Berkeley City Council
July 30, 2024

21 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

of an indemnified party.

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

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

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

19. INSURANCE

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

1. C
ommercial general liability insurance insuring Tenant against any liability arising out of its use, occupancy, repair or maintenance of the Premises, Live Oak Community Center, Live Oak Park, w
ith 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, Live Oak Community Center, or Live Oak Park.

2. Special Form Property insurance for cost of damage to the Premises, including, without limitation, during any term of construction of Tenant's work, builders' All- Risk Insurance. Such insurance shall include coverage for vandalism and malicious mischief and

22 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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 Bes
t'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 ori
ginal certificate of each policy of insurance shall be delivered to Landlord prior to the date the Premises is delivered to Tenant and from time to time during the Term. If Tenant shall fail to procure or maintain any insurance required hereunder or shall fail to furnish to Landlord any duplicate policy or certificate, Landlord may obtain such insurance; and any premium or cost paid by Landlord for such insurance shall be reimbursed by Tenant promptly upon Landlord's demand. Tenant shall make good faith efforts to ensure that at least sixty (60) days prior to the expiration of any such policy, an extension endorsement showing that such insurance coverage has been or will be renewed or extended shall be delivered to Landlord and if, despite such good faith efforts, such extension endorsement cannot be timely delivered, Tenant shall cause to be delivered to Landlord within said time other reasonable documentary evidence of renewal of coverage and shall continue exercising diligent efforts to deliver to Landlord the required extension endorsement. If such coverage is canceled or reduced, Tenant, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage but in no event later than the effective date of cancellation or reduction, shall deliver to Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company(ies). Upon Tenant's failure to so deliver such certificate, Landlord may, without further notice and at its option, (1) exercise Landlord's rights as provided in this Lease or (2) procure such insurance coverage at Tenant's expense and Tenant shall promptly reimburse Landlord for such expense.

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

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

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

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

H. If a death, serious personal injury, or substantial Property damage occurs in connection with the performance of this Lease, Tenant shall immediately notify the Landlord's Risk Manager. If any accident occurs in connection with this Lease, Tenant shall promptly submit a written report to Landlord, in such form as the Landlord may require. This report shall 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

20. 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.

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Such compliance by Tenant shall include, without limitation, compliance with all obligations to alter, maintain, or restore the Premises, or construct improvements in or to the Premises, regardless of cost and regardless of when during the term of the Lease the work is required.

B. Tenant acknowledges that conducting its operations at the Premises and making certain alterations and improvements may require an authorization, approval or permit (collectively, "Regulatory Approval") from a governmental authority having jurisdiction over the Premises. Tenant shall be solely responsible for obtaining any such Regulatory Approval, and Tenant shall not seek any Regulatory Approval without first obtaining the approval of Landlord.

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 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 Live Oak 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 Live Oak 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.

21. ASSIGNMENT AND SUBLEASE

25 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

22. INSPECTION

Landlord may enter the Premises at all reasonable times (with reasonable advance notice ex
cept 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 Premises or Live Oak Park; provided, however, that all such work shall be done as promptly and with as little interference to Tenant as reasonably possible. Ten ant 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.

23. DEFAULT

26 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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

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

G. Insolvency. Th e 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,

27 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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 Live Oak 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 Live Oak Park caused by Tenant that are documented by a qualified, independent source and for which reasonable remediation measures are not available, or the Tenant fails to cooperate with the Landlord in implementing in a timely manner reasonable measures intended to mitigate any negative impacts.

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

J. Non-compliance with lease term. Fa
ilure to pay all rents or sums due, failure to
perform any of the obligations, such failure continuing for 30 days after notice from the landlord of said default.

24. 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 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

28 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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 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.

25. 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,

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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 Live Oak Park by Tenant, its agents or invitees, including without limitation, all costs of monitoring, investigating, and remediation of the same, damages for diminution in the value of the Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on marketing of any such space and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees. This indemnification by Tenant includes, but is not limited to, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration work requested by Landlord or required by any federal, state or local governmental agency or political subdivision because of Hazardous Substance present in the soil or groundwater in, on or under the Premises or in any improvements. Without limiting the foregoing, if the presence of any Hazardous Substance in, on, under or about the Premises caused or permitted by Tenant results in any contamination of the Premises or Live Oak 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.

26. LANDLORD'S RIGHT TO CURE

All covenants to be performed by Tenant shall be performed at Tenant's sole cost and ex
pense and without abatement of rent. Wit
hout 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

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Landlord and all necessary incidental costs shall be deemed additional rent and shall be payable to Landlord immediately upon Landlord's written demand.

27. EMINENT DOMAIN

A. If all or any part of the Premises shall be taken as a result of the exercise of the pow
er of eminent domain, this Lease shall terminate as to the part so taken on the earl ier 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 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 Premises to the extent necessary to constitute the portion of the Premises 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 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.

28. SUBORDINATION

A. This Lease shall be subject and subordinated to (i) all ground or underlying leases w
hich have been or may hereafter be executed affecting the Premises, (ii) any Declaration of Covenants, Conditions and Restrictions now or hereafter recorded affecting Live Oak Par k and
Live Oak Community Center, 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

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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.

29. NO MERGER

The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation the
reof, 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.

30. TRANSFER BY LANDLORD

In the event the original Landlord or any successor owner of Live Oak Park shall sell or convey the Premises, 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.

31. ESTOPPEL CERTIFICATES

From time to time, Tenant shall execute and deliver to Landlord promptly upon request a ce
rtificate certifying (i) that this Lease is unmodified and in full force and effect or, if there has been any modification, that this Lease is in full force and effect as modified, and stating the date and nature of each such modification; (ii) the date to which rent and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; (iv) that Landlord is not in default under this Lease and that Tenant has no claims, charges, offsets or defenses against Landlord, or specifying the nature of any such default or claim, charges, offsets or defense; and (v) such other matters as may be reasonably requested by Landlord. An y 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.

32. 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.

33. CHANGES BY LANDLORD

A. The description of the Premises and the location of any Premises utility system(s),

32 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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 Live Oak Park and Live Oak Community Center, and to change the name, number or designation by which the Premises 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.

34. GOVERNING LAW

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

35. SECURITY DEPOSIT

As security for the full and faithful performance by Tenant of each and every term, provision, cove
nant, and condition of this Lease, Tenant shall deposit with Landlord in an amount of SEVEN HUNDRED DOLLARS ($700), 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.

36. SIGNA
GE

The size, design, material and location of any sign, marquee, awning, decoration or other atta
chment, advertising material or lettering on the Premises (collectively "signage") shall be subject to Landlord's prior written approval. All such signage sh all comply with the criteria

33 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

outlined in Berkeley Municipal Code, Title 20 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 contrary to the terms of this Section 32. If Tenant fails to do so, Landlord may enter upon the Premises and remove the same at Tenant's expense. Tenant, at its sole expense, shall maintain and replace all approved signage and shall repair, at its sole expense, any damage to the Premises 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 Live Oak Park.

37. NO PARTNERSHIP

It is expressly understood and agreed that Landlord shall not be deemed in any way or for an
y 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.

38. NO WAIVER

Landlord's waiver of Tenant's breach of any covenant or condition shall not be deemed a wai
ver 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.

39. NOTICES

All notices, demands, consents or approvals which may or are required to be given by ei
ther party shall be in writing and shall be deemed to have been received when delivered

34 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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 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.

40. COMPLETE AGREEMENT

This Lease is intended by the parties as the final expression of their agreement with re
spect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous agreement. T
he 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.

41. REQUESTS FOR CONSENT; WAIVER OF CL
AIM

Tenant hereby waives any claim for damages against Landlord that it may have based upon an
y 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.

42. INTERPRETATION

35 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

43. S UCCES

SORS AND ASSIGNS

This Lease shall be binding upon and shall inure to the benefit of Landlord, its successors and a
ssigns, 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.

44. AUTH
ORITY

If Tenant is a corporation or partnership, each of the persons executing this Lease on beha
lf 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.

45. UNAVOIDABLE DELAYS

A. In the event that Tenant or Landlord is delayed, directly or indirectly, from the pe
rformance 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 gover
nmental 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.

46. TIME OF THE ESSENCE

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

47. BROKERAGE

Landlord and Tenant hereby represent and warrant, each to the other, that they have not dis
closed 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,

36 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

48. CITY NON-DI

SCRIMINATION 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. 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.

49. NON-DI

SCRIMINATION AGAINST PERSONS WITH DISABILITIES

A. I
f 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.

50. CONFLICT OF INTEREST PROHIBITED

37 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

51. NUCLEAR FREE BERKELEY

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

52. OPPRESSIVE STATES

A. In accordance with Resolution No. 59,853 – N.S., Tenant certifies that it has no cont
ractual 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 St
ate.
(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.

38 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

53. BERKELEY LIVING WAGE ORDINANCE (LWO)

A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the B
erkeley Living Wage Ordinance (LW
O). 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 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.

54. BERK

ELEY EQUAL BENEFITS ORDINANCE (EBO)

A. Tenant hereby agrees to comply with the provisions of the Berkeley Equal B
enefits 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 emp loyees 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.

39 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

55. REQUIRED ACCESSIBILITY DISCLOSURE

A. Landlord hereby advises Tenant that the Premises and Facility have undergone an i
nspection by a certified access specialist, and Te
nant acknowledges receipt of findings from that
inspection. 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.

56. AUDIT

Pursuant to Section 61 of the Berkeley City Charter, the City Auditor's Office, or its des
ignee, may conduct an audit of Tenant's financial, per
formance and compliance records

40 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

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.

57. CITY BUSINESS LI
CENSE, PAYMENT OF TAXES, TAX I.D. NUMBER

Tenant has obtained a City business license as req
uired 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 law fully assessed and due. Tenant
certifies under penalty of perjury that the taxpayer identification number written below is correct.

58. SURVIVAL

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

59. EXHIBITS

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

IN WITNESS WHEREOF, the parties hereto have executed this Lease at Berkeley, California effective as of the Effective Date.

LANDLORD:

CITY OF BERKELEY
A municipal corporation

By: __________________
City Manager Date

Approved as to form: Registered by:

___________________ ________________ City Attorney Date City Auditor Date

Attest:

__________________
City Clerk Date

41 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

TENANT:

YOUTH MUSICAL THEATRE COMPANY
A non-profit organization

By: ______________________________
Jennifer Boesing, Executive Director Date

TENANT INFORMATION

Tax Identification No.

Incorporated: Yes No
Certified Woman Business Enterprise: Yes____ No ____
Certified Minority Business Enterprise: Yes ____ No ____ Certified Disadvantaged Business Enterprise: Yes No City Business License No. ___________, or Exempt pursuant to B.M.C. Section _________

39 Live Oak Theater Lease, 1301 Shattuck Ave. – YMTC, Tenant

Exhibit “A”: Leased Premises

Live Oak Theater:

That portion of the Live Oak Community Center known as Live Oak Theater, occupying the area as depicted in Figure 1. The Premises comprises approx. 3,000 sq ft, and includes an entry foyer and restroom, 91 theater seats, stage, backstage area with 2 dressing rooms and restroom, and sound/light booth.

Figure 1: Live Oak Theater Premises

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 30, 2024
To: Honorable Mayor and Members of the City Council
From: LaTanya Bellow, Interim City Manager
Submitted by: Jennifer A. Louis, Chief of Police
Subject: Revenue Grant: Cannabis Tax Fund Grant Program (CTFGP) Acceptance

RECOMMENDATION
Adopt a Resolution authorizing the Chief of Police to accept the CTFGP grant and enter into the resultant grant agreement and any amendments, with the California Highway Patrol. This grant is for $111,716.80 for the period of July 1, 2024 through June 30, 2025.

FISCAL IMPACTS OF RECOMMENDATION
The total of this project will not exceed $111,716.80. Grant revenues will be deposited into budget code 336-71-703-812-0000-000-000-432110 to offset expenditures.

Appropriation of the expenditures is being included in the First Amendment to the Appropriations Ordinance. This grant will fund overtime, benefits, training costs, and reduce additional General Fund expenditures.

CURRENT SITUATION AND ITS EFFECTS
Securing CTFGP grant funding is a Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city.

Currently the Traffic Bureau at the Berkeley Police Department is staffed by two motor officers, one traffic data analyst, a Sergeant, and a Lieutenant. Motor officers’ responsibilities include injury-collision investigations and traffic enforcement; however, resources often deplete rapidly due to ancillary duties and personnel shortages in the operations/patrol division. CTFGP funding builds upon our current traffic safety efforts by allowing patrol and motor officers opportunities to address traffic safety issues-most significantly impaired driving- in addition to and outside of their regularly scheduled duties. Additionally, the funds provide opportunities for leadership development and learning in traffic safety and DUI/impaired driving enforcement, and enhance the department's overall mission of public safety.

BACKGROUND
Office of Traffic Safety (OTS) rankings place the City of Berkeley number one for the past seven years in pedestrian and bicycle related injury collisions when compared to fifty-nine other cities with comparable populations. Each year hundreds of people are

Revenue Grant: Cannabis Tax Fund Grant Program Grant
for 2025 CONSENT CALENDAR
XXXXXX, XX, 2024

injured in traffic collisions that occur in the City of Berkeley. Berkeley maintains a high ranking in total fatal and injury collisions, hit and run injury collisions, speed related collisions, nighttime collisions, and motorcycle involved collisions. With assistance from the 2025 CTFGP Grant, the department will continue our efforts to reduce the number of community members injured in collisions whether they choose to walk, drive, bike or ride a motorcycle in our city.

The CTFGP Grant and the City Council’s Vision Zero Program have shared ideologies.

BPD’s participation directly supports two of three of Vision Zero’s tenets. BPD’s efforts directly support Public Awareness Education and Traffic Enforcement. Public Awareness through our social media, departmental messaging, and direct contact with the public (in the field and at community meetings) and data-driven enforcement of primary collision factor offenses in areas where they have the highest probability of occurring.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City of Berkeley continues to have one of the highest bicycle and pedestrian usage rates in the County of Alameda and, as a result, there are a large number of bicyclists and pedestrians sharing the roadway with motorists. This grant will support the City of Berkeley's efforts to promote more sustainable forms of transportation, reducing greenhouse gas emissions-with the goal of reducing traffic injuries and fatalities related to all modes of transportation.

RATIONALE FOR RECOMMENDATION
The Police Department requests this funding be approved to enhance our current mission of providing a safer environment for pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways.

ALTERNATIVE ACTIONS CONSIDERED
The California Highway Patrol currently provides grant funding specific to traffic enforcement and related education. Not accepting this grant funding would require additional overtime expenditures from General Fund resources or could result in a decrease in the overall safety of the citizens of Berkeley

CONTACT PERSON
Dep. Chief Jen Tate, Police, (510) 981-5760
Attachments:
1: Resolution
Exhibit A: CTFGP Grant Agreement

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

REVENUE GRANT: CANNABIS TAX FUND GRANT PROGRAM GRANT (CTFGP)

FROM THE CALIFORNIA HIGHWAY PATROL TO FUND STRATEGIES TO REDUCE

THE NUMBER OF INJURIES AND DEATHS RELATED TO TRAFFIC COLLISIONS IN

THE CITY OF BERKELEY
WHEREAS, the Police Department is committed to providing a safe and secure environment through law enforcement within the City of Berkeley; and WHEREAS, the California Highway Patrol (CHP) has made grant funding available to the Police Department to assist them in their mission of increasing traffic safety; and WHEREAS, this grant will provide funding to support efforts to reduce injury and fatal collisions involving pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways; and
WHEREAS, grant revenues will be deposited into budget code 336-71-703-812-0000- 000-000-432110, in the DUI Enforcement Education Program Fund.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Chief of Police is authorized to accept the CTFGP Grant and enter into the resultant grant agreement and any amendments, with the CHP to fund increased levels of impaired driving enforcement in the amount of $111,716.80 for the period of July 1, 2024 to June 30, 2025.

Exhibit
A: CTFGP Grant Agreement

Berkeley Police
Prepared by Berkeley Police
for California Highway Patrol (CHP) Law Enforcement: Small and Mid-Size Organizations/Agencies FY 2024/2025 Primary Contact: Jen Tate

Opportunity Details
Opportunity Information
Title
Law Enforcement: Small and Mid-Size Organizations/Agencies FY 2024/2025 Description
Law Enforcement grants provide financial assistance to allied agencies for the education, prevention, and the enforcement of laws related to driving under the influence of alcohol and other drugs, including cannabis and cannabis products.

The intent of the program is to educate the public regarding the dangers of impaired driving, enforce impaired driving laws on the roadway, and improve the Organization/Agency’s effectiveness through training and development of new strategies.

Awarding Agency Name
California Highway Patrol
Agency Contact Name
Cannabis Grants Unit (CGU)
Agency Contact Phone
916-843-4360
Agency Contact Email
[email protected]
Fund Activity Categories
Education, Law, Justice and Legal Services
Opportunity Manager
Cannabis Grants Unit (CGU)
Opportunity Posted Date
1/9/2024
Public Link
https://www.gotomygrants.com/Public/Opportunities/Details/468aa0b8-b253-4f24-b655-b0bf6cf72569 Is Published
Yes
Funding Information
Funding Sources
State
Funding Source Description
With the passage of Proposition 64 in 2016, The Control, Regulate, and Tax Adult Use Marijuana Act (AUMA), California voters mandated the state to set aside funding for the CHP to provide grants to local governments and Qualified Nonprofit Organizations for the education, prevention, and enforcement of impaired driving laws pursuant to Section 34019 (f)(3)(B) Revenue and Taxation Code (RTC).

Funding Restrictions
State Agencies/Departments, please refer to Section 34019 (f)(3)(B) RTC and California Code of Regulations, Title 13, Division 2, Chapter 13, for additional information.

Award Information

Berkeley Police
Berkeley Police

Award Range
$500,000.00 Ceiling
Award Period
07/01/2024 - 06/30/2025
Award Type
Competitive
Indirect Costs Allowed
No
Matching Requirement
No
Submission Information
Submission Timeline Type
One Time
Submission Timeline Additional Information
GRANT APPLICATIONS ARE DUE FEBRUARY 23, 2024, BY 5:00 PM PST Grant Applicants are advised to ask submittal questions well before the deadline. The Cannabis Grants Unit (CGU) cannot guarantee an immediate response and the Grant Management System (GMS) will automatically close at 5:00 PM PST. Once a Grant Application is submitted through the GMS, Grant Applicants may not add, edit, or delete any Grant Application information.

Question Submission Information
Question Submission Email Address
[email protected]
Eligibility Information
Eligibility Type
Public
Additional Eligibility Information
Small and Mid-Size Law Enforcement Organizations/Agencies, with the primary function of enforcing traffic laws, which includes responding to calls, making arrests, and issuing citations, pursuant to the California Penal Code, California Vehicle Code, and California Health and Safety Code
Small-Size Law Enforcement Organizations/Agencies: 100 employees or less Mid-Size Law Enforcement Organizations/Agencies: 500 employees or less Additional Information
Additional Information URL
https://www.chp.ca.gov/programs-services/programs/cannabis-tax-fund-grant-program Award Administration Information
State Award Notices
Awards will be announced in May and June 2024.

Administrative and National Policy Requirements
The California Highway Patrol (CHP) adopted regulations within Title 13 of the California Code of Regulations (CCR),

Berkeley Police
Berkeley Police

Division 2, by adding Chapter 13, which govern the CHP, Cannabis Tax Fund Grant Program.

These regulations outline:
* Grant Provisions
* Grant Project Types
* Specific Grant Application Requirements
* Grant Evaluation Criteria
* Necessary Administrative Procedures for the Program
Regulations can be found at:
https://www.chp.ca.gov/programs-services/programs/cannabis-tax-fund-grant-program/program-regulations Reporting
Quarterly Reporting is required and due within 14 calendar days after the close of each quarter.

Quarter One (Q1): July 1 - September 30
Quarter Two (Q2): October 1 - December 31
Quarter Three (Q3): January 1 - March 31
Quarter Four (Q4): April 1 - June 30
Other Information
Please ensure your Organization/Agency has the capability to electronically sign required documents (ex: Grant Agreement).

Berkeley Police
Berkeley Police

Project Information
Application Information
Application Name
Berkeley Police
Award Requested
$111,716.80
Total Award Budget
$111,716.80
Primary Contact Information
Name
Jen Tate
Email Address
[email protected]
Address
2100 Martin Luther King Junior Way
Berkeley, CA 94704
Phone Number
(510) 981-5810

Berkeley Police
Berkeley Police

Project Description

1. Organization/Agency Representatives
Organization/Agency Section/Unit (subdivision) to administer the Grant Agreement Berkeley Police Traffic Bureau
Organization/Agency Representative
Please complete the following fields with appropriate Organization/Agency representatives, as applicable.

The Authorized Official is authorized to enter into a Grant Agreement with signing authority.

The Authorized Financial Contact maintains financial records, documentation, and recipient of warrant.

The Administrative Contact is responsible for day-to-day administration.

Authorized Official Name (first and last)
Jennifer Louis
Authorized Official Title
Chief of Police
Authorized Official Address (street, city, state, zip code) 2100 Martin Luther King Jr Way, Berkeley, CA 94704
Official Address to Receive Reimbursement Payment - MUST MATCH FI$CAL FORM (street, city, state, zip code) 2100 Martin Luther King Jr Way, Berkeley, CA 94704
Authorized Official Phone Number (with area code)
510-981-5700
Authorized Official Email Address
[email protected]
Authorized Financial Contact Name (first and last)
Chuck Gunter
Authorized Financial Contact Title
Administrative and Fiscal Services Manager
Authorized Financial Contact Phone Number (with area code) 510-981-5976
Authorized Financial Contact Email Address
[email protected]
Administrative Contact Name (first and last)
Jen Tate
Administrative Contact Title
Deputy Chief
Administrative Contact Phone Number (with area code)
510-981-5810
Administrative Contact Email Address

Berkeley Police
Berkeley Police

[email protected]

Berkeley Police
Berkeley Police

2. Senate/Assembly/Congressional/County Information
To determine the State Senate District(s), State Assembly District(s), and California Congressional District(s), copy and paste the below URL in your browser and search:
https://gis.data.ca.gov/maps/CDEGIS::legislative-districts-in-california-2/about Select one or more State Senate District(s) where the proposed Project activities will occur. To make multiple selections, hold down the Ctrl key and click each one.

State Senate 09
Select one or more State Assembly District(s) where the proposed Project activities will occur. To make multiple selections, hold down the Ctrl key and click each one.

State Assembly 15
Select one or more California Congressional District(s) where the proposed Project activities will occur. To make multiple selections, hold down the Ctrl key and click each one.

California Congressional District 13
Select one or more California counties where the proposed Project activities will occur. To make multiple selections, hold down the Ctrl key and click each one.

Alameda
Number of residents (population) that your Organization/Agency serves. 124321

Berkeley Police
Berkeley Police

3. Statistical Data
Ensure the responses below are accurate and align with the statistical data provided within the Grant Application. If a question is not applicable, please input "0" or "N/A".

How many schools are in your jurisdiction?
Elementary Schools Middle Schools High Schools Colleges/Universities Number of Schools 19 9 5 3
How many law enforcement personnel are within your Organization/Agency? 151
Does your Organization/Agency have specifically designated traffic enforcement personnel who conduct driving under the influence (DUI) enforcement operations?
Yes
No
How often does your Organization/Agency conduct DUI enforcement activities (ex: DUI Saturation Patrols, DUI Checkpoints)?
Weekly Average Monthly Average Yearly Average
Enforcement Activities 1 4 48
How many law enforcement personnel have attended Standard Field Sobriety Test (SFST), Advanced Roadside Impaired Driving Enforcement (ARIDE), and/or Drug Recognition Evaluator (DRE) training?

SFST ARIDE DRE
Number of Trained Law Enforcement Personnel
21 14 6
How many certified DREs does your Organization/Agency currently have? 0 How many law enforcement personnel are certified SFST and/or DRE Instructors?

SFST DRE
Number of Certified Instructors 4 0
What in-service training does your Organization/Agency offer related to DUI/DUID? All new Berkeley Police Department Officer's field training period includes a one hour class which covers topics which include describing BPD’s
DUI checkpoint programs, determining the primary collision factor in DUI collisions, and sobriety investigations at the scene of collisions. Additionally, each recruit receives a 30 minute class teaching the functions, use, and courtroom testimony as it relates to the PAS machine.

BPD's patrol schedule allows for paid training days throughout the year. As we have four active SFST instructors, we have been able to use some of this time to provide DUI related training. In the past, topics have covered updates to SFST’s, blood draw warrants, an introduction to drug impaired driving.

Is training conducted at your Organization/Agency or at an alternate facility?

Berkeley Police
Berkeley Police

Is training conducted at your Organization/Agency or at an alternate facility? Within Organization/Agency
Alternate Facility
Do law enforcement personnel participate in training with local city attorneys and/or district attorneys? Yes
No
Grant Funded Equipment
Have Cannabis Tax Fund Grant Program Grant Funds been utilized to purchase equipment (an acquisition cost of at least $5,000)?
Yes
No
If yes, list EACH equipment item and fiscal year of the Grant Agreement.

EXAMPLE ONLY
FY21-22 = Two Message Boards
FY22-23 = One DUI Vehicle

Berkeley Police
Berkeley Police

4. Project Description
Project Types: Please select project type(s) applicable to your Project.

Law Enforcement Training
Public Education and/or Prevention
Enforcement Efforts
Provide a brief overview/synopsis (a paragraph) of the proposed Project. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

According to the National Highway Traffic Safety Administration (NHTSA), traffic deaths in California increased 6% in 2021 from the last reported data in 2020. Between 2021-2023, Berkeley Police Officers investigated 224 collisions wherein the driver was impaired. Of those, 56 were injury collisions, and 2 were fatal collisions.

Best practice strategies will be employed to reduce the number of persons killed and injured in collisions involving impaired drivers. The funded strategies will focus on reducing impaired driving through special enforcement operations, and increasing public awareness through education and media engagement. Additional training for BPD officers in SFST and ARIDE will add to our collective effort to reducing fatal and serious collisions caused by impaired drivers.

Berkeley Police
Berkeley Police

5. Problem Statement & Proposed Solution
Clearly identify the problem/need (Problem Statement) in your local community that will be addressed by the Project. Then, clearly identify the Proposed Solution to address the problem/need. If applicable, provide recent and high-level statistical data that directly supports the problem/need in your local community. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - EITHER TYPE INFORMATION IN FIELD OR ATTACH DOCUMENT.

In California alone, there are 49 cities with larger populations than Berkeley. In Alameda County, Berkeley is ranked number four in population behind Oakland, Fremont, and Hayward. Yet, the City of Berkeley is famous around the globe.

As of the 2020 census*, Berkeley’s population was 124,321. The population density was over 11,000 per square mile.

Nearly 48 percent of Berkeley residents use a motor vehicle to commute to work, just under eight (8) percent used a bicycle and 16 (16) percent walked. Berkeley makes up only eight (8) percent of Alameda County’s population but more than 37 (37) percent of the county’s population of people who walk and ride bikes to work.

Additionally, there are seven (7) cannabis dispensaries located within the City; · The Apothecarium Cannabis Dispensary & Delivery, 2312 Telegraph Ave. · Cannabis Buyer’s Club of Berkeley, 3033 Shattuck Ave. · Hi-Fidelity Cannabis Dispensary, 2465 Telegraph Ave. · Berkeley Patients Care Collective, 2590 Telegraph Ave. · Berkeley Patients Group, 2366 San Pablo Ave.
· Farmacy Berkeley, 3243, Sacramento St.
· Frisco Labs Fulfillment Center, 2930 Domingo Ave.

In 2023, the Berkeley Police Department (BPD) made 139 misdemeanor DUI arrests (110 alcohol, 19 drugs only, 10 combo), and two (2) minor with BAC over .05%. In 2023, Berkeley Police made seven (7) felony DUI arrests (six (6) alcohol, one (1) combination alcohol/drugs).

Over the past three (3) years (2021-2023), BPD investigated 215 DUI Collisions. Of those 215 collisions 67 were injury collisions with a total of 91 injured people. The number of DUI injury collisions and persons injured has risen each of these years.
2023 DUI collisions: 75, of which 26 were injury collisions with 39 people injured 2022 DUI collisions: 78, of which 25 were injury collisions with 30 people injured 2021 DUI collisions: 62, of which16 were injury collisions with 22 people injured Currently, the Traffic Bureau at the Berkeley Police Department is staffed by only one Motor Officer, one Traffic Data Analyst, one Sergeant and one Lieutenant. Motor Officer responsibilities include injury-collision investigations and traffic enforcement; however, resources are often depleted rapidly due to ancillary duties and personnel shortages in the Operations/Patrol division. Grant funding would build upon our current traffic safety efforts by allowing patrol and motor officer’s opportunities to address traffic safety and impaired driving — in addition to and outside of their regularly scheduled duties. Additionally, the funds would provide opportunities for leadership development and learning in traffic safety and DUI/impaired driving enforcement, and enhance the department’s overall mission of public safety.

Proposed Solution:

The Berkeley Police Department's (BPD) traffic enforcement strategy employs a data-driven three prong approach;

1. Enforcement of Primary Collision Factors – unsafe speed, pedestrian right-of-way at crosswalks, failure to yield at intersections, red light and stop sign violations. Collision data is used to direct enforcement efforts.

2. Community Reports – Response to calls form community members regarding possible DUI drivers, unsafe driving acts, and other crimes involving vehicles (hit and run).

3. Community Caretaking – Distracted driving enforcement, DUI investigations, seatbelt violations

By focusing on the three prongs above BPD, in conjunction with grant funding, will continue to take a proactive and comprehensive approach to public safety where injury-collisions are concerned. The department will address impaired

Berkeley Police
Berkeley Police

drivers within the City limits by way of DUI saturation patrols. These patrols allow officers to both proactively seek out impaired drivers and to deploy targeted enforcement tactics based on DUI arrest and injury-collision data, enhancing the overall training and experience of those officers.

BPD will continue to work with local media to publicize our proactive enforcement efforts and to educate the community by way of public awareness campaigns and strategies.

In addition, grant funds will assist our training program. Backfill funds will enable the department to send officers to trainings by offsetting the financial impact of staffing the vacant shifts. Training officers in SFST, ARIDE and SFST Instructor will enhance our overall effectiveness as a department at detecting, deterring, and apprehending impaired drivers. The purchase of Preliminary Alcohol Screening equipment will contribute to our effectiveness and overall efficiency, and will greatly assist the officers in their saturation patrol efforts.

The BPD Traffic Bureau will coordinate with our Community Service Bureau and patrol officers to include impaired driving awareness into any public education opportunity.

All of these projects will be achieved through the timeline of the grant cycle, with emphasis on training and purchases conducted as early as possible to utilize the new training as much as possible during enforcement opportunities. *census information from www.census.gov
Statistical Data/Report(s)
BPD DUI Collisions CHP 2024.xlsx, BPD Collision Data.docx

Berkeley Police
Berkeley Police

6. Performance Measures/Scope of Work
Detail EACH Project activity/item below, which will serve as your goals and objectives for the Project. For EACH goal/objective, include estimated timelines (ex: monthly, quarterly), quantitative measurements (ex: reduction of DUI/DUID by %), and justification detailing how it will enhance/support the Project. NOTE: These goals and objectives must be consistent with the Budget. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

Grant funds would allow for officer training, public education, and enforcem ent opportunities in regards to im paired driving. Each of these goals in addition to activities and tim eline would be m onitored by the grant adm inistrator. By tracking the activity of the funded projects, BPD would be able to account for, and report on the effectiveness of the proposed projects.

Goal One - Officer Training: Provide our com m unity with well-trained Officers and with the skills needed to investigate im paired driving incidents and collisions. To accom plish this goal, the BPD will seek out SFST, ARIDE, and SFST Instructor training.

Objective 1.A. Two (2) police officers will be trained in SFST within the one-year term of this grant.

Objective 1.B. Two (2) police officers will be trained in ARIDE within the one-year term of this grant.

Objective 1.C. One (1) police officer will be trained and certified in SFST Instructor Training within the one-year term of this grant.

Q1=2 officers to SFST school
Q2=1 officer to SFST Instructor
Q3=2 officers to ARIDE school
Goal Two - Enforcem ent:

Objective 2.A. Im plem ent DUI Saturation Patrols – BPD will conduct ten (10) DUI saturation patrols per quarter (a m inim um of two (2) officers per saturation patrol on eight (8) hour shifts). These patrols will focus their efforts in areas known to have a high incidence of im paired driving collisions or DUI related arrests. BPD will aim to reduce DUI/DUID related collisions by 10% , which will im prove roadway safety in the com m unity.

Q1=10 Saturation Patrols
Q2=10 Saturation Patrols
Q3=10 Saturation Patrols
Q4=10 Saturation Patrols

Goal Three - Purchase PAS and other supplies to support DUI saturation patrols.

Q1=Purchase supplies
Q2-Q4=im plem ent supplies after purchase to be used during saturation operations

Perform ance Plan:

Goal Goal Type
SFST Officer Training Two (2) Officers trained ARIDE Training Two (2) Officers trained SFST Instructor One (1) Officer trained Press Releases Four (4) Issued
Enforcem ent Operations 40 Com pleted

Berkeley Police
Berkeley Police

EXAMPLE ONLY
16 DUI Saturation Patrols (Q1 = 4, Q2 = 4, Q3 = 4, Q4 = 4): Aim to reduce DUI/DUID deaths by 10%, which will improve roadway safety in the community.
2 DUI Checkpoints (Q2 = 1, Q4 = 1): Aim to reduce DUI/DUID by 15%, which will reduce the number of impaired drivers in the community.
4 Message Boards for DUI Checkpoints and Educational Messaging (Q1 = Purchase, Q2 = Receive, Q2-Q4 = Use to complete DUI Checkpoints and education): We will utilize the Message Boards to notify the public of an approaching DUI Checkpoint. In between DUI Checkpoints, we will display educational messaging against driving under the influence.
4 Educational Presentations at local high schools (Q1 = 1, Q2 = 1, Q3 = 1, Q4 = 1): Aim to contact at least 100 students each quarter to increase awareness of driving under the influence. The presentations will educate students on the implications of driving impaired.

Berkeley Police
Berkeley Police

7. Project Performance Evaluation
Provide the method of evaluation to show Project effectiveness and positive impact(s) on the community. These strategies shall include captured quantitative/qualitative data and a communication plan to share Project results with both internal and external stakeholders. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

The Berkeley Police Department (BPD) has a plan to evaluate the progress of each project and by the end of the grant term be able analyze projects success and share the results with internal and external stakeholders. This plan includes setting goals for each quarter with regards to training, public education through media, the purchase of equipment, and special enforcement opportunities. At the end of each quarter the grant administrator will be able to use appropriate data to support the progress of goals and objectives set.

Berkeley Police
Berkeley Police

8. Program Sustainability
Describe the plan for reducing reliance on future grant funding. Include a summary and timeframe to continue efforts when grant funds are either not available or significantly reduced. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

With more officers trained in SFST, ARIDE, and as SFST Instructor, there will be more personnel on patrol who are able to effectively and actively engage in and seek out assignments in DUI detection and apprehension efforts in the course of their current work assignment. As other officers see the success of this training, and the ability to reduce the number of impaired drivers, it is BPD's hope additional officers will seek training to be more effective in regard to DUI enforcement.

Grant funding builds upon our current traffic safety efforts by allowing officers opportunities in saturation enforcement to address impaired driving— in addition to and outside of their regularly scheduled duties. Additionally, the funds provide opportunities for community outreach with emphasis on impaired driving. In addition to grant funded enforcement operations, the purchase of equipment that our department might not otherwise be able to purchase, it is our hope this will have a cumulative effect on the safety of our roadways.

Berkeley Police
Berkeley Police

9. Administrative Support
Describe the administrative support, including the Organization/Agency’s grant experience, personnel, and physical resources needed to successfully implement the Project. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

The Berkeley Police Department (BPD) maintains a fulltime Traffic Data Analyst within the Traffic Bureau for collision data analysis and reporting to SWITRS. In addition, the BPD has a full-time civilian Administrative and Fiscal Manager, who has several years of successful management experience with grant programs both at the state and local levels. The BPD employs and Assistant Fiscal/Management Analyst whose responsibilities include preparation of fiscal reporting and justification. The Assistant Fiscal/Management Analyst and the Traffic Bureau Sergeant work in unison to effectively manage and deploy grant resources.

Berkeley Police
Berkeley Police

10. Other Grant Programs
Impaired Driving Enforcement Funding
Has your Organization/Agency previously received grant funding for impaired driving enforcement? Yes
No
If yes, detail the outcome. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

The BPD has been previously awarded 3 CHP cannabis grants to fund impaired driving enforcement/education operations. The grants were highly successful, allowing the BPD to conduct dozens of impaired driving enforcement operations and send officers to ARIDE and SFST classes they not otherwise have been able to attend.

Other Grant Programs
Has or will your Organization/Agency submit a proposal to another grant program for this Project (ex: funds for the same components as this Project, or for similar/related components that will be completed during the same time period as this Project)?
Yes
No
If yes, detail the granting Organization/Agency. In addition, clearly distinguish which tasks would be funded by the CTFGP and which tasks would be funded by another Organization/Agency. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

The BPD has applied for OTS grant funds for the 2024-2025 grant year for traffic enforcement, DUI saturation patrol, DUI checkpoints, officer training, and public education.

Are any personnel dedicated to this Project funded by other sources/grants? Yes
No
If yes, detail which source/grant. PLEASE DO NOT COPY AND PASTE TABLES IN FIELD - TYPE INFORMATION IN FIELD.

Berkeley Police
Berkeley Police

11. Terms and Conditions
By submitting your Grant Application, you agree to the following Terms and Conditions:

I certify, under penalty of perjury, that the information I entered in this Grant Application is true and complete to the best of my knowledge. I further understand that any false, incomplete, or incorrect statements may result in my disqualification from the grant process or dismissal from receiving grants funded by the California Highway Patrol (CHP), Cannabis Tax Fund Grant Program. I authorize the California Highway Patrol, Cannabis Grants Unit (CGU), to investigate referenced documents or other documents submitted to the program to check the accuracy of the information provided.

I agree with the Request for Application, the above Terms and Conditions, and the California Code of Regulations, Title 13, Division 2, Chapter 13, Sections 1890.00 through 1890.27.

I Agree
When using the GMS (AmpliFund), I authorize the state to take my requested action by an electronic means and authorize the state to accept the combination of my User ID and password in lieu of my written signature.

I Agree
My password is unique to me and is to remain confidential. I will not allow other individuals to use my User ID and password to access the GMS (AmpliFund).

I Agree
It is my responsibility to maintain the confidentiality of GMS (AmpliFund) information.

I Agree
Once I submit the Grant Application, I am unable to add, edit, or delete any Grant Application information.

I Agree
Confidentiality Notice: All documents submitted as a part of the Cannabis Tax Fund Grant Program Grant Application are public documents and may be subject to a request pursuant to the California Public Records Act. The CHP, CGU, cannot ensure the confidentiality of any information submitted in or with this Grant Application (Gov. Code, § 6250 et seq.).

I Agree
Generated Income Disclaimer: There will be no program income generated from this grant. Nothing in this Grant Application shall be interpreted as a requirement, formal or informal, that a particular law enforcement officer issue a specified or predetermined number of citations, in pursuance of the goals and objectives. Although special emphasis will be placed upon violations specific to this Grant Application, appropriate enforcement action will be taken for all observed violations.

I Agree
Financial Information System for California Government Agency Taxpayer ID (FI$Cal Form) A FI$Cal Form is required for reimbursement. If the Grant Applicant does not have a completed FI$Cal Form at final Grant Application submission time, the Grant Applicant may submit the completed FI$Cal Form via email to CGU prior to execution of the Grant Agreement. NOTE: The “Remit-To Address" on the FI$Cal Form MUST match the “Official Address to Receive Reimbursement Payment” you entered in Form #1. Organization/Agency Representative. This address shall be the official address on file with FI$Cal and the State Controller’s Office (SCO) to receive warrants (Reimbursement Request Payments). Forms are located on the Cannabis Tax Fund Grant Program's website at https://www.chp.ca.gov/programs-services/programs/cannabis-tax-fund-grant-program.

I Agree
FI$Cal Form
City Council or County Resolution
A county, city, district, or other public body shall provide a copy of a resolution, order, motion, or ordinance of local governing body, which by law has the authority to enter into an agreement authorizing execution of a Grant Agreement. If the Grant Applicant does not have a signed resolution at final Grant Application submission time, the Grant Applicant may submit a signed resolution via email to CGU prior to execution of the Grant Agreement. NOTE: The resolution MUST explicitly state the Organization/Agency has delegated authority to enter into a Grant Agreement for the requested amount.

I Agree

Berkeley Police
Berkeley Police

Berkeley Police
Berkeley Police

Budget
Proposed Budget Summary
Expense Budget
Grant Funded Total Budgeted
Personnel
Saturation Patrol $93,484.80 $93,484.80
Training Backfill $14,607.00 $14,607.00
Subtotal $108,091.80 $108,091.80
Other Direct Costs
DUI Saturation Supplies $3,625.00 $3,625.00
Subtotal $3,625.00 $3,625.00
Total Proposed Cost $111,716.80 $111,716.80
Revenue Budget
Grant Funded Total Budgeted
Grant Funding
Award Requested $111,716.80 $111,716.80
Subtotal $111,716.80 $111,716.80
Total Proposed Revenue $111,716.80 $111,716.80
Proposed Budget Detail
See attached spreadsheet.

Proposed Budget Narrative
Personnel
Costs may include compensation for wages, such as overtime, and benefits (annual leave and sick leave) for work directly related to, and consistent with, the Project. Personnel hours will be awarded based on the number of grant- funded Project activities approved by CGU. To be eligible for reimbursement, personnel services must occur within the Project Performance Period. Please note, full salary positions are not allowed. Itemize separate Budget line items by Project activity (ex: one Budget line item for DUI Saturation Patrol; one Budget line item for DUI Checkpoint). Combine wages and benefits in the same Budget line item for each Project activity. For EACH Budget line item, the narrative shall include the below: * Number of times Project activity will occur * Classification(s) working Project activity * Rate of pay for each classification working Project activity (notate regular or overtime pay) * Number of hours for each classification working Project activity EXAMPLE 16 DUI Saturation Patrols = $9,600 2 Officers per patrol / Officer = OT $60 per hour 5 hours per patrol / 80 hours per Officer / 160 hours Training Backfill

Berkeley Police
Berkeley Police

Backfill funding for officers to attend training ARIDE Class Backfill: 2 Officers 10 hours/day for 3 days each at 146.07/hour OT for 60 hours total = $8764.15 SFST Class Backfill 2 Officers 10 hours/day for 2 days each at 146.07/hour OT for 40 hours = $5842.80
Saturation Patrol
40 DUI Saturation Patrols = $93484.80. 2 officers per patrol / Officer OT $146.07 per hour 8 hours per patrol / 640 hours total.

Other Direct Costs
Costs may include operational costs. Other Direct Costs shall be directly related and necessary to complete grant- funded activities included in the Project. Other Direct Costs should be purchased at the beginning of the Project Performance Period to ensure they are utilized when completing corresponding Project activities. DUI Saturation Patrol Other Direct Costs approved by CGU may utilize eligible outfitting expenses, which only include emergency lights, sirens, radio, and transport partition (cage). To be eligible for reimbursement, Other Direct Costs must be purchased and received within the Project Performance Period. Itemize separate Budget line items for each Other Direct Costs item. For EACH Budget line item, the narrative shall include: * Name/description of Other Direct Costs * Quantity * Unit cost and total cost EXAMPLE Message Board = $20,000 $4,000 each / 4 = $20,000 Wrap/Decals for DUI/DUID Trailer = $275 Decals = $200 / Installation = $75 Cones = $170 $70 each / 10 = $170 DUI Saturation Supplies
4 PAS Devices = $750 each / 4 = $3000 Replacement software for PAS accuracy checks = $450 New gas for testing PAS = $175

Berkeley Police
Berkeley Police

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 30, 2024
To: Honorable Mayor and Members of the City Council
From: LaTanya Bellow, Interim City Manager
Submitted by: Terrance Davis, Director, Department of Public Works Subject: Purchase Order: National Auto Fleet Group for Prisoner Transport Vehicle Body Assembly Upgrade

RECOMMENDATION
Adopt a Resolution satisfying requirements of City Charter Article XI Section 67.2 allowing the City Manager to participate in Sourcewell bid procedures and authorize the City Manager to execute a purchase order for one Prisoner Transport Vehicle Body Assembly Upgrade with National Auto Fleet Group in an amount not to exceed $340,000.

FISCAL IMPACTS OF RECOMMENDATION
The cost of the 2024 prisoner transport vehicle body assembly upgrade will not exceed $340,000 and includes installation, shipping of chassis, sales tax and delivery fees.

Funding for the purchase is available in FY25 budget funds:

Fund Account Amount
Equipment Replacement
Fund: (671)
671-54-626-723-0000-000-
473-664120-
$189,250
Police Fund (011) 011-71-705-820-0000-000-
421-670160-
$ 150,750

CURRENT SITUATION AND ITS EFFECTS
The completed prisoner transport van will replace unit 1116, a 2002 Ford E450 gas- powered 11 passenger prisoner transport vehicle which has exceeded its planned useful life expectancy. Equipment Maintenance has already purchased the replacement vehicle and it is awaiting completion of the upfitting of the new prisoner transport van.

The new asset will be utilized by City’s Police Department personnel responsible for daily transportation of detainees to the Alameda County Santa Rita Jail, located in Dublin CA. The upfitting is needed by City’s Police Department in their work to provide public safety services in the City.

Purchase Order: National Auto Fleet Group for CONSENT CALENDAR Prisoner Transport Vehicle Body Assembly Upgrade July 30, 2024

The prisoner transport vehicle body is a self-contained unit, built entirely of aluminum and includes the following: capacity to support 23 passengers, wheelchair lift assembly, laser cut partitions and window coverings, sprayed with a polyurea bedliner for frequent and repeated pressure washing, interior construction free of items inmates can remove or damage and independent dual AC System. The body is easily transferable to future support vehicle chassis if replacement is required. It will take approximately 330 days to build.

Above is an example what the transporter would look like once completed.

This purchase will support the City’s Strategic Plan Goal of creating a resilient, safe, connected, and prepared City.

BACKGROUND
Throughout the year, each City Department pays its proportionate share into the Equipment Replacement Fund, and those funds are utilized to replace equipment at the end of its useful life. If a vehicle purchase request exceeds $100,000, the Department of Finance General Services Division solicits bids or piggybacks off competitively bid contracts to ensure City Departments receive the best pricing.

City Charter XI Section 67.2 may, by resolution, authorize the City to purchase goods without undergoing a competitive bid process if the City uses pricing obtained by another entity through a competitive process.

The City is a no-cost member and participant of Sourcewell, a municipal contracting agency operating under the legislative authority of Minnesota Statue 123A.21. The original statue was revised in 1995 to allow government clients to better meet their specific needs through participation in a service cooperative, rather than paying higher costs associated with individual procurement. Sourcewell allows participating municipal agencies to leverage the benefits of cooperative purchasing and reduces procurement costs. Sourcewell serves all educational, government and non-profit agencies nationwide, and offers cooperative contracted products, equipment and service opportunities to government entities throughout the U.S.

Purchase Order: National Auto Fleet Group for CONSENT CALENDAR Prisoner Transport Vehicle Body Assembly Upgrade July 30, 2024

All Sourcewell contracts have been competitively solicited nationwide. On April 16, 2020 Sourcewell released Request for Proposals No. 060920 for Class 4-8 Chassis with Related Equipment, Accessories, and Services. The solicitation was released for approximately fifty-five days and twenty-five proposals were submitted and received.

Upon review, the Sourcewell proposal evaluation committee selected 72 Hour, LLC dba National Auto Fleet Group as the best most responsive proposer to meet the specifications thusly awarding Contract No. 060920-NAF.

The upfit of the Prisoner Transport Vehicle will be completed by National Auto Fleet Group sub-contractor TriVan Truck Body, located in Washington State. Police Department staff solicitated vendors for this work, however TriVan met their requirements for this project and was selected for this project. TriVan Truck Body has previously done custom upfitting work on other City vehicles in the past and has experience with the work needed for this project. TriVan Truck Body will complete the specialized service and deliver the completed vehicle to the city for final inspection.

Upfitting work will take at least 6 months to be complete.

In addition, a 2023 Ford F600 chassis was purchased for $76,990.41 in March 2024 from Southern California dealership South Bay Ford and they are awaiting authorization to finish the upfitting of the prison transport van. The cost for the chassis is separate from the vehicle body assembly upgrade but is needed to complete the unit.

For all contracts, Sourcewell charges an administrative fee based upon the percentage of the sale, and that fee is paid by the Contractor directly to Sourcewell. The fee for the purchase of this assembly upgrade will be paid by National Auto Fleet Group and will not be passed on to the City.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Public Works Equipment Maintenance endeavors to procure the most fuel-efficient vehicles and equipment that are suitable for the required tasks. Equipment Maintenance also researches the feasibility and availability of fully electric vehicles and hybrid-electric powertrains to support the City’s transition away from fossil fuels towards an all-electric fleet, where technically feasible.

At present, no suitable electric vehicle alternative is readily available to meet the need of the Police Department in this capacity. The Prisoner Transport Vehicle will be powered by 100% renewable diesel that reduces greenhouse gas emission by as much as 50-80% and complies with the City’s Fossil Free Recommendations by retiring a present gas-powered vehicle. Public Works Staff are committed to procuring electric alternative solutions and essential infrastructure that supports the specific needs of Police Department operations. The TriVan Truck Body design is a self-contained unit that is transferable to future support electric vehicle chassis.

Purchase Order: National Auto Fleet Group for CONSENT CALENDAR Prisoner Transport Vehicle Body Assembly Upgrade July 30, 2024

RATIONALE FOR RECOMMENDATION
Unit 1116 was long overdue for replacement, and the replacement chassis has already been ordered. The upfitting is the final step in completion of the new asset. The upfitted body would be able to be transferred to an electric vehicle.

ALTERNATIVE ACTIONS CONSIDERED
None. Listed vehicle has reached the end of its useful life.

CONTACT PERSON
Greg Ellington, Superintendent, Public Works, (510) 981-6469 Joy Brown, Operations Manager, Public Works, (510) 981-6629 Attachment:
1: Resolution

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

PURCHASE ORDER: NATIONAL AUTO FLEET GROUP FOR PRISONER

TRANSPORT VEHICLE BODY ASSEMBLY UPGRADE
WHEREAS, one (1) Prisoner Transport Vehicle is needed by the City of Berkeley Police Department in their work to provide public safety services in the City; and WHEREAS, a vehicle body assembly upgrade is needed to complete the build; and WHEREAS, this Prisoner Transport Vehicle is a replacement for unit 1116 which has reached the end of their useful life; and
WHEREAS, City Charter XI Section 67.2 may, by resolution, authorize the City to purchase goods without undergoing a competitive bid process if the City uses pricing obtained by another entity through a competitive bid process; and WHEREAS, on April 16, 2020 Sourcewell released Request for Proposals No. 060920 for Class 4-8 Chassis with Related Equipment, Accessories, and Services. The solicitation was released for approximately fifty-five days and twenty-five proposals were submitted and received. Upon review, the Sourcewell selected 72 Hour, LLC dba National Auto Fleet Group as the best most responsive proposer to meet the specifications thusly awarding Contract No. 060920-NAF; and
WHEREAS, Sourcewell bid procedures satisfied the procurement requirements of the City; and
WHEREAS, funds in the amount of $150,750 is available in the FY25 Police Department fund (011) and funds in the amount of $189,250 is available in the FY25 Equipment Replacement fund (671).

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order with National Auto Fleet Group for Prisoner Transport Vehicle Body Assembly Upgrade in an amount not to exceed $340,000.

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 30, 2024
To: Honorable Mayor and Members of the City Council
From: LaTanya Bellow, Interim City Manager
Submitted by: Terrance Davis, Director, Department of Public Works Subject: Purchase Order: Turf Star, Inc. for Go-4 Parking Enforcement Vehicles

RECOMMENDATION
Adopt a Resolution satisfying requirements of City Charter Article XI Section 67.2 allowing the City Manager to participate in Sourcewell bid procedures and authorize the City Manager to execute a purchase order for Go-4 Parking Enforcement Vehicles with Turf Star, Inc. in an amount not to exceed $400,000.

FISCAL IMPACTS OF RECOMMENDATION
The cost of the replacement vehicles will not exceed $400,000 and includes installation of new or transfer of existing equipment, shipping, taxes and delivery fees. Funding for the purchase is available in FY25 Equipment Replacement (Fund 671) baseline budget.

Fund Account Amount
Equipment Replacement
Fund: (671)
671-54-626-723-0000-000-473-664120- $400,000

CURRENT SITUATION AND ITS EFFECTS
Eight Parking Enforcement Vehicles, Equipment Numbers 1406, 1410, 1411, 1418, 1423, 1424, 1425, 1432 are in need of replacement due to end of useful life, parts failure, or damage due to collisions. Assets are needed by the City’s Parking Enforcement staff in their work patrolling residential, business, and parking permitted locations within the City to ensure adherence to local regulations and state vehicle code laws.

These purchases support the Strategic Plan Priority of advancing our goal to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.

BACKGROUND
Throughout the year, each City Department pays its proportionate share into the Equipment Replacement Fund, and those funds are utilized to replace equipment at the end of its useful life. If a vehicle purchase request exceeds $100,000, the Department of

Purchase Order: Turf Star, Inc. for Go-4 Parking Enforcement Vehicles CONSENT CALENDAR July 30, 2024

Finance General Services Division solicits bids or piggybacks off competitively bid contracts to ensure City Departments receive the best pricing.

City Charter XI Section 67.2 may, by resolution, authorize the City to purchase goods without undergoing a competitive bid process if the City uses pricing obtained by another entity through a competitive process.

The City is a no-cost member and participant of Sourcewell, a municipal contracting agency operating under the legislative authority of Minnesota Statue 123A.21. The original statute was revised in 1995 to allow government clients to better meet their specific needs through participation in a service cooperative, rather than paying higher costs associated with individual procurement. Sourcewell allows participating municipal agencies to leverage the benefits of cooperative purchasing and reduces procurement costs. Sourcewell serves all educational, government and non-profit agencies nationwide, and offers cooperative contracted products, equipment and service opportunities to government entities throughout the U.S.

All Sourcewell contracts have been competitively solicited nationwide. On November 3, 2020 Sourcewell released Request for Proposals No. 122220 for Utility, Transport, Golf, and Recreation Vehicles with Related Accessories, Equipment, and Services. The solicitations was released for approximately 55 days and 13 submissions were received.

Upon review, the Sourcewell proposal evaluation committee selected Westward Industries as the best most responsive proposer to meet the specifications thusly awarding Contract No. 122220-WWI. The authorized Bay Area dealer of Westward Industries is Turf Star, Inc.

For all contracts, Sourcewell charges an administrative fee based upon the percentage of the sale, and that fee is paid by the Contractor directly to Sourcewell. The fee for the purchase of this assembly upgrade will be paid by Westward Industries and will not be passed on to the City.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
With this purchase, the Police Traffic Division is replacing the two model year 2016 electric GO-4 parking enforcement vehicles with new electric Go-4s. The existing electric vehicles experienced malfunctions, battery packs are losing charge frequently, and impacted staff’s ability to perform their duties on a consistent basis.

The Traffic Division is located at 125 & 127 University Avenue does not have existing electric charging infrastructure. Additional electric vehicle purchases at this time would significantly impact the overall parking enforcement operations. Public Works is actively working with AVA Energy on a citywide electric charging infrastructure assessment, and once the proper charging infrastructure has been put in place, and electric scooter performance is confirmed to meet the needs of the staff, the Parking Enforcement division is expecting to replace all its parking enforcement vehicles with electric models thereafter. This particular order will have six scooters powered by a fuel efficient 1.0 liter

Purchase Order: Turf Star, Inc. for Go-4 Parking Enforcement Vehicles CONSENT CALENDAR July 30, 2024

gasoline engine that averages 45 mpg, and meets all current state, federal, and local emissions regulations. Two of the scooters will be 100% electric and it is anticipated that they will be able to charge at the Corporation Yard once the fast charger is installed later in 2024.

Public Works Equipment Maintenance endeavors to procure the most fuel-efficient vehicles and equipment that are suitable for the required tasks. Equipment Maintenance also researches the feasibility and availability of fully electric vehicles and hybrid-electric powertrains to support the City’s transition away from fossil fuels towards an all-electric fleet, where technically feasible.

RATIONALE FOR RECOMMENDATION
Police Department parking enforcement vehicles must be replaced on a reasonable schedule to ensure Parking Enforcement Officers can safely, effectively and efficiently carry out their duties.

ALTERNATIVE ACTIONS CONSIDERED
None. Listed vehicles have reached the end of their useful life.

CONTACT PERSON
Greg Ellington, Superintendent, Public Works, (510) 981-6469 Joy Brown, Operations Manager, Public Works, (510) 981-6629 Attachment:
1: Resolution

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

PURCHASE ORDER: TURF STAR, INC. FOR GO-4 PARKING ENFORCEMENT

VEHICLES
WHEREAS, eight GO-4 parking enforcement vehicles are needed by the Berkeley Police Department to replace existing vehicles that have reached the end of their useful life; and; and
WHEREAS, vehicles must be replaced on a reasonable schedule that allows city employees to efficiently and effectively carry out their duties; and WHEREAS, the GO-4 parking enforcement vehicle is the preferred parking enforcement vehicle for many cities because of its maneuverability through city street, good visibility, ability to chalk mark vehicles easily and driver safety features; and WHEREAS, Turf Star, Inc. is Westward Industries exclusive authorized dealer for California GO-4 sales, service and warranty repairs, and failure to have service and warranty work performed by an authorized dealer voids any warranty by this manufacturer; and
WHEREAS, funds in the amount of $400,000 are available in the FY 2025 Equipment Replacement Fund 671.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the requirement of City Charter Section 67(a) are waived because no other vendors or manufacturers are able to provide a three-wheeled parking enforcement vehicle; and NOW THEREFORE, BE IT FURTHER RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order with Turf Star, Inc. for the purchase of fifteen GO-4 parking enforcement vehicles in an amount not to exceed $400,000.

Environment and Climate Commission
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 30, 2024
To: Honorable Mayor and Members of the City Council
From: Environment and Climate Commission (ECC)
Submitted by: Cecilia Lunaparra, Chair, ECC
Subject: Referral to Develop Curb Management Plan

RECOMMENDATION
Refer to the City Manager to fund and develop a Curb Management Plan.

POLICY COMMITTEE RECOMMENDATION
On July 3, 2024, the Facilities, Infrastructure, Transportation, Environment & Sustainability Policy Committee adopted the following action: M/S/C (Lunaparra/Taplin) to send the item to Council with a positive recommendation, and that the item be taken up when additional funding for streets and infrastructure is approved and/or during the next budget process.

FISCAL IMPACTS OF RECOMMENDATION
Development of a curb management plan will require substantial staff time and likely additional consultant support (tentatively estimated at $100,000-$250,000).

Implementation of the plan and ongoing upkeep may have additional costs and staff time required. Refer to the City Manager for budgetary projecting; a long-term funding plan is necessary.

CURRENT SITUATION AND ITS EFFECTS
Transportation has stubbornly remained Berkeley’s largest source of greenhouse gas (GHG) emissions, contributing over 60% of the city’s total emissions. The City of Berkeley has adopted goals of being a Fossil Fuel Free city and becoming a net carbon sink by 2030, achieving carbon neutrality by 2045, and achieving an 80% reduction in GHG emissions by 2050. However, GHG emissions from transportation are currently expected to increase, and have not meaningfully declined as a proportion of total city emissions since 2008.

Berkeley’s Strategic Plan sets the goal of being a global leader in addressing climate change, advancing environmental justice, and protecting the environment. Addressing climate change as it applies to transportation, and in particular driving emissions, will require the city to engage in a multipronged strategy, including:

Referral to Develop Curb Management Plan CONSENT CALENDAR July 30, 2024
 increasing and improving bus service
 improving the ability to bike safely throughout the city  developing complete streets improvements
 reducing excess parking spaces where appropriate to encourage alternative transportation
The City has developed several individual plans to accomplish these goals, including the 2017 Berkeley Bicycle Plan, the 2020 Pedestrian Plan, the Berkeley Strategic Transportation (BeST) Plan, the 50/50 Sidewalk Program and the Long-Term Paving Plan, the ADA Transition Plan, the Gilman Street Interchange Project, the Streetlight Comprehensive Plan, and Southside Complete Streets. One key aspect that has received less focus in these plans is curb management.

Curb management plays an important role in ensuring that roads are able to be effectively and safely used by all road users. Presently, based on data from the Mineta Transportation Institute at San Jose State University, Berkeley has an estimated 72,193 on-street parking spaces, with another 71,773 off-street parking spaces (a total of 143,966 spaces), or 21.3 spaces per acre. The Bay Area median Census block group- level parking density was 19.7 spaces per acre, while Berkeley’s median Census block group-level parking density is 23.5 spaces per acre.

At the same time, Berkeley households had roughly 57,500 registered vehicles, or about 2.5 parking spaces per automobile.

Parking abundance and underpricing encourages automobile usage, driving up greenhouse gas emissions. At the same time, in many parts of Berkeley, there is frequently insufficient parking available due to low parking turnover (extended parking duration), often resulting in double-parking that endangers cyclists and other drivers, and can delay transit riders or impair emergency vehicle access. Many areas of Berkeley need a review and adjustment of the allocations of different curbside uses to better align this public resource with City goals and the needs of existing businesses and residents.

Other cities, such as San Francisco and New York, have begun to prioritize the creation of more loading zones to reduce parking spots that accommodate driving trips into the city, while improving the efficiency of within-city short-term trips such as meal pick-up.

Understanding how curb use is apportioned in Berkeley, especially in heavily trafficked areas, will help the City understand how to shift curb usage away from car storage and towards more dynamic use. A curb management program could function as a Strategic Plan Priority Project advancing the City of Berkeley’s goal to be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

Referral to Develop Curb Management Plan CONSENT CALENDAR July 30, 2024
A presentation and reference map have been created by the Environment and Climate Commission’s ad-hoc Transportation Subcommittee, quantifying the total number of loading zones on more than 30 streets within Berkeley, including all commercially-zoned corridors. A member of the subcommittee counted the total number of loading zones on each street using Google Satellite Imagery, Google Street view, and in some cases physically walking along streets to confirm loading zone presence. Based on this methodology, there are roughly 330-360 loading zones (yellow curbs) and 220-240 <1 hour parking spots (mostly green curbs). There are additionally 82 disabled parking spots on the studied streets. Most of these loading zones (59%) are on a street that contains a bike lane. However, few of these loading zones are directly in front of large apartment buildings or restaurants with high traffic; on the whole, the existing loading zones are sub-optimally located. The highest density of loading zones in the studied streets occurs on Telegraph Avenue over five blocks in the Southside neighborhood, where roughly 50% of storefronts have direct curb access to a loading zone.

BACKGROUND
On June 12, 2018, Berkeley City Council unanimously declared a Climate Emergency, calling “to end citywide greenhouse gas emissions as quickly as possible.” Berkeley also set a goal of being a Fossil Fuel Free city, achieving carbon neutrality by 2045.

Transportation is the single largest source of greenhouse gas emissions in Berkeley, contributing around 60% of the city’s total emissions. Unfortunately, this share – and the total level of emissions – is currently expected to grow.

The proposed policy would request that the Transportation Division develop a curb management program to improve the City’s understanding of curb usage and help shift city curb infrastructure away from private car parking and towards more dynamic usage.

The ECC encourages Transportation Division staff and the Transportation Commission to consider:
1) Inventory the City’s existing curb allocations.
2) Ensure adequate loading zones (yellow curbs) and <1 hour parking zones (green curbs) in all appropriate areas of the city.
3) Ensure adequate disabled parking (blue curbs) and review the City’s existing process for blue curb requests in coordination with and under the guidance of the Disability Commission.
4) Ensure daylighting of all intersections (red curbs) in accordance with AB 413 to improve visibility of road users and reduce traffic crashes. 5) Support emergency vehicle access and emergency evacuations in the Very High Fire Hazard Severity Zone.
6) Additional parking meters, bicycle parking, or other curb management and use practices that may be appropriate to align curb uses with City goals and priorities.

Referral to Develop Curb Management Plan CONSENT CALENDAR July 30, 2024

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Reducing on street parking to favor loading zones will shift travel away from automobiles, reducing greenhouse gas emissions and improving environmental sustainability.

RATIONALE FOR RECOMMENDATION
An initial review of loading zone availability done by the ECC ad-hoc subcommittee, and City staff expressed interest in the development of a curb management plan.

ALTERNATIVE ACTIONS CONSIDERED
The ECC considered taking no action and waiting for the staffing crisis in the Transportation Division to be addressed before making this referral. However, Transportation Staff conveyed interest in the topic of curb management, prompting the ECC to forward this recommendation.

CITY MANAGER
The City Manager takes no position on the content and recommendations of the Commission’s Report and recommends that it be referred to the budget process.

CONTACT PERSON
Sarah Moore, Commission Secretary, Environment and Climate Commission, (510) 981-7494
Attachments:
1: Parking and Loading Zone Pilot Presentation
2: Loading Zone Interactive Map

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 1
Parking and loading zone
pilot analysis
ECC Transportation and Public Space subcommittee
Prepared by Commissioner Brianna McGuire, D3
Agenda
● Background, context, and methodology
● General maps
● Housing mini-analysis
● Telegraph restaurant mini-analysis
● Next steps
Attachment 1

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 2
Background, context, and
methodology
Background - why do this?
● To make recommendations for the locations of new loading zones ● To start building the infrastructure needed for a cargo-bike powered delivery structure in the city
● To identify win-win opportunities to reduce demand for private personal automobile trips while simultaneously improving traffic congestion and safety

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 3
City Total
parking
Metered
parking
Total loading
zones
Total planned
by 2024
Ratio metered:
loading
Total green
zones
Berkeley >15,000 3,800* 330-360 ? 0.086 220-240
San
Francisco
442,000 27,550 9,324 (717) ? 0.338 (0.026) 625
New York 5,375,612 81,875 7,902 9,402 (+500/yr) 0.097 ? *Metered parking includes city-owned garage space. This is not the case for the other cities.

Berkeley has a lower-to-similar ratio of loading zones to metered parking compared to San Francisco and New
York
“The Bay Area has

2.6x more parking
than it needs.”

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 4
Methodology
Streets of interest
are shown in blue

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 5
Commercial
zones are shown
in green

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 6
General maps
Yellow (lighter) =
free
Gray (darker) =
metered

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 7
Areas of interest
(in green) are
mostly metered
330-360 loading
zones (yellow)
and 220-240
short term spots
(green) on
streets of
interest

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 8
~82 disabled
parking spots on
streets of interest
Most loading
zones are on a
type of bike
lane (59%)

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 9
Only 10% of
spots (36
loading zones
and 22 short
term parking
spots) are on
dedicated or
protected bike
lanes
Blue (light)
squares =
parking
Dark squares =
apartment
buildings

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 10
Planned
housing: purple
(circles)
Housing mini-analysis

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 11
Only 2 loading spots
among these five
apartment buildings
Great candidate area
for loading zones -
parking lots are very
nearby!

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 12
2 buildings - 1
loading zone!
Extremely few
loading zones outside
of Telegraph on
Southside

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 13
University is entirely metered parking, medium restaurant density, medium-low housing density, but low loading
density
Buildings with squares have loading zones,
buildings with circles do not

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 14
1 loading zone
among these 6
apartment buildings
on San Pablo
Telegraph restaurant analysis

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 15
11 restaurants on these blocks, 5 served
by loading zones; 7 other storefronts
9 restaurants on these blocks, 3 served by
loading zones; 10 other storefronts
6 restaurants on these blocks, 2 served by
loading zones; 8 other storefronts
9 restaurants on these blocks, 2 served by
loading zones; 6 other storefronts
North Telegraph has the highest density of
loading zones in the city, but even so, the
majority of restaurants on each block do not
have direct access to one at their curb
South Telegraph is less well served by loading
zones - there are 9 restaurants total on this
stretch, only 2 with loading zones. The rest of
the loading zones serve urgent cares, dry
cleaners, thrift stores, or schools

1/31/2024
https://docs.google.com/presentation/d/
1xVruoBWcIIIB-
fLBYYD7hXJ0sDi6QJO3YNYcla1Zsh0/e
dit?pli=1#slide=id.p 16
Conclusions and next steps
● While we may have somewhat comparable levels of loading zones to other cities, we (and they) could probably use more
● Apartments and restaurants are mostly poorly served by loading zone locations ● Determine highest priority intervention space
○ Compare Telegraph to other restaurant corridors
○ Evaluate loading zone density more completely on blocks with planned housing ● Study “completeness” of loading zone transition and best practices ● When to refer to Council to refer to Transportation and Infrastructure? What other work is needed at this time?

ATTACHMENT 2
Available at:
https://felt.com/map/Berkeley-Parking-Pilot-Study-Asymc9AjmTk6TemDtxxhWZB?loc=37.866123,-122.264268,16.22z&share=1

Office of the Mayor

CONSENT CALENDAR
July 30, 2024
To: Members of the City Council
From: Mayor Jesse Arreguín, Councilmember Ben Bartlett
Subject: Referral to City Manager: Ashby BART Area Enhanced Infrastructure Finance District (EIFD) Analysis

RECOMMENDATION
Refer to the City Manager and City Attorney to return to Council with an analysis and recommended actions to initiate an Enhanced Infrastructure Finance District (EIFD) encompassing the Ashby BART station area, and consider:

1. Earmarked provisions of an EIFD to finance specific infrastructure and community development investments in an effort to actualize improvements to a Southern Plaza and greater Adeline Corridor adjacent to the West Lot, including benefits supporting impacted communities;

2. A preliminary analysis on additional, non-contiguous EIFD catchment areas that extend beyond the BART development sites; and

3. An EIFD Financial Plan that determines the funding potential of such a district or districts, including the total amount of tax revenue that could be generated through property taxes, transfer taxes, sales taxes, and other revenue, for associated infrastructure and public works improvements. These improvements may include, but are not limited to a Black Arts and Cultural District and associated facilities, and Berkeley Flea Market facilities.

Refer to the November 2024 AAO1 process up to $100,000 for a) engaging a consultant to collaborate with the City Attorney, Planning and Finance Departments to prepare an EIFD Financial Plan, b) to initiate and conduct a community engagement process, and c) to establish an ad-hoc steering committee to guide this work consisting of residents, community-based organizations, the Planning Department, the Office of Economic Development, Civic Arts, and leaders involved in Equitable Black Berkeley work and the development of the Black Arts and Cultural District.

BACKGROUND
In connection with the Ashby BART Transit Oriented Development (TOD), Planning established a draft Framework for Community Benefits to be included in part of the negotiations with BART and the City. Per the draft framework, the community benefits were to include a minimum of 35% of new housing units to be developed as affordable or

EIFD Analysis Expansion July 30, 2024
Below Market Rate (BMR), with a goal of building 50% affordable housing units. 1 A number of community benefit proposals in the draft framework include the potential of forming an Enhanced Infrastructure Finance District (EIFD) to capture the City’s share of any tax increment (from property or other local sources) over a 40-year period 2, derived mostly from market rate units, to be invested in infrastructure improvements and community placemaking elements.3 What has yet to be determined is the boundaries of the district, percentage and specific allocation of funds that would be captured, what constitutes eligible and approved expenditures, and the community’s role in prioritization and governance of the funds.

On February 13 2024, Council passed an item to establish the Black Arts and Cultural District4 in South Berkeley. Eligibility of investments towards arts and capital investments to bring this type of special economic zone to fruition is a worthwhile consideration. In addition, the Mayor’s Office has outlined the need for placemaking investments in connection with the Equitable Black Berkeley (EBB) Initiative’s Right to Remain and Right to Own as part of its Harm Repair Model supporting the ability of legacy families from South Berkeley to thrive. 5 EFID investments could go towards capital improvements for the East Plaza 6, a community hub and town hall envisioned to have multiple economic engine opportunities, such as:
● The permanent site for the Berkeley Flea Market;
● Semi-permanent and permanent kiosks for emerging and established vendors, where they can have stable residence and ground floor retail opportunities to serve local residents and visitors to the area; and
● A business incubator for burgeoning Berkeley Flea Market vendors and other emerging small businesses, where entrepreneurs can take advantage of technical assistance, shared cost and resource savings, and business investments that can lead to the graduation of vendors into more permanent locations.

While EIFD’s do not include a housing requirement, expenditures can support the preservation and production of affordable housing. Researchers note EIFD funding have a potential to be used to directly subsidize rent-restricted units within mixed-income development, and can be used towards infrastructure costs and development fees.7 1 See Council Worksession on July 18, 2023. A final draft framework has yet to be approved by Council. 2 A different timeframe may be considered if deemed justifiable. 3 Exemptions would apply towards income restricted lower income housing units. 4 See Council Meeting Agenda Item 14: Establishing a Black Arts and Culture District in the Adeline Corridor. See Adopted Resolution No. 71,208–N.S..
5 A Right to Stay approach would reduce the displacement of Black residents from Berkeley by investing in business and community development, and creating protections for low-income residents. One avenue of keeping Black residents in Berkeley is to invest in cultural placemaking, which can include art installations, investments in local art venue capital improvements, infrastructure investments for public safety, and other investments for community building and social cohesion. 6 Also referred to as the South Plaza.
7 See Turner Center for Housing’s Report “Enhanced Infrastructure Financing Districts: West Sacramento”.

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The Port of San Francisco is cited as having a successful EIFD in its capital plan, which includes the Pier 70 and Mission Rock redevelopments, which bring commercial and residential improvements to the area. 8 The City of Sacramento has three EIFDs (Aggie Square, Sacramento Stadium Area, and Railyards, bringing similar investments to commercial, housing, and public facilities. 9
The Planning Department enlisted the help of Century Urban to complete a scope of work that consisted of:

1. Developing estimates of future property tax assessments in the area covered by the EIFD (using the same development scenarios as air rights economic analysis) and projections of tax increment revenues;

2. Evaluating other sources of EIFD funding such as property tax in-lieu of Vehicle License Fee (VLF);

3. Analyzing potential for EIFD to fund ongoing public space maintenance costs.

4. Drafting a memo identifying and describing the specific steps to be undertaken by the City of Berkeley in order to complete EIFD formation; and

5. Attending ad hoc meetings and prepared ad hoc presentations as may be requested by the City of Berkeley.

FINANCIAL IMPLICATIONS
$100,000 from the City’s General Fund, to be made available using AAO1 funding.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report. The report and plan produced may include elements that enhance the environmental conditions and experiences of residents in South Berkeley.

CONTACT
Mayor Jesse Arreguín (510) 981-7100
Anthony Rodriguez, Senior Legislative Assistant (510) 981-7102 Attachment:

1. Council Worksession agenda for July 18, 2024 on Ashby BART Station Transit- Oriented Development (TOD)
8 See SF Building Trades Council’s Article “How Cities Strike Deals With Developers to Improve Surrounding Neighborhoods.
9 See City of Sacramento’s Website: Enhanced Infrastructure Financing Districts.

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

WORKSESSION
July 18, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Subject: Ashby BART Station Transit-Oriented Development (TOD)

SUMMARY
This report provides an update on activities to facilitate transit-oriented development (TOD) at the Ashby BART station area, including:
 The City’s Option to Acquire Air Rights to the Western Parking Lot  Draft Framework for Community Benefits
 Ashby BART Station Infrastructure and Operations and Future Development  Additional Funding Sources for Affordable Housing and/or Infrastructure.

The purpose of this worksession is to update the City Council on efforts related to the Ashby BART TOD project and to obtain input about the draft framework for community benefits and other aspects of the project.

CURRENT SITUATION AND ITS EFFECTS
For the past several years, the City and BART have been collaborating to facilitate transit-oriented development at the North Berkeley and Ashby BART sites. The City Council and BART Board of Directors executed a Memorandum of Understanding (MOU) in March 2020 and a Memorandum of Agreement (MOA) in June 2022 that outlined key milestones to advance to a solicitation for developer teams. Several of the milestones outlined in these agreements have been completed already, including:
 Reservation of $53 million of City Affordable Housing Funding for the North Berkeley and Ashby BART Sites in April 2021.
 New zoning and General Plan amendments consistent with Assembly Bill 2923 adopted in June 2022.

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 City and BART adoption of Joint Vision and Priorities for Transit-Oriented Development at the Ashby and North Berkeley BART Station (“JVP”) in June 2022.
 Council approval of preferred option for redesign of Adeline Street at Ashby BART that includes new plaza as a permanent location for the Berkeley Flea Market (November 2022).
 Issuance of a Request for Developer Qualifications and Notice of Funding Availability for the North Berkeley BART station area in July 2022 and selection of a developer team in December 2022.

Due to the additional complex issues that must be resolved prior to issuance of solicitation(s) for developer teams for the Ashby BART station area, the efforts to advance TOD at the North Berkeley and Ashby BART stations are on different timelines. These outstanding issues were identified in the June 2022 MOA. The status of efforts to resolve them are described in more detail below.

A. City’s Option to Acquire Air Rights for the Western Parking Lot As a result of an agreement between the City and BART in October 1964 (prior to the construction of BART), and subsequent agreements and transactions including those related to construction of the Ed Roberts Campus, the City of Berkeley retains an option to acquire the air rights over the western parking lot for $55,000. This arrangement requires cooperation between the City and BART in devising the ultimate terms of a transaction to develop this site.

City staff from the City Manager’s Office, Planning and Development, City Attorney’s Office, Health Housing and Community Services, and Public Works have conducted extensive research to inform options under discussion by the City (led by Major Jesse Arreguin) and BART (led by BART Board Director Lateefah Simon). The negotiating teams are exploring options that would protect and advance both the City’s and BART’s respective objectives, while establishing processes and parameters that do not dissuade the most qualified developer teams from participating in future developer solicitations. Staff anticipates returning to Council in the fall to discuss property negotiations and disposition.

B. Draft Framework for Community Benefits
The June 2022 MOA outlines a set of minimum requirements for the North Berkeley BART station area transit-oriented development, many of which are derived from the JVP and other City and BART Board-adopted requirements (e.g., project labor requirements). Since the JVP establishes both minimum expectations for development as well as aspirational goals, the intent in the MOA is to clearly convey a minimum level of requirements any potential developer team would be required to

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meet for the North Berkeley BART site. The MOA also establishes mechanisms by which BART, the City, or both will reinforce these requirements. Requirements for the North Berkeley BART station area include a project with a residential program with a minimum of 1,000 bedrooms in a variety of sizes, minimum affordability requirements, and a connection to the Ohlone Greenway, among other elements.

The draft framework for community benefits and other project requirements for the Ashby BART site being negotiated by the City and BART reflect: the June 2022 MOA, the JVP, the Adeline Corridor Specific Plan, and key input from a parallel effort, “Equitable Black Berkeley”. Equitable Black Berkeley (EBB) is an initiative spearheaded by the Mayor’s Office, in partnership with Healthy Black Families, that is exploring innovative funding proposals and policies for the Ashby BART station and “Adeline Community” area. This effort is part of a grant-funded, community- driven effort to develop options to support equity, opportunity and the well-being of Berkeley’s African American community.1 The central premise established by EBB for Ashby TOD is that the project must begin to reverse and repair the inter- generational harm that resulted from the development of the Ashby BART station and redlining.

As noted above, the City has a property interest (the option to acquire air rights) in the western parking lot at Ashby BART, which makes the City a necessary partner in determining the use of the site. The City Council and the BART Board of Directors must ultimately approve the community benefits for Ashby BART, as well as any related agreements and real estate transaction documents. Many of the details, including funding sources and enforcement mechanisms, are still being negotiated, and will be affected by the disposition of the City’s air rights option. The City and BART negotiation teams have been discussing elements of the draft community benefits framework. To date, the BART Board of Directors has not had the opportunity to review or discuss this draft community benefits framework.

The draft framework for community benefits for the Ashby BART station area includes the following elements:

1. Affordable housing: Minimum of 35% of new housing units to be developed shall be affordable or Below Market Rate (BMR) housing, with a goal of 50%, in accordance with income targets identified in the JVP (or other Affordable Housing Framework adopted by the City Council for the Ashby BART station area). The draft framework for community benefits reflects proposals being explored to finance the anticipated infrastructure/right-of-way improvements and affordable housing at the Ashby BART site. These proposals include the potential of forming an Enhanced Infrastructure District (EIFD). An EIFD encompassing Ashby (or both Ashby and North Berkeley stations) could capture the City’s share 1 https://healthyblackfam.org/e4bb

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of any property tax increment over a 45-year period. Income restricted lower income housing units would generally be exempt from property tax so only market rate units would contribute to the tax increment.2 While some community members have advocated for the Ashby TOD project to be 100% affordable, the funding to finance that amount of affordable housing does not currently exist.

Even with the City’s reservation of its affordable housing funding, the project would need to rely on application to multiple cycles of future state and federal funding which would add significant delay and uncertainty to the TOD project; for those reasons, BART would not likely agree to this as a minimum requirement.

Additionally, there is not a consensus among stakeholders that the entirety of the Ashby BART site should be 100% affordable. Some stakeholders have advocated for a mixed-income community (with 100% affordable projects, including at moderate income levels and market rate projects that could have below market rate inclusionary units) in order to better promote economic mobility and to provide a source of funding (e.g. property tax increment) that goes towards affordable housing and infrastructure needs.3

2. Permanent home for the Berkeley Flea Market. The Ashby TOD project will include a permanent home for the Berkeley Flea Market and other public markets and microenterprise businesses (e.g., with a plaza, market stalls, and/or other relevant amenities). The City of Berkeley will allow some portion of adjacent Adeline Street right-of-way to also be utilized to support the Berkeley Flea Market (and other public programming). The project will include an installation celebrating the history of the Flea Market, office space for the Flea Market administration, and additional amenities to facilitate the Flea Market and other public markets and microenterprise businesses.

3. Ground floor space for civic uses at below market rate rent. Consistent with the vision to have the Ashby BART station area be a vibrant neighborhood center that includes affordable space for community non-profits, the draft framework for community benefits includes a requirement that space at below market rate rent be provided to civic and community uses. The location and amount of space is still being negotiated.
2 Senate Bill 628 “Enhanced Infrastructure Financing Districts” (1/2/2015), Assembly Bill 464 “Enhanced Infrastructure Financing Districts: allowable facilities and projects” (6/29/2021), Assembly Bill 336 “Enhanced infrastructure financing districts: public financing authority: members: joint powers authorities” (6/29/2021).
3 4/27/21 City Council Item #31: City Affordable Housing Funds: Ashby and North Berkeley BART Station Areas and Future Housing Funding Notices of Funding Availability (NOFA), Attachment 2, p.36 regarding estimate of City subsidy needed to exceed 35% affordable housing:
https://berkeleyca.gov/sites/default/files/documents/2021-04- 27%20Item%2031%20City%20Affordable%20Housing%20Funds%20%20Ashby%20and%20North%20B erkeley%20BART%20Station%20Areas%20and%20Future%20Housing%20Funding%20Notices%20of% 20Funding%20Availabilit....pdf

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4. A plaza and/or development that is adjacent and connected to Adeline Street at southern portion of the west parking lot. The JVP and the Adeline Corridor Specific Plan prioritize that future development should connect directly to the greatest extent possible with Adeline Street. The Ashby TOD project shall be directly connected to Adeline Street at the southern end of the western parking lot (which could be possible through construction of a podium), as shown in the preferred right-of-way redesign concept for Adeline Street at Ashby BART selected by the City Council (see section C below for more details). The connection could become part of the future plaza and/or development. The source of funding for this aspect of the future TOD is still under negotiation and includes identifying grant funding.

5. A reparative community benefits fund for South Berkeley. Beyond construction of the TOD project itself, the Ashby BART TOD project can play a deeper role in repairing and reversing the intergenerational harm generated by the displacement of homes and businesses as a result of construction of the Ashby BART station. Equitable Black Berkeley has been central in shaping the proposal that a portion of the revenue generated from the future development project must be dedicated to a fund to be used for and by the greater South Berkeley community. A community advisory committee or similar body would direct the expenditure of the funds. The source of funding for this benefit is still subject to negotiation.

There are also other project elements under discussion which would be included in the future solicitation(s) for developer teams where prospective teams would be encouraged to use their creativity and expertise to include in their project proposals, such as:
 An accessible gymnasium on the east parking lot (to the west of Adeline Street and the Ed Roberts Campus), complementary to existing service providers for persons with disabilities;
 Development that interfaces directly with Adeline Street to the greatest extent possible in additional locations other than the southern portion of the west parking lot (in a manner that meets BART’s station operations and BART and the City’s life safety requirements);
 Additional publicly accessible civic space, green space or other amenities.

The City and BART have also been discussing other aspects of the project and have reached agreement or are nearing agreement on:
 A two-part developer solicitation process. Due in part to the additional complexity to develop the Ashby BART station site, the solicitation process must consist of a two-part process that includes a request for developer

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qualifications, followed by a request for proposals from a short-list of respondents.
 Incorporation of the public artwork by Mildred Howard that was recently commissioned by the City of Berkeley (with the specific location subject to consultation with the artist).
 An interpretive display that satisfies Cultural Resources Mitigation Measure CR-1 in the Ashby and North Berkeley BART Stations Transit-Oriented Development (TOD) Zoning Project EIR.4
C. Ashby BART Station Infrastructure and Operations and Future Development The Adeline Corridor Specific Plan and the JVP identify a goal to create an at-grade connection between Adeline Street and the planned development on the west parking lot. On April 20, 2023 BART held a community meeting to present information about Ashby BART station operation and infrastructure needs and how that impacts the connection of the future TOD to Adeline Street.5 BART staff presented information about the design process and constraints that led to the current configuration of the new Traction Power Substation (TPSS) planned for the Ashby Station.6 BART staff presented the maintenance, access, and clearance requirements for any development on top of or adjacent to the substation (Attachment 1).

BART staff also presented conceptual studies for opportunities for TOD to connect directly to Adeline Street, given safety and operational constraints. Based on information available at this time, the opportunities to connect to future development on the west parking lot to connect to Adeline Street appear to be most constrained in the northern two-thirds of the Adeline Street frontage due to the requirements of the TPSS and safety requirements related to station egress. As noted above, the preferred right-of-way redesign concept for Adeline Street at Ashby BART selected by the City Council included the potential for an expanded plaza at the southern end of the western parking lot. It is anticipated that the future solicitation(s) for developer teams will invite teams to propose creative solutions to maximize opportunities to connect to Adeline Street while still maintaining BART’s safety and operational requirements for the Ashby station.
4 https://berkeleyca.gov/sites/default/files/documents/2022-07-06%20MMRP.pdf 5 Presentation from BART’s 4/20/23 community meeting is available at:
https://www.bart.gov/sites/default/files/docs/23_0420_Ashby_Presentation.pdf 6 BART runs trains using electrical power provided by Pacific Gas and Electric (PG&E), which in-turn supplies to over one hundred substations throughout the system that convert electricity to the voltage required to propel BART cars. These substations exist in all kinds of communities throughout the BART system. A traction power substation also exists at the North Berkeley BART station at the southeast corner of the intersection of Acton and Virginia Streets.

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D. Additional Funding Sources for Affordable Housing and/or Infrastructure The City and BART recognize that to achieve mutual goals for TOD at the Ashby BART station area, additional funding will need to be identified and secured beyond what the development project can provide to support desired levels of affordable housing, the redesign of Adeline Street, support for the Berkeley Flea Market and other community benefits. City and BART staff are seeking grant and other funding opportunities on an on-going basis. At this juncture, City and BART staff have submitted and/or been awarded the following:
 In 2020 BART secured major grants from Caltrans and the Federal Transit Administration to support planning for TOD, providing approximately $1,700,000 for work specifically targeting Berkeley BART station area TOD projects, including affordable housing finance and economic analysis, station access planning, and community engagement.
 In June 2023, the City was awarded a $600,000 grant from the Alameda County Transportation Commission to further refine the preferred concept for redesign of Adeline Street at Ashby BART station.
 In May 2023, BART and the City submitted an application to the State of California’s 2021 Regional Early Action Planning Grants (REAP) 2.0 for the Affordable Housing Predevelopment Loan Fund and City of Berkeley Community Benefits Fund.7
 In June 2023, the City nominated the Ashby and the North Berkeley BART Station Areas for the Metropolitan Transportation Commission/Association of Bay Area Governments’ Priority Site Pilot Program (which provides regional predevelopment funding).

Advancing TOD at the Ashby and North Berkeley BART stations is a Strategic Plan Priority, advancing our goals to:
 Create affordable housing and housing support service for our most vulnerable community members.
7 As part of the required application process, the City Council adopted Resolution 70,687-N.S. on January 31, 2023 to authorize the City Manager to execute a grant agreement with the California Housing and Community Development Department should BART and the City be awarded the grant. The application includes $10 million for BART to create a predevelopment loan fund to help BART partner with local community development organizations who work in Disadvantaged Communities and often lack the working capital to finance predevelopment work themselves. The application also includes $1 million to the City of Berkeley to set up its first Enhanced Infrastructure Financing District (EIFD) in the Ashby BART station area in order to increase the number of affordable residential homes in the Ashby TOD project and provide a revenue stream to provide investment in the community that surrounds the Ashby BART station.

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 Champion and demonstrate social and racial equity.
 Be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

BACKGROUND
Spurred by the passage of Assembly Bill 2923, the City and BART have been closely collaborating for the past few years to advance TOD at the Ashby and North Berkeley BART station areas. A first set of key milestones outlined in the March 2020 MOU between BART and the City of Berkeley were completed in June 2022. These milestones included:
 Reservation of $53 million of City Affordable Housing Funding for the North Berkeley and Ashby BART Sites. The City Council approved a reservation of $53 million in City affordable housing funds to support at least 35% of the housing units proposed at each of the stations being deed-restricted low, very low and/or extremely low-income affordable housing.
 New zoning and General Plan amendments consistent with Assembly Bill 2923. Zoning for the Ashby and North Berkeley BART station areas was amended to be consistent with AB 2923. The zoning amendments established a new Residential - BART Mixed Use (R-BMU) zoning district and amended the Zoning Map to apply the new R-BMU zoning district to the Ashby and North Berkeley BART sites. General Plan amendments added a new land use classification (the Ashby/North Berkeley BART Transit-Oriented Development) and the General Plan was updated for the Ashby and North Berkeley BART sites.  City and BART Joint Vision and Priorities for Transit-Oriented Development at the Ashby and North Berkeley BART Station (“JVP”). The JVP was informed by an 18-month community process that included public meetings with a Council-appointed Community Advisory Group and the community at-large.

The JVP builds on the framework provided by the City and BART’s adopted plans, policies and regulations, and the additional land use, site planning and financial feasibility studies undertaken as part of this planning process. The JVP is organized around five key topics: Affordable Housing, Public and Civic Space, Land Use, Building Form, and Station Access, and is incorporated into the City and BART Memorandum of Agreement (See Referenced Links: June 2022 MOA, Exhibit C). The JVP was adopted by both the City Council and the BART Board of Directors in June 2022.

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 City and BART Memorandum of Agreement (“MOA”). The June 2022 MOA clarifies the processes that BART and/or the City will pursue to develop BART- owned property at North Berkeley BART Station and includes a timeline for pending actions related to the Ashby BART site.

Completion of these milestones enabled BART to issue a Request for Qualifications for developer teams and the City to issue a Notice of Funding Availability for the North Berkeley BART Station Area in July 2022. On December 1, 2022, the BART Board of Directors approved the selection of a development team to build housing at the North Berkeley BART station site. The team comprises lead nonprofit developer BRIDGE, nonprofit development partners East Bay Asian Local Development Corporation (EBALDC) and Insight Housing (formerly Berkeley Food and Housing Project), and market-rate developer Avalon Bay Communities. As outlined in the June 2022 MOA, the City initiated a process to develop Objective Design Standards (ODS) for the North Berkeley BART site in November 2022. Staff is anticipating bringing draft ODS to the Council in November/December 2023.

In addition, in November 2022, the City Council completed a milestone in the June 2022 MOA related to the Ashby BART station area.8 On November 29, 2022, the City Council selected a preferred concept to redesign the Adeline Street right-of-way at Ashby BART (between Ashby Avenue and Martin Luther King Jr. Way) in order to improve safety and access, and to create a new public plaza that would serve as the new permanent home for the Berkeley Flea Market.9 The Council adopted a resolution to authorize the City Manager to direct staff to proceed with the preliminary engineering and detailed engineering design based on the recommended conceptual design with Two-Lane Adeline option as the conceptual, pending identification of funding. Redesigning Adeline Street at Ashby BART supports future housing development plans for the Ashby BART station by designing future plaza space that could accommodate the needs of the Berkeley Flea Market that currently utilizes the parking lot (west of Adeline Street).

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Creating equitable, transit-oriented mixed-use development that includes affordable housing and housing support services for Berkeley’s most vulnerable community members is a City Strategic Plan goal, which also helps advance the environmental goals of being a global leader in addressing climate change, advancing environmental justice, and protecting the environment.
8 In addition to the June 2022 MOA, a Council Budget Referral (Feb. 2020) and a recommendation from the Adeline Corridor Specific Plan (Dec. 2020) also identified studying potential reconfigurations of Adeline Street to increase safety and opportunities for public space as a priority. 9 11/29/22 City Council Meeting, Item 15: Adeline Street at Ashby BART Conceptual Design:
https://berkeleyca.gov/sites/default/files/documents/2022-11- 29%20Item%2015%20Adeline%20Street%20at%20Ashby%20BART.pdf

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POSSIBLE FUTURE ACTION
Following further negotiation meetings between the City and BART, it is anticipated that staff will return to Council in Fall 2023 with proposed amendments to the City and BART’s June 2022 Memorandum of Agreement (MOA), as well as related agreements and documentation in order to advance solicitation of developer(s) for the Ashby BART station area.

FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
There are a variety of potential fiscal impacts to the City related to Ashby BART TOD, including the allocation of affordable housing funding, capital expenditures related to Adeline Street roadway reconfiguration, and operational costs related to on-street parking management adjacent to the stations. The actions for possible future consideration by the City Council do not result in direct fiscal impacts, since future funding commitments will return to Council for action. Staff will provide more detail about these potential fiscal impacts in advance of possible future actions.

CONTACT PERSON
Alisa Shen, Principal Planner, Planning Department, (510) 981-7409.

Links to Referenced Documents:
1: June 2022 City and BART Memorandum of Agreement for Transit-Oriented Development at the Ashby and North Berkeley BART Station Areas:
https://berkeleyca.gov/sites/default/files/documents/UpdatedMOA%20North%20Berkele y-Ashby%20TOD%2005.16.23.pdf
Attachment:
1: Ashby Substation Access and Clearance Requirements, BART Memorandum, March 15, 2023.

Ashby Substation Access and Clearance Requirements

March 15, 2023
Summary: This document summarizes the design process and constraints that led to the current configuration of the new Traction Power Substation (TPSS) planned for the Ashby Station. BART understands a desire exists to create an at grade-connection between Adeline Street and the planned development on the western surface parking lot, so this document also aims to outline the maintenance, access, and clearance requirements for any development on top of or adjacent to the substation.

Background: BART runs trains using electrical power provided by Pacific Gas and Electric (PG&E), which in-turn supplies to over one hundred substations throughout the system that convert electricity to the voltage required to propel BART cars. These substations exist in all kinds of communities throughout the BART system and are not unique to South Berkeley.

Substation improvements are part of a systemwide effort allowing BART to provide more frequent and timely service and to upgrade and replace aging infrastructure.

Measure RR was an approved 2016 bond measure that includes funds to rebuild substations. New substations are included in the Core Capacity program which is partially funded by the Federal government. The construction schedule of the substations has been impacted by the pandemic and ensuing price escalation.

Current Design: BART street level facilities allows for more efficient maintenance and emergency access to the traction power equipment, and makes replacing the equipment much less complicated and expensive. The at-grade preference is being pursued at Ashby Passenger Station (Alternative #3), but it is worth noting that BART considered three alternatives at the location:

1. Installing the substation within the footprint of the existing underground facility.

2. Building the Alternating Current (AC) and Direct Current (DC) houses in one large facility adjacent to the existing TPSS

3. Separating the AC and DC houses in a narrower facility adjacent to the existing TPSS.

The first alternative was eliminated because the space couldn’t accommodate the new equipment needed for a modern power system. The second alternative eliminated the accessible path to the station at the corner of Adeline St. and Ashby Ave.

The third alternative was ultimately selected because it was most cost effective, and most efficient to maintain.

The following sections detail the access needs that were incorporated into the current design and must be merged into any buildings adjacent to or over the planned substation at the Ashby Passenger Station.

ATTACHMENT 1

Ashby Substation Access and Clearance Requirements

March 15, 2023

Access Requirements

1. Vehicular Access:
a. A minimum of 6 unobstructed parking spaces directly adjacent the facility must be provided for BART service trucks and vans.
b. Access to the substation must be provided by specified entrance and exit points, as well as turnarounds for cranes and emergency vehicles must be provided. As required by the California Building Code requirement for Emergency Vehicle Access (EVA) lanes. c. These access points will need to be exclusive to BART and first responders, and that they are separated by bollards.

2. Crane Access: Cranes with a rating axis between 80 and 800-tons must be able to access the facility and manipulate these transformers. This requires the following:
a. A clear width of 30 feet for a crane, with an additional 5 feet-clear on both sides to accommodate outriggers.
b. A clear length of 175-feet to accommodate a 60-foot crane, the equipment trailer, and working clearances around and between vehicles.
c. Any cover over the Ashby TPSS must allow a crane to be staged next to the facility to extend a lifting boom and attached hoisting into the substation, lift it above the wall surrounding the facility, and place it onto a flatbed or carrier vehicle. Figure 1 shows the working range of a crane BART has identified as capable of lifting all substation equipment. Any development over the substation must accommodate the vertical space necessary to support the operating radius of a capable crane. d. The clearance between the Ashby TPSS and any development must also provide adequate space for replacing electrical equipment. Airspace must be provided to accommodate the hoist and swing of equipment capable of lifting a minimum of 60,000 pounds as refer in Figures 1 & 2. Figures 1 & 2 illustrate the dimensions of equipment known to be capable of meeting BART’s maintenance needs.

3. Staging Requirements:
a. A secure laydown area of at least 43’ x 36’ must be included adjacent to the substation to store equipment.
b. An additional area must be reserved to accommodate three trailers housing a temporary substation. The average trailer measures 38’ L x 9’ W x 14’ H, so 1,200 square feet (trailers situated end-end-end) or 1,350 sq ft (trailers situated side-side-by side) adjacent to the substation will be required in the event the substation fails. All areas would be off-limits to the public, would need to comply with all applicable building code requirements, and must always be accessible by BART maintenance staff and first responders.

Ashby Substation Access and Clearance Requirements

March 15, 2023

Fire and Life Safety Requirements
This document does not preclude those requirements mandated by the California Building Code, Califo
rnia Occupational Safety and Health Administration, National Electrical Code, Title 24, or any other applicable local, state, and Federal building or safety codes.

Figure 1: Typical Crane Operating Radius

Ashby Substation Access and Clearance Requirements

March 15, 2023

Figure 2: Typical layout of Crane and Trailer at High Voltage (HV) Substation N.T.S

Cecilia Lunaparra
Councilmember, District 7

CONSENT CALENDAR
July 30, 2024
To: Honorable Members of the City Council
From: Councilmember Lunaparra (Author), Mayor Arreguin (Co-Sponsor), Councilmember Hahn (Co-Sponsor)
Subject: Supporting the “Renewing Immigration Provisions of the Immigration Act of 1929 or “Registry Bill” (HR 1511 & SB2606)

RECOMMENDATION
Adopt a Resolution Supporting the “Renewing Immigration Provisions of the Immigration Act of 1929 or “Registry Bill” (HR 1511 & SB2606) and endorsing the Northern California Coalition for Just Immigration Reform’s “Three-Day Walk for a Path to Citizenship” from San Jose to San Francisco on August 17-19, 2024.1

BACKGROUND
Berkeley has a history of recognizing the contributions that undocumented immigrants make to our community and protecting the rights of all residents of our city, regardless of legal status or nation of origin. In November 2016, the City of Berkeley reaffirmed its status as a sanctuary city. In January 2020, the City Council voted on a Resolution for a New Border Vision. In partnership with the Southern Border Communities Coalition, this Resolution calls on Congress to implement a new framework that expands public safety and protects human rights in border communities

CURRENT SITUATION AND ITS EFFECTS
It is estimated that there are over 11 million undocumented residents living in the United States. They are family members, friends, coworkers, neighbors, and valued community members. They pay state and federal taxes, and contribute to Social Security and Medicare, for which they are ineligible. They contribute to the workforce, often as essential workers who disproportionately suffer from exploitation, lack of adequate healthcare, and fear of deportation. On March 9, 2023, U.S.Representatives Zoe Lofgren (CA), Norma Torres (CA), Grace Meng (NY), Lou Correa (CA), Adriano Espaillat (NY), and Jesús "Chuy" García (IL) reintroduced the “Renewing Immigration Provisions of the Immigration Act of 1929," or “Registry Bill.” The bill updates the 1929 law so that undocumented individuals may apply for legal permanent residency as long as they have lived in the country for at least seven years. 1 facebook.com/groups/httpswww.raizescollective.org.

The Northern California Coalition for Just Immigration Reform plans to hold regional community forums on the “Registry Bill,” and 40-mile Walk in August. The Coalition joins other groups at the national level to hold marches on August 8 and participate in a General Work Strike to draw attention to the Registry Bill.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with adopting this recommendation.

FISCAL IMPACTS
No General Fund impact.

CONTACT PERSON
Councilmember Cecilia Lunaparra (510) 981-7170
Attachments:

1. Resolution

2. Article on Registry Bill by Renee Saucedo

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

SUPPORT THE “RENEWING IMMIGRATION PROVISIONS OF THE IMMIGRATION ACT OF 1929 OR “REGISTRY BILL” (HR 1511 & SB2606)
WHEREAS, the Peace and Justice Commission advises the City Council on all matters relating to the City of Berkeley’s role in issues of peace and social justice (Berkeley Municipal Code Chapter 3.68.070); and
WHEREAS, on July 1, 2024, the Peace and Justice Commission unanimously passed a resolution entitled “Support the “Renewing Immigration Provisions of the Immigration Act of 1929" or “Registry Bill” (HR 1511 & SB2606);” and
WHEREAS, California has the highest number of migrants in the country;1 and WHEREAS, undocumented families continue to suffer greatly due to the lack of opportunities to adjust their legal status. Mothers and fathers are unable to see the children they were forced to leave behind in their home countries. People suffer emotional distress by not seeing their elderly parents before they die. They continue to suffer exploitation at work and remain vulnerable if they complain about work conditions.

And they suffer a constant fear that law enforcement will discover them and deport them, forcibly separating them from family and loved ones living with them here; and WHEREAS, for nearly 40 years Congress has failed to update our immigration laws, leaving millions of people to live in fear and unable to become full Americans, and WHEREAS, in 2020, California Congressional leaders Zoe Lofgren (D-Santa Clara) and Senator Alex Padilla (D-Los Angeles) introduced the “Renewing Immigration Provisions of the Immigration Act of 1929," (HR 1511 & SB 2606), or “Registry Bill,”2 which allows undocumented people living continuously in the US for at least 7 years to apply for legal permanent residency.3 It is estimated that approximately 8 million undocumented people may benefit from the passage of this law;4 and
1 “Immigrants in California,” Public Policy Institute of California; January 2024; Mejia, Perez & Johnson, ppic.org/publication/immigrants-in-california/.
2 H.R.1511 - Renewing Immigration Provisions of the Immigration Act of 1929, congress.gov/bill/118th- congress/house-bill/1511.
3 “Restoring Immigration Registry: Priority Bill Spotlight: Renewing Immigration Provisions of the Immigration Act of 1929,” FWD.us, March 9, 2023, https://www.fwd.us/news/immigration-registry-bill/ 4 “America’s outdated immigration system is hurting countless people and holding back our country and our economy,” said Senator Padilla. “My bill would update the Registry cutoff date for the first time in more than 37 years so that more immigrants are eligible to apply for permanent resident status. This would have a profound impact on millions of immigrants, some of whom have been living, working, and contributing to the United States for decades, by allowing them to live freely without the fear of an uncertain future.” padilla.senate.gov/newsroom/press-releases/padilla-introduces-legislation-to-broaden- lawful-pathway-to-citizenship.

WHEREAS, the Registry Bill is a simple, practical solution that prioritizes permanent solutions for immigrants, addresses those already here without an immigration status, those with only temporary protections like TPS, and those with DACA (Deferred Action for Childhood Arrivals); and
WHEREAS, it is time for Congress to act to update the immigration registry by passing H.R. 1511 and S.2606, to ensure hardworking immigrants can live with dignity, have the freedom to travel, and contribute to our economy. Giving immigrants the ability to obtain a green card through a registry update would bring $121 billion to the U.S economy annually and $35 billion in taxes,5 and
WHEREAS, “Registry” means a path to citizenship for millions of undocumented Americans. It means having the ability to reunite with their families, the hope for a brighter future, the opportunity to find a better job, and thrive; and WHEREAS, immigrant communities continue to passionately organize around a legalization bill, despite the betrayals by politicians and the continued, anti-immigrant sentiment; and
WHEREAS, many immigrant rights organizations in our region participate in the national Campaign for Citizenship Through Registry as part of the Northern California Coalition for Just Immigration Reform.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council call on Congress to pass the Registry Bill as soon as possible.

BE IT FURTHER RESOLVED that the Council ask the Clerk to send this resolution to our Congressional representatives.

BE IT FURTHER RESOLVED that the City of Berkeley supports and endorses the Northern California Coalition for Just Immigration Reform’s “Three-Day Walk for a Path to Citizenship” from San Jose to San Francisco on August 17-19, 2024.6 5 fwd.us.
6 facebook.com/groups/httpswww.raizescollective.org.

Registry Bill HR1511 Article + translation

JUSTICE COMING FOR UNDOCUMENTED IMMIGRANTS
By Renee Saucedo
On March 9, 2023, U.S.Representatives Zoe Lofgren (CA), Norma Torres (CA), Grace Meng (NY), Lou Correa (CA), Adriano Espaillat (NY), and Jesús "Chuy" García (IL) reintroduced the “Renewing Immigration Provisions of the Immigration Act of 1929,". Or “Registry Bill.” The bill, kept the same as last year’s Registry Bill, updates the 1929 law so that undocumented individuals may apply for legal permanent residency as long as they have lived in the country for at least seven years.

The registry, a provision of the Immigration and Nationality Act (INA), has existed for nearly a century. It was first implemented by the Registry Act of 1929 and permitted immigrants who had been continuously present in the United States since June 3, 1921, were of “good moral character,” and were not otherwise deportable, to apply for permanent resident status. Since then, the cutoff date for the registry has been updated only four times, usually as part of comprehensive immigration reforms, but has not been updated since the Reagan era. The statute has also been modified in other ways.

Today, immigrant communities are pushing for the registry process to be updated by establishing a seven years presence eligibility in order to apply for a green card. Under the new bill, the 1929 Immigration Act would also incorporate a rolling component so that future legislation would not be required to update the registry, and undocumented people can apply after living in the U.S. for seven years.

It is estimated that approximately eight million of the approximately eleven million undocumented people in the U.S. will benefit under this new update of current law.

Nationally, the immigrant rights movement is divided on whether or not to prioritize continuing to push for “Immigration Reform” this year, in view of the Republican-dominated Congress.

However, many immigrant rights organizations, especially those which have grassroots constituencies, believe that we must continue to organize around passage of just legalization policies. While legislation like the Registry Bill may not pass this year, it is important to continue to build community participation in the campaign, and to create the political climate needed to push forward pro-undocumented legislation. Immigrant communities continue to organize, not to achieve a fast win, but rather, to continue to build support for a just law which will offer an ongoing path to citizenship, a permanent solution to the current injustice.

Currently, the national campaign “Unlock Permanent Residence Through Registry,” based with the Coalition For Humane Immigrant Rights of Los Angeles (CHIRLA), is taking the lead coordinating the national campaign around the Registry Bill. Here in Sonoma County, organizations like ALMAS Libres/Raizes Collective and the North Bay Organizing Project (NBOP) are leading the Northern California Coalition For Just Immigration Reform, which involves organizations and unions in Sonoma, San Francisco, Humboldt, and the East Bay. Our local

Coalition collaborates with CHIRLA, as well as other coalitions around the country, such as the Dignity Campaign and United 4 Immigration Reform.

The Northern California Coalition plans to hold regional community forums on the “Registry Bill,” and 40-mile Walk in August. We’ll join groups at a national level to hold marches on August 8 and participate in a General Work Strike on August 9.

Why do immigrant communities continue to passionately organize around a legalization bill, despite the betrayals by the Democrats and the continued, anti-immigrant sentiment? Undocumented immigrants explain their involvement and sacrifice the best. They and their families continue to greatly suffer due to the lack of opportunities to adjust their legal status.

Mothers and fathers are unable to see the children they were forced to leave behind in their home countries. People suffer emotional distress by not seeing their elderly parents before they die.

They continue to suffer exploitation at work and remain vulnerable if they complain about work conditions. And they suffer a constant fear that law enforcement will discover them and deport them, forcibly separating them from family and loved ones living with them here.

Last year, Congress had various legislative options at the table including the Renewing Immigration Provisions of the Immigration Act of 1929 (introduced in both chambers), the Dream and Promise Act (passed out of the House), Dream Act (introduced in the Senate) Farm Workforce Modernization Act (passed out of the House), Citizenship for Essential Workers (introduced in both chambers) and the US Citizenship Act (introduced in both chambers).

Immigrant communities overwhelmingly supported the bill related to the changing of the registry date, because it doesn’t include harmful policies like the expansion of temporary worker programs, more border and inland enforcement, and an increase in detention centers.

For more information, please see https://www.facebook.com/groups/1620107098392385.

Renee Saucedo is Coordinator of ALMAS Libres, of the Raizes Collective.

Translation in Spanish
El 9 de marzo de 2023 U.S.Representatives Zoe Lofgren (CA), Norma Torres (CA), Grace Meng (NY), Lou Correa (CA), Adriano Espaillat (NY), and Jesús "Chuy" García (IL) reintroducido el “Renovando Imigracion Provisiones de la ley de immigracion de 1969,” o “Factura de Registro.” La Factura, deja el mismo Factura de Registro del año pasado, actualizando la lay de 1929 para que personas indocumentadas puedan aplicar para permanente legal residencia siempre y cuando hayan vivido en el país al menos por los siete años pasados.

La registra, una provision del immigracion y Naciolidad (INA), a exsistido por casi un siglo. Estaba primera implementada por la Registra Acta de 1929 y permitia immigrantes que han estado continuamente presente in los Estados Unidos desde Junio 3, 1921, eran de “buen moral character,” y no de otra manera no eran deportable, para solicitar el estatus de residente permanente. Desde entonces, la fecha límite para el registro se ha actualizado sólo cuatro veces, generalmente como parte de reformas migratorias integrales, pero no se ha actualizado desde la era Reagan. El estatuto también ha sido modificado en otros aspectos.

Hoy en día, las comunidades de inmigrantes están empujando para que se actualice el proceso de registro estableciendo una elegibilidad de presencia de siete años para poder solicitar una tarjeta verde. Según el nuevo proyecto de ley, la Ley de Inmigración de 1929 también incorporaría un componente renovable para que no se requiera legislación futura para actualizar el registro, y las personas indocumentadas puedan presentar su solicitud después de vivir en los EE.UU. durante siete años.

Se estima que aproximadamente ocho millones de los aproximadamente once millones de personas indocumentadas en Estados Unidos se beneficiarán con esta nueva actualización de la ley actual.

A nivel nacional, el movimiento por los derechos de los inmigrantes está dividido sobre si priorizar o no seguir empujando una “reforma migratoria” este año, en vista del Congreso dominado por los republicanos. Sin embargo, muchas organizaciones de derechos de los inmigrantes, especialmente aquellas que tienen electorados de base, creen que debemos continuar organizándonos en torno a la aprobación de políticas de legalización justas. Es posible que una legislación como el Proyecto de Ley de Registro no se apruebe este año, es importante continuar fomentando la participación de la comunidad en la campaña y crear el clima político necesario para impulsar una legislación a favor de los indocumentados. Las comunidades de inmigrantes continúan organizándose, no para lograr una victoria rápida, sino más bien para seguir generando apoyo para una ley justa que ofrecerá un camino continuo hacia la ciudadanía, una solución permanente a la injusticia actual.

Actualmente, la campaña nacional “Desbloquear la Residencia Permanente a través del Registro”, basada en la Coalición por los Derechos Humanos de los Inmigrantes de Los Ángeles (CHIRLA), está tomando la iniciativa de coordinar la campaña nacional en torno al Proyecto de

Ley de Registro. Aquí en el condado de Sonoma, organizaciones como ALMAS Libres/Raizes Collectiva y North Bay Organizing Project (NBOP) están dirigiendo la Coalición del Norte de California para una Reforma Migratoria Justa, que involucra a organizaciones y sindicatos en Sonoma, San Francisco, Humboldt y East Bay. Nuestra Coalición local colabora con CHIRLA, así como con otras coaliciones en todo el país, como Dignity Campaign y United 4 Immigration Reform.

La Coalición del Norte de California planea celebrar foros comunitarios regionales sobre el “Proyecto de Ley de Registro” y una caminata de 40 millas en agosto. Nos uniremos a grupos a nivel nacional para realizar marchas el 8 de agosto y participaremos en una Huelga General de Trabajo el 9 de agosto.
¿Por qué las comunidades de inmigrantes continúan organizándose apasionadamente en torno a un proyecto de ley de legalización, a pesar de las traiciones de los demócratas y el continuo sentimiento antiinmigrante? Los inmigrantes indocumentados explican su implicación y sacrifican lo mejor. Ellos y sus familias siguen sufriendo mucho por la falta de oportunidades para ajustar su estatus legal. Las madres y los padres no pueden ver a los niños que se vieron obligados a dejar atrás en sus países de origen. Las personas sufren angustia emocional al no ver a sus padres ancianos antes de morir. Siguen sufriendo explotación en el trabajo y siguen siendo vulnerables si se quejan de las condiciones laborales. Y sufren un temor constante de que las autoridades los descubran y los deporten, separándolos por la fuerza de sus familiares y seres queridos que viven con ellos aquí.

El año pasado, el Congreso tenía varias opciones legislativas sobre la mesa, incluida la Renovación de las Disposiciones de Inmigración de la Ley de Inmigración de 1929 (introducida en ambas cámaras), la Ley Dream and Promise (aprobada en la Cámara), Dream Act (introducida en el Senado). Ley de Modernización de la Fuerza Laboral Agrícola (aprobada por la Cámara), Ciudadanía para Trabajadores Esenciales (introducida en ambas cámaras) y Ley de Ciudadanía de EE. UU. (introducida en ambas cámaras). Las comunidades de inmigrantes apoyaron abrumadoramente el proyecto de ley relacionado con el cambio de la fecha del registro, porque no incluye políticas dañinas como la expansión de los programas de trabajadores temporales, más vigilancia en las fronteras y el interior, y un aumento de los centros de detención.

Para mas información, por favor visite https://www.facebook.com/groups/1620107098392385

Cecilia Lunaparra
Councilmember, District 7

CONSENT CALENDAR
July 30, 2024
To: Honorable Members of the City Council
From: Councilmember Lunaparra (Author), Councilmember Wengraf (Co- Sponsor), Mayor Arreguin (Co-Sponsor), Councilmember Hahn (Co- Sponsor)
Subject: Berkeley Student Cooperative (BSC): Relinquishment of Council Office Budget Funds to General Fund and Grant of Such Funds

RECOMMENDATION
Adopt a Resolution approving the expenditure of an amount not to exceed $500 per Councilmember, including $500 from Councilmember Lunaparra’s discretionary fund and funds from any other Councilmembers who would like to contribute, to the Berkeley Student Cooperative (BSC) for the repair of the glass skylights above Casa Zimbabwe (CZ) with funds relinquished to the City’s general fund for this purpose.

BACKGROUND
The Berkeley Student Cooperative (BSC) is a 501(c)3 non-profit student housing organization that has served students of the City of Berkeley and the greater Bay Area by providing low-cost cooperative housing to over 1,300 students who otherwise would not be able to afford a college education. With 20 units ranging from large and small houses, themed housing, apartments, and graduate student housing, the BSC has worked to ensure diverse housing options for the differing needs of all students. For over 90 years the BSC has been a place for students to find community through house events, member ownership, and the cooperative experience. In the Spring of 2024, the City Council celebrated the BSC's 90 years of service to the community by presenting BSC with a proclamation in honor of its decades of commitment to housing equity. BSC has also received city funding in the past, demonstrating the longstanding relationship that the City of Berkeley has had with BSC.

CZ has a rich history of providing for the community. With its opening in 1966, CZ became one of the first co-ed student housing in the nation, as well as the first building intentionally built as a co-op. Casa Zimbabwe’s namesake represents the community's commitment to the struggle for decolonization by honoring South Rhodesia’s fight for independence from British rule and the subsequent creation of the Republic of Zimbabwe. Furthermore, CZ is the second largest house in the BSC, offering housing to

120 students and providing numerous opportunities for community-building and personal/professional development.

CURRENT SITUATION AND ITS EFFECTS
The BSC is still recovering from the widespread effects of the COVID-19 pandemic.

This includes completing delayed maintenance projects on select units, managing the exodus that came with remote learning, and navigating the impacts of the COVID-19 rent moratorium in Berkeley, all of which heavily impacted BSC’s ability to thrive.

Additionally, during the Winter of 2023, Kingman Hall, a property owned by BSC, incurred over $1 million dollars in unforeseen recovery maintenance expenses as a result of the Bomb Cyclone Storm.

The BSC's Casa Zimbabwe is in critical need of skylight repair above the dining area.

The BSC Maintenance Department estimated that the total cost of renovation would be about $6,000. The BSC is seeking support from the City to help reduce the cost of the project. BSC members currently face the impact of the skylight dysfunction by water coming into the unit through cracks around the skylight when it rains. This skylight is in the CZ dining area where many members congregate on a daily basis for meals, to do homework, conduct meetings, and much more. As we come into the fall and winter, the BSC is seeking partnership now on this project to ensure the common space is functional in the upcoming rainy season.

Images of broken skylights in Casa Zimbabwe common areas.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with adopting this recommendation.

FISCAL IMPACTS
No General Fund impact. $500 is available from the Councilmember’s office budget discretionary account.

CONTACT PERSON
Councilmember Cecilia Lunaparra (510) 981-7170
Attachments:

1. Resolution

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

SUPPORT FOR BERKELEY STUDENT COOPERATIVE (BSC) SKYLIGHT REPAIR

AT CASA ZIMBABWE (CZ)
WHEREAS, the Berkeley Student Cooperative (BSC) is a 501(c3) nonprofit providing over 90 years of low-cost student housing to those experiencing financial strain; and WHEREAS, the BSC will utilize such funds to repair the glass skylights above Casa Zimbabwe; and
WHEREAS, the City Council and the BSC have a long history of collaboration and partnership, most recently demonstrated by the City’s proclamation recognizing 90 years of the BSC in February 2024; and
WHEREAS, Councilmember Lunaparra has surplus funds in her office expenditure account; and
WHEREAS, the BSC seeks funds in the amount of $500 from each Councilmember to help cover the cost of the project of repairing the glass skylights above Casa Zimbabwe; and
WHEREAS, the provision of such services would help ensure 90 more years of affordable housing in the face of rampant inflation.

NOW THEREFORE, BE IT RESOLVED by the Berkeley City Council that up to $500 relinquished by Councilmembers – including $500 from Councilmember Lunaparra – shall be granted to the Berkeley Student Cooperative for helping cover maintenance costs.

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-6750 ● TDD: (510) 981-6903 ● Fax: (510) 981-6760 E-mail: [email protected] Website: https://berkeleyca.gov/your-government/city-audits

ACTION CALENDAR
July 30, 2024
To: Honorable Mayor and Members of the City Council
From: Jenny Wong, City Auditor
Subject: Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

RECOMMENDATION
We recommend City Council request that the City Manager report back by January 2025 and at least annually thereafter, regarding the status of our audit recommendations until reported fully implemented by the Environmental Health Division. Recommendations include developing a plan to improve inspection coverage and response to alleged foodborne illness complaints, tracking program spending, taking steps to address staffing needs, and implementing placarding once the Division stabilizes. The Division agreed or partially agreed to our findings and recommendations. Please see our report for their complete response and the auditor’s response.

FISCAL IMPACTS OF RECOMMENDATION
Implementing the audit recommendations will ensure that the Environmental Health Division improves coverage of food inspections and can provide the public with complete and accessible information on food safety, minimizing public health risk to the community. Staffing up the food inspection program may carry financial implications depending on the specific implementation strategies, however, filling budgeted positions is necessary to meet inspection targets.

Additionally, updating the information shared online and implementing placarding may require initial investments in design and implementation. However, we anticipate the ongoing costs of placarding to be minimal, as placards are updated as part of the routine inspection process.

CURRENT SITUATION AND ITS EFFECTS
In 2023, the Environmental Health Division did not meet its targets for food facility inspections.

Almost half of permitted food facilities (45 percent) were not inspected at least once, and restaurants made up the largest group of uninspected facilities. Berkeley’s inspections were behind other jurisdictions, such as Alameda County where only 3 percent of food facilities were not inspected at least once in 2023. The Division only met its target to respond within one business day for 6 out of 23 complaints involving alleged foodborne illness in 2023.

The Division did not separately track food inspection revenue and spending from its other inspection programs over the audit period. As a result, the Division was unable to provide revenues and expenditures for the period covered by the audit and could not distinguish between revenues from the food inspection program and its other inspection programs. This information is important to ensure that Division leadership has access to information on

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets ACTION CALENDAR Pg. 2 of 2
program resources and can demonstrate sound financial management over food program revenues.

Food inspectors’ assigned workload exceeded recommended levels and impacted food inspectors’ ability to meet inspection targets. The food inspection program had two persistent vacancies in a supervisor role and a food inspector role for over four years but the City did not consistently recruit for these positions. Short staffing made it harder to manage inspection data and monitor program performance. We found a lack of reliable data needed to effectively manage food inspections. For example, two preschools were not included in the Division’s database and, as a result, were not inspected in 2023.

Public information about food safety in Berkeley was limited. The information on food inspections the Division provides online was incomplete and not fully accessible. Information to consumers is additionally limited because Berkeley does not require food facilities to post placards with a food safety score, unlike Alameda County and other jurisdictions.

BACKGROUND
The Environmental Health Division’s food inspection program is responsible for permitting and inspecting food facilities in Berkeley, including restaurants, markets, schools, and licensed health care facilities. Food inspections play an important role in preventing foodborne illness for the many residents and visitors who dine in Berkeley. The City of Berkeley is one of four cities in California that has its own health department and food inspection program independent from the county. Meeting their inspection targets is critical to fulfilling their role to protect public health and safety.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with this report.

RATIONALE FOR RECOMMENDATION
Implementing our recommendations will help the Environmental Health Division fulfill its public health role of conducting timely inspections and sharing information on food safety with the public.

CONTACT PERSON
Jenny Wong, City Auditor, City Auditor’s Office, 510-981-6750 Attachments:
1: Audit Report: Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

Promoting transparency and accountability in Berkeley government Audit Report
May 27, 2021
Berkeley Restaurant
Inspections:

Chronically
Understaffed Program
Did Not Meet Targets
July 10, 2024
Jenny Wong, City Auditor
Caitlin Palmer, Audit Manager
Erin Mullin, Audit Manger
Pauline Miller, Auditor II
Kendle Kuechle, Auditor I

Promoting transparency and accountability in Berkeley government Report Highlights
For the full report, visit:
https://berkeleyca.gov/your-government/
city-audits
Findings

1. The Environmental Health Divisi on (Division) did not meet its targets for food facility inspections in 2023, increasing health risk.

Almost half (45 percent) of Berkeley’s food facilities were not inspected, including 193 restaurants. For comparison, Alameda County health officials reported that only 3 percent of facilities were not inspected at least once in 2023. Additionally, the Division responded to only 26 percent of potential foodborne illness complaints within the target of one business day.

Restaurants made up the largest group of facilities not inspected in 2023 Source: Environmental Health Division and analysis of Division database

2. The Division did not separately track program revenue and spending to ensure compliance with state code. Short staffing increased inspectors’ workloads and made it difficult to meet targets and monitor program performance. City leadership did not consistently recruit for budgeted positions despite persistent vacancies. For example, supervisor and inspector positions had been vacant since 2019.

3. Public information o n food inspections was incomplete and hard to access. Berkeley provided less information about inspections online compared to other jurisdictions. Berkeley did not use placards, a common practice for communicating food safety used by other jurisdictions including Alameda County.

Recommendations
We recommend the Division develop a plan to improve inspection coverage and quickly respond to alleged foodborne illness complaints.

We recommend they track program spending to comply with state code, take steps to address staffing needs, and improve data management and reporting. Finally, we recommend they make online food inspection information more accessible and complete, and develop a plan for placards in Berkeley. The Environmental Health Division agreed or partially agreed with these recommendations.

July 10, 2024
Objectives

1. To what extent is the Food
Safety and Inspection
Program meeting its
inspection targets?

2. To what extent is the Food
Safety and Inspection
Program adequately funded
and staffed?

3. How well does the Food
Safety and Inspection
Program keep the public
informed about food safety?
Why This Audit Is
Important
We initiated an audit of
Berkeley’s Food Safety and
Inspection Program in October
2023 because food inspections
play an important role in
preventing foodborne illness for
the many residents and visitors
who dine in Berkeley. The City of
Berkeley is one of four cities in
California that has its own health
department and food inspection
program independent from the
county. Meeting their inspection
targets is critical to fulfilling their
role to protect public health and
safety.

Berkeley Restaurant Inspections: Chronically
Understaffed Program Did Not Meet Targets

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

3 Table of Contents

health risk.

Introduction
Many residents and visitors to Berkeley dine at restaurants and other food facilities daily, from long established culinary options to new pop-ups. We initiated an audit of Berkeley’s Food Safety and Inspection Program in October 2023 because it has an important role in inspecting food facilities to ensure food safety and prevent foodborne illness. Centers for Disease Control (CDC) estimates that 48 million people get sick, 128,000 are hospitalized, and 3,000 die from foodborne diseases each year in the United States. We identified some challenges in the Food Safety and Inspection Program’s ability to fulfill its role which may pose threats to public health.

Objectives, Scope, and Methodology
Our audit objectives were to determine:

1. To what extent is the Food Safety and Inspection Program meeting its inspection targets?

2. To what extent is the Food Safety and Inspection Program adequately funded and staffed?

3. How well does the Food Safety and Inspection Program keep the public informed about food safety? To address these objectives, we analyzed data on inspections in 2023 and reviewed staffing information from fiscal years 2019 to 2023. We also compared Berkeley’s inspection rate and online inspection data to a sample of similar and/or nearby jurisdictions. Additionally, we reviewed state mandates, Berkeley’s policies and procedures, and interviewed program staff and leadership.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

4 Background
Berkeley’s Environmental Health Division (Division) operates the Food Safety and Inspection Program (food inspection program), which is responsible for permitting and inspecting food facilities in Berkeley, including restaurants, markets, schools, and licensed health care facilities. Restaurants make up the highest number of food facilities requiring inspections. According to the Division’s database, at the end of 2023, Berkeley had 933 permitted food facilities. On its webpage, the food inspection program focuses on preventing foodborne and food-related illnesses and responding to complaints from the community.

Food inspectors provide an important service by working with local businesses and organizations feeding the Berkeley community. Inspectors’ work includes routine and follow-up inspections, responding to complaints, and fielding inquiries from food facility operators.

Berkeley is one of four cities in California that has its own health department independent from the county.

Therefore, Berkeley administers its own food inspection program, despite being within Alameda County, which conducts inspections throughout the rest of the county. In spring 2024, new management was appointed to the Division and department.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

5 The Division was significantly behind on inspections in 2023, increasing health risk.

The Division did not meet its targets for food facility inspections. In 2023, the Division completed only 29 percent of the total required inspections, and 45 percent of food facilities were not inspected even once during this time. Restaurants made up the largest group of facilities that were not inspected— 193 restaurants were not inspected in 2023. The Division only responded to 26 percent of potential foodborne illness complaints within the target of one business day.

The Division did not meet its inspection targets in 2023.

The Division did not meet its targets for food facility inspections in 2023. Based on Berkeley’s policy to conduct inspections according to risk level, the Division should have conducted a total of 2,203 inspections in 2023 but only completed 648, or 29 percent (Figure 1).

Figure 1. The Division completed only 29 percent of its target inspections in 2023.

Inspections

Note: Numbers are based on an estimated minimum of 1 annual inspection for facilities that do not have an assigned risk le
vel.

Source: Auditor analysis of Berkeley’s E
nvironmental Health Division database

Completed: 648 (29%)
Not Completed: 1,555 (71%)

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

6 The food inspection program’s policies state that food facilities should be inspected at least 1-3 times per year depending on their risk level (Figure 2).

Figure 2. Inspection Targets By Risk Level, 2023
Risk Level Description and Examples Total
Facilities
Annual
Inspection
Targets
Very High Foods that fall within the high risk designation and serve a vulnerable population. Example: nursing care facilities. 7 3 High
Foods with complex preparation, including pre-preparation, cooling, and reheating. Examples: catering operations, food trucks, and restaurants.
526 3
Medium Foods that require light preparation. Examples: cafes, schools, and fraternities/sororities. 204 2
Low Pre-packaged foods. Examples: small grocery stores, convenience stores, and farmer’s market stands. 143 1
No Risk
Level Various types of facilities listed above. 53 1 or m ore Source: Environmental Health Division and analysis of Division database Nearly all of Berkeley’s high or very high risk facilities, which include restaurants and nursing care facilities, did not meet the requirement of having 3 inspections in 2023. Similarly, 91 percent of medium risk facilities, including senior centers, fraternities, and sororities, did not receive 2 required inspections that year (Figure 3).

Figure 3. The Division did not meet its inspection targets for facilities in any risk level in 2023.

Risk Level Facilities that Did Not Receive
Target Number of Inspections
Very High 100%
100%
91%
71%
High
Medium
Low
Note: Facilities with no assigned risk level are not included because the total number of target inspections for these facilities is unknown.

Source: Environmental Health Division and analysis of Division database

71%
91%
99%
100%

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 7 Inspectors and Division lea dership acknowledged that they were not meeting their targets for inspections.

Multiple inspectors said that these targets were not achievable given prolonged staff shortages in the Division.

As a result, all food inspectors had a backlog of facilities overdue for inspection.

The Division was also not able to meet a baseline of one inspection per year. Almost half of Berkeley’s 933 food facilities (45 percent) were not inspected even once in 2023 (Figure 4). Additionally, of the facilities that were not in
spected at all, 184 (44 percent) were high risk or very high risk (see appendix on page 23 for more information about facilities that were not inspected by risk level).

Figure 4. Almost half of Berkeley’s food facilities were not inspected in 2023.

Food
Fa
cilities
Source: Auditor analysis of Berkeley’s Environmental Health Division database The types of facilities not inspected in 2023 include restaurants, food markets, boarding houses, temporary food facilities, and catering operations (Figure 5). At the top of the list, 193 restaurants made up the largest group of facilities that were not inspected during this time.

Figure 5. Restaurants made up the largest group of facilities not inspected in 2023.

Note: Totals do not include any food facilities not included in the Division’s inspection inventory. "Other" includes a variety of facility types, such as bakeries, mobile food facilities, and cottage food operations. Boarding houses includes facilities such as co-ops, fraternities, and sororities. For temporary food facilities, examples include some vendors at flea markets or farmers markets.

Source: Environmental Health Division and analysis of Division database Inspected: 515 (55%)
Not Inspected: 418 (45%)
Restaurants, 46% (193)
Food Markets, 16% (66) Other, 13% (53)
Boarding Houses, 9% (40)
Temporary Food Facilities, 8% (34)
Catering Operations, 8% (32)
Out of 418 facilities not inspected,
184 were high risk or very high risk.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 8 Alameda County and the City of Pasadena repor ted that they also did not meet their inspection targets.

However, officials from these two jurisdictions stated that they did meet a baseline of at least one inspection per year for most facilities.

When compared to information from four other California food inspection programs, Berkeley had the second highest percentage of food facilities that were not inspected in 2023 after the City and County of San Francisco (Figure 6). Berkeley is in Alameda County, where health officials reported that only 3 percent of facilities were not inspected at least once in 2023.

Figure 6. Berkeley had the second highest percentage of food facilities that were not inspected in 2023.

Note: The percentages reflect responses we received from these jurisdictions to our public information requests, and each jurisdiction confirmed these percentages. We did not receive or analyze inspection data for these jurisdictions.

Source: Auditor analysis of Berkeley’s Environmental Health Division database, responses to public info rmation requests The Division also did not meet its targets for responding to complaints of alleged foodborne illness. In addition to routine inspections, the food inspection program responds to complaints from the community. The Division’s procedures state that inspectors should inspect facilities following complaints of an alleged foodborne illness within one business day. Of 23 such complaints in 2023, only 6 complaints (26 percent) resulted in an inspection within one business day (Figure 7). 51%
45%
30%
3 %
1%
City and County of San Francisco
City of Berkeley
City of Long Beach
Alameda County
City of Pasadena

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

9 Figure 7. Only 6 out of 23 alleged foodborne illness complaints resulted in an inspection within one business day.

Source: Auditor analysis of Berkeley’s Environmental Health Division database In a memo to City Council in November 2023, Division leadership stated that in order to balance inspection workload and staff vacancies, it would prioritize responding to viable threats in the environment, including those discovered through complaints. The memo also noted that there had been no confirmed foodborne illness outbreaks in Berkeley in recent years.1
Delayed inspections increased public health risk and impacted education to food facilities.

Delayed inspections increased public health risks when food establishments were not inspected. When inspectors are behind on inspections, they have fewer opportunities to educate facility operators on food safety, which is an important part of the inspection process. Employees may miss opportunities to learn about food safety and preventing foodborne illness at facilities that are not inspected regularly. Prioritizing the health and safety of the community is an important consideration in managing food inspections. Delayed response to complaints could impact the Division’s ability to prevent possible foodborne illness outbreaks.

The backlog of inspections also limited inspectors’ ability to fulfill their other responsibilities. Inspectors’ high workloads limit the time they can spend at each facility and their ability to conduct follow-up inspections to ensure that previous violations are resolved. With fewer inspections, there are also fewer opportunities for food operators to discuss possible changes to their facilities with inspectors. As a result, operators may make changes to their facilities without guidance on how to comply with health regulations.

1 According to the CDC, a foodborne disease outbreak is defined as an incident in which two or more persons experience a similar illness resulting from the ingestion of a common food. 6 11
3 1 1 1
Within 1 2 to 5 6 to 10 11 to 15 16 to 20 21 to 25 26 to 30 No response Alleged Foodborne Illness Complaints
Days Until Inspection

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

10 Recommendations
To stabilize the food inspection program, we recommend the Division:

1.1 Develop a plan to improve coverage of routine inspections throughout the City, which may require the Division to prioritize health and safety duties over other responsibilities. As part of this process:
a. Evaluate inspection targets to determine if current inspection frequencies are achievable, or establish different temporary targets to adapt to periods of understaffing. b. Establish a baseline of inspection coverage for all permitted food facilities in the City and prioritize inspection of facilities with high risk and very high risk designations that were not inspected in 2023.

1.2 Develop a plan to ensure timely response to complaints involving alleged foodborne illness, which may require the Division to prioritize health and safety duties over other responsibilities.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

11 The Division did not track spending and left critical positions vacant.

The Division was unable to show if food inspection program revenues fell short of, covered, or exceeded the cost of operations because it did not have an established practice of separately tracking its revenue and spending.

Additionally, short staffing in the Division increased inspectors’ workloads beyond their capacity and prevented them from meeting inspection targets. City leadership did not consistently recruit to fill persistent vacancies in budgeted positions. For example, a supervisor position has been vacant since 2019. Short staffing also made it more difficult to manage inspection data and monitor food inspection program performance. For example, two preschools were not included in the Division’s database and, as a result, were not inspected in 2023.

The Division did not track food inspection program revenue and spending.

The Division was unable to demonstrate compliance with state law because it did not have an established practice of separately tracking the food inspection program’s revenue and spending. The food inspection program is state-mandated and primarily funded by fees, which state code requires to be used only for food inspections. However, the Division did not track food inspection revenue at the program-level, and could not distinguish between revenues from the food inspection program and its other inspection programs.

Without this information, it was unclear whether inspection fees from food facilities covered, fell short of, or exceeded the cost of its operations.2 However, given that some facilities were not inspected in 2023, those facilities did not receive the inspection services the inspection fee is intended to be used for. Tracking spending at the program level could help the Division ensure that it complies with state code and uses food permit fees for food facility inspections.

Short staffing prevented inspectors from meeting inspection targets.

Short staffing in the Division led to inspection workloads that exceeded recommended levels. Vacant positions in the Division increased from 1 in FY 2019 to 5 in FY 2023.3 The Food and Drug Administration’s (FDA) National Retail Food Regulatory Standards recommend one full-time inspector for every 280-320 inspections (Figure 8). Following this standard, Berkeley would need about 7-8 full-time dedicated food inspectors.4 The Division’s staffing model was not in line with the FDA standard. In 2023, Berkeley had only 3 full-time food

2 We did not conduct an in-depth comparison of Berkeley’s fees because the Division was working with a contractor to conduct a fee study during the audit period.
3 The vacancy numbers represent point-in-time estimates. The Division had 13.4 total budgeted positions in FY 2019 and 13 total budgeted positions in FY 2023.
4 This is a conservative estimate that does not include other types of inspections conducted by food inspectors, like complaint-related inspections.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

12 inspectors who were each assigned 549-589 routine inspections, far exceeding the FDA recommended workload. 5
Figure 8. Berkeley food inspectors’ workloads exceeded the Food and Drug Administration’s (FDA) recommendation.

Source: Auditor analysis of Berkeley’s Environmental Health Division database, FDA Voluntary National Retail Food Regulatory Program Standards
Short-staffing extended food inspectors’ workloads beyond their capacity. In addition to food inspections, inspectors also covered for vacant inspector positions that usually handled other types of inspections, such as vector inspections. With turnover in support staff roles, inspectors also reported spending more time handling inquiries from food facility operators such as questions about delays in receiving health permits. Altogether, vacancies throughout the Division increased inspectors’ workloads to the point that they were not able to meet their inspection targets and respond to complaints involving alleged foodborne illness in a timely manner.

According to Division leadership, although staff in other Environmental Health programs were qualified to help out with food inspections, working on competing priorities limited their ability to do so.

In recent audit reports, we found that understaffing can result in excessive workloads and promote an unhealthy work environment. According to payroll data, in 2023, two senior staff members in the food inspection program worked 147 overtime hours combined. These staff covered mobile food truck inspections and temporary event food inspections that year. Our 2018 audit on Berkeley’s 911 dispatch center underscores how overtime can lead to fatigue, decreased quality of service and impact cognitive performance. 6 Additionally, our 2023 audit of
employee retention found that understaffing impaired services to the community and caused high workloads leading some employees to look for other jobs.7

5 This calculation focuses on full-time inspectors to align with the FDA's methodology. We excluded two senior environmental health specialists who were assigned 163 food inspections in addition to their primary duties in 2023. 6 911 Dispatchers: Understaffing Leads to Excessive Overtime and Low Morale 7 Staff Shortages: City Services Constrained by Staff Retention Challenges and Delayed Hiring 250 300 350 4 00 450 500 550 600
The FDA recommends food
inspectors conduct 280 - 320
inspections each year.

Berkeley assigned full-
time food inspectors
549 - 589 routine
inspections in 2023.

Annual Inspections

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

13 The City did not consistently recruit to fill critical vacancies.

City leadership did not consistently recruit for budgeted positions despite persistent vacancies. The Division started recruitment to fill a vacant food inspector position and a supervisor position in November 2019 but neither position was filled then. According to the Division, they planned to interview candidates for the supervisor position in March 2020. However, Department leadership asked the Division to delay the hiring process at the onset of the pandemic. The Division then deferred hiring for both of these positions as part of a citywide cost saving hiring freeze during the COVID pandemic. The Division did not resume recruitment after the hiring freeze ended in September 2022. The Division eventually opened a recruitment for the vacant food inspector position in July 2023, but as of June 2024, the position was not filled. No action has been taken to recruit for a supervisor since 2019.

According to Division leadership, there is a workforce shortage for many positions in the environmental health field. The former deputy director overseeing the Division said that state and federal credentialing requirements limit the pool of qualified candidates for these positions, including in Berkeley. Division leadership also stated that Berkeley’s compensation for inspectors may make it more difficult to hire, but stated that they have not conducted a compensation analysis for at least five years.

Trainee programs can be an effective strategy for employing more inspectors. According to a 2018 audit of the City and County of San Francisco’s Public Health Department, Contra Costa, Santa Clara, and Alameda counties had offered a trainee program that provides the required experience for an entry-level food inspector position.

Pasadena also operates a similar program, reporting greater success in recruiting for trainee positions compared to inspector roles. Berkeley has hired trainees in the past, and one of the division’s most tenured staff was hired as a trainee. According to senior staff, while hiring trainees can expand the pool of applicants, bringing on a trainee would require hiring a supervisor to oversee training.

Short staffing made it harder to manage inspection data and monitor performance.

Staff reported that issues with the inspection database, Envision, made it harder to prioritize and track inspection data.8 Although our audit did not include an in-depth analysis of the database’s functionality, we identified three critical data discrepancies:
53 food facilities in the Division’s database had no assigned risk level in 2023, making it difficult for inspectors to determine the appropriate inspection frequency. As a result, inspectors may not have prioritized some higher risk facilities for multiple inspections. The Division was also unable to accurately calculate the total number of inspections required and inspectors' actual workloads.

8 Envision is a component of Accela, the City’s licensing and permitting system.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

14 According to some inspectors, the Envision software inspectors used during inspections could not produce an accurate list of priority inspections due to an error in the date field. This made it impossible for the system to generate accurate lists of facilities due for inspection based on the length of time since last inspection. As a result, inspectors had no easy way to prioritize their workload and focus on facilities that had gone the longest time since their last inspection. We did not verify that all inspections completed were reflected in the database.

Two preschools that serve food to students were not included in the Envision database. As a result, they were not inspected in 2023. We did not assess whether the database included all food facilities in Berkeley, but this indicates that it did not.

The Division did not have the staff needed to configure Envision to produce reports to monitor and prioritize inspections. According to Division leadership and staff, short staffing made it difficult to resolve issues with the database. The Division has considered switching to a different database, but we did not fully assess the adequacy of the current database to determine if it meets the Division’s needs. Additionally, staff shortages may make this migration difficult.

The Division also did not use data to track inspection targets or monitor program performance. Despite having inspection targets, the Division did not measure progress toward these targets or publicly report on performance metrics. As a result, the Division did not have the information needed to make decisions about how to manage or prioritize inspections. Additionally, the Division did not track data on common inspection violations. This limited the Division’s ability to design targeted interventions to reduce the occurrence of common violations, which could reduce overall workload and help the Division meet its targets in the long-run.

Recommendations
To ensure compliance with state code, we recommend the Division:

2.1 Work with the Budget Office to track how the food inspection program revenues are used.

To meet the Division’s immediate staffing needs, we recommend the Division:

2.2 Take the following steps to fill positions and assess program staffing:
a. Open recruitment for the supervisor position.
b. If the recruitments for the supervisor and food inspector pos itions do not yield qualified candidates, work with the Human Resources Department (HR) to develop targeted recruitments for the inspector and supervisor roles. This may include conducting an analysis of compensation or other factors that affect recruitment.

c. Develop a trainee program to build a pipeline into the Division’s inspector positions. d. Work with HR as needed to identify staffing resources needed to meet inspection targets.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

15 To ensure accuracy of key data needed to effectively manage inspections, we recommend the Division:

2.3 Make the following updates to the inspection data:
a. Add a risk designation to all food facilities in the Envision database. b. Correct the date of last inspection in the Envision software that inspectors use during inspections, or develop a workaround to ensure inspectors have an accurate list of facilities prioritized by last inspection date.
c. Develop a process to regularly verify that the Envision database includes all food facilities that should be permitted and inspected.

In order to conduct effective, ongoing monitoring of the food inspection program, we recommend the Division:

2.4 Work with the Department of Information Technology (IT) to develop list of database functionalities and/or datapoints needed to help meet the Division’s targets and produce reports. If the current database cannot provide this functionality, document the limitations of the current database and include these requirements in the future request for proposals for a new database.

In order to conduct effective, ongoing monitoring of the food inspection program, we also recommend the Division:

2.5 Identify performance metrics and report them to the public at least annually.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

16 Public information about food safety was limited.

Berkeley’s publicly available food inspection data was incomplete and not fully accessible. Information in the City’s Open Data Portal did not clearly match inspection reports or include all of the information required by state code for information posted online. Additionally, Berkeley provided less information about inspections to the public online compared to some other jurisdictions. Although placards are a common method to provide food safety information, including in the rest of Alameda County, Berkeley did not use placards.

Inspection data was incomplete and not fully accessible to the public.

While Berkeley did provide some food inspection data online, it was incomplete. For example, some facilities that were inspected in 2023 were not included in the City’s online Open Data Portal. The information in the Open Data Portal also did not clearly match the inspection reports. We identified violations at specific facilities in inspection reports that were not reflected in the Open Data Portal. This may give the wrong impression that a facility had no violations during the last inspection when in fact it did. While IT and the Division work together to upload the data, according to Division leadership, there was no one responsible for maintaining the accuracy of the data in the Open Data Portal.

Additionally, Berkeley’s Open Data Portal did not include all of the information required by state code for information posted online. The Open Data Portal included the name and address of food facilities and the date of the last inspection, but did not include all violation types, the re-inspection date, or period of closure (Figure 9). The Open Data Portal included most violation categories required by state code, but did not include the category of improper cooling of potentially hazardous foods, which is one of the most common causes of foodborne illness according to the U.S. Department of Agriculture (USDA).

Figure 9. Berkeley’s Open Data Portal did not include all information required by the California Health and Safety Code for information posted online.

State requirement for information reported online
Included on
Berkeley’s Open
Data Portal
Name and address of the food facility
Date of last inspection
Major violations identified in a food facility inspection * Reinspection date, if applicable
Period of closure, if applicable
* Regarding the state requirement to identify any major violation, Berkeley’s Open Data Portal does list most major violations, but does not include violations related to improper cooling of potentially hazardous foods.

Source: Berkeley Open Data Portal, California Health and Safety Code

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

17 Additionally, Berkeley’s public information about individual food facilities was not easily accessible and limited compared to other jurisdictions. In order to access information on inspections, users have to download a spreadsheet from the Open Data Portal. In addition to the missing fields described above, Berkeley’s publicly available food inspection information did not include the facility's overall inspection score or a detailed description of the violations cited. In contrast, jurisdictions such as Alameda County and the City and County of San Francisco offer online tools that allow users to search for a food facility by name and access more comprehensive information including inspection type, details about violations, and inspection scores (Figure 10 and Figure 11). Other jurisdictions such as the City and County of San Francisco and the County of Contra Costa also make full inspection reports available to the public online. These tools enhance accessibility and empower consumers to make informed choices about where to eat.

Figure 10. Alameda County’s online search tool.

Source: Alameda County food inspection webpage

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

18 Figure 11. The City and County of San Francisco’s online search tool.

Source: City and County of San Francisco food inspection webpage Berkeley did not use placards to inform the public about food inspections.

Placarding is another common practice to show how food facilities follow food safety requirements, but Berkeley did not use placards. Placards are typically displayed near a facility’s entrance. While state code requires food facilities to make their last inspection report available upon request, placards provide a quicker and more accessible summary of results to the public. According to the CDC, posting inspection scores in restaurants may also be linked with fewer foodborne illness outbreaks. The Division looked into placarding in 2013, but did not implement it. Other jurisdictions, including Alameda County, use placards to share food safety information with the public (Figure 12).

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

19 Figure 12. Examples of placard models used by other jurisdictions.

Example Image Description Where This
Model Is Used

Color-Coded:

Includes a green
pass placard, yellow
conditional pass
placard, and red
closed placard. Score
based on violations
found during the last
inspection.

Some San
Francisco Bay
Area jurisdictions,
including the City
and County of San
Francisco,
Alameda County,
and Contra Costa
County

Emoji: Includes
emojis with the
following scores:
excellent, good, okay,
and needs to
improve. Score
based on violations
found during the last
two to four
inspections.

King County,
Washington

Letter Grade:

Includes A, B, C
placards. Score
based on violations
found during the last
inspection.

Los Angeles
County

Pass/Conditional
Pass/Closed: Score
based on violations
found during the last
inspection.

City of Pasadena
Note: We did not assess the effectiveness of each placard model.

Source: Jurisdictions’ f ood inspection program webpages.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets

20 King County in Washington is an example of a jurisdiction that worked with food facilities and the community to design their placards. Some considerations for designing and implementing evidence-based, equitable placarding include:
 Scoring based on the results from several inspections to represent more than a snapshot in time.  Limiting re-inspections for the purpose of improving grades to ensure that requests for grade re- inspections do not draw resources from routine inspections.  Scoring based on only higher risk violations to account for inconsistencies in reporting lower risk violations.
 Implementing a peer-review process for inspectors to help ensure that scoring is equitable and consistent across different facilities.
 Using community engagement to design placards that can be easily understood by people of different cultures and feature information that is meaningful to the community.

While placards can be added to the inspection process, sufficient staffing is required to design and implement placarding.

Recommendations
In order to provide more complete and accessible information on inspections to the public, we recommend the Division:

3.1 Work with Department of Information Technology (IT) to update the online system for sharing information on food inspections. As part of this process:
a. Develop internal guidance informed by state code that details what information the Division will share with the public online and defines responsibility for managing the data. b. Make inspection history available online for all permitted food facilities in Berkeley. This could include sharing a copy of the most recent inspection report.

3.2 Develop a plan to implement placarding in Berkeley once staffing levels are stable. As part of this process:
a. Assess resources needed to implement placarding.
b. Consider adding elements such as community engagement for designing and implementing evidence-based, equitable placarding.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 21 Methodology, Scope, and Statement of Compliance
We analyzed Berkeley’s inspections data for 2023. This included requesting inspection numbers from a sample of similar and/or nearby jurisdictions. We reviewed staffing information for a five-year period from fiscal years 2019 to 2023. We performed a risk assessment of the food inspection program’s practices and procedures to identify potential internal control weaknesses, including fraud risks, within the context of our audit objectives. Our work included a review of relevant laws, policies and procedures, and interviews with food inspection program staff as well as division leadership. We compared the information Berkeley makes available to the public online to the information a sample of other nearby and/or similar jurisdictions make available to the public online. Additionally, we reviewed placarding best practices and examples of different placarding models. Our audit scope focused on the high risk area of meeting inspection targets did not include the Division’s processes for issuing permits or enforcement.

To assess the food inspection program’s ability to meet inspection targets, we analyzed data from Envision, the Environmental Health Division’s (Division) inspection database. Evaluating the inspection process was not a part of our audit scope. We did not assess individual inspector performance, but did assess the Division’s performance overall by analyzing total inspections.

To assess the Division’s inspection performance, we compiled and analyzed:
• A subset of complaints data from 2023, and
• Inspection data from 2023 compared to the Division’s list of permitted food facilities as of January 2024.

To assess the Division’s publicly available data on inspections, we reviewed:
• Information on the Open Data Portal compared to sample inspection reports and inspection data from 2023.

We also reviewed:
• The California Food Code,
• The Berkeley Municipal Code,
• The Food and Drug Administration’s National Retail Food Regulatory Standards, • Division policies, procedures, and internal staffing documents, • Human Resources vacancy and recruitment information,
• Payroll vacancy and overtime information, and
• Audits of food inspection programs performed by other jurisdictions, including the City and County of San Francisco Controller’s Office.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 22 We also conducted interviews with:
• Division staff and leadership,
• Food inspection program officials at the City of Pasadena and the County of Alameda, • Information Technology staff,
• Human Resources staff, and
• Budget Office staff.

Data Reliability
We assessed the reliability of Envision data by reviewing it for reasonableness and completeness. We identified instances of data entry omissions and incomplete data, however, we determined that Envision data is reliable to address the audit objectives and provide an estimate of the Division’s inspection performance.

We did not conduct an in-depth assessment of the inspection data system’s functionality, or conduct a thorough review of the accuracy of the data. Additionally, this audit did not include an assessment of the Division’s process for establishing and/or updating risk level.

Independence
Payroll Audit is a Division of the City Auditor’s Office. The Payroll Audit Division performs citywide payroll functions and is a module leader for the payroll/personnel module used to record payroll costs. Human Resources and department payroll clerks are responsible for entering employee data and collecting relevant documentation. Payroll Audit is not responsible for verifying the employee’s time worked or the use of budget codes by the department. Further, Payroll Audit limits its review of sufficient documentation for the reported time or transaction; Human Resources and department payroll clerks are responsible for making adjustments to ensure the accuracy of the information in the system.

To reduce the threat to our independence, we limited our work to exclude areas overseen by our office. We also selected data from closed payroll periods that was in read only status. We relied on previous consultations with representatives from the U.S. Government Accountability Office to assess the safeguards we put in place.

Based on this, we determined that the safeguards mentioned above reduced the identified threats to our independence to an acceptable level to proceed with the audit.

Statement of Compliance
We conducted this performance audit in accordance with generally accepted government auditing standards.

Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 23 Appendix: Food Facilities Not Inspected, By Risk Level Food Facilities Not Inspected, By Risk Level, 2023
Risk Level Facilities That Received No Inspections
Low
101 out of
418
(24%)

19 Boarding Houses (mostly co-ops)
54 Food Markets
10 Cottage Food Operations
8 Temporary Food Facilities
5 Confectionaries
5 Other
Medium
104 out of
418
(25%)
38 Restaurants
21 Boarding Houses (fraternities/sororities)
18 Temporary Food Facilities
8 Mobile Food Trucks
6 Food Markets
5 Catering Operations
4 Bakeries
4 Other
High/Very High
184 out of
418
(44%)
140 Restaurants
23 Catering Operations
8 Mobile Food Trucks
4 Temporary Food Facilities
4 Bakeries
5 Other
No Assigned Risk Level 29 out of 418
(7%)
13 Restaurants
4 Food Markets
4 Temporary Food Facilities
3 Cottage Food Operations
3 Catering Operations
1 Mobile Food Truck
1 Flea Market/Swap Meet
Source: Auditor analysis of Berkeley’s Environmental Health Division database

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 24 Recommendations and Management Response
We provided a draft of this report to city management and the Environmental Health Division (Division) for review and comment. The Division agreed or partially agreed with our findings, conclusions, and recommendations. We generally expect the City to implement audit recommendations within two years of report issuance. The Division provided the implementation dates and corrective action plan below. We will be conducting our standard recommendation follow up process after the audit is issued. We have not yet confirmed to what extent the recommendations have been implemented prior to the audit release date.

We have concerns about the Division’s response to recommendations 2.1 and 3.1. We provide comments on page 29.

1.1 To stabilize the food inspection program, develop a plan to improve coverage of routine inspections throughout the City, which may require the Division to prioritize health and safety over other responsibilities. As part of this process:
a. Evaluate inspection targets to determine if current inspection frequencies are achievable, or establish different temporary targets to adapt to periods of understaffing. b. Establish a baseline of inspection coverage for all permitted food facilities in the City and prioritize facilities with high risk and very high risk designations that were not inspected in 2023.

Management
Response: Agree
Implementation Date: October 2024
Corrective Action Plan: Beginning in April 2024, the Environmental Health Division (EHD) began the process of reviewing all food facilities in the city to determine risk designation and status of last inspection, with an eye towards clearing the backlog of any overdue inspections as quickly as possible.

Efforts to clear the 2023 backlog of uninspected food facilities is already underway; as of June 20, the number of remaining uninspected facilities has been reduced from 418 to 260. After this, EHD will draft a plan to ensure prioritization of high-risk food facilities during periods of low staffing and will deploy all available, qualified staff to focus their efforts on inspecting these higher risk facilities. With the added burden on existing inspectors that comes from redistributing the work of vacant inspectors, inspection targets will adjust to ensure that all high-risk facilities receive at least one inspection per year. During periods of especially low staffing, this plan will consider not only how to prioritize inspections within the food facility inspection program to minimize risk to the public, but also how to appropriately prioritize response to the Division's numerous State mandates and local ordinances, keeping the Division's chief focus on the health and safety of the public.

1.2 To stabilize the food inspection program, develop a plan to ensure timely response to complaints involving alleged foodborne illness, which may require the Division to prioritize health and safety duties over other responsibilities.

Management Response: Agree
Implementation Date: Octo ber 2024

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 25 Corrective Action Plan: Existing policies and procedures have been in-place to address the issue of timely response to complaints involving alleged foodborne illnesses (FBIs). During the COVID pandemic, staff priorities necessarily shifted to be more responsive to COVID-related health and safety violations (e.g., illegal operations during lockdown, mask mandate compliance, etc.). As EHD transitions back to normal protocols, staff, particularly support staff, will be retrained on the response timelines for alleged FBI complaints.

2.1 To ensure compliance with state code, work with the Budget Office to track how the food inspection program revenues are used.

Management Response: Agree
Implementation Date: Aug ust 2024
Corrective Action Plan: The City’s long-standing practice has been to deposit all fee and permit revenues, except those associated with Enterprise funds, into the City’s general fund. Since the expenses associated with administering EHD’s field inspections ($1,148,532 in FY2024) exceed the revenues brought in by that program annually ($$699,244 in FY2024), and since all health inspections are funded by the general fund, the Department is confident that the sum total of food inspection revenues is indeed being spent on food program administration; revenue from all health inspection fees only covers on average 60% of expenditures. However, for greater transparency, HHCS will work with the Budget Office and the Finance Department to create a new revenue code to track food inspection program revenues at the program-level.

2.2 To meet the Division’s immediate staffing needs, take the following steps to fill positions and assess program staffing:
a. Open a recruitment for the supervisor position.
b. If the recruitments for the supervisor and food inspector positions do not yield qualified candidates, work with the Human Resources Department (HR) to develop targeted recruitments for the inspector and supervisor roles. This may include conducting an analysis of compensation or other factors that affect recruitment.
c. Develop a trainee program to build a pipeline into the Division’s inspector positions. d. Work with HR as needed to identify staffing resources needed to meet inspection targets.

Management Response: Agree
Implementation Date: Barring any city-wide hiring freezes, recruitment for the EH Supervisor is expected to be initiated no later than October 2024 and bid solicitation for a staffing analysis as well as initiation of work towards a trainee program can occur by July 2025.

Corrective Action Plan:

In 2019, the Environmental Health Division’s contract with Alameda County for vector services (another State mandate the Division implements) was revised by the County.

The EH Supervisor position is funded, on the order of 44% of total costs, by revenues from this vector contract. Partly as a result of the new administrative requirements of the revised contract, vector revenues received from the County for the Division dropped from $284,000 to $147,000 annually on average. Consequently, the Department made a calculated decision to prioritize recruitment for a vacant vector technician position funded by this contract, since this position was critical for both meeting the requirements of the contract and for billing against the contract to maximize funding drawdown for the Supervisor. Unfortunately, we were unable to begin recruitment for the vacant vector

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 26 tech position until FY23, due to the City’s hiring freeze. Recruitment for the vector tech position began in Jan of 2023 and resulted in a Vector Tech being hired in July of 2023. Recruiting for the EH Supervisor position was deprioritized until after this position was filled.

Since that time, HR has extended a conditional offer for the vacant Registered Environmental Health Specialist (REHS) position, which will help address staff shortages that contributed to missed inspections. Once this position is fully onboarded, and barring any potential city-wide hiring freezes, the Division will immediately begin recruitment for the Supervisor position and will consult with HR as needed to ensure an efficient, effective recruitment.

Once the supervisor position is filled, EHD will:
(a) Explore the development of a trainee program to build a pipeline for the Division’s Inspector roles, including examining how workforce development programs in other HHCS divisions could be applied to EHD. This could include hiring staff who still need to perform training hours prior to certification, as well as reviewing classification career ladders to create a career pipeline for unlicensed staff. This pipeline would ideally include promoting staff once certification is complete. Additionally, there could be partnerships with local universities to, establish internship programs.
(b) Work with the Department and City leadership to identify the budgetary resources needed for a comprehensive staffing and compensation analysis, which we believe will be best conducted by a third-party consulting firm that specializes in those analyses. Solicitation of bids to identify a consultant can be initiated within the next year.

2.3 To ensure accuracy of key data needed to effectively manage inspections, make the following updates to the inspection data:
a. Add a risk designation to all food facilities in the Envision database. b. Correct the date of last inspection in the Envision software that inspectors use during inspections or develop a workaround to ensure inspectors have an accurate list of facilities prioritized by last inspection date.
c. Develop a process to regularly verify that the Envision database includes all food facilities that should be permitted and inspected.

Management Response: Agree
Implementation Date: July 2025
Corrective Action Plan: EHD has already added risk designations to all food facilities in Envision wherever those were missing. Moving forward, EHD will assess entries in Envision Connect Remote (ECR) to identify where inaccuracies exist, and departmental administrative staff will support with editing/updating/cleaning the entries using back up documentation. Simultaneously, EHD inspectors will all be trained on inputting information including dates into ECR, so the new data entered is uniform and accurate. The current policy and procedures for data entry practices will be reviewed and edited as needed during this process to further improve and maintain quality assurance.

2.4 In order to conduct effective, ongoing monitoring of the food inspection program, work with the Department of Information Technology (IT) to develop a list of database functionalities and/or datapoints needed to help meet the Division’s targets and produce reports. If the current database cannot provide this functionality, document the limitations of the current database and include these requirements in the future request for proposals for a new database.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 27 Management Response: Agree
Implementation Date: Initiated January 2025; completed September 2025 Corrective Action Plan: EHD will begin working with Resource Development Associates (RDA) to integrate a results-based accountability methodology into their data collection and reporting. In the early stages of this project, EHD will be sharing their current data collection procedures. Sharing these current methods with RDA will help clarify the specific data points needed to inform performance metrics across EHD programs, including the Food Safety and Inspections programs. This work will help illuminate what is possible within the current database, and document potential gaps. This will inform the ongoing collaboration with IT to determine next steps for the database system.

2.5 In order to conduct effective, ongoing monitoring of the food inspection program, identify performance metrics for the food inspection program and report on them to the public at least annually.

Management Response: Agree
Implementation Date: Ini tiated October 2024; completed September 2025 Corrective Action Plan: EHD is in the early stages of working with RDA to implement results-based accountability in the Division which will identify performance metrics across programs for integration into public dashboards. RDA will work closely with EHD to examine existing data, and data collection measures, to inform performance metrics. This project initiates this fall and is expected to be completed late summer of 2025.

3.1 In order to provide more complete and accessible information on inspections to the public, work with the Department of Information Technology (IT) to update the online system for sharing information on food inspections. As part of this process:
a. Develop internal guidance informed by state code that details what information the Division will share with the public online and defines responsibility for managing the data. b. Make inspection history available online for all permitted food facilities in Berkeley. This could include sharing a copy of the most recent inspection report.

Management Response: Partially agree
Implementation Date: Bid solicitation for new database vendor initiated by July 2025, pending available funding for a database replacement.

Corrective Action Plan: There is already a State requirement for each food facility to make available a copy of the most recent inspection report to anyone interested. EHD staff will be reminded and retrained to advise food facility operators of this legal requirement and will instruct each operator to post a sign in a conspicuous location advising the public of this legal requirement. The reporting of inspection results online is not a State-required activity, but this information is considered valuable by the dining public. Thus, if a jurisdiction does choose to report results online, the State requires that the reporting meet certain standards. EHD is considering disabling the current online reporting feature on the City’s ‘Open Data’ portal, since the information currently being made available is confusing, misleading and not in compliance with State requirements for voluntary online posting. Instead, EHD will include State-compliant online reporting of inspection results as one of the criteria in selecting a

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 28 new database software, which we anticipate putting out to bid one year from now, pending available funding.

3.2 In order to provide more complete and accessible information on inspections to the public, develop a plan to implement placarding in Berkeley once staff levels are stable. As part of this process:
a. Assess resources needed to implement placarding.
b. Consider adding elements such as community engagement for designing and implementing evidence-based, equitable placarding.

Management Response: Agree
Implementation Date: Initiated no sooner than July 2026.

Corrective Action Plan: We agree that the immediate focus for the Division needs to be on stabilizing staffing levels, including conducting and completing a comprehensive staffing and compensation analysis for the Division. We also note the Auditor’s finding that the EHD’s budget- authorized staffing levels for the Food Inspection program do not align with FDA standards, which call for an additional 4-5 FTE in the Division’s budget. A robust, evidence-based, equitable placarding system presupposes sufficient inspector capacity to perform frequent inspections at FDA recommended levels; in addition to ongoing efforts to fill vacant authorized positions, these staffing shortfalls will first need to be addressed before EHD can realistically address the feasibility of a placarding system.

Implementation of a placarding system also requires a reliable and robust database, and before assessing placarding, the Environmental Health Division intends to work with the IT Department to replace the current database, Envision, pending available funding to do so. Given these priority projects and the additional staffing levels called for by the FDA, we anticipate that an assessment of placarding and requisite resources, and an analysis of options for the City Council’s consideration, will take until at least the FY27-28 Budget process (at least 2-3 years) to initiate.

Berkeley Restaurant Inspections: Chronically Understaffed Program Did Not Meet Targets 29 Auditor’s Response
We find it necessary to respond to the Environmental Health Division’s (Division) response to recommendations 2.1 and 3.1 in order to correct facts and provide context related to our findings. In this audit, the Division, despite repeated requests, did not provide financial information until our audit work was completed, and stated that they partially agreed with our recommendation, then proposed a solution that runs directly opposite to our intent and the public’s interest. We make every effort in our audit process to gather and develop convincing evidence that identifies significant findings that need management’s attention. In the interest of accuracy and completeness we request documents, conduct interviews, meet with staff to verify information, and provide a draft of our audit reports to city management for review and comment. For this audit, city management and Division leadership were asked to review and comment on the report.

We discussed the draft with Division leadership who acknowledged that food inspection program revenues were not tracked and agreed to recommendation 2.1 to work with the Budget Office to begin tracking how they are used. During the audit process, we requested food inspection program revenues and expenditures multiple times and were told by Division leadership that this information was not tracked or available. We held a briefing meeting and an exit conference, in addition to bi-weekly meetings with Division leadership. However, in their audit response, they reported for the first time on the estimated revenues and expenditures for FY 2024. Because this information came after the audit process was completed, we could not review it and ca nnot confirm the accuracy of the information or how the numbers were developed. The timing of the Division’s disclosure of this information is not consistent with the longstanding audit process.

Further, if accurate, the Division’s estimates suggest that the General Fund subsidizes 40 percent of food inspection spending. This level of subsidization is high compared to the rest of Alameda County and the City of Pasadena, where officials stated that their food inspection program revenues cover most program costs. If this financial information had been available, it would have been a significant finding in our report. This subsidy may be an issue City Council will want to explore in the future.

The Division partially agreed with Recommendation 3.1 to update the online system for sharing information on food inspections. However, their corrective action plan runs counter to the purpose of the recommendation, which is to provide the public with more complete and accessible information on food inspections. Rather than improving the data available on the Open Data Portal, the Division stated that they will consider disconnecting the food inspection feature, since the information is not currently in compliance with the state requirements for voluntary online posting. This response would decrease transparency of information and reduce public knowledge about the state of restaurant inspections. The Division did not provide any indication that adding the required information— such as violations related to improper cooling of potentially hazardous foods— would not be feasible.

The Division stated that they will request funding for new software that will comply with state requirements.

Depending on whether the new software system is funded, this action would disable online reporting until a vendor is selected, the new system is designed, and current data is successfully transferred, requiring far more than a year.

Mission Statement
Promoting transparency and accountability in Berkeley government.

Audit Team
Caitlin Palmer, Audit Manager
Pauline Miller, Auditor II

City Auditor
Jenny Wong

Office of the City Auditor
Phone: (510) 981-6750
Email: [email protected]
Website: https://berkeleyca.gov/your-government/city-audits

Copies of our audit reports are available at:
https://berkeleyca.gov/your-government/city-audits/city-auditor-reports

Cover photographs provided by City of Berkeley

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/

PUBLIC HEARING
JULY 30, 2024
To: Honorable Mayor and Members of the City Council
From: LaTanya Bellow, Interim City Manager
Submitted by: Jordan Klein, Director, Planning & Development Department Subject: ZAB Appeal: 2600 Tenth Street, Administrative Use Permit ZP2023-0031

RECOMMENDATION
Conduct a public hearing, and upon conclusion, adopt a Resolution either:

A. Upholding the appeal and reversing the Zoning Adjustment Board (ZAB) decision, thereby approving Administrative Use Permit #ZP2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development resulting in a total of 29,303 square feet of Research and Development space and to create six to nine tenant spaces, in a seven-story building on a 114,998 square-foot lot; or
B. Denying the appeal and affirming the Zoning Adjustment Board (ZAB) decision, thereby denying Administrative Use Permit #ZP2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development resulting in a total of 29,303 square feet of Research and Development space and to create six to nine tenant spaces, in a seven-story building on a 114,998 square-foot lot.

SUMMARY
In November 2023, the Zoning Officer (ZO) approved Administrative Use Permit (AUP) #ZP2023-0031 to change the use of 9,750 square feet of space at 2600 Tenth Street from the existing use of Media Production to Research and Development. The approval was based on findings that the project would not be detrimental to the general welfare of the City; is consistent with the purposes of the District; is compatible with the surrounding uses and buildings; and complies with the adopted West Berkeley Plan. The ZO decision was appealed to the Zoning Adjustment Board (ZAB) by a group of individuals who argued that the existing use is Art/Craft Studio, not Media Production, and that Art/Craft Studio uses must be considered a Protected Use. On April 25, 2024 ZAB voted to support the appeal and deny the AUP based on use history, definitions, and impact of the proposed project at 2600 Tenth Street. On May 10, 2024 the project applicant, Wareham Development, appealed ZAB’s decision to the City Council.