or police

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patrols for the License Area or any portion thereof, City does not represent, guarantee or assume responsibility that Licensee or any person or entity will be secure from losses, injury or death caused by the acts of third parties and does not assume responsibility for any such acts. To induce City to provide such security, if any, as City in its sole discretion deems reasonable, appropriate and economically feasible, Licensee hereby waives any present or future claims Licensee may have against City, whether known or unknown, for bodily injury, death or property damage or loss arising from the performance of such security or policing activities. City shall not be obligated to provide any public liability or property damage or loss insurance for the benefit of Licensee or any other person or entity.
f. Licensee acknowledges that City holds the License Area property and the Marina in trust pursuant to Chapter 347 of the California Statutes of 1913, as amended (the “Grant”) subject to the conditions, restrictions, limitations, right, powers, duties, reversionary rights and other rights created or reserved in the Grant. Licensee agrees that, notwithstanding anything in this Agreement to the contrary, Licensee shall use the License Area consistently with, and in a manner that will not result in a violation of the Grant or of the provisions of the Berkeley City Charter, California law and/or the California Constitution.
g. City reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, through, across or on the License Area in locations that will not unreasonably interfere with Licensee’s access to or use of the License Area. Licensee shall be given reasonable notice before commencement of any utility work on the License Area. h. Licensee agrees that it shall not interfere with the free and unobstructed access by the people to the waters of the San Francisco Bay and the Waterfront of such waters; provided, however, that Licensee shall be obligated to permit such access only as required for consistency with applicable laws of the State of California, Alameda County, the City of Berkeley, the Grant, and/or City of Berkeley’s and/or City’s plans adopted from time to time. Nothing in this Agreement is intended to, and shall not be construed to, confer any third-party beneficiary rights or other right of action in favor of any third party.

9. TAXES, ASSESSMENTS, AND OTHER CHARGES
Licensee acknowledges this Agreement may give rise to a possessory interest subject to property taxation, and to the extent that any such possessory interest tax is assessed against such interest, Licensee shall be solely responsible for the payment thereof, this notice having been given pursuant to Section 107.6 of the Revenue and Taxation Code. Licensee shall pay all applicable personal property taxes lawfully levied on account of Licensee’s personal property located on the License Area, and pay any in-lieu, possessory interest, or use taxes lawfully imposed by reason of Licensee’s use or occupancy of the License Area. Licensee shall obtain and pay for all local, state and federal permits and licenses necessary for the operation of its business.

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10. UTILITIES AND SERVICE FEES
Licensee shall have access to the power and water inside the adjacent structure, paid for by the City. Licensee shall have access to dispose between 6-gallons and 20-gallons of water per operational day at the fish-cleaning station on Spinnaker Way, which empties into the City’s sewer system. Licensee shall haul off all business refuse and recyclable materials created during the ordinary course of business and shall maintain separate refuse and recycling bins for use at the site. Licensee shall make all arrangements for and pay for any additional utilities and services furnished to or used on the License Area, including without limitation, telephone, internet, and refuse needs.

11. ASSIGNMENT AND SUBLICENSING PROHIBITED
The License is personal to Licensee. Licensee may not assign or sublicense the License or this Agreement in whole or in part, and any attempt to assign or sublicense the License or this Agreement shall be void ab initio.

12. INDEMNIFICATION
Licensee, for itself and its successors and assigns, agrees to release, defend, indemnify and hold harmless City, its elected officials, officers, agents, volunteers, contractors and employees (collectively, “City Parties”) from and against any and all claims, demands, liability, damages, lawsuits or other actions (including attorneys’ fees and costs), including without limitation actions for bodily injury or death or property damage arising out of or caused by the use of the License Area by Licensee or Licensee’s officers, agents, representatives, employees, contractors, subcontractors, guests, invited visitors, and customers (collectively, "Licensee Parties"), Licensee’s or Licensee Parties’ operations under this Agreement, Licensee’s or Licensee Parties’ failure to comply with Laws in connection with the use of or any activities conducted on the License Area, or the performance of this Agreement by Licensee.

Except to the extent caused by City’s sole or active negligence or willful misconduct, Licensee shall protect, indemnify, defend and hold City and City Parties harmless from and against any and all demands, liability, claims, actions, damages, costs and expenses, including attorneys' fees, consultants' fees, litigation costs, and investigation, removal, remediation, cleanup and monitoring costs, asserted against or incurred at any time and from time-to-time by reason of or arising out of (a) the use, generation, storage, treatment, handling, transportation, disposal or release of any Hazardous Materials at, from or near the License Area by or for Licensee, Licensee Parties or anyone under Licensee's control, or (b) the violation of any Hazardous Materials law by Licensee or any of Licensee Parties or by anyone under Licensee's control. Such indemnity obligation shall include any demands, liability, claims or actions for tangible or intangible property

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damage; compensation for lost wages, business income, profits or other economic loss; damage to the natural resource or the environment; nuisance; trespass; and/or contamination, leak, spill, release or other adverse effect on the environment. Licensee's indemnity obligations under this Section 12 shall survive the termination or expiration of this Agreement. “Hazardous Materials” means substances that now or in the future are defined or regulated by Environmental Laws as "contamination," "contaminants," "hazardous," "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants," "pollution," "toxic," "toxic substances," "toxins," or "ultra-hazardous" or are otherwise listed or regulated under any Environmental Laws. “Environmental Laws” means a) any and all federal, state, and local laws relating to protection of human health or the environment (including air, surface water, groundwater, land surface, or subsurface), whether currently in force, previously enforced, or subsequently enacted, including the following laws: 15 United States Code §§2601–2629 (the Toxic Substances Control Act of 1976, as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (TSCA)); 33 United States Code §§1251–1388 (the Clean Water Act); 42 United States Code §§6901–6992k (the Resource Conservation and Recovery Act of 1976 (RCRA)); 42 United States Code §§7401–7671q (the Clean Air Act); 42 USC §§9601–9675 (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)); 49 United States Code §§5101–5128 (the Hazardous Materials Transportation Act); 33 United States Code §§2701–2762, 43 United States Code §1656 (the Oil Pollution Act of 1990); California Health and Safety Code §§25100–25259 (the Hazardous Waste Control Law); California Health and Safety Code §§25270–25270.13 (the Aboveground Petroleum Storage Act); California Health and Safety Code §§25300–25395.45 (the Carpenter-Presley-Tanner Hazardous Substance Account Act); California Health and Safety Code §§25404–25404.9 (Unified Hazardous Waste and Hazardous Materials Management Regulatory Program); California Health and Safety Code §§25500–25547.8 (Hazardous Materials Release Response Plans and Inventory); California Health and Safety Code §§25249.5–25249.14 (the California Safe Drinking Water and Toxic Enforcement Act of 1986, or Proposition 65); California Health and Safety Code §§25280– 25299.8 (Underground Storage of Hazardous Substances); California Health and Safety Code §§18901–18949.31 (California Building Standards Law); California Water Code §§13000–16104 (which includes the Porter-Cologne Water Quality Control Act); and California Fish and Game Code §§5650–5656; (b) all regulations that have been adopted or promulgated under such statutes or that are adopted under such statutes after the Effective Date of this Agreement; and (c) all enforceable demands, directives, and orders of any court, administrative body, or government entity relating to Hazardous Materials, whether currently in force, previously enforced, or enacted after the Effective Date of this Agreement.

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13. INSURANCE
Licensee at its expense shall obtain and maintain at all times during the term of this Agreement, insurance consistent with the insurance requirements set forth in Exhibit D attached hereto and incorporated herein.

14. COMPLIANCE WITH LAWS
a. Licensee, at its expense, shall observe and comply with all applicable laws, ordinances, rules, orders, codes and regulations of governmental agencies, including federal, state, municipal and local governing bodies having jurisdiction over any or all of the activities of Licensee hereunder, including without limitation the Occupational Safety and Health Act of 1979 as amended, and all California Occupational Safety and Health and Environmental Laws (collectively, “Laws”). All activities conducted by Licensee and Licensee Parties on the License Area must be in accordance with all such Laws. Licensee shall defend, indemnify and hold harmless City and City Parties from and against any and all damages, liability, fines, penalties and consequences arising from any actual or alleged noncompliance or violation of Laws by Licensee, or any of the Licensee Parties.
b. If a death, serious bodily injury or substantial property damage occurs in connection with the performance of this Agreement or use of the License Area, Licensee shall immediately notify the City’s Risk Manager. If any accident occurs in connection with this Agreement, Licensee shall promptly submit a written report to City, in such form as the City may require. This report shall include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Licensee’s liability insurance carrier; and 3) a detailed description of the accident, including whether any City’s equipment, tools or materials were involved.
c. If a release of Hazardous Materials occurs in connection with the performance of this Agreement or License’s use of the License Area or if any Hazardous Materials come to be released or otherwise located in, on, under or about the License Area, other than as previously consented to by City, Licensee shall immediately notify the Berkeley Police Department and the City’s Toxics Management office, in addition to any other governmental agencies or persons as required by applicable Laws.
d. Licensee shall not store Hazardous Materials on the License Area without a proper permit and prior written consent from the City.

15. RELOCATION WAIVER

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Licensee fully waives and releases and discharges City from any and all manner of rights, demands, liabilities, obligations, claims, or causes of action, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to the sale of the License Area or the full or partial termination or expiration of Licensee's right to use the License Area as permitted under this Agreement, including, without limitation, the specific waiver and release of any right to any relocation benefits, assistance and/or payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 United State Code Section 4601 et seq. and/or the California Relocation Assistance Law, as amended, Government Code Section 7260 et seq.

16. LIENS . Licensee shall not suffer or permit to be enforced against the License Area, or any part thereof, any mechanics’, materialmen’s, contractors’ or subcontractors liens or any claim for damage arising from the work of any construction, excavation, survey, tests, grading, repair, restoration, replacement or improvement, or any other work, performed by Licensee or any Licensee Parties, but Licensee shall pay or cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the License Area or any City property. Licensee expressly agrees to indemnify, defend and hold harmless City, all of the other City Parties, and the License Area free from all liability for any and all such liens, claims and demands, together with reasonable attorneys’ fees and all costs and expenses in connection therewith. Notwithstanding anything to the contrary set forth above, if Licensee shall in good faith contest the validity of any such lien, claim or demand, then Licensee shall, at its expense, defend itself and the City and City Parties against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before any enforcement thereof against City or the License Area, but only upon the condition that if City shall so require, Licensee shall procure and record or furnish to City a surety bond or other acceptable security satisfactory to City in an amount at least equal to such contested lien, claim or demand indemnifying the City and City Parties against liability for the same, and holding the License Area and City owned property free from the effect of any such lien or claim. City reserves the right at any time and from time to time to post and maintain on said License Area, or any portion thereof or improvement thereon, such notices of non-responsibility or otherwise as may be necessary to protect the City and City Parties against liability for all such liens and claims.

17. SURRENDER OF PROPERTY, REMOVAL OF PERSONAL PROPERTY At the expiration or earlier termination of this Agreement, Licensee shall: 1) return and surrender the License Area, broom swept clean and in good order and condition, reasonable wear and tear and damage by casualty excepted; and 2) remove all personal property, material, equipment, supplies and any improvements or alterations that City requests Licensee to remove pursuant to Section 6.

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18. REMEDIES
In no event shall Licensee be entitled to recover any actual, consequential, punitive, or other monetary damages against City for breach of this Agreement. City and Licensee agree that, in the event of a breach of this Agreement, each of the Parties hereto may pursue specific performance or suits for declaratory or injunctive relief. In addition to the foregoing remedies, City shall be entitled to recover monetary damages with respect to amounts payable by Licensee to City under this Agreement, but in no event may City seek to recover any consequential or punitive damages.

19. CITY NON-DISCRIMINATION ORDINANCE
Licensee shall comply with the provisions of the Berkeley Municipal Code (B.M.C.) Chapter 13.26 as amended from time to time. In the performance of this Agreement, Licensee agrees as follows:
a. Licensee shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.
b. Licensee shall permit the City access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the opinion of the City, are necessary to monitor compliance with this nondiscrimination provision. In addition, Licensee shall fill out in a timely fashion, forms supplied by the City to monitor this non-discrimination provision.

20. CITY NON-DISCRIMINATION AGAINST PERSONS WITH

DISABILITIES
a. If Licensee provides any aid, service or benefit to others on the City’s behalf, Licensee shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Licensee shall further observe and comply with all applicable Laws prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefits, services or activities of the City.
b. If Licensee is or becomes a “public accommodation” as defined in Title III of the Americans with Disabilities Act of 1990 (“ADA”), Licensee shall observe and comply with all applicable provisions of the ADA and any amendments thereto, and all applicable federal, state,

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municipal and local laws, ordinances, codes and regulations prohibiting discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations offered by the Licensee. All Licensee’s activities must be in accordance with such Laws and Licensee, at its expense, shall be solely responsible for complying therewith.

21. CONFLICT OF INTEREST PROHIBITED
a. In accordance with Government Code section 1090, Berkeley City Charter section 36, and B.M.C. Chapter 3.64, neither Licensee nor any employee, officer, director, partner or member of Licensee, or immediate family member of any of the preceding, shall have served with the City as an elected officer, an employee, or a City board, committee or commission member, who has directly or indirectly influenced the making of this Agreement. b. In accordance with Government Code section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee, employee or consultant of the Licensee, or immediate family of any of the preceding, shall make or participate in a decision made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Licensee. c. Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et seq ., its implementing regulations, manuals and codes, Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64.

24. CITY BUSINESS LICENSE, PAYMENT TAXES, TAX I.D. NUMBER Licensee has obtained a City business license as required by B.M.C. Chapter 9.04 and its license number is written below; or, Licensee is exempt from the provisions of B.M.C. Chapter

9.04 and has written below the specific B.M.C. section under which it is exempt. Licensee shall pay all state and federal income taxes and any other taxes lawfully assessed and due. Licensee certifies under penalty of perjury that the taxpayer identification number written below is correct.

25. BERKELEY LIVING WAGE ORDINANCE
a. Licensee agrees to comply with B.M.C. Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Licensee employs six (6) or more part-time, full-time or stipend employees, and generates $350,000 or more in annual gross receipts, Licensee will be required to provide all eligible employees with the City of Berkeley mandated minimum compensation during the term

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of this Agreement, as defined in B.M.C. Chapter 13.27, as well as comply with the terms as enumerated herein.
b. Licensee shall be required to maintain all reasonable records and documents that would establish whether Licensee is subject to the LWO. If Licensee is subject to the LWO, as defined therein, Licensee shall be further required to maintain monthly records of those employees located on the License Area. These records shall include the total number of hours worked, the number of hours spent providing service on the License Area, the hourly rate paid, and the amount paid by Licensee for health benefits, if any, for each of its employees providing services under the Agreement. The records described in this Section shall be made available upon the City’s request.

The failure to produce these records upon demand shall be considered a default of the Licensee. c. If Licensee is subject to the LWO, Licensee shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all sublicenses Licensee enters with regard to the License Area. Sublicensees shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the License Area. d. If Licensee fails to comply with the requirements of the LWO and this Agreement, the City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity. Licensee’s failure to comply with this Section shall constitute default hereunder, upon which City may terminate this Agreement. e. In addition, at City’s sole discretion, Licensee may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Licensee’s failure to pay all of its eligible employees at least the applicable living wage rate will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Licensee’s breach.

26. BERKELEY EQUAL BENEFITS ORDINANCE
a. Licensee hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Licensee is currently subject to the Berkeley Equal Benefits Ordinance, Licensee will be required to provide all eligible employees with City mandated equal benefits during the term of this Agreement, as defined in B.M.C. Chapter 13.29, as well as comply with the terms enumerated herein.

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b. If Licensee is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Licensee agrees to supply the City with any records the City deems necessary to determine compliance with this provision.
c. If Licensee fails to comply with the requirements of this Section, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law and equity. Licensee’s failure to comply with this Section shall constitute default of the Agreement.

In addition, at City’s sole discretion, Licensee shall be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Licensee’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Licensee’s breach.

27. NUCLEAR FREE BERKELEY
Licensee agrees to comply with B.M.C. Chapter 12.90, the Nuclear Free Berkeley Act, as amended from time to time.

28. OPPRESSIVE STATES
a. In accordance with Resolution No. 59,583-N.S., Licensee certifies that it has no contractual relations with, and agrees during the term of this Agreement to forgo contractual relations to provide personal services to, the following entities:
(1) The governing regime in any Oppressive State.
(2) Any business or corporation organized under the authority of the governing regime of any Oppressive State.
(3) Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Agreement) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.
b. For purposes of this Agreement, the Tibet Autonomous Region and the provinces of Ado, Kham, and V-Tsang shall be deemed Oppressive States.

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c. Licensee’s failure to comply with this Section shall constitute a default hereunder and City may terminate this Agreement. In the event that City terminates this Agreement due to a default under this provision, City may deem Licensee a non-responsible bidder for five (5) years from the date this Agreement is terminated.

29. PESTICIDES
All use of pesticides on the License Area shall be in compliance with the City of Berkeley’s Pesticide Use Policy as it exists at the time of such use.

30. SIGNS
Licensee shall not install or letter any signs on the License Area without the prior written consent of City. All signs on the License Area shall conform to the provisions of B.M.C. Chapter

20.04 and any other City design guidelines for signs.

31. SEVERABILITY
If any part of this Agreement or the application thereof is declared invalid for any reason, such invalidity shall not affect the other terms of this Agreement which can be given effect without the invalid provision or application, and to this end the provisions of this Agreement are declared to be severable.

32. WAIVER
No waiver by City of any breach or default of any provision of this Agreement shall be deemed a waiver of any other provision hereof or of any subsequent breach or default by Licensee of the same or any other provision.

33. GOVERNING LAW
The laws of the State of California shall govern this Agreement, without regard to its conflict of laws principles. The parties agree that in any dispute, venue shall be in Alameda County, California.

34. AMENDMENTS
The terms of this Agreement shall not be altered or otherwise modified except by a written amendment to this Agreement executed by City and Licensee.

35. INTERPRETATION

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The titles to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. As used in this Agreement, 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 Agreement shall be interpreted as though prepared jointly by both Parties.

36. AUTHORITY.

The individual executing this Agreement has full power and authority to execute and deliver the Agreement on behalf of Licensee.

37. EFFECT ON SUCCESSORS AND ASSIGNS
Without limiting the provisions of Section 11 above, all of the covenants, conditions and provisions of this Agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto.

38. ENTIRE AGREEMENT
a. The terms and conditions of this Agreement, all exhibits attached and any documents expressly incorporated by reference represent the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between City and Licensee. b. If any conflicts arise between the terms and conditions of this Agreement and the terms and conditions of the attached exhibits or any documents expressly incorporated, the terms and conditions of this Agreement shall control.

39. ATTORNEYS’ FEES
In the event either party to this Agreement institutes an action or proceeding to interpret or enforce any of the terms hereof, or to obtain money damages, the prevailing party shall be entitled to recover from the other, in addition to costs and judgment as ordered by the court, its reasonable attorneys’ fees, together with out-of-pocket expenses.

40. COUNTERPARTS; ELECTRONIC SIGNATURES

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This Agreement may be executed in any number or counterparts, each of which will be an original, but all of which together will constitute one instrument. The parties agree that electronic signatures on this Agreement, including those transmitted by electronic email or other electronic means, including, without limitation, via Adobe DocuSign, shall be sufficient to bind the parties]. [Signature Page Follows]

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IN WITNESS WHEREOF, City and Licensee have executed this Agreement as of the date written below.

CITY:

CITY OF BERKELEY
___________________________
LaTanya Bellows, Interim City Manager
Date: __________________________
Approved as to form:

Farimah Brown, City Attorney
By
Registered by: Attest:
_______________________________
Jenny Wong, City Auditor Mark Numainville, City Clerk

LICENSEE

By:

Name: Kanwar Jasraj Sangha
Title: Licensee/Owner of Masaba, Inc.

DBA Roaming Bean Coffee

LICENSEE INFORMATION
Tax Identification No.: 92-350-5094
Berkeley Business License No.: BL-018479
Incorporated: Yes X No ___
Approved as to form: Yes X No ___
Certified Woman Business Enterprise: Yes___ No ___
Certified Minority Business Enterprise: Yes___ No ___
Certified Disadvantaged Business Enterprise: Yes___ No ___

Exh A
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EXHIBIT A

LICENSE AREA
Exhibit A.1: Written Description
The license area is in the South Cove East Area of the Waterfront, between University Avenue and the South Cove East parking area to the north, and the San Francisco Bay Trail, to the South.

The Licensee shall adhere to the dimensions and placement that are identical to those stated herein. Minor deviations may be permitted if necessary, with the prior written authorization from the Waterfront Manager.

The License Area includes 3 components:

1. The Concession Stand Area
a. This is a 10-foot long by 8.5-foot deep by 9-foot high area adjacent to the southern wall of the structure in the southwest corner of the Southeast Parking Area at the Berkeley Waterfront.
b. The Booth Area shall be set back approximately 10-inches from the southern facing wall of the adjacent structure.
c. A Coffee Cart described in Exhibit E, under a 10-foot x 10-foot portable canopy, may be placed during operating hours while Licensee procures and finalizes the Concession Stand for placement.

2. The Concession Booth Awning Area
a. This is an 8-foot long by 3-foot deep awning that covers the window when closed, and extends overhead when open.
b. The Awning Area shall be set back 30 inches from the northern edge of the San Francisco Bay Trail.
c. The Awning Area shall be a minimum of 8 feet overhead when raised.

3. The Access for Power/Water Area
a. The path for power extends from the Utility Chase inside the building, and outside the building where the Licensee can connect power to the equipment inside the Concession Booth.
b. The water access is inside the 7x7 space. Licensee shall have access to dispose of approximately 6-20 gallons of used water inside the sink, per day. Licensee may also dispose of used water at the Fish Cleaning Station at the launch ramp.

The License Area includes the following dimensions and placement for the Concession Stand:

Dimensions Inches Feet
Adjacent South Cove Building Wall to Edge of SF Bay Trail 178 14' 10" Gap between Building Wall and Concession Booth 10 0' 10" Length of Concession Booth 120 10’ 0”
Depth of Concession Booth 102 8' 6"
Open ground space between Southern Edge of Concession Booth and Northern Edge of SF Bay Trail 66 5' 6"
Awning Extension 36 3' 0"
Space from open awning to edge of pad 30 2' 6"

Exh A
IRV #4889-3895-0704 v6
Exhibit A.2. License Area and Placement Drawings
The license area and placement of components is shown in the drawings below. The Licensee shall adhere to the dimensions and placement that are identical to those stated herein. Minor deviations may be permitted if necessary, with the prior written authorization from the Waterfront Manager. Until the time the Concession Stand is placed, a 30-inch x 60-inch professionally designed Coffee Cart, described in Exhibit D, may operate out of the Concession Stand location, subject to all applicable requirements herein.

Exhibit A.2.i: License Area - Zoom Out Plan View

Exh A
IRV #4889-3895-0704 v6
Exhibit A.2.ii. License Area - Zoom In Plan View

Exh A
IRV #4889-3895-0704 v6
Exhibit A.2.iii. License Area - Southern Elevation
Exhibit A.3. License Area Photo Sketch

Exh B
IRV #4889-3895-0704 v6

EXHIBIT B

LICENSE AREA PERMITTED USES
Licensee shall only use the License Area described on Exhibit A as follows and for no other purpose:

1. Coffee and beverage vendor with ancillary pastries, pre-prepared food items; and ancillary merchandise.

2. Licensee may operate out of a Concession Stand described in Exhibit A and Exhibit E.

3. Licensee may not perform on site hot-cooking of food items. Hot coffee and beverages are permitted.

4. Licensee shall operate a minimum of 16 days per month, for a minimum of 5 hours per day.

5. Licensee may use the License Area in blue as access for power and water.

6. The Concession Stand may remain in the License Area with the window closed, and with all entrances properly locked, when not in use.

7. The power cord may remain in place on the exterior of the Adjacent Structure and the Concession Stand, so long as the points of connection within the Utility Chase and the Concession Stand remain locked to prevent tampering and theft of power; and

8. City may require an after-meter power gauge to track power usage.

-DRAFT ONLY
Exh C
IRV #4889-3895-0704 v6

EXHIBIT C

PAYMENT

1. The License Fee described in Section 3.a and 3.c of the Agreement shall be paid in advance every month in equal monthly installments for each License Year, and pro-rated for any partial License Year. Payments must be received no later than fourteen (14) calendar days from the start of each month. Any payment received after this fourteen (14) day time period will be assessed a ten percent (10%) late penalty.

2. Payments shall be made payable to the “City of Berkeley” and paid in person or by mail to the
Finance Department
Customer Service Counter
1947 Center Street, 1st Floor
Berkeley, CA 94704

3. Failure of Licensee to make full payments on time is grounds for termination of this Agreement by the City.

Exh D
IRV #4889-3895-0704 v6

EXHIBIT D

INSURANCE REQUIREMENTS
a. Permittee, at its own expense, shall maintain at all times during the performance of this Permit a commercial general liability insurance policy with a combined single limit of not less than $1,000,000 for injury or death to one or more persons in any one accident or occurrence to cover any claims arising out Permittee's use of the Premises and performance of services under this Permit. All such insurance shall insure performance by Permittee of the preceding indemnity provisions. All insurance shall name the City of Berkeley, its officers, agents, volunteers and employees as additional insured and shall provide primary coverage with respect to the City.
b. If the insurance referred to above is written on a Claims Made Form, then following termination of this Permit, coverage shall survive for a period of not less than five years.

Coverage shall also provide for retroactive date of placement coinciding with the effective date of this Permit.
c. Permittee at its cost shall maintain on all its personal property, Permittee'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 Permittee for the replacement of personal property or the restoration of Permittee's improvements or alterations.
d. If Permittee employees any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the City. The workers' compensation insurance shall: provide that the insurance carrier shall not cancel; terminate, or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the City; provide for a waiver of any right of subrogation against City to the extent permitted by law; and be approved as to form and sufficiency by the City's Risk Manager.
e. Permittee shall forward all insurance documents to:

Berkeley Marina
201 University Ave
Berkeley, CA 94710

Exh F
IRV #4889-3895-0704 v6

EXHIBIT E

AESTHETIC STANDARDS

1. All publicly visible elements of the Concession Stand shall be reviewed and approved by the Waterfront Manager to ensure aesthetic quality that enhances the South Cove Area of the Waterfront. Minor deviations may be permitted if necessary, with the prior written authorization from the Waterfront Manager.

2. Concession Stand:

A The Concession Stand shall be colored dark grey or black, and shall include wood accents. The final quality and aesthetic shall be reviewed and approved by the Waterfront Manager prior to installation.

B The equipment/lock mechanisms shall be black or dark tones to recede from view, and shall be reviewed and approved by the Waterfront Manager prior to installation.

C If a gap is created between the Concession Stand and the adjacent building wall, Licensee must close the gap to ensure to make the gap impassable by vermin or animals.

The closure shall be black or dark tones to recede from view, and shall be reviewed and approved by the Waterfront Manager prior to installation.

D The Concession Stand shall be substantially similar to the image below, and final design, including paint chips and materials samples, shall be reviewed and approved by the Waterfront Manager prior to installation.

E While Licensee procures and finalizes the Concession Stand, the coffee cart, below, underneath a 10x10 foot canopy is permitted while the business is open, and must be removed at the close of business.

Concession Stand Coffee Cart (Under 10 x 10 canopy)

Exh F
IRV #4889-3895-0704 v6

EXHIBIT F

TERM SHEET
TENANT Masaba, Inc. DBA Roaming Bean Coffee
LANDLORD City of Berkeley
PREMISES Concrete Pad in South Cove East at the Berkeley Waterfront, and adjacent areas, as shown in Exhibit A.

BASE RENT $310 per month in year one, escalating at a 3% annual increase thereafter if the Option is enacted.

INITIAL TERM One (1) year, commencing as of August 1, 2024, or on the Effective Date, whichever is later, with an Option to extend for 1 year.

PERMITTED USE Container or coffee cart offering coffee, prepared foods, blended drinks, and beverages. No on site hot-cooking of food, as described in Exhibit B.

RENT

COMMENCEMENT
DATE
August 1, 2024, or the Effective Date, whichever is later.

UTILITIES &

SERVICES
City responsible for electrical and water.

SECURITY DEPOSIT $310

Office of City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7010 E-Mail: [email protected] Website: berkeleyca.gov

CONSENT CALENDAR
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks, Recreation & Waterfront Subject: Lease Agreement: Youth Musical Theater Company for the properties at 2925 and 2945 Bolivar Drive, Aquatic Park

RECOMMENDATION
Adopt first reading of an Ordinance authorizing the City Manager to execute a lease agreement with Youth Musical Theater Company (YMTC) for the use and management of the City’s properties at 2925 and 2945 Bolivar Drive in Aquatic Park for a term of ten years, anticipated to begin September 1, 2024 and ending August 31, 2034, with one five-year option.

FISCAL IMPACTS OF RECOMMENDATION
Youth Musical Theater Company (YMTC) will pay an annual rent of $1000, escalating by $100 each year. The total lease revenue is $14,500. In addition, they will be responsible for completing capital improvements and maintenance at the building over the ten-year period of their lease. The list of capital improvements and maintenance requirements are described in Exhibit “B” of the lease. Lease revenue will be deposited in the Parks Tax.

CURRENT SITUATION AND ITS EFFECTS
On April 30, 2019, the lease with the City for 2925 and 2945 Bolivar Drive expired and has been in hold over status since that time. YMTC is determined to remain a tenant because they have a) demonstrated financial means to improve and maintain the buildings; b) a youth-serving, recreational program and well-established organization; and c) the ability to attract youth and their families, as well as others interested in musical theater, to Aquatic Park.

YMTC is a year-round musical theater company that produces three fully mounted, professionally directed and designed musicals each season. The musicals are all accompanied by a full, live orchestra, which attracts youth and their families to Aquatic Park.

Lease Agreement: YMTC, 2925 & 2945 Bolivar Drive CONSENT CALENDAR Aquatic Park July 23, 2024

BACKGROUND
YMTC is a non-profit 501(c)(3) that produces musical theater and provides theater training to students from 7th grade through the university level. YMTC uses the premises at 2925 and 2945 Bolivar to create a vibrant community space that draws young people, families, working artists, and other members of the public, to Aquatic Park to promote public access to the arts and arts training, enjoyment of live music and singing, and teaching in the performing arts. More specifically, YMTC’s activities at the two properties at Aquatic Park will:
 Hold rehearsals for their productions;
 Conduct set and prop design and building;
 Host a variety of classes, workshops and camps; and
 Provide other activities that draw Berkeley families to Aquatic Park and strengthen the arts offerings in Berkeley.

YMTC agreed to take over the responsibility for building maintenance, utilities, refuse and janitorial expenses from the City, and perform capital improvements over a five to ten-year period. The capital improvements included painting the interior and exterior of both buildings, repairing or replacing doors, installing heat in both buildings, renovating restroom to ADA standards, installing a security system in each building, installing safety lighting, restoring floors, and provide landscaping.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The proposed lease contains a requirement that the tenant shall follow all environmental rules and regulations as they apply to City agencies. Specifically, the tenant is required to minimize waste, recycle, and compost, as per Recycling and Composting Guidelines for City Buildings. In addition, the proposed use brings a new generation of youth to Aquatic Park on a regular basis, which can lead to increased environmental awareness and stewardship of the park.

RATIONALE FOR RECOMMENDATION
The proposed lease offers the following benefits to the City:
 Public buildings that have fallen into disrepair are being rehabilitated, maintained, and re-used.
 YMTC, a youth-serving arts organization, has increased the City’s arts offerings and provided a new creative outlet for the City’s youth.  The presence of young people and their families has brought a new vitality to the southern end of Aquatic Park
 The proposed use will complement the City’s efforts to improving the Southern end of Aquatic Park, including habitat restoration, tree planting, landscaping and re-paving.

Lease Agreement: YMTC, 2925 & 2945 Bolivar Drive CONSENT CALENDAR Aquatic Park July 23, 2024

CONTACT PERSON
Scott Ferris, Director, Parks, Recreation & Waterfront, 981-6711 Christina Erickson, Deputy Director, Parks, Recreation & Waterfront, 981-6703 Attachments:
1: Ordinance
Exhibit A: Lease Agreement

ORDINANCE NO. –N.S.

LEASE AGREEMENT WITH YOUTH MUSICAL THEATER COMPANY FOR THE USE AND MANAGEMENT OF 2925 AND 2945 BOLIVAR DRIVE AT AQUATIC PARK BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. The City Manager, or designee, is hereby authorized to execute a ten-year lease agreement with one five-year option and any amendments thereto with Youth Musical Theater Company for the use and management of 2925 and 2945 Bolivar Drive at Aquatic Park in Berkeley, CA. Such lease shall be on substantially the terms set forth in Exhibit A.

Section 2. The rent will be $1000 per year, escalating by $100 per year. In exchange for favorable rent, Youth Musical Theater Company will take over the responsibility for the building maintenance, utility costs, and janitorial costs of the building from the City. In addition, Youth Musical Theater Company will perform a list of capital improvements to the property as described in Exhibit B of the lease.

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 Council Chambers, 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.

Exhibit A: Lease Agreement

CITY OF BERKELEY

IMPROVED PROPERTY LEASE
Between

THE CITY OF BERKELEY, A CHARTER CITY

ORGANIZED AND EXISTING UNDER THE LAWS

OF THE STATE OF CALIFORNIA
as Landlord,
and

YOUTH MUSICAL THEATER COMPANY
as Tenant.

For the Properties at
2925 and 2945 Bolivar Drive
Berkeley, CA
Exhibit A: Lease Agreement

2 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

TABLE OF CONTENTS

1. DEFINITIONS .................................................................................................................................................. 5

2. TERM ............................................................................................................................................................... 5

3. RENT ................................................................................................................................................................ 6

4. PROPERTY AND OTHER TAXES ................................................................................................................. 8

5. USE OF PROPERTY AND THE AQUATIC PARK MAIN LAGOON .......................................................... 9

6. USE OF AQUATIC PARK PROPERTY ....................................................................................................... 11

7. SERVICES ...................................................................................................................................................... 13

8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY ...................................................... 13

9. ALTERATIONS AND IMPROVEMENTS ................................................................................................... 13

10. LIENS ............................................................................................................................................................. 16

11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS .............................................................. 16

12. ENVIRONMENTAL ...................................................................................................................................... 17

13. DAMAGE OR DESTRUCTION .................................................................................................................... 17

14. INDEMNIFICATION ..................................................................................................................................... 18

15. INSURANCE .................................................................................................................................................. 19

16. COMPLIANCE WITH LAWS ....................................................................................................................... 21

17. ASSIGNMENT AND SUBLEASE ................................................................................................................ 22

18. INSPECTION ................................................................................................................................................. 22

19. DEFAULT ...................................................................................................................................................... 23

20. REMEDIES UPON DEFAULT ...................................................................................................................... 24

21. ENVIRONMENTAL OBLIGATIONS .......................................................................................................... 26

22. LANDLORD'S RIGHT TO CURE ................................................................................................................. 27

23. EMINENT DOMAIN ..................................................................................................................................... 27

24. SUBORDINATION ........................................................................................................................................ 28

25. NO MERGER ................................................................................................................................................. 28

26. TRANSFER BY LANDLORD ....................................................................................................................... 28

27. ESTOPPEL CERTIFICATES ......................................................................................................................... 28

28. HOLDING OVER ........................................................................................................................................... 29

29. CHANGES BY LANDLORD ........................................................................................................................ 29

30. GOVERNING LAW ....................................................................................................................................... 29

31. SECURITY DEPOSIT .................................................................................................................................... 29

32. SIGNAGE ....................................................................................................................................................... 30

33. NO PARTNERSHIP ....................................................................................................................................... 31

34. NO WAIVER .................................................................................................................................................. 31

35. NOTICES ........................................................................................................................................................ 31

36. COMPLETE AGREEMENT .......................................................................................................................... 32

37. REQUESTS FOR CONSENT; WAIVER OF CLAIM ................................................................................... 32

38. INTERPRETATION ....................................................................................................................................... 32

39. SUCCESSORS AND ASSIGNS .................................................................................................................... 32

40. AUTHORITY ................................................................................................................................................. 32

41. UNAVOIDABLE DELAYS ........................................................................................................................... 32

42. TIME OF THE ESSENCE .............................................................................................................................. 33

43. BROKERAGE ................................................................................................................................................ 33

3 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

44. CITY NON-DISCRIMINATION ORDINANCE ........................................................................................... 33

45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES ................................................... 34

46. CONFLICT OF INTEREST PROHIBITED ................................................................................................... 34

47. NUCLEAR FREE BERKELEY ..................................................................................................................... 34

48. OPPRESSIVE STATES .................................................................................................................................. 35

49. BERKELEY LIVING WAGE ORDINANCE (LWO) ................................................................................... 35

50. BERKELEY EQUAL BENEFITS ORDINANCE (EBO) .............................................................................. 36

51. AUDIT ............................................................................................................................................................ 37

52. CITY BUSINESS LICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER .............................................. 37

53. SURVIVAL .................................................................................................................................................... 37

54. EXHIBITS ...................................................................................................................................................... 37 Exhibit “A”: Leased Premises ........................................................................................................................ 39 Exhibit “B”: Schedule of Improvements ........................................................................................................ 40 Exhibit “C”: Berkeley Municipal Code, Chapter 6.04 .................................................................................... 41

4 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

PROPERTY LEASE

BASIC LEASE INFORMATION

1. Landlord: City of Berkeley, a California municipal corporation 2180 Milvia Street
Berkeley, CA 94704
Attention: Director, Parks, Recreation & Waterfront
Telephone: (510) 981-6706
Email: [email protected]

2. Tenant: Youth Musical Theater Company (YMTC)

3. Tenant Trade
Name: Youth Musical Theater Company

4. Effective Date: September 1, 2024

5. Premises: Two buildings (as depicted in Exhibit “A”) located at 2925 and 2945 Bolivar Drive (approx. 1,400 sq ft and 900 sq ft.) and outdoor space between the buildings.

6. Permitted Uses: The Premises shall be used by Tenant for the purpose for youth programming (workshops, classes, rehearsals), set building, and outdoor rehearsals and programs.

7. Initial Term: Ten (10) year(s), commencing as of September 1, 2024 (“Commencement Date”).

8. Option Period: Five (5) years.

9. Base Rent: $1,000 per year, with $100 increase annually.

10. Improvements Tenant will invest approx. $129,500 in capital improvements. This includes HVAC system with air filtration, new entry gate, new porch and ADA landing drainage improvements and sump pump, new floors, and painting.

11. Maintenance Tenant will be responsible for all expenses associated with the construction, maintenance, improvement and operation of the premises to maintain the property in good condition.

12. Services Tenant shall make all arrangements for and pay for all utilities and services, including electric, gas, water, sewer, garbage and telephone, and all fees and periodic charges related thereto.

The Basic Lease Information set forth above and the Exhibits attached hereto are incorporated into and made a part of the following Lease. In the event of any conflict between the Basic Lease Information and terms of the Lease, the terms of the Lease shall control.

LANDLORD’S INITIALS _______ TENANT’S INITIALS _______

5 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant
LEASE
THIS LEASE is made by and between the CITY OF BERKELEY, a Charter City organized and existing under the laws of the State of California ("Landlord or City") and YOUTH MUSICAL THEATER COMPANY, a non-profit organization doing business at 1000 42nd Street Oakland, CA 94608 ("Tenant").

WITNESSET H :

Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the term and subject to the terms, covenants, agreements and conditions set forth below, to each and all of which Landlord and Tenant hereby mutually agree.

1. DEFINITIONS
Unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified:

A. "Affiliate," as to any person, shall mean such person's partners, members, commissioners, officers, employees, volunteers and agents.

B. "Building" shall mean the building(s) on the Premises as shown on Exhibit A.

C. "Lease Year" shall mean each twelve-month period during the term of the Lease commencing upon the effective date of the Lease.

D. "Aquatic Park" shall mean the Aquatic Park as defined in Chapter 6.04 of the Berkeley Municipal Code ("B.M.C.") (attached hereto as Exhibit “C”), as amended or succeeded, and any buildings and other improvements constructed or to be constructed therein. Without limiting the provisions of Section 36 of this Lease, Tenant acknowledges it is not relying on any representations or warranties made by Landlord, Landlord's agents or anyone else in regard to the size or configuration of Aquatic Park or in regard to the nature, location, or appearance of any buildings, improvements, or unimproved property therein.

E. "Main Lagoon" or “Aquatic Park Lake” shall mean that body of water lying between West Bolivar Drive on the west, Addison Street on the north, the Southern Pacific railroad tracks on the east, and the service road on the south.

F. "Premises" shall mean the Buildings, and the fenced-in yard between and around them, located at 2925 and 2945 Bolivar Drive, Berkeley CA, as further depicted in Exhibit “A.”

2. TERM
A. Initial Term and Term of Renewal. The initial term is for a period of ten years.

Tenant has the option, under certain terms and conditions as described below, to renew this lease for an additional five-year term. This Lease shall take effect once duly approved by the Berkeley

6 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant
City Council and executed by both Landlord and Tenant (“the Effective Date”). The Initial Lease Term will expire at midnight August 31, 2034 (“the Termination Date”).

B. Procedure for Renewal. If Tenant wishes to renew the Lease beyond the Initial Le
ase Term, Tenant must provide written notice of such intent to Landlord at least one hundred and twenty (120) days prior to the expiration of the Initial Term. If Landlord, in its sole discretion, determines that Tenant has complied with all terms and conditions of the Lease, at least sixty (60) days prior to expiration of the Lease, Landlord shall provide written notice to Tenant of any additional improvements that will be required to be completed by Tenant or increase in rent for a single five-year Renewal Term and shall provide notice of its determination to grant renewal of the lease upon condition that Tenant agrees to the additional improvements and increase in rent, if any, at least thirty (30) days prior to the expiration of the Initial Term.

C. If
, after Landlord's initial determination that Tenant has complied with the terms and conditions of the Lease but prior to its actual expiration, Landlord determines, at its sole discretion, that Tenant has failed to comply with any term or condition of the Lease, Landlord may revoke the granting of the additional term and seek applicable remedies under the Lease, including, but not limited to Section 20.

D. At the expiration of the term, or any sooner termination of this lease due to

default, Tenant agrees to quit and surrender possession of the premises and its appurtenances to Landlord in good order and condition. Tenant agrees to reimburse the Landlord for any damage done to the property caused by Tenant’s occupation or tenancy excepting reasonable wear and tear and damage by the elements. Tenant shall not leave or allow to remain on the property any garbage, refuse, debris, or personal property. Tenant will pay Landlord any removal costs incurred by Landlord. At the end of the tenancy, Tenant agrees to deliver the property keys to the Landlord in person or by mail to the Landlord’s designated agent.

3. RENT
A. Minimum Rent. Tenant shall pay to Landlord as a minimum rental for its use and occupancy of the Premises an annual rent of ONE THOUSAND DOLLARS ($1,000) for the first year of the Lease. For purposes of determining Minimum Rent, the first year of the Lease is the period up to August 31, 2034 and will be pro-rated for a partial year. In each subsequent Lease Year during the Initial Term and any Renewal Term, the Minimum Rent shall increase by ONE HUNDRED DOLLARS ($100) per year.

B. Percentage of Gross Income from Concessions and Special Events.

1. In the event that Tenant operates a concession or a revenue-generating special event on the Premises or on the Main Lagoon, then Tenant agrees to pay Landlord, in addition to any fees levied by the City, an amount equal to FIVE PERCENT (5%) of the gross income realized by each such concession or special event during the term of the Lease. A special event is defined as any event in which the participants (groups or individuals) pay an entry fee to the Tenant. Tenant shall make this payment to the Landlord within thirty (30) calendar days from the last day of each special event, together with a financial statement of the gross income from said event. Tenant shall keep true and accurate books and records of each special event.

Said books and records shall be retained for at least two (2) years after occurrence of the events

7 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant
to which they relate. Landlord, and/or its designee, shall have the right at reasonable periods and at all reasonable times, and upon at least five (5) days' advance notice to Tenant to inspect such books and records. Income from special events does not include any grants or donations Tenant receives.

2. If any special event is likely to preclude some or all users of Aquatic Park from exercising a different use, and/or is a regatta, race, or pageant in Aquatic Park and/or on the Main Lagoon, Tenant shall first obtain a permit from the City, as required by Resolution No. 58,644-N.S. and Section 6.04.060 of the Berkeley Municipal Code. The fees for such permits shall be set by the City Council. Water use permits (by definition, for an event lasting no more than two weeks), may be issued by the Parks Recreation and Waterfront Department. Tenant understands that this Lease does not guarantee that the City, in its regulatory capacity, will grant any particular request for a permit. Tenant understands that the City may grant or deny such permit in its sole discretion, and may impose such terms and conditions as it deems consistent with that discretion.

C. Manner of Payment. All rent and other payments due from Tenant shall be made to Landlord in lawful money of the United States of America at Landlord's address for notice hereunder, or to such other person or at such other place as Landlord may from time to time designate in writing.

D. Delinquency and Late Charges; Interest.

1. Tenant hereby acknowledges that its late payment of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult or impracticable to ascertain. Such costs include, without limitation, processing and accounting charges and overtime wages. Accordingly, any payment of rent or other sum due hereunder that remains due and unpaid for a period of ten (10) days after it becomes due and payable shall be subject to a delinquency charge of ten percent (10%) of the delinquent amount. The parties agree that such charge represents a fair and reasonable estimate of the costs Landlord shall incur by reason of Tenant's late payment. Landlord shall apply any monies received from Tenant first to any accrued delinquency charges and then to any rent then due. Acceptance of such delinquency charges by Landlord shall not constitute a waiver of Tenant's default with respect to such overdue amount. The delinquency charge is in addition to all other remedies that Landlord may have under this Lease or at law.

2. Any amount due to Landlord, if not paid when due, shall bear interest from the date due until paid at the rate of the twelve percent (12%) per annum. Interest shall not be payable on delinquency or late charges nor on any amounts upon which such charges are paid by Tenant, to the extent such interest would cause the total interest to exceed that legally permitted. Payment of interest shall not excuse nor cure any default hereunder by Tenant.

E. Accord and Satisfaction. Landlord's acceptance of a lesser amount of rent or other sum due hereunder shall not be deemed to be other than on account of the earliest rent or payment due and shall be applied by Landlord as provided in subsection D.1. No endorsement or statement on any check or letter accompanying any such check or payment shall be deemed an accord and satisfaction, and Landlord may accept such check or payment and pursue any other

8 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

remedy available under this Lease or at law. Landlord may accept any partial payment from Tenant without invalidation of any contractual notice required hereunder (if required) and without invalidation of any notice required pursuant to California Code of Civil Procedure Section 1161, et seq., or any successor statute.

4. PROPERTY AND OTHER T AXES

A. Possessory Interest Taxes. The property interests created by this Lease may be subject to property taxation and Tenant, in whom the possessory interest is vested, will be responsible for the timely payment of any property taxes levied on such possessory interest.

Tenant agrees to pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the state, county, city or any tax or assessment levying body against the transfer of the leasehold interest hereunder upon recordation or otherwise, or upon any activity carried on under this Lease, any interest in this Lease or any possessory right which Tenant may have in or to the Property or the Property by reason of its use or occupancy thereof or otherwise.

B. City of Berkeley Assessments. Tenant also shall be responsible for and shall pay prior to delinquency all assessments imposed against the Property and/or the Property by the City. Tenant acknowledges that City has established certain assessment districts within the City of Berkeley and that all properties within the assessment districts are subject to annual assessments. The City reserves the right to create additional districts and to terminate any such district(s). Tenant shall be billed for each such assessment in the same manner as other property owners and lessees in the City.

C. Personal Property and Other Taxes. In addition to all other sums to be paid by Tenant hereunder, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the term of the Lease on Tenant's equipment, furniture, fixtures, merchandise, and other personal property located in the Property, and shall pay, or shall reimburse Landlord for, any and all assessments (including, without limitation, all assessments for public improvements, services or benefits, irrespective of when commenced or completed), excises, levies, business taxes, Lease, permit, inspection and other authorization fees, transit fees, service payments in lieu of taxes and any other fees or charges of any kind, which are levied, assessed, or imposed by any public authority: (i) upon or measured by rental payable hereunder, including without limitation, any gross income tax or excise tax levied by the City of Berkeley, Alameda County, the State of California, the Federal Government or any other government body with respect to the receipt of such rental; (ii) upon or with respect to the development, possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the or any portion thereof; (iii) upon, measured by or reasonably attributable to the cost or value of Tenant's equipment, furniture, fixtures, merchandise, and other personal property located at or in the Premises or by the cost or value of any improvements made by Tenant to the Property, regardless of whether title to such improvements shall be in Tenant or Landlord; or (iv) upon this Lease or any document to which Tenant is a party creating or transferring an interest in the Property.

D. Tenant's Right to Contest. Tenant may, at no cost to Landlord, reasonably contest the legal validity or amount of any taxes, assessments, or charges for which Tenant is responsible under this Lease, and institute such proceedings as Tenant considers necessary; provided, however, that Tenant shall at all times protect Landlord from foreclosure of any lien, and that

9 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

Landlord shall not be required to join in any proceeding or contest brought by Tenant.

5. USE OF PROPERTY AND THE AQUATIC PARK MAIN LAGOON

A. The Premises shall be used by Tenant to create a vibrant community space that draws young people, families, working artists, and other members of the public, to Aquatic Park to promote public access to the arts and arts training, enjoyment of live music and singing, and teaching in the performing arts. Tenant may use the Premises to hold workshops, classes, meetings, set and prop design and development, and other community events and activities related to its mission to produce live musical theatre for East Bay audiences.

B. Tenant shall operate its business on and about the Premises in a manner consistent with the use permitted herein and the standards promulgated by Landlord.

C. Tenant understands the Main Lagoon may be used at Aquatic Park, if at all, only from May 1st through September 30th of each Lease Year on a schedule to be approved by the City of Berkeley’s Director of Parks, Recreation, and Waterfront. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the Premises and the Main Lagoon. Tenant must comply with all applicable regulations governing the use of the Main Lagoon and Aquatic Park. Tenant may not use any portion of the Main Lagoon from October 1
st through April 30th, due to the fact that environmental studies show use during those months would impact migratory birds. Any use of the Main from May 1 through September 30 is subject to approval of the City Council and any other affected regulatory agency, and use of the Lagoon during this timeframe may be prohibited if environmental factors warrant it.

D. Prior to entering and using the Main Lagoon, tenant and all other persons must be covered by the insurance provisions of this Agreement. In addition, Tenant, or any other person entering and using the Main Lagoon shall sign a waiver and release form to be provided by the Tenant that holds the City of Berkeley harmless in case of any accidents or loss of any type.

Such release shall include, but not be limited to, the following:

“Participant releases and forever discharges the City of Berkeley, its divisions, subsidiaries, affiliates, officers, agents, employees, and the heirs, executors or assigns of any of the foregoing, from any and all claims, demands, and causes of action of every kind, known or unknown, whether based in tort, contract, breach of warranty, strict liability, negligence or any other legal theory of recovery, and whether for general, special, compensatory or punitive damages, arising out of or in any way related to use of the Main Lagoon at Aquatic Park.”

In the event Tenant fails to obtain a signed waiver and release form from any participant who uses the Main Lagoon or is in way connected to the use of the Main Lagoon, Tenant at all times will still be bound by Section 14 of this Agreement.

E. Tenant will comply with all applicable safety standards in effect at any given time, and take all necessary steps to ensure that its participants are properly supervised to prevent injury to participants and others. Tenant will provide adequate supervision of the participants at all times while using the Premises and/or Main Lagoon.

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F. Landlord shall have no responsibility for Tenant’s equipment that may be lost, stolen, or damaged.

G. No items will be allowed to be stored in the exterior Premises without written approval by Landlord, but in no circumstances shall items not related to the Tenant’s programs be allowed to be stored on the Premises, either inside or outside.

H. Tenant agrees to require its employees and participants who use the Premises and/or Main Lagoon to respect other Aquatic Park lessees, licensees and visitors and to abide by standards of behavior common to the sport of rowing, bike riding, and general park use.

I. Business may be conducted with the public on the Premises at any time on any day that Aquatic Park is open, provided that Tenant shall have obtained all required permits and provided Tenant shall comply with all rules applicable to Aquatic Park.

J. Tenant agrees to cooperate with the City in promoting community participation in Tenant’s programs and activities held on the Property.

K. Tenant shall not, without the written consent of Landlord:

1. place, construct or maintain in, on, or about the Premises or within Aquatic Park any advertisement media, including without limitation, searchlights, flashing lights, loudspeakers, or other similar media or device;

2. place or permit the use in or on the Premises of any video games, pinball machines or other devices or equipment for amusement or recreation, or any vending machines, newspaper racks or other coin operated devices (excepting pay telephones).

3. warehouse or stock on the Premises any goods, wares or merchandise other than that which is directly related to the Tenant's use of the Premises;

4. store, display or sell goods or merchandise on the Property or place or permit portable signs or other devices to be stored or to remain on the Property;

5. use or permit any portion of the Premises to be used as living or sleeping quarters; and

6. sell, distribute, display, or offer for sale any item, which, in Landlord's good faith judgment, may tend to detract from the image of Aquatic Park.

L. Tenant shall not do or permit to be done in, on, or about the Premises anything which is prohibited by or may conflict with any law, statute, ordinance or governmental rule or regulation now in force or hereafter enacted or promulgated, which is prohibited by the standard forms of special form or commercial general liability insurance or which may cause a cancellation of any insurance policy covering Aquatic Park or the Premises or any of its contents, or (except with the prior written consent of Landlord) which may increase the existing rate of or affect any special form or commercial general liability insurance or other insurance upon

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Aquatic Park or the Premises, or any of its contents. In the event Tenant does or permits to be done anything or keeps or permits to be kept anything on or about the Premises or the Aquatic Park which increases the existing rate of such insurance upon Aquatic Park or the Premises or any of its contents, Tenant shall pay the amount of any such increase promptly upon Landlord's demand. Tenant shall not do or permit anything to be done which will in any way obstruct or interfere with the rights of other lawful users of Aquatic Park, including, without limitation, tenants, their employees or invitees, disturb or annoy them, or use or allow the Premises to be used for any improper, unlawful or objectionable purpose. Tenant shall not maintain or permit any nuisance in or about the Premises or commit or suffer to be committed any waste in or upon the Premises.

M. No auction, fire, bankruptcy, distress, clearance, or going-out-of-business sale shall be conducted on the Premises nor shall any sign or advertisement regarding such activity be posted in or about the Premises.

N. Tenant shall not use or permit the Premises to be used in any manner or permit anything to be brought into or kept therein which would (i) violate the certificate of occupancy for the Premises; (ii) make it impossible or extraordinarily difficult to obtain special form coverage, commercial general liability or other insurance required to be furnished by Tenant under this Lease; (iii) cause structural injury to any part of the Premises or the Building; (iv) impair or interfere with the proper operation and maintenance of the Premises and/or Aquatic Park; or (v) violate any of Tenant's other obligations under this Lease.

O. If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Tenant's business, Tenant shall procure and maintain such license or permit and submit the same for inspection by Landlord. Tenant at all times shall comply with the terms and conditions of each such license or permit.

P. Nothing shall be done in or about the Premises by Tenant or anyone having a contractual relationship with Tenant that will result in substantial interference, by themselves or third parties, with normal operation and use of Aquatic Park or the means of ingress and egress thereto ("Substantial Interference"). Tenant shall use every effort to eliminate Substantial Interference, including legal action. If Tenant fails to bring an immediate halt to any Substantial Interference, Landlord shall have the right (i) to take action and require Tenant to undertake and eliminate such Substantial Interference and (ii) to commence any legal action to eliminate such Substantial Interference. Any agreement entered into by Tenant with regard to use of the Premises shall contain a provision reserving to Tenant all of the necessary rights and remedies to permit Tenant to comply with its obligations under this provision and authorizing Landlord to enforce the terms of such provision if Tenant fails to do so.

6. USE OF AQUATIC PARK PROPERTY

A. The parties acknowledge that Tenant has, as a member of the general public, the non-exclusive right, in common with others duly authorized by Landlord, and subject to all generally applicable laws and regulations, to use Aquatic Park, including the Main Lagoon.

B. Tenant agrees that except as otherwise provided in this Lease, it is not a covenant or condition of this Lease or of any other agreement with Tenant that Landlord undertake or

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cause to be undertaken any development or redevelopment of the Property or Aquatic Park, and Landlord shall incur no liability whatsoever to Tenant for failure to undertake such development or redevelopment.

C. Landlord at all times shall have the right and privilege of making such changes in and to Aquatic Park (other than to the Premises) from time to time which in its sole opinion are deemed to be desirable or appropriate, including the location and relocation of stairways, sidewalks, pathways, driveways, streets, entrances, exits, automobile parking spaces, the direction and flow of traffic, designation of prohibited areas, landscaped areas, utilities and all other facilities; provided, however, that the foregoing is not intended to entitle Landlord to unreasonably effect changes that would materially and adversely affect access to or visibility of the Premises, except temporarily during periods of construction. Landlord shall have the right to establish, promulgate, and enforce such reasonable rules and regulations concerning Aquatic Park, as it may deem necessary or advisable for the proper and efficient management, operation, maintenance and use thereof, and Tenant shall comply with the same.

D. Landlord at all times shall have the sole and exclusive management and control of Aquatic Park, including without limitation, the right to lease, license or permit the use of space within Aquatic Park to persons for the sale of merchandise and/or services and the right to permit advertising displays, educational displays, displays of art, and promotional activities and entertainment.

E. Nothing contained herein shall be deemed to create any liability to Landlord for any personal injury, or any damage to motor vehicles, vessels, or other property of Tenant's members, employees or others, unless caused by the gross negligence or willful misconduct of Landlord, its agents, servants or employees. Tenant is solely responsible for the security of the Premises, and for the safety of those using the Premises and/or the Main Lagoon pursuant to this Lease or any permits or licenses from the City. Tenant acknowledges that if Landlord provides security guards or police patrols for Aquatic Park or any portion thereof, Landlord does not represent, guarantee or assume responsibility that Tenant or any person or entity will be secure from losses or injury caused by the acts of third parties and does not assume responsibility for any such illegal acts. Tenant hereby waives any present or future claims Tenant may have against Landlord, whether known or unknown, for bodily injury or property damage arising from the performance of such security agents. City shall not be obligated to provide any public liability or property damage or loss insurance for the benefit of Tenant or any other person or entity.

F. Tenant will use its best efforts to maintain effective relations with other users of Aquatic Park and with neighbors. Tenant shall park vehicles only in legal and/or designated parking areas and only for the legal period of time; shall deposit all trash in legal containers; shall not deposit food or material of any kind on adjacent Premises; and shall respect the sensitive environment of Aquatic Park. Landlord has the right at any time to revise the traffic flow on Bolivar Drive, provided Tenant continues to have vehicular access to the Premises.

G. Tenant shall not interfere with the free and unobstructed access by the public to Aquatic Park. Tenant shall not preclude other users of Aquatic Park from exercising a different use without first obtaining any and all appropriate permits. Tenant shall be obligated to permit such access to Aquatic Park as required for consistency with applicable laws of the State of

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California, the Grant, and/or City's plans adopted from time to time; however, this sentence is not intended to, and shall not be construed to, confer any right of action upon any third party.

H. Landlord reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, through, across, in or on the Premises in locations that will not unreasonably interfere with Tenant's access to or use of the Premises. Any interference shall be temporary, and all work on the Premises shall proceed expeditiously. Tenant shall be given reasonable notice before commencement of any work on the Premises. In the event the installation or maintenance of such future utility lines in such easements causes any damage to the Premises, or any portion thereof, or to the Building, or other facilities located upon the Premises, including but not limited to pavement, curbs and sidewalks, the same shall be repaired by Landlord at its expense, if not so repaired by the party installing and maintaining the line.

Landlord shall hold harmless and indemnify Tenant from all claims arising out of the grant or use of such a utility easement, except to the extent they result from the negligence or willful misconduct of Tenant or its sub-lessees or sub-tenants.

7. SERVICES

A. Tenant shall make all arrangements for and pay for all utilities and services, including electric, gas, water, sewer, garbage and telephone, and all fees and periodic charges related thereto.

B. Landlord makes no representation or warranty that the supply of any utility or service to the Premises and/or the Building will not be interrupted, delayed or reduced.

C. Landlord shall not be liable for damages to either person or property; nor shall Landlord be deemed to have evicted Tenant; nor shall there be any abatement of any rent; nor shall Tenant be relieved from performance of any covenant on its part to be performed hereunder by reason of any (i) breakdown of equipment or machinery utilized in supplying utilities or services; (ii) interruption of or failure to supply or delay in supplying any such utilities or services; (iii) the limitation or restriction on use of water, electricity gas, or telecommunications service serving the Property or Aquatic Park; or (iv) failure to repair or cure any of the foregoing, except in the case of Landlord's gross negligence or willful misconduct.

8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY

Upon the expiration of this Agreement, Tenant is obligated to remove any personal property placed in the Premises by the Tenant. If any personal property does remain on the Premises upon the expiration of the Agreement it will be considered abandoned personal property, which will be removed, by the City and the Tenant will be responsible for all costs associated with removing the personal property from the Premises.

9. ALTERATIONS AND IMPROVEMENTS

A. Tenant acknowledges that Landlord owns the Premises. Tenant accepts the Premises from Landlord in its "as is" condition, the conditions that exist as of the Effective Date of this Lease. Tenant acknowledges that Landlord makes no representation or warranty concerning (i) the physical condition of the Premises; (ii) the Premises suitability for Tenant's

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proposed use; or (iii) the presence of any Hazardous Substance in or about the Property or the Premises, except as otherwise expressly set forth in this Lease. Landlord has encouraged Tenant to make its own physical inspection of all aspects of the Property and the Premises and to conduct its own investigation as to the suitability of the Property and the Premises for Tenant's use.

B. Upon the execution of this Lease, Landlord approves and requires the improvements to the Premises listed on Exhibit “B” that shall be completed by Tenant. Tenant shall complete the improvements within the timeframe as stated in Exhibit “B” (Tenant’s work).

Tenant shall not make any alterations, additions or improvements to the Premises (i) costing in excess of $5,000 for any single instance or $15,000 in the aggregate for any twelve (12) consecutive months or (ii) affecting the Building structure or utility systems, or attach any fixture or item of equipment thereto without Landlord's prior written consent except for the improvements listed in Exhibit “B”. All such alterations, additions, or improvements shall be made at Tenant's sole expense in accordance with Landlord's General Design Requirements (if any) and the plans and specifications (including specifications for materials to be used in connection therewith) and a statement of the estimated cost of such work submitted to and approved by Landlord (collectively the "Plans and Specifications"). If the cost thereof exceeds $5,000 for any single instance, or if such Tenant's work involves the Building structure or utility systems, any contractor or person selected by Tenant must be a licensed contractor. Landlord, in its sole discretion, shall approve or disapprove Tenant's request and may disapprove Tenant's use of any materials or substances, including but not limited to asbestos and fiber glass, which Landlord, in its sole discretion, deems potentially hazardous, toxic or threatening to health. To the extent that Tenant's work shall require a building permit or other permits from the City of Berkeley, Bay Conservation and Development Commission ("BCDC") and/or any other governmental agency, Tenant shall not perform any of Tenant's work until Tenant has obtained all requisite permits. Tenant further shall comply with all prevailing wage requirements of California Labor Code Sections 1720 et seq., to the extent such requirements are applicable to Tenant's work.

C. Tenant acknowledges that a jet fuel line runs under the property, and any Tenant digging or excavation of any kind on the property must be approved in advance by Landlord and Parks Superintendent.

D. Except as otherwise expressly provided in this Lease, Tenant shall not repair, replace or modify any utility system located within the Building without the Landlord's prior written consent. Tenant is responsible for the repair of any damage to any utility system, structural element of the Building(s), facilities of Landlord or any other facilities arising out of Tenant's construction activities or Tenant's negligence or willful misconduct; provided, however, such provision is not intended to and shall not be interpreted to make any other person or entity a third party beneficiary thereof.

E. This Lease specifically prohibits Tenant, or any other party, from expanding uses or structures allowed on the Premises beyond those designated in use permits approved by the City of Berkeley. Notwithstanding approval of any new Use Permit allowing expansion, or any future expansion of the uses in existing buildings, or additions to existing buildings or docks, or construction of any new buildings or docks, or moving existing buildings onto the Premises, are all subject to the prior written approval of the Landlord (with the exception of Exhibit “B”) and

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all improvements (including Exhibit “B” Improvements) are subject to the environmental review and permit regulations and approvals of same by all applicable local, state, and federal agencies.

F. If Tenant proposes to make or construct any alterations, improvements, additions or fixtures (other than Exhibit “B” Improvements) that affect any portion of the Premises or any structures located on the Premises that are allowed under an existing use permit, Tenant shall first provide the Landlord with thirty (30) days prior written notice. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits.

G. Except for Exhibit “B” Improvements, Tenant shall not substantially deface or change any floors, walls, ceilings, roofs, or partition any of the structures or improvements on the Premises without first providing thirty (30) days written notice to Landlord. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits. Except as may be specifically approved in writing by Landlord, Tenant shall require all contractors to provide a labor and materials bond for the full amount of any contract for improvements that exceed $50,000, including any applicable Exhibit “B” Improvements. Tenant shall pay, when due, all sums of money that may be due or become due for any labor, services, materials, supplies or equipment furnished to or for Tenant in, at, upon or about the Premises and which may be secured by any mechanic's, material men’s or other lien against the Premises or Landlord's interest therein.

All alterations, improvements or additions that are now or in the future attached permanently to the Premises shall be the Property of Landlord and shall remain with the Property at the termination of this Lease, except that Landlord can elect within thirty (30) days of the termination of the Lease to require Tenant, at its cost, to remove any equipment that Tenant has affixed to the Premises.

H. 1. Tenant agrees that to the extent it is required to comply with the prevailing wage requirements, Tenant shall assure that all workers are paid the prevailing rate of per diem wages, and travel and subsistence payments (defined in applicable collective bargaining agreements filed in accordance with Section 1773.8 of the California Labor Code), in effect on the date of Landlord's first approval of a building permit or other approval of the work. Copies of the applicable prevailing rate of per diem wages are on file at Landlord's principal office and will be made available to any interested party on request. Tenant agrees to post a copy of the prevailing rate of per diem wages at the Property. Tenant, as a penalty to Landlord, shall forfeit Twenty-Five Dollars ($25) for each calendar day, or portion thereof (or such other sum as specified from time to time by Section 1775 of the California Labor Code), for each worker paid less than the applicable prevailing rates for such work or craft in which such worker is employed.

The difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by Tenant.

2. Tenant agrees to keep or cause to be kept by each contractor and subcontractor an accurate payroll record for each worker employed on Tenant's work covered by this subsection H showing all of the information specified in subsection (a) of Section 1776 of the California Labor Code. All such payroll records shall be certified, available for inspection and filed in accordance with the procedures specified in subsections (b)-(e) inclusive of Section

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1776 of the California Labor Code. In the event of noncompliance with the foregoing requirements concerning payroll records which continues for more than ten (10) days after Landlord gives Tenant written notice specifying in what respects Tenant must comply, Tenant shall forfeit, as a penalty to Landlord, for each worker Twenty-Five Dollars ($25) for each calendar day, or portion thereof, until strict compliance is effectuated. Tenant shall be responsible for complying with Section 1777.5 of the California Labor Code concerning apprenticeable occupations, with respect to all work covered by that section. For purposes of the prevailing wage requirements of this subsection, Tenant shall be deemed to be a "contractor" as that term is used in Sections 1720 et seq., of the California Labor Code. Except where the context otherwise requires, the definitions of terms and phrases contained in the State prevailing wage law, Sections 1720 et seq., of the California Labor Code, and in the implementing administrative regulations, shall apply to the same terms and phrases which are used in the prevailing wage requirements of this subsection H.

10. LIENS

Tenant shall keep the Premises, the Building, and Aquatic Park free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant. In the event that Tenant shall not cause any such liens to be released of record, Landlord shall have, in addition to all other remedies provided herein or by law, the right (but not the obligation) to cause the same to be released by such means as Landlord shall deem proper, including payment of the claim giving rise to such lien. All sums paid and all expenses incurred by Landlord in connection therewith shall be reimbursed by Tenant promptly on demand. Landlord shall have the right to post and keep posted on the Premises any notices (including, without limitation, notices of non-responsibility pursuant to California Civil Code Section 3094) that Landlord may deem proper for protection of Landlord and the Premises. Tenant shall give Landlord at least ten (10) business days' prior notice of the date of commencement of any Tenant's work on or in the Premises to allow Landlord to post such notices.

11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS

A. Tenant agrees that during the entire term of this Lease, at its own cost and expense, it shall keep and maintain the Building(s) on the Premises, and all leasehold improvements, fixtures, furniture, and other improvements located on the Premises in good- quality order, repair and condition. Except as otherwise provided in this Lease, Tenant shall perform, at its own cost and expense, any and all maintenance, removal of graffiti, repairs, or rehabilitation to the Building(s), whether required by deterioration or by operations of Tenant or otherwise. This obligation includes any repairs to the roof or building structure.

B. To the extent applicable, Tenant hereby waives the provisions of Civil Code Sections 1941 and 1942, and any other provision of law now or hereafter in effect, with regard to the habitability of the Property and the Premises.

C. "Good-quality order, repair and condition", as used herein, shall mean the maintenance, repair, or renovation of the Building, equipment, furniture, fixtures, outdoor lighting, signage, and appurtenances necessary to keep and maintain the Building in efficient and attractive condition, given the nature and age of the Building, at any time during the term of this Lease.

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D. Tenant shall provide its own janitorial service for the Premises, and all of Tenant's rubbish shall be removed by Tenant to such location(s) on the Premises or within Aquatic Park as may be designated by Landlord for pick-up and disposal by the Landlord.

E. In the event of a dispute that Landlord and Tenant cannot informally resolve, Tenant’s only remedy against Landlord shall be the right to terminate this Lease, effective thirty (30) days from the delivery of written notice to Landlord.

G. Nothing in this Section 11 shall be deemed to affect or impair Landlord's rights under Section 9 of this Lease. Tenant acknowledges that Landlord has no obligation and has made no promises to alter, remodel, improve, repair, decorate or paint the Building or to improve the Premises, or any part thereof. Landlord has made no representations respecting the condition of the Building, the Premises, or Aquatic Park, except as specifically set forth in this Lease.

12. ENVIRONMENTAL

A. Tenant shall follow all environmental rules and regulations as they apply to City agencies. Specifically, Tenant shall minimize waste and recycle and compost, as per Recycling and Composting Guidelines for City Buildings. Guidelines for creating a recycling program are attached as Exhibit “D”. Tenant must participate in a recycling service provided by the City or provide an acceptable alternative with the approval of the City’s Recycling Supervisor. To that end, Tenant shall:

1. Assign someone to be in charge of its recycling programs, and to communicate needs and questions to the City’s Solid Waste Management Division.

2. Recycle corrugated cardboard, office papers and beverage containers (glass bottles, plastic bottles, and cans)

3. Place collection containers for paper at convenient locations.

4. Educate employees and program participants about recycling procedures.

5. Recycle batteries and office equipment (contact the City’s Solid Waste Management Division for information about vendors).

6. Tenant shall recycle construction waste from tenant improvements.

7. Tenant shall conserve energy.

13. DAMAGE OR DESTRUCTION

A. In the event the Premises are damaged by fire, flood, earthquake, act of God, the elements, or other casualty, then (unless this Lease is terminated pursuant to this Section 13) Tenant shall forthwith repair the same, at its sole expense. In this event, Tenant shall be solely responsible for the loss, repair, and replacement of its equipment and leasehold improvements.

B. Anything in subsection A to the contrary notwithstanding, neither Tenant nor Landlord shall have any obligation to repair or rebuild the Premises or the Buildings following damage or destruction thereto if the damage or destruction is due to any cause or casualty other than one against which the responsible party is required to carry insurance or actually does carry insurance and such party reasonably estimates that the cost of repair or rebuilding exceeds ten percent (10%) of the replacement cost of the Premises or Buildings, as the case may be. If the

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responsible party elects not to repair any damage or destruction pursuant to this provision, such party shall give the other party notice of such election within sixty (60) days after the date of such damage or destruction; and this Lease shall terminate as of the date of such damage or destruction.

C. Tenant hereby waives the provisions of California Civil Code Sections 1932 and 1933 and any other statutes now or hereafter in effect which relate to termination of a lease when leased Premises is damaged or destroyed and agrees that such event shall be governed by the terms of this Lease.

14. INDEMNIFICATION

A. To the fullest extent permitted by law, Tenant shall (1) immediately defend and (2) indemnify Landlord, and its directors, officers, and employees from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with the Lease. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. The Tenant's obligation to indemnify applies regardless of whether a liability is a result of the negligence of any other person, unless it is adjudicated that the liability is caused by the sole active negligence or sole willful misconduct of an indemnified party.

B. The duty to defend is a separate and distinct obligation from the Tenant’s duty to indemnify. The Tenant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the Landlord, the Landlord and its directors, officers, and employees, immediately upon submittal to the Tenant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. A determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Tenant from its separate and distinct obligation to defend Landlord. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Tenant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Tenant may submit a claim to the Landlord for reimbursement of reasonable attorneys’ fees and defense costs.

C. The review, acceptance or approval of any of Tenant’s work or work product by any indemnified party shall not affect, relieve or reduce the Tenant’s indemnification or defense obligations. This Section survives the termination of this Lease. The provisions of this Section are not limited by and do not affect the provisions of this Lease relating to insurance.

D. Liabilities subject to this Section include any claim of discrimination or harassment, including but not limited to sexual harassment, arising from the conduct of the Tenant or any of the Tenant’s officers, employees, agents, licensees, or subcontractors. In the event of a discrimination or harassment complaint against any employee, agent, licensee or subcontractor of the Tenant or its subcontractors, the Tenant shall take immediate and appropriate action in response to such complaint, including, but not limited to termination or

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appropriate discipline of any responsible employee, agent, licensee or subcontractor.

15. INSURANCE

A. Tenant, at its sole expense, shall procure and maintain the following insurance:

1. Commercial general liability insurance insuring Tenant against any liability arising out of its use, occupancy, repair or maintenance of the Premises, the Building, Aquatic Park or the Main Lagoon, with a combined single limit of not less than $2,000,000 for injury to or death of one or more persons in any one accident or occurrence and Property damage in any one accident or occurrence. Such comprehensive general liability insurance shall include fire liability coverage and public liability and Property damage insurance, including personal injury, broad form Property damage, blanket contractual, and other coverage as may be reasonably required by Landlord. Landlord shall have the right, from time to time, to require Tenant to increase the amount of its comprehensive general liability insurance coverage if, in Landlord's reasonable opinion, the amount of such coverage is not sufficient in light of the risks insured and Tenant's use of the Premises or Aquatic Park.

2. Special F orm Property insurance for cost of damage to the Premises, including, without limitation, during any term of construction of Tenant's work, builders' All- Risk Insurance. Such insurance shall include coverage for vandalism and malicious mischief and cost of demolition and increased cost of construction by reason of changes in applicable ordinances/laws and shall not contain a co-insurance clause.

B. All policies of insurance and all renewals thereof shall be approved as to form and sufficiency by Landlord's Risk Manager and shall be issued by good and responsible companies qualified to do and doing business in California and rated A+: XIII or better in the most recent version of Best's Insurance Guide. Each of the required insurance coverages except for workers compensation (i) shall name Landlord and each of its Affiliates as additional insureds and, with respect to casualty insurance, as their respective interests may appear and (ii) shall provide that it may not be canceled or altered by the insurer in such manner as to adversely affect the coverage unless sixty (60) days' prior notice is given by certified mail to Landlord at the address set forth in Section 35 below, or to such place as Landlord may from time to time designate in a notice to Tenant.

C. An original certificate of each policy of insurance shall be delivered to Landlord prior to the date the Premises is delivered to Tenant and from time to time during the Term. If Tenant shall fail to procure or maintain any insurance required hereunder or shall fail to furnish to Landlord any duplicate policy or certificate, Landlord may obtain such insurance; and any premium or cost paid by Landlord for such insurance shall be reimbursed by Tenant promptly upon Landlord's demand. Tenant shall make good faith efforts to ensure that at least sixty (60) days prior to the expiration of any such policy, an extension endorsement showing that such insurance coverage has been or will be renewed or extended shall be delivered to Landlord and if, despite such good faith efforts, such extension endorsement cannot be timely delivered, Tenant shall cause to be delivered to Landlord within said time other reasonable documentary evidence of renewal of coverage and shall continue exercising diligent efforts to deliver to Landlord the required extension endorsement. If such coverage is canceled or reduced, Tenant,

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within ten (10) days after receipt of written notice of such cancellation or reduction in coverage but in no event later than the effective date of cancellation or reduction, shall deliver to Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company(ies). Upon Tenant's failure to so deliver such certificate, Landlord may, without further notice and at its option, (1) exercise Landlord's rights as provided in this Lease or (2) procure such insurance coverage at Tenant's expense and Tenant shall promptly reimburse Landlord for such expense.

D. If any of the insurance required in this Section 15 is provided under a claims- made form of policy, Tenant shall maintain such coverage continuously throughout the Term and without lapse for a period of not less than five (5) years beyond the termination of this Lease, to the effect that should occurrences during the Term give rise to claims made after termination of this Lease, such claims shall be covered by such claims-made policies.

E. Each of Tenant's Pr operty insurance policies insuring the Premises and Tenant's Property in the Premises shall include a waiver of the insurer's right of subrogation against Landlord, or, if such waiver should be unobtainable or unenforceable, (i) an express agreement that such policy shall not be invalidated if the assured waives, before the casualty, the right of recovery against any party responsible for a casualty covered by the policy or (ii) any other form of permission concerning the assured's right to waive its right of recovery. If such waiver, agreement or permission shall not be, or shall cease to be, obtainable, Tenant shall so notify Landlord promptly after learning thereof.

F. Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which Tenant might otherwise have against Landlord for loss, damage or destruction of Tenant's Property occurring during the Term to the extent to which Tenant is insured under a policy (ies) containing a waiver of subrogation or agreement or permission to release liability, as provided in E. above. If, notwithstanding the recovery of insurance proceeds by Tenant for such loss, damage or destruction, Landlord is liable to Tenant with respect thereto or is obligated under this Lease to make replacement, repair, restoration or payment, then (provided Tenant's right of full recovery under its insurance policies is not thereby prejudiced or otherwise adversely affected) the amount of the net proceeds of the Tenant's insurance against such loss, damage or destruction shall be offset against Landlord's liability to Tenant therefore or shall be made available to Landlord to pay for replacement, repair or restoration, as the case may be. Nothing contained herein shall relieve either party of any duty to repair, restore or rebuild imposed elsewhere in this Lease or shall nullify any abatement of rent provided for elsewhere in this Lease.

G. If Tenant employs any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the Landlord. The workers' compensation insurance shall: provide that the insurance carrier shall not cancel, terminate, or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the Landlord; provide for a waiver of any right of subrogation against Landlord to the extent permitted by law; and be approved as to form and sufficiency by the Landlord's Risk Manager.

H. If a death, serious personal injury, or substantial Property damage occurs in connection with the performance of this Lease, Tenant shall immediately notify the Landlord's

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Risk Manager. If any accident occurs in connection with this Lease, Tenant shall promptly submit a written report to Landlord, in such form as the Landlord may require. This report shall include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Tenant's subtenant, if any; 3) name and address of Tenant's liability insurance carrier; and 4) a detailed description of the accident, including whether any of Landlord's equipment, tools or materials were involved.

I. Tenant shall forward all insurance documents to:

Parks, Recreation & Waterfront Department
City of Berkeley
2180 Milvia St., 3
rd Floor
Berkeley, CA 94704

16. COMPLIANCE WITH LAWS

A. Tenant, at its sole expense, shall promptly comply with all applicable laws, ordinances, rules, regulations, permits or requirements now or hereafter in effect (whether foreseen or unforeseen by Landlord or Tenant), with the requirements of any board of fire underwriters or similar body now or hereafter constituted; with any occupancy certificate issued by any public officer and with the provisions of all recorded documents affecting the Premises, insofar as any of the foregoing relate to or affect the condition, use or occupancy of the Premises or the Building. Such compliance by Tenant shall include, without limitation, compliance with all obligations to alter, maintain, or restore the Premises (and, as applicable, the Building), or construct improvements in or to the Premises, regardless of cost and regardless of when during the term of the Lease the work is required.

B. Tenant acknowledges that conducting its operations at the Premises and making certain alterations and improvements may require an authorization, approval or permit (collectively, "Regulatory Approval") from a governmental authority having jurisdiction over the Premises, including but not limited to the Bay Conservation and Development Commission.

Tenant shall be solely responsible for obtaining any such Regulatory Approval, and Tenant shall not seek any Regulatory Approval without first obtaining the approval of Landlord, except for items listed on Exhibit “B”. All costs associated with applying for and obtaining any necessary Regulatory Approval shall be borne by Tenant. Tenant shall be solely responsible for complying with any and all conditions imposed by regulatory agencies as part of a Regulatory Approval; however, Landlord shall not take any action that would materially interfere or prevent Tenant from complying with all such conditions. Any fines or penalties imposed as a result of the failure of Tenant to comply with the terms and conditions of any Regulatory Approval shall be paid and discharged by Tenant, and Landlord shall have no liability, monetary or otherwise, for said fines and penalties, except to the extent that such fines or penalties were caused by the willful acts or omissions of Landlord. To the fullest extent permitted by law, Tenant agrees to indemnify and hold Landlord and its officers, agents and employees harmless from and against any loss, expense, cost, damage, attorneys' fees, penalties, claims or liabilities which Landlord may incur as a result of Tenant's failure to timely obtain or comply with the terms and conditions of any Regulatory Approval. Landlord agrees to cooperate (but only to the same extent and in the same manner as a non-public entity could so cooperate, and not as an exercise of Landlord's police or regulatory power) with Tenant in filing, processing and obtaining all Regulatory

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Approvals, and upon request of Tenant, to join with Tenant as co-applicant in filing, processing and obtaining all Regulatory Approvals; provided, however, that Landlord may refuse to file, process or obtain Regulatory Approvals or to join Tenant as a co-applicant if Landlord determines in its sole and absolute discretion that it is not in Landlord's best interest to do so.

Nothing contained herein shall be deemed to limit or otherwise constrain Landlord's discretion, powers, and duties as a regulatory agency with certain police powers.

C. Tenant understands and agrees that Landlord is entering into this Lease in its capacity as a landowner with a proprietary interest in the Premises and not as a regulatory agency of the City of Berkeley with certain police powers. Landlord's legal status shall in no way limit the obligation of Tenant to obtain any required approvals from Landlord's departments, boards, or commissions that have jurisdiction over the Premises. By Landlord's entering into this Lease, neither Landlord nor any of City Council, boards, commissions, agencies, departments, or Affiliates obligates itself to any other governmental agent, board, commission or agency, or to Tenant, or to any other individual or entity, with regard to any discretionary action relating to development or operation of the Premises or Aquatic Park. Discretionary action includes but is not limited to rezonings, variances, environmental clearances, or any other governmental agency approvals that may be required or desirable for the improvement, alteration, or operation of the Premises or Aquatic Park. By entering into this Lease, Landlord is in no way modifying or limiting the obligation of Tenant to cause the Premises to be used and occupied in accordance with all laws.

17. ASSIGNMENT AND SUBLEASE

A. Any provision of this Lease to the contrary notwithstanding, Tenant shall not directly or indirectly, by operation of law or otherwise, transfer, assign, pledge, encumber or hypothecate this Lease or all or any portion of the Premises or Tenant's interest in and to the Premises (collectively, an "Assignment") or sublet the Premises or any portion thereof or permit the Premises or any portion thereof to be used, occupied or managed by anyone other than Tenant pursuant to any Lease, use or concession agreement or otherwise (collectively, a "Sublease") without first obtaining Landlord’s written consent. Any assignment, encumbrance, or sublease without Landlord's written consent shall be voidable and, at Landlord's election, shall constitute a default. City has the sole discretion to determine whether to agree to any sublease or assignment. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this paragraph.

B. Neither this Lease nor any interest therein shall be assignable or transferable in proceedings in attachment, garnishment, or execution against Tenant, in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Tenant or by any process of law. Possession of the Premises shall not be divested from Tenant in such proceedings or by any process of law without the prior written consent of Landlord.

C. Tenant expressly waives any rights that it might otherwise be deemed to possess pursuant to applicable law, including without limitation, Section 1997.040 of the California Civil Code, to limit any remedy of Landlord pursuant to Section 1951.2 or 1951.4 of the Code by means of proof that enforcement of a restriction on use of the Premises would be unreasonable.

18. INSPECTION

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Landlord may enter the Premises at all reasonable times (with reasonable advance notice except in case of emergency) (i) to inspect the same; (ii) to exhibit the same to prospective purchasers, mortgagees or tenants; (iii) to conduct tests, inspections and surveys to determine whether Tenant is complying with all of its obligations hereunder; (iv) to post notices of nonresponsibility or other notices that may be permitted hereunder; (v) to post "to Lease" signs of reasonable size upon the Premises during the last ninety (90) days of the Term; and (vi) to make repairs required or permitted to be made by Landlord or repairs to any adjoining space or any utility systems or to make repairs, alterations or additions to any other portion of the Building or Aquatic Park; provided, however, that all such work shall be done as promptly and with as little interference to Tenant as reasonably possible. Tenant hereby waives all claims against Landlord for any injury or inconvenience to or interference with Tenant's business or any loss of occupancy or quiet enjoyment of the Premises resulting from Landlord's entry into the Premises or any work performed therein by Landlord. Landlord shall at all times have a key to all doors in and about the Premises (excluding Tenant's vaults, safes and similar areas designated by Tenant in writing in advance), and Landlord shall have the right to use any and all means which Landlord may deem proper in an emergency to obtain entry to the Premises. Tenant also shall provide Landlord with written notice of the name, address, telephone number, and Tenant's account number of the burglar alarm company (if any) utilized by Tenant for the Premises. Any entry to the Premises by any of said means or otherwise shall not under any circumstances be deemed a forcible or unlawful entry into or a detainer of the Premises or an eviction (actual or constructive) of Tenant from the Premises.

19. DEFAULT

The occurrence of any one of the following shall constitute an event of default on the part of Tenant:

A. Failure to Use Premises. Failure to use the Premises as specified in Sections 5 and 6.

B. Nonpayment of Rent. Failure to pay any installment of rent or any other sum due and payable hereunder upon the date when such payment is due, such failure continuing for a period of five (5) days after written notice of such failure; provided, however, that Landlord shall not be required to provide such notice more than twice during any consecutive twelve (12) months with respect to non-payment of any portion of rent, the third such non-payment during any consecutive twelve (12) months constituting an event of default without requirement of notice.

C. Other Obligations. Failure to perform any obligation, agreement or covenant under this Lease, such failure having continued for thirty (30) days after notice of such failure from Landlord or such longer period as is reasonably necessary to remedy such default, provided that Tenant has commenced to remedy the default within such thirty (30) day period and shall continuously and diligently pursue such remedy until such default is cured.

D. General Assignment. A general assignment by Tenant for the benefit of creditors.

E. Bankruptcy. The filing of a voluntary petition in bankruptcy by Tenant, or the

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filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. In the event that under applicable law the trustee in bankruptcy or Tenant has the right to affirm this Lease and to continue to perform the obligations of Tenant hereunder, such trustee or Tenant, in such time period as may be permitted by the bankruptcy court having jurisdiction, shall cure all defaults of Tenant hereunder outstanding as of the date of affirmance and shall provide to Landlord such adequate assurances as may be necessary to ensure Landlord of the continued performance of Tenant's obligations hereunder. Any transferee (by operation of law or otherwise) must provide Landlord with adequate assurance of its future performance under this Lease. In the event of Tenant's bankruptcy, insolvency or reorganization, the parties specifically intend that the actions of the trustee or Tenant in assuming and/or assigning this Lease shall be governed by Section 365 of Title 11 of the United States Code applicable to shopping center leases.

F. Receivership. The employment of a receiver to take possession of all or substantially all of Tenant's assets in the Premises.

G. Insolvency. The attachment, execution or other judicial seizure of all or substantially all of Tenant's assets in or on the Premises; the admission by Tenant in writing of its inability to pay its debts as they become due; the filing by Tenant of a petition seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation; the filing by Tenant of an answer admitting or failing timely to contest a material allegation of a petition filed against Tenant in any such proceeding or if, within thirty (30) days after the commencement of any proceeding against Tenant seeking reorganization or arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation, such proceeding shall not have been dismissed.

H. Release of Hazardous or Toxic Substances or Materials and Other Environmental Impacts. Any release or discharge in, on, under, around, or from the Premises and/or Aquatic Park by Tenant, its agents or employees of Hazardous Substances which has not been fully cleaned up within ten (10) days after such release or discharge. Any negative impacts to the natural habitat and environment of Aquatic Park and/or the Main Lagoon caused by Tenant that are documented by a qualified, independent source and for which reasonable remediation measures are not available, or the Tenant fails to cooperate with the Landlord in implementing in a timely manner reasonable measures intended to mitigate any negative impacts.

I. Illegal Drugs. Any release or discharge of chemicals, toxics, solution in connection with the manufacturing and mixing of any illegal substance on the premises.

J. Non-compliance with lease term. Failure to perform any of the obligations and improvements listed on Exhibit “B”, such failure continuing for 30 days after notice from the landlord of said default.

20. REMEDIES UPON DEFAULT

A. Termination. In the event of the occurrence of any event of default, Landlord shall have the right immediately to terminate this Lease by written notice and at any time thereafter to recover possession of the Premises or any part thereof and to expel and remove

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Tenant, any other person or party occupying the same and all Premises located therein, by any lawful means and to reenter the Premises without prejudice to any of the remedies that Landlord may have under this Lease or under law or equity.

B. Continuation After Default. In the event of any default, this Lease shall continue in effect for so long as Landlord does not terminate this Lease under subsection A above. In such case, Landlord may enforce all its rights and remedies under this Lease, including without limitation, the right to recover rent as it becomes due, and all of its rights and remedies under law. Acts of maintenance, preservation, efforts to relet the Premises for Tenant's account or the appointment of a receiver upon application of Landlord to protect Landlord's interest under this Lease shall not constitute an election to terminate this Lease or Tenant's right to possession.

C. Damages Upon Termination. Should Landlord terminate this Lease pursuant to subsection A above, in addition to any other rights and remedies to which it may be entitled under applicable law, Landlord shall be entitled to recover from Tenant: (i) the worth at the time of the award of the unpaid rent and other amounts which had been earned at the time of termination; plus (ii) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rent loss that Tenant proves reasonably could have been avoided; plus (iii) the worth at the time of the award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rent loss that Tenant proves reasonably could be avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which, in the ordinary course of things, would likely result therefrom, including without limitation, the costs and expenses (including brokerage commissions and advertising costs) incurred by Landlord, with or without terminating the Lease, (1) in retaking possession of the Premises; (2) in cleaning and making repairs and alterations to the Premises reasonably necessary to return the Premises to good condition for the use permitted by this Lease and otherwise to prepare the Premises for reletting;(3) in removing all persons and personal property from the Premises and transporting and storing any of Tenant's personal property left at the Premises, although Landlord shall have no obligation to remove, transport, or store any of such personal property; and (4) in reletting the Premises for such term, at such rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; plus (v) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under California law. The "worth at the time of award" of the amounts referred to in (i) and (ii) shall be computed with interest at the maximum rate allowed by law. The "worth at the time of award" of the amount referred to in (iii) shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%).

D. Computation of Rent For Purposes of Default. For purposes of computing unpaid rent which would have accrued and become payable pursuant to subsection C above, unpaid rent shall include the total rent for the balance of the term of the Lease.

E. Remedies Cumulative. All rights, privileges and elections or remedies of the parties are cumulative and not alternative to the extent permitted by law and except as otherwise specifically provided herein.

F. No Waiver. Landlord's waiver of any breach of a covenant or condition hereof, or

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Landlord's failure to declare any default immediately upon occurrence thereof or a delay in taking any action in connection therewith shall not waive such breach or such covenant or condition or any subsequent breach thereof. The subsequent acceptance of rent or other monies by Landlord shall not be deemed a waiver of any preceding default by Tenant, other than the failure of Tenant to pay the particular rent or other sum so accepted, regardless of Landlord's knowledge of such default at the time of its acceptance of rent.

G. No Right of Redemption. Tenant waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 or any other present or future law in the event Tenant is evicted or Landlord takes possession of the Premises by reason of Tenant's default.

21. ENVIRONMENTAL OBLIGATIONS

A. Tenant shall not, without Landlord's prior written consent (which consent may be granted or denied in Landlord's sole discretion), install, bring into or release or discharge in, on, under, around, or from the Premises any (i) asbestos-containing materials, (ii) electrical transformers, fluorescent light fixtures with ballasts or other equipment containing PCB's or (iii) materials which constitute hazardous, extremely hazardous or toxic materials under the Resource Conservation and Recovery Act, the California Hazardous Waste Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the California Safe Drinking Water and Toxic Enforcement Act of 1986 or any other applicable law or regulation concerning hazardous or toxic materials, (collectively "Hazardous Substances") and has not done so prior to the effective date of this Lease. Any Hazardous Substances which are used, stored, treated, disposed of or released from the Premises by Tenant or its representatives, agents, employees or invitees, shall be used, stored, treated, released and disposed of in accordance with all applicable laws and regulations.

B. If Tenant knows or has reasonable cause to believe that any Hazardous Substance has been released on or beneath the Premises, Tenant shall immediately notify the Berkeley Police Department and the Toxic Management Office and promptly give written notice of same to Landlord. If Tenant knows or has reasonable cause to believe that such substance is an imminent and material danger to public health or safety, Tenant shall take all actions necessary to alleviate such danger. Tenant shall provide to Landlord as promptly as possible, and in any event within five business days after Tenant first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Tenant's use thereof and concerning Hazardous Substances. Tenant shall not negotiate or enter into any settlement agreement, consent decree or other compromise in respect of Hazardous Substances affecting the Premises or the Premises without first giving Landlord prior written notice and full opportunity to appear, intervene or otherwise protect Landlord's rights and interests.

C. Without limitation of the provisions of Section 14 hereof, Tenant shall indemnify, defend and hold Landlord and its affiliates harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses which arise during or after the term of this Lease as a result of the handling of Hazardous Substances on the Premises, or Aquatic Park by Tenant, its agents or invitees, including without limitation, all costs of monitoring, investigating, and remediation of the same, damages for diminution in the value of the Premises, damages for

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the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on marketing of any such space and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees. This indemnification by Tenant includes, but is not limited to, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration work requested by Landlord or required by any federal, state or local governmental agency or political subdivision because of Hazardous Substance present in the soil or groundwater in, on or under the Premises or in any improvements. Without limiting the foregoing, if the presence of any Hazardous Substance in, on, under or about the Premises caused or permitted by Tenant results in any contamination of the Premises or Aquatic Park, Tenant, at its sole expense, promptly shall take all action that is necessary to return the Premises to the condition existing prior to the introduction of such Hazardous Substance in, on, under or about the Premises; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions could not potentially have any material adverse effect upon the Premises. Tenant's obligations under this Section 21.C. shall survive the expiration or termination of this Lease.

22. LANDLORD'S RIGHT TO CURE

All covenants to be performed by Tenant shall be performed at Tenant's sole cost and expense and without abatement of rent. Without limiting Landlord's rights under any other provision of this Lease, if Tenant shall fail to pay any sum of money or shall fail to perform any other act and such failure shall have become an event of default under Section 19, Landlord, without waiving or releasing Tenant from any of its obligations, may make (but shall not be obligated to make) any such payment or perform any such other act. All sums so paid by Landlord and all necessary incidental costs shall be deemed additional rent and shall be payable to Landlord immediately upon Landlord's written demand.

23. EMINENT DOMAIN

A. If all or any part of the Premises shall be taken as a result of the exercise of the power of eminent domain, this Lease shall terminate as to the part so taken on the earlier of the dates that title vests in the condemning authority or such authority takes possession of the Premises. In the case of a partial taking, either Landlord or Tenant shall have the right to terminate this Lease as to the balance of the Premises by written notice to the other party within thirty (30) days after such date of taking; provided, however, that Tenant shall have no right to terminate this Lease unless the portion of the Premises taken shall be of such extent and nature as substantially to impede or impair Tenant's use of the balance of the Premises. In the event of any such taking, Landlord shall be entitled to all compensation, damages, income, rent, awards and interest that may be paid or made in connection with such taking. Tenant shall have no claim against Landlord for the value of any unexpired Term; however, Landlord shall cooperate with Tenant if Tenant seeks to recover, at its sole expense, proceeds or awards paid to compensate for damage to the "goodwill" associated with Tenant's business. Any such amounts recovered shall belong to Tenant.

B. If any part of the Premises shall be so taken and this Lease shall not be terminated, then this Lease shall continue in full force and effect, except that the Rent shall be reduced in the same proportion that the rentable area of the Premises taken bears to the original rentable area of the Premises. Landlord, upon receipt of the award, shall make all necessary

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repairs and alterations (exclusive of Tenant's trade fixtures, furniture, furnishings, personal Premises, decorations, signs and contents) to restore the portion of the Premises remaining to as near its former condition as the circumstances will permit and to restore the Building to the extent necessary to constitute the portion of the Building not so taken a complete architectural unit. Landlord, in any event, shall not be required to spend for such repairs and alterations an amount in excess of the amount received by Landlord as damages for the taking of such part of the Premises and/or Building; and Tenant, at its sole cost and expense, shall make all necessary repairs and alterations to Tenant's trade and lighting fixtures, furniture, furnishings, personal Premises, decorations, signs and contents.

C. As used herein, the "amount received by Landlord" shall mean that portion of the award received by Landlord as damages from the condemning authority which is free and clear of all prior claims or collections by Landlord and less reasonable attorneys' and appraisers' fees and expenses.

24. SUBORDINATION

A. This Lease shall be subject and subordinated to (i) all ground or underlying leases which have been or may hereafter be executed affecting the Premises, (ii) any Declaration of Covenants, Conditions and Restrictions now or hereafter recorded affecting Aquatic Park, all without the necessity of having further instruments executed on behalf of Tenant to effectuate such subordination.

B. Tenant agrees to execute and deliver upon demand such further instruments or documents as may reasonably be required by Landlord to evidence any such subordination of this Lease. Tenant hereby constitutes and appoints Landlord, as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any such instrument(s) on behalf of Tenant.

25. NO MERGER

The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies or operate as an assignment to it of any or all such subleases or subtenancies.

26. TRANSFER BY LANDLORD

In the event the original Landlord or any successor owner of Aquatic Park shall sell or convey the Premises or the Building, or any portion thereof that includes the Premises, all liabilities and obligations on the part of the original Landlord or such successor owner shall terminate. All such liabilities and obligations thereupon shall be binding only upon the new owner. Tenant agrees to attorn to such new owner.

27. ESTOPPEL CERTIFICATES

From time to time, Tenant shall execute and deliver to Landlord promptly upon request a certificate certifying (i) that this Lease is unmodified and in full force and effect or, if there has been any modification, that this Lease is in full force and effect as modified, and stating the date

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and nature of each such modification; (ii) the date to which rent and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; (iv) that Landlord is not in default under this Lease and that Tenant has no claims, charges, offsets or defenses against Landlord, or specifying the nature of any such default or claim, charges, offsets or defense; and (v) such other matters as may be reasonably requested by Landlord. Any such certificate may be relied upon by any prospective purchaser, vendee, or other party. If Tenant fails to execute and deliver any such certificate within ten (10) business days after Landlord's written request, such failure, at Landlord's election, shall be conclusive against Tenant that this Lease is in full force and effect, without modification (except as may be represented by Landlord), that there are no uncured defaults in Landlord's performance, and that not more than one month's rent has been paid in advance.

28. HOLDING OVER
If, after the expiration of the Term of the Lease, Tenant remains in possession of the Premises with Landlord’s consent all provisions of this Lease shall remain in effect with the following exceptions: (1)Tenant shall become a tenant from month-to-month, such tenancy terminable on thirty (30) days’ notice given at any time by either party; and (2) the Rent shall increase to 120% of the amount of the rent when the Lease expired.

29. CHANGES BY LANDLORD
A. The description of the Premises and the location of any Premises utility system(s), including without limitation electrical, plumbing, shall be subject to such minor changes as Landlord determines to be necessary or desirable in the course of any construction performed by or under the authorization of Landlord. No such changes shall invalidate or affect this Lease. Landlord shall effect such changes using reasonable efforts not to disturb Tenant's business. Tenant shall have no claim against Landlord for abatement of rent or loss of business as a result of any such disturbance.

B. Landlord shall have the right in its sole discretion to, among other things, change permitted land uses, install, maintain and remove public improvements, change the arrangement, character, use or location of entrances or passageways, walkways, streets, sidewalks, parking areas, stairs, landscaping, toilets, and other facilities and portions of Aquatic Park, and to change the name, number or designation by which the Building is commonly known. None of the foregoing shall be deemed an actual or constructive eviction of Tenant, nor shall it entitle Tenant to any reduction of rent hereunder or result in any liability of Landlord to Tenant; provided, however, Landlord shall not unreasonably obstruct or interfere with access to or the lines of sight toward the Premises.

30. GOVERNING LAW
This Lease shall be governed by the laws of the State of California.

31. SECURITY DEPOSIT
As security for the full and faithful performance by Tenant of each and every term, provision,

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covenant, and condition of this Lease, Tenant shall deposit with Landlord in an amount of THREE HUNDRED DOLLARS ($300), unless waived in whole or in part by Landlord. Such security shall be deposited on or before the Effective Date of this Lease.

If Tenant defaults in respect to any of the terms, provisions, covenants and conditions of this Lease, including but not limited to the payment of rent, Landlord may use the security deposit or any portion of it to cure the default or compensate the Landlord for all damage sustained by Landlord resulting from Tenant's default. If Landlord so uses any portion of the security deposit, Tenant will restore the security deposit to its original amount within ten (10) days after written demand from Landlord.

Landlord will not be required to keep the security deposit separate from its own funds and Tenant shall not be entitled to interest on the security deposit. The security deposit will not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this Lease, Landlord shall return the unused portion of the security deposit to Tenant within sixty (60) days after the end of the term. Landlord may deliver the security deposit to a purchaser of the Premises and be discharged from further liability with respect to it.

32. SIGNAGE

The size, design, material and location of any sign, marquee, awning, decoration or other attachment, advertising material or lettering on the Premises or on the exterior of the Building (collectively "signage") shall be subject to Landlord's prior written approval. All such signage shall comply with the criteria outlined in Landlord's General Design Requirements (if any) and shall be subject to the following provisions:

A. Tenant, at its sole expense, shall submit to Landlord a written description of all proposed signage, including dimensions, color, proposed location and other pertinent information ("Signage Proposal"). Landlord shall review the Signage Proposal and shall notify Tenant in writing of its approval, or reason(s) for its disapproval, within thirty (30) business days after Landlord's receipt of the Signage Proposal. If disapproved, Tenant shall make all required modifications to the Signage Proposal and shall resubmit the same to Landlord within seven (7) days after its receipt of Landlord's disapproval.

B. Within ten (10) days after Landlord's approval of the Signage Proposal, Tenant, at its sole expense, shall cause to be prepared and submitted to Landlord two (2) sets of plans ("Sign Plans") reflecting in detail the information contained in the approved Signage Proposal.

Landlord shall review the Sign Plans within thirty (30) days after Landlord's receipt of the same.

C. Upon Tenant's receipt of its sign permit from Landlord, Tenant shall construct and/or install all signage shown on the Sign Plans; in any event, however, Tenant shall complete such construction and/or installation not later than thirty (30) days after the sign permit is issued, unless otherwise agreed to by the City in writing.

D. Upon Landlord's request, Tenant immediately shall remove any signage that Tenant has placed or permitted to be placed in, on or about the Premises or Building contrary to the terms of this Section 32. If Tenant fails to do so, Landlord may enter upon the Premises and

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remove the same at Tenant's expense. Tenant, at its sole expense, shall maintain and replace all approved signage and shall repair, at its sole expense, any damage to the Building caused by the erection, maintenance or removal of any signage, including any damage caused by Tenant's removal of its signage at the expiration or earlier termination of the Lease. Tenant also shall comply with such regulations as may from time to time be promulgated by Landlord governing the signage of all tenants in Aquatic Park.

33. NO PARTNERSHIP

It is expressly understood and agreed that Landlord shall not be deemed in any way or for any purpose a partner, agent or principal of Tenant, in the conduct of its business or otherwise, or a joint venture or member of a joint enterprise with Tenant.

34. NO WAIVER

Landlord's waiver of Tenant's breach of any covenant or condition shall not be deemed a waiver of any subsequent breach of the same or any other covenant or condition, nor shall any custom or practice which may develop between the parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord to insist upon Tenant's performance in strict accordance with the terms of this Lease.

35. NOTICES

All notices, demands, consents or approvals which may or are required to be given by either party shall be in writing and shall be deemed to have been received when delivered personally or on the earlier of the date of actual receipt or two (2) business days following deposit in the United States mail, registered or certified, postage prepaid, addressed as follows:

To Tenant: Youth Musical Theater Company
1000 42nd Street
Oakland, CA 94608

To Landlord: Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia Street, 3 rd Floor
Berkeley, CA 94704

With copy to: City Manager
City of Berkeley
2180 Milvia Street, 5th Floor
Berkeley, CA 94704

Notices to Landlord regarding Hazardous Substances required by Section 21 hereof shall be sent both to the above addresses and to such other place as either party may from time to time designate in a written notice to the other party, or in the case of Tenant, delivered to the Premises.

Tenant will appoint an agent to receive the service of all proceedings, demands, and

32 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant
notices hereunder the person in charge of or occupying the Premises at the time. If no person shall be in charge of or occupying the same, then such service may be made by attaching the same on the main entrance of the Premises

36. COMPLETE AGREEMENT
This Lease is intended by the parties as the final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Lease constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding involving this Lease. The language and all parts of this Lease shall be construed as a whole and in accordance with its fair meaning and not restricted for or against either party. This Lease may be modified or amended only by a written instrument signed by both parties.

37. REQUESTS FOR CONSENT; WAIVER OF CLAIM
Tenant hereby waives any claim for damages against Landlord that it may have based upon any assertion that Landlord unreasonably has withheld or has delayed any consent or approval, and Tenant's sole remedy shall be an action for specific performance of such provision, injunction or declaratory judgment. In the event of a final determination in Tenant's favor, the requested consent or approval shall be deemed to have been granted.

38. INTERPRETATION
The use of masculine, feminine, or neuter genders shall include the other genders, and the singular shall include the plural and vice-versa. Headings are intended for convenience only and shall not be referred to in construing any provision. If there is more than one party as Tenant, the obligations imposed upon Tenant shall be joint and several. If any provision(s) of this Lease shall be found, to any extent, to be invalid or unenforceable the remainder of the Lease shall not be affected thereby.

39. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and shall inure to the benefit of Landlord, its successors and assigns, and shall be binding upon and shall inure to the benefit of Tenant, its heirs, successors and (to the extent assignment may be permitted hereunder) assigns.

40. AUTHORITY
If Tenant is a corporation or partnership, each of the persons executing this Lease on behalf of Tenant covenants and warrants that Tenant is a duly authorized and existing corporation or partnership, that Tenant has and is qualified to do business in California, that Tenant has full right and authority to enter into this Lease and that each person signing on behalf of Tenant is authorized to do so.

41. UNAVOIDABLE DELAYS

33 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

A. In the event that Tenant or Landlord is delayed, directly or indirectly, from the performance of any act or thing required to be done or performed under the terms or conditions hereof by acts of the other party to this Lease, acts of God, fire, floods, inclement weather, unavoidable governmental action, strikes or labor difficulties of any and all kinds, shortages of or delay in the delivery of materials, acts of war, riot and civil commotion, or by any other cause beyond the reasonable control of Tenant or Landlord, as the case may be, such failure shall not be deemed to be a breach of this Lease or a violation of any such covenants or conditions and the time within which Tenant or Landlord must perform any such act shall be extended by a period of time equal to the period of delay arising from any of such causes.

B. Notwithstanding any provision of this Section 41 or any other provision of this Lease to the contrary, it is understood and agreed that there shall be no abatement of, or delay in the commencement of, or payment of any sum due to Landlord under this Lease.

42. TIME OF THE ESSENCE

Time is of the essence of each and every covenant and condition of this Lease.

43. BROKERAGE

Landlord and Tenant hereby represent and warrant, each to the other, that they have not disclosed this Lease or the subject matter hereof to, and have not otherwise dealt with, any broker, finder or any other person, firm, corporation or other legal entity so as to create any legal right or claim of whatsoever kind or nature for a commission or similar fee or compensation with respect to the Premises or this Lease. Landlord and Tenant hereby indemnify each other against, and agree to hold each other harmless from, any liability or claim (and all expenses, including attorneys' fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with the indemnitor and relating to the Premises or this Lease.

44. CITY NON-DISCRIMINATION ORDINANCE

A. Tenant hereby agrees to comply with the provisions of the Berkeley Municipal Code ("B.M.C."), including without limitation Chapter 13.26, as amended from time to time. In the performance of its obligations under this Lease, Tenant agrees as follows:

1. Tenant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.

2. Tenant shall permit Landlord access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the reasonable opinion of Landlord, are necessary to monitor compliance with this non-discrimination provision. In addition, Tenant shall fill out, in a timely fashion, forms supplied by Landlord to monitor this non-discrimination provision.

B. Tenant understands that this Lease is governed by City Council Resolution No.

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58,664 – N.S.. This resolution, as may be amended from time, stipulates that Tenant's memberships policies may be reviewed by the City for compliance therewith at any time, and that unsatisfactory membership policies may result in non-renewal of this Lease or termination by the City.

45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES

A. If Tenant provides any aid, service or benefit to others on the Landlord’s behalf, Tenant shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Tenant shall further observe and comply with all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefits, services or activities of the Landlord.

B. If Tenant is or becomes a "public accommodation" as defined in Title 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 of Tenant's activities must be in accordance with these laws, ordinances, codes, and regulations, and Tenant shall be solely responsible for complying therewith.

46. CONFLICT OF INTEREST PROHIBITED

A. In accordance with California Government Code Section 1090, Berkeley City Charter Section 36 and B.M.C. Chapter 3.64, neither Tenant nor any employee, officer, director, partner or member of Tenant, or immediate family member of any of the preceding, shall have served as an elected officer, an employee, or a board, a committee or commission member of Landlord, who has directly or indirectly influenced the making of this Lease.

B. In accordance with California Government Code Section 1090 and the Political Reform Act, (Government Code Section 87100 et seq.,) no person who is a director, officer, partner, trustee, employee or consultant of Tenant, or immediate family member of any of the preceding, shall make or participate in a decision made by Landlord or any of its boards, commissions or committees, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Tenant, except to the extent permitted by 2 California Code of Regulations, Section 18700(c)(2).

C. Interpretation of this paragraph shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et seq., its implementing regulations, manuals and codes, Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64, as amended from time to time.

47. NUCLEAR FREE BERKELEY

Tenant agrees to comply with B.M.C. Chapter 12.90, the Nuclear Free Berkeley Act, as

35 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

amended from time to time.

48. OPPRESSIVE STATES

A. 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, the following entities:

(1) The governing regime in any Oppressive State.
(2) Any business or corporation organized under the authority of the governing regime of any Oppressive State.
(3) Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Lease) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.

B. For purposes of this Lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.

C. Tenant’s failure to comply with this paragraph shall constitute a default of this Lease and Landlord may terminate this Lease pursuant to Section 19. In the event that Landlord terminates this Lease due to a default under this provision, Landlord may deem Tenant a non- responsible bidder for five (5) years from the date this Lease is terminated.

49. BERKELEY LIVING WAGE ORDINANCE (LWO)

A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Tenant employs six (6) or more part-time or full- time employees, and generates $350,000 or more in annual gross receipts, Tenant will be required to provide all eligible employees with City mandated minimum compensation during the term of this lease, as defined in B.M.C. Chapter 13.27, and well as comply with the terms enumerated herein.

B. Tenant shall be required to maintain all reasonable records and documents that would establish whether Tenant is subject to Berkeley's Living Wage Ordinance. If Tenant is subject to the LWO, as defined therein, Tenant shall be further required to maintain monthly records of those employees located on the leased premises. These records shall include the total number of hours worked, the number of hours spent providing service on the leased Premises, the hourly rate paid, and the amount paid by Tenant for health benefits, if any, for each of its employees providing services under the lease. The records described in this paragraph shall be made available upon the City's request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Section 19 herein.

C. If Tenant is subject to the LWO, Tenant shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all subleases in which Tenant enters with regard to the subject premises. Subtenants shall be required to comply with this ordinance

36 2925 & 2945 Bolivar Drive Lease – YMTC, Tenant

with regard to any employees who spend 25% or more of their compensated time on the leased Premises.

D. If Tenant fails to comply with the requirements of this the LWO and this lease, the City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.

Tenant's failure to comply with this Section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 19.

In addition, at City's sole discretion, Tenant may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Tenant's failure to pay all of its eligible employees at least the applicable living wage rate will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty of forfeiture for Tenant's breach.

50. BERKELEY EQUAL BENEFITS ORDINANCE (EBO)

A. Tenant hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Tenant is currently subject to the Berkeley Equal Benefits Ordinance, Tenant will be required to provide all eligible 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.

B. If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant agrees to supply the City with any records the City deems necessary to determine compliance with this provision. Failure to do so shall be a considered a default, subject to the provisions of Section 19 of this lease.

C. If Tenant fails to comply with the requirements of this Section, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.

Tenant’s failure to comply with this section shall constitute default of the lease, upon which City may terminate this lease pursuant to Section 20.

In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Tenant’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.

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51. REQUIRED ACCESSIBILITY DISCLOSURE

A. Landlord hereby advises Tenant that the Premises and Facility have not undergone an inspection by a certified access specialist, and except to the extent expressly set forth in this Ground Lease, Landlord shall have no liability or responsibility to make any repairs or modifications to the Premises or the Project in order to comply with accessibility standards. The following disclosure is hereby made pursuant to applicable California law:

B. “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.” [Cal. Civ. Code Section 1938(e)]. Any CASp inspection shall be conducted in compliance with reasonable rules in effect at the Premises with regard to such inspections and shall be subject to Landlord’s prior written consent.

52. AUDIT

Pursuant to Section 61 of the Berkeley City Charter, the City Auditor's Office, or its designee, may conduct an audit of Tenant's financial, performance and compliance records maintained in connection with the operations and services performed under this Lease, and with the payments made under this Lease. In the event of such audit, Tenant agrees to make all such financial, performance and compliance records available to the Auditor's Office, or to its designee. City agrees to provide Tenant an opportunity to discuss and respond to any findings before a final audit report is filed.

53. CITY BUSINESS L ICENSE, PAYMENT OF TAXES, TAX I.D. NUMBER

Tenant has obtained a City business license as required by B.M.C. Chapter 9.04, and its license number is written below; or, Tenant is exempt from the provisions of B.M.C. Chapter

9.04 and has written below the specific B.M.C. section under which it is exempt. Tenant shall pay all state and federal income taxes and any other taxes lawfully assessed and due. Tenant certifies under penalty of perjury that the taxpayer identification number written below is correct.

54. SURVIVAL

The provisions of this Lease and obligations of Tenant, that by their nature, are to be performed after or are to survive termination of this Lease shall survive such termination.

55. EXHIBITS

Exhibits A, B, and C, and any other exhibit, addendum or schedule referenced in this Lease are made a part hereof by this reference.

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Exhibit “A”: Leased Premises
The Premises are located within Aquatic Park in the City of Berkeley, CA. The Premises consist of two wood-frame buildings, whose addresses are 2925 and 2945 Bolivar Drive.

The Property includes the fenced-in yard around and between the two buildings. The Property does not include the 13’ x 9’ Tool Lock-Up Area within a fenced enclosure located 56 feet north of the NW corner of the building at 2925 Bolivar Drive. The Premises does not include any portion of the lagoon, or any docks or other appurtenances that extend into the lagoon. It does not include exclusive use of any of the surrounding Aquatic Park land beyond that mentioned above.

Exhibit "B" Schedule of Improvements
Youth Musical Theater Company
Year What/Location Description Estimated Cost
2022 Exterior
Create a new porch/ ADA landing space at front door
of Building A $ 10,000
2022 Exterior Metal gate and framed re-entry $ 9,000
2022 Heating and cooling system HVAC system (A/C plus air filtration system) $ 10,500 2024 Landscaping Weeding and Planters near Building A $ 10,000 2025 Heating and cooling system Drainage and sump pump $ 5,000 2026 Painting Rebuild/ Restoration of exterior paint $ 5,000 2027 Flooring New (sprung) floors in Building A $ 18,000 2029 Windows New windows in Building A $ 12,000
2030 Heating and cooling system Add heating system in Building B $ 5,000 2033 Door Barn door off Building A $ 45,000
TOTAL $ 129,500.00

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Exhibit “C”: Berkeley Municipal Code, Chapter 6.04

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
July 23, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Chief of Police
Subject: Assembly Bill 481, 2023 Annual Military Equipment Report

RECOMMENDATION
Adopt a Resolution approving the 2023 Annual Military Equipment Report.

FISCAL IMPACTS OF RECOMMENDATION
The fiscal impacts are limited to staff time for reporting and continuous training.

CURRENT SITUATION AND ITS EFFECTS
Assembly Bill 481 mandates an annual report on law enforcement use of specified military equipment be provided to the governing body of the agency.

BACKGROUND
On May 11th, 2021 the City of Berkeley adopted the Police Equipment and Community Safety Ordinance, Ordinance NO. 7,760-N.S. The Police Equipment and Community Safety Ordinance requires the Police Department submit to Council for approval an annual report on the usage and deployment of specified equipment. The 2023 annual report pursuant to this ordinance was approved by the Police Accountability Board on April 23, 2024 and the City Council approved the annual report on June 4, 2024.

On September 30, 2021, after the City of Berkeley adopted our City ordinance, Assembly Bill 481 was approved by California Governor Gavin Newsom, requiring law enforcement agencies to obtain approval of the applicable governing body (Mayor and City Council), by adoption of a military equipment use policy prior to funding, acquisition, or use of military equipment as defined in Assembly Bill 481. Like the Police Equipment and Community Safety Ordinance, this bill required an approval process for the continued use of military equipment that law enforcement agencies already possessed.

In accordance with the assembly bill, the Berkeley Police Department authored Policy 709, Military Equipment policy, which was approved by the City Council on July 26, 2022.

2022 Annual Military Equipment Report CONSENT CALENDAR
Assembly Bill 481 July 23, 2024

Also similar to Berkeley’s Police Equipment and Community Safety Ordinance, Assembly Bill 481 requires law enforcement agencies to submit to the governing body an annual report for each type of military equipment they possess. The required information in the annual report per Assembly Bill 481 is similar to the City of Berkeley ordinance. However, Berkeley’s Police Equipment and Community Safety Ordinance requires the capturing of significantly more details on police equipment compared to Assembly Bill 481. The City ordinance requires the police department track all cases where military equipment was deployed and used (64 incidents in 2023) whereas Assembly Bill 481 only requires the tracking of military equipment that was used (16 incidents in 2023). Thus, the City ordinance provides greater detail to the Council, Police Accountability Board and community as a whole.

Additionally, the equipment required to be reported on slightly differ. Below is a table comparing the list of equipment required to be reported on per the Police Equipment and Community Safety Ordinance and Assembly Bill 481. The differences are highlighted and appear at the end of both lists.

Police Equipment and Community Safety
Ordinance (City Ordinance)
Assembly Bill 481
 M4/Patrol Rifle
Associated .223 duty and
training rounds
 Remington 700 Precision Rifle
Associated .308 rounds
 Barret Model 99 Precision Rifle
Associated .50 rounds
 Penn Arms single 40MM launcher
 Milkor LTL 40 MM multi-launcher
Associated 40mm rounds
 FN 303 Launcher
Associated FN rounds
Associated FN Pava rounds
 Chlorobenzylidene Malononitrile and
Oleoresin capsicum
 Light/sound distraction device
 Long Range Acoustic Device (LRAD)
 36” batons
 Oleoresin capsicum (OC spray)
 M4/Patrol Rifle
Associated .223 duty and
training rounds
 Remington 700 Precision Rifle
Associated .308 rounds
 Barret Model 99 Precision Rifle
Associated .50 rounds
 Penn Arms single 40MM launcher
 Milkor LTL 40 MM multi-launcher
Associated 40mm rounds
 FN 303 Launcher
Associated FN rounds
Associated FN Pava rounds
 Chlorobenzylidene Malononitrile and
Oleoresin capsicum
 Light/sound Diversionary Device
 Long Range Acoustic Device (LRAD)
 Mobile Command Vehicle
 ReconRobotics Recon Scout XT Robots
 Andros Remotec HD-1 Hazardous Duty
Robot

2022 Annual Military Equipment Report CONSENT CALENDAR
Assembly Bill 481 July 23, 2024