Agenda packet, first session — Berkeley City Council, November 19, 2024 (part 3 of 6)

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excess of those allowed under base zoning By way of example, a project that clustered all Affordable Housing units in 100% Affordable Housing buildings would contribute $56.25 times (as adjusted) the base residential square footage of any market rate buildings, excluding any density bonus square footage. A project that included some Affordable Housing units on-site within the market rate buildings would make a pro- rated contribution.

8. T he application of the State Density Bonus Law to the Property shall not yield a project that is less than 35% Affordable Housing as a proportion of the total units on the Property, or less than 50% Affordable Housing for the first 602 units.

Objective Design Standards

9. The objective design standards adopted by the City must allow at least 248 residential units with at least 300 bedrooms.

General Provisions

10. Covenants Running with the Land: This Memorandum and the rights and obligations in this Memorandum are covenants running with the land and are binding upon any person or entity now or hereafter having any right, title or interest in the Property, or any part thereof, including any leasehold interest, and such person’s or entity’s heirs, successors, and assigns. The Covenants shall inure to the benefit of the West Lot and shall be enforceable by BART as the owner of the West Lot, for so long as BART owns any portion of the West Lot; provided, however, that the Covenants shall not be enforceable by the owner of any portion of the West Lot conveyed by BART to a private party. All the terms and provisions of this Memorandum shall be enforceable as equitable servitudes and are covenants running with the land pursuant to applicable law, including without limitation Section 1468 of the California Civil Code.

11. Term: The provisions of this Memorandum shall remain in force and effect for ninety-nine years after the effective date of the first Ground Lease, as defined in the Exchange Agreement, for a portion of the Property, unless amended or terminated pursuant to Paragraph 14 below.

12. Severability: Invalidation of any of the provisions contained in this Memorandum, or of the application thereof to any person by judgment or court order, shall in no way affect any of the other provisions of this Memorandum or its application to any other person, which shall remain in full force and effect.

13. Integrated Agreement: This Memorandum constitutes Owner’s entire declaration of covenants, conditions, and restrictions concerning the subjects of this Memorandum; provided, however, that nothing herein shall limit the obligations of Owner or any other party to comply with all of its obligations under the Exchange Agreement. The City ordinance authorizing the Exchange Agreement is recorded in the Official Records of Alameda County.

14. Amendment and Termination: No amendment or modification of this Memorandum shall be valid unless in writing, executed by Owner and City, and

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recorded in the Official Records of Alameda County, California. This Memorandum shall terminate if a Notice Of Termination, signed by Owner and the City, with respect to the Property is recorded.

15. Mortgage Protection: Breach of any restriction or provision of this Memorandum does not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, but all of the restrictions and other provisions of this Memorandum are binding and effective as to any mortgagee or beneficiary of a deed of trust that acquires fee title by foreclosure, trustee’s sale, or otherwise.

16. Rights Inseverable: The rights or obligations created in this Memorandum shall not be severable from the Property, nor separately conveyed therefrom.

17. Authority to Make and Record Memorandum: Owner has consented to, accepted, approved, and authorized this Covenant, has authorized its execution by the below signatory, and has authorized its recordation in the Official Records of Alameda County, California pursuant to its Ordinance No. (add Ordinance number) entitled (add name of Ordinance) adopted on (add date of adoption).

18. Captions and Capitalized Terms: The captions preceding the text of each section are included only for convenience of reference. Captions shall be disregarded in the construction and interpretation of this Memorandum. Capitalized terms are also selected only for convenience of reference and do not necessarily have any connection to the meaning that might otherwise be attached to such term in a context outside of this Memorandum.

19. Construction: This Memorandum shall be construed in accordance with the laws of the State of California.

OWNER:

Date:_____________________ CITY OF BERKELEY, a charter city By:

Its:
(Seal)

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Attest:_______________________________
By: __________________, City Clerk
Approved as to Form
_____________________________________
By
:

Its:

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BART:

Date:_____________________ SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established
pursuant to Public Utilities Code section 28500 et seq.

By:

Its:

Approved as to Form
_____________________________________
By
:

Its:

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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
) ss.

County of )
On _______________, , before me, ________________________________________, a Notary Public in and for said State, personally appeared _____________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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SCHEDULE 4.3.4
West Lot Covenants
Exhibit A

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RECORDING REQUESTED BY:

Old Republic Title Company

AND WHEN RECORDED RETURN TO:

Farimah Brown
City Attorney
City of Berkeley
2180 Milvia Street
Berkeley, CA 94704

APN 053-1597-039-04 & unassessed parcel SPACE ABOVE THIS LINE FOR RECORDER'S USE

Document Entitled to Free Recordation Pursuant
t
o Government Code Section 27383. Government
Agency Acquiring Title.

The undersigned(s) declare(s):

Documentary Transfer Tax is $0.00; Exempt pursuant to Rev. & Tax. Code § 11922 ( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at time of sale.
( ) unincorporated area: ( X ) City of Berkeley, State of California

MORANDUM OF COVENANTS

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Memorandum of Covenants

This Memorandum of Covenants (“Memorandum”) is made by the San Francisco Bay Area Rapid Transit District, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“Owner”) effective as of the date of its recordation in the Official Records of Alameda County, California (“Effective Date”).

RECITALS

A. Owner is the fee simple owner of the real property in the City of Berkeley (“City”), County of Alameda, State of California, consisting of the parcel identified by Assessor Parcel Number 053-1597-039-04 and the non-assessed parcel (collectively “Property”), more particularly described as follows:

PARCEL ONE:

Being lots 1 through 42, inclusive, Block 6, as shown on that certain map entitled “Amended Map of Central Park, Alcatraz and Newbury Stations, Oakland Twp.”, which map was filed in the Office of the Recorder of the County of Alameda, State of California on March 14, 1889, in Book 10 of Maps Page 40.

Said Lots 1 through 42, are as shown on the San Francisco Bay Area Rapid Transit District Record Maps of Right of Way RRW 9 and RRW 10A.

Said RRW 9 in Book 68 of Maps at Page 150, filed for record on December 22, 1971, in Book 68 of Maps at Pages 147-157, Document 71-167837, in the Office of the Recorder of Alameda County.

Said RRW 10A in Book 68 of Maps at Page 127, filed for record on September 20, 1971, in Book 68 of Maps at Pages 122-146, Document 71- 122851, in the Office of the Recorder of Alameda County.

EXCEPTING THEREFROM the interest conveyed to City of Berkeley by Grant Deed recorded November 5, 1971, as Instrument No. 71-146356 in Reel 2989, Image 645 of Official Records and being more particularly described as follows:

Parcel R9-1 as shown on the San Francisco Bay Area Rapid Transit District Record Map of Right of Way RRW 9, in Book 68 of Maps at Page 150, filed for record on December 22, 1971, in Book 68 of Maps at Pages 147-157, Document 71-167837, in the Office of the Recorder of Alameda County.

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APN: 053-1597-039-04

PARCEL TWO:

Parcel R9-2 as shown on the San Francisco Bay Area Rapid Transit District Record Map of Right of Way RRW 9, in Book 68 of Maps at Page 150, filed for record on December 22, 1971, in Book 68 of Maps at Pages 147-157 as Document 71-167837, in the Office of the Recorder of Alameda County.

APN: non-assessed parcel.

Attached hereto and made a part hereof the following Filed maps:

Amended Map of Central Park, Alcatraz and Newbury Stations, Oakland Twp., Book 10 of Maps at Page 40, Record Map of Right of Way RRW 10A in Book 68 of Maps at Page 127, Record Map of Right of Way Cover Sheet Book 68 of Maps at Page 147, Record Map of Right of Way RRW 9 Book 68 of Maps at Page 150.

B. Owner and City entered into that certain ASHBY BART STATION TRANSIT- ORIENTED DEVELOPMENT EXCHANGE AGREEMENT dated ____ (“Exchange Agreement”), by which, inter alia, the City agreed to quitclaim to Owner certain of the City’s interests in the Property, and Owner agreed to convey to City a parcel of land owned by Owner (“East Lot”) situated in the City and more particularly described as follows:

PARCEL ONE:

Parcel B as shown on Parcel Map 9797, filed August 12, 2008, in Book 308 of Parcel Maps at pages 76 through 78, inclusive, Official Records of Alameda County.

PARCEL TWO:

Easements for sidewalk and Adeline driveway as described in “Reciprocal Easements Agreement” executed by and between The Ed Roberts Campus, a California nonprofit public benefit corporation, and San Francisco Bay Area Rapid Transit District, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq., in Official Records under Recorder’s Serial Number 2008255323, and shown on Parcel Map 9797 recorded August 12, 2008 in Book 308 of Parcel Maps, at Pages 76-78.

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APN: 053-1703-009

C. In addition, Owner agreed as part of the land exchange to record against the Property this Memorandum, for the purpose of imposing certain conditions, covenants, and restrictions on the future development of the Property (“Covenants”).

NOW, THEREFORE, in consideration of the Covenants, the consideration received by Owner pursuant to the Exchange Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner thus declares that the Property, and all portions thereof and interests therein, shall be irrevocably held, sold, conveyed, hypothecated, encumbered, leased, rented, used, occupied, and improved subject to the Covenants described below, which shall be equitable servitudes and shall run with land, and shall be binding on any person or entity now or hereafter having any right, title or interest in the Property, or any part thereof, and such person’s or entity’s heirs, successors, and assigns, and shall inure to the benefit of the East Lot and City as the owner of legal or equitable title to the East Lot, as follows:

MEMORANDUM OF COVENANTS

Development Requirements

1. Except to the extent waived or modified by the City in its sole and absolute discretion, any development project on the Property shall comply with all applicable mitigation measures adopted in connection with the City’s adoption on June 28, 2022 of the Residential - BART Mixed Use (R-BMU) zoning district (“2022 Mitigation Measures”)

2. Except as may be modified by the City in its sole and absolute discretion, any development project on the Property shall comply with the standard conditions of approval set forth in Exhibit 1.

3. Development of the Property shall achieve a minimum residential density of 75 dwelling units per acre.

Affordable Housing Requirements

4. A t least 50% of the first 602 housing units developed on the Property shall be Affordable Housing.
“Affordable Housing” means housing subject to enforceable legal conditions restricting its availability for lease or sale to Extremely Low Income Households, Very Low Income Households, or Low Income Households. “Extremely Low Income Households” means households earning less than the “Extremely Low” limits by household size for the “Alameda County Area” as adopted from time to time by the California Department of Housing and Community Development, currently promulgated at Section 6932 of Title 25 of the California Code of Regulations. “Very Low Income

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Households” means households earning less than the “Very Low Income” limits by household size for the “Alameda County Area” but more than Extremely Low Income Households as adopted from time to time by the California Department of Housing and Community Development, currently promulgated at Section 6932 of Title 25 of the California Code of Regulations. “Low Income Households” means households earning less than the “Low Income” by household size for the “Alameda County Area” but more than Very Low Income Households as adopted from time to time by the California Department of Housing and Community Development, currently promulgated at Section 6932 of Title 25 of the California Code of Regulations.

5. I
n the event that more than 602 total housing units are built on the Property (inclusive of any density bonus units), there shall be no fewer than 301 Af fordable Units,
and overall at least 35% of the units (including density bonus units) shall be Affordable Units. Owner, together with any developer(s) of the Property, shall consult with City to explore the potential for exceeding the 35% requirement for projects greater than 602 units, with an aspirational goal of up to 50% Affordable Housing units, based on economic feasibility and availability of funding resources if the West Lot is to be developed with more than 602 total housing units, taking into consideration development costs, values and potential for additional City subsidy or funding from external sources.

6. Any Affordable Housing units that are provided to satisfy the requirements of the City’s inclusionary housing ordinance (Chapter 23.238 of the Berkeley Municipal Code) (“Inclusionary Housing Ordinance”) and are included in a mixed-income building shall be rent- and income-restricted in perpetuity as required by the Inclusionary Housing Ordinance. All other Affordable Housing units shall be rent- and income-restricted for the duration of the applicable ground lease (each of which shall have a minimum duration of 99 years), including any lease term extensions.

7. Development of the Property shall meet the following minimum affordability requirements:
(a) At least 35% of the housing units, inclusive of density bonus units, must be affordable to households earning an average of up to 60% of AMI. (b) At least 20% of the required 35% affordable units referred to in subparagraph (a) must be affordable to Extremely Low-Income ("ELI") households, which are currently defined as those earning up to 30% of AMI.
(c) Of the required 35% affordable units referred to in subparagraph (a), additional affordable units aside from the ELI units should prioritize Very Low Income Households (up to 50% of AMI) and Low Income Households (up to 80% of AMI) but may include some housing restricted to Moderate Income Households (up to 120% of AMI), provided that the moderate- income units have rents that are still below market and are not funded by City subsidies.

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8. Any project receiving the City's Housing Trust Fund ("HTF") funding shall also meet the City's HTF Guidelines, provided that said Housing Trust Fund Guidelines do not restrict or otherwise regulate the project’s height, density, or development capacity.

9. A ny project on the Property that includes construction of both A ffordable Housing
units and market-rate housing units shall construct the Affordable Housing units prior to or concurrently with any market-rate housing. In the event there are multiple phases of market rate or affordable housing, development of market rate and affordable housing shall be in accordance with a phasing plan approved by the City.

10. Affordable Housing units developed on the Property may be clustered into one or more buildings with 100% Affordable Housing buildings or dispersed amongst mixed- income housing buildings, but such Affordable Housing units must be designed in a way that integrates with the larger project on the Property and shares comparable design standards and quality.

11. If a development project will meet all or a portion of the requirements of the Inclusionary Ordinance through clustering as described in Paragraph 10, Owner or developer shall contribute funding towards such clustered Affordable Housing units in an amount calculated as follows: (1) multiplying $56.25 (as this amount may be adjusted biennially pursuant to City of Berkeley Resolution No. 70,698-N.S.) by the total residential unit floor area of the project less the floor area in any 100% affordable housing buildings and any floor area in market rate or mixed income buildings that is included as a result of any density bonus (“Net Residential Unit Floor Area”); and then (2) multiplying the result by the percentage of the City's 20% affordable housing requirement remaining after accounting for any on-site Affordable Housing units provided within mixed income buildings that comply with all of the requirements of the Inclusionary Housing Ordinance. For example, buildings that are 10% Affordable Housing units would contribute $28.12 per foot (half of $56.25), adjusted for inflation.

For the purpose of calculating the Net Residential Unit Floor Area, the floor area resulting from the density bonus is the total residential unit floor area (for the whole market rate/mixed income project) times the proportion of total units in the project in excess of those allowed under base zoning. By way of example, a project that clustered all affordable units in 100% Affordable Housing buildings would contribute $56.25 times (as adjusted) the base residential square footage of any market rate buildings, excluding any density bonus square footage. A project that included some Affordable Housing units on-site within the market rate buildings would make a pro- rated contribution.

12. T he application of the State Density Bonus Law to the Property shall not yield a project that is less than 35% Affordable Housing as a proportion of the total units on the Property, or less than 50% Affordable Housing for the first 602 units.

Community Benefits

13. Development of the Property shall include at least 5,000 square feet (based on BOMA ANSI 2017 standards) of community/civic commercial ground floor interior space

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for community-based organizations, non-profits, and/or small and minority-owned businesses such as the Berkeley Flea Market, to be leased (triple net) at no more than 50% of fair market triple net rent.

14. D evelopment of the Property shall make space available to the Berkeley Flea Market in accordance with the requirements of the Exchange Agreement.

Public Infrastructure

15. Development of the Property shall comply with all obligations and requirements in the Exchange Agreement pertaining to Public Infrastructure, as that term is defined in the Exchange Agreement.

Objective Design Standards.

16. No application for any development project on the Property (including any preliminary application) shall be submitted to City before the earlier of (a) the City’s adoption of objective design standards (“ODS”) in accordance with the Exchange Agreement, or (b) the deadline for adopting ODS specified in Article 9 of the Exchange Agreement, as may be modified in accordance with the Exchange Agreement.

17. Except as provided in Paragraph 18 below, all development on the Property shall comply with ODS adopted in accordance with all relevant provisions of the Exchange Agreement, notwithstanding any waivers, incentives, concessions or other exceptions available by law

18. A n application for development of the Property may seek waivers, incentives, concessions or other exceptions to otherwise applicable zoning or land use regulations to the extent permitted by law, but only with respect to (a) zoning requirements other than those set forth in or modified by the ODS, (b) ODS requirements pertaining to minimum square footage of active or non-residential ground floor uses, but only to the extent such requirements exceed 15,000 square feet, inclusive of the 5,000 square feet of community/civic commercial space described in Paragraph 13, and (c) other ODS requirements that do not pertain to height limits, setbacks/step-backs, open space or massing breaks.

General Provisions

19. Covenants Running with the Land: This Memorandum and the rights and obligations in this Memorandum are covenants running with the land and are binding upon any person or entity now or hereafter having any right, title or interest in the Property, or any part thereof, including any leasehold interest, and such person’s or entity’s heirs, successors, and assigns. The Covenants shall inure to the benefit of the East Lot and shall be enforceable by City as the holder of legal or equitable title in the East Lot, for so long as the City holds such title in any portion of the East Lot; provided, however, that the Covenants shall not be enforceable by the owner of any portion of the East Lot conveyed by the City to a private party. All the terms and provisions of this Memorandum shall be enforceable as equitable servitudes and are covenants running with the land pursuant to applicable law, including without limitation Section 1468 of the

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California Civil Code.

20. S ubdivision and Development of the Property.
a) The City understands and acknowledges that, in order to achieve the intent of the Exchange Agreement, the Property m
ay be subdivided into separate parcels
(collectively the “Parcels” and individually a “Parcel”), and developed in separate phases pursuant to Ground Lease Agreements, as that term is defined in the Exchange Agreement. In the likely event that the subdivision and Ground Lease Agreements contemplate that one or more Parcels will be retained by Owner for use in connection with its transit operations, City agrees to terminate this Memorandum with respect to that Parcel (or those Parcels) only.
b) In the event that the phased development of the Property results in a period of time during which one or more of the requirements described in paragraphs 1-17 have not been met, said noncompliance shall not constitute a breach of this Memorandum provided that: i) the executed Ground Lease Option will result in full compliance with said requirements upon execution of all of the related Ground Leases and completion of construction thereunder, and ii) phasing of the projects on the Property is consistent with the provisions of Paragraph 9 of this Memorandum.
c) In the event that the phased development of the Property results in one or more, but fewer than all of the Parcels being responsible for full compliance with one or more of the requirements described in paragraphs 1-17, the City shall not unreasonably withhold its consent to an amendment to this Memorandum that identifies said Parcel or Parcels as being solely responsible for satisfying said requirements. Any subsequent breach of said responsibility shall be enforced against the responsible Parcel or Parcels only, and the Ground Lease tenants of the other parcels shall not be deemed to be in violation of their obligations under this Memorandum.

21. Term: The provisions of this Memorandum shall remain in force and effect for ninety-nine years after the effective date of the first Ground Lease, as defined in the Exchange Agreement, for a portion of the Property, unless amended or terminated pursuant to Paragraph 24 below.

22. Severability: Invalidation of any of the provisions contained in this Memorandum, or of the application thereof to any person by judgment or court order, shall in no way affect any of the other provisions of this Memorandum or its application to any other person, which shall remain in full force and effect.

23. Integrated Agreement: This Memorandum constitutes Owner’s entire declaration of covenants, conditions, and restrictions concerning the subjects of this Memorandum; provided, however, that nothing herein shall limit the obligations of Owner or any other party to comply with all of its obligations under the Exchange Agreement. The City ordinance authorizing the Exchange Agreement is recorded in the Official Records of Alameda County.

24. Amendment and Termination: No amendment or modification of this Memorandum shall be valid unless in writing, executed by Owner and City, and

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recorded in the Official Records of Alameda County, California. This Memorandum shall terminate if a notice of termination, signed by Owner and City, with respect to the Property is recorded.

25. M ortgage Protection: Breach of any restriction or provision of this M emorandum
does not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, but all of the restrictions and other provisions of this Memorandum are binding and effective as to any mortgagee or beneficiary of a deed of trust that acquires fee title by foreclosure, trustee’s sale, or otherwise.

26. Rights Inseverable: The rights or obligations created in this Memorandum shall not be severable from the Property, nor separately conveyed therefrom.

27. Authority to Make and Record Memorandum: Owner has consented to, accepted, approved, and authorized this Covenant, and all requisite action has been taken by Owner in connection with its execution by the below signatory, and Owner authorizes its recordation in the Official Records of Alameda County, California.

28. Captions and Capitalized Terms: The captions preceding the text of each section are included only for convenience of reference. Captions shall be disregarded in the construction and interpretation of this Memorandum. Capitalized terms not defined herein shall, unless otherwise indicated, have the meanings ascribed to such terms in the Exchange Agreement.

29. Construction: This Memorandum shall be construed in accordance with the laws of the State of California.

OWNER:

Date:_____________________ SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established
pursuant to Public Utilities Code section 28500 et seq.

By:

Its:

Approved as to Form

_____________________________________
By:

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Its:

CITY:

Date:_____________________ CITY OF BERKELEY, a charter city.

By:

Its:

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Approved as to Form

_____________________________________
By:

Its:

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Exhibit 1

1. Air Quality - Diesel Particulate Matter Controls during Construction. All off-road construction equipment used for projects with construction lasting more than 2 months shall comply with one of the following measures:

The project applicant shall prepare a health risk assessment that demonstrates the project’s on-site emissions of diesel particulate matter during construction will not exceed health risk screening criteria after a screening -level health risk assessment is conducted in accordance with current guidance from BAAQMD and OEHHA. The health risk assessment shall be submitted to the Land Use Planning Division for review and approval prior to the issuance of building permits; or All construction equipment shall be equipped with Tier 2 or higher engines and the most effective Verified Diesel Emission Control Strategies (VDECS) available for the engine type (Tier 4 engines automatically meet this requirement) as certified by the California Air Resources Board (CARB). The equipment shall be properly maintained and tuned in accordance with manufacturer specifications.

For all VDECS, the equipment inventory shall also include the technology type, serial number, make, model, manufacturer, CARB verification number level, and installation date.
ii. A Certification Statement that the Contractor agrees to comply fully with the Emissions Plan and acknowledges that a significant violation of the Emissions Plan shall constitute a material breach of contract. The Emissions Plan shall be submitted to the Public Works Department for review and approval prior to the issuance of building permits.

2. Archaeological Resources (Ongoing throughout demolition, grading, and/or construction).

Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.

Therefore:

In the event that any prehistoric or historic subsurface cultural resources are discovered during ground disturbing activities, all work within 50 feet of the resources shall be halted and the project applicant and/or lead agency shall consult with a qualified archaeologist, historian or paleontologist to assess the significance of the find.

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If any find is determined to be significant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appropriate avoidance measures or other appropriate measure, with the ultimate determination to be made by the City of Berkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by the qualified professional according to current professional standards.

In considering any suggested measure proposed by the qualified professional, the project applicant shall determine whether avoidance is necessary or feasible in light of factors such as the uniqueness of the find, project design, costs, and other considerations.

If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery) shall be instituted. Work may proceed on other parts of the project site while mitigation measures for cultural resources is carried out.

If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.

3. Human Remains (Ongoing throughout demolition, grading, and/or construction). In the event that human skeletal remains are uncovered at the project site during ground- disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50-foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities.

Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.

4. Halt Work/Unanticipated Discovery of Tribal Cultural Resources. In the event that cultural resources of Native American origin are identified during construction, all work within 50 feet of the discovery shall be redirected. The project applicant and project construction contractor shall notify the City Planning Department within 24 hours. The City will again contact any tribes who have requested consultation under AB 52, as well as contact a qualified archaeologist, to evaluate the resources and situation and provide recommendations. If it is determined that the resource is a tribal cultural resource and thus significant under CEQA, a mitigation plan shall be prepared and implemented in accordance with State guidelines and in consultation with Native American groups. If the resource cannot be avoided, additional measures to avoid or reduce impacts to the resource and to address tribal concerns may be required.

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5. Construction Hours. Construction activity shall be limited to between the hours of 8:00 AM and 6:00 PM on Monday through Friday, and between 9:00 AM and Noon on Saturday. No construction-related activity shall occur on Sunday or any Federal Holiday.

6. Construction Noise Reduction Program. The applicant shall develop a site-s pecific noise reduction program prepared by a qualified acoustical consultant to reduce construction noise impacts to the maximum extent feasible, subject to review and approval of the Zoning Officer. The noise reduction program shall include the time limits for construction listed above, as measures needed to ensure that construction complies with BMC Section

13.40.070, Prohibited Acts. The noise reduction program shoul d include, but shall not be
limited to, the following available controls to reduce construction noise levels as low as practical:

Construction equipment should be well maintained and used judiciously to be as quiet as practical.

Equip all internal combustion engine -driven equipment with mufflers, which are in good condition and appropriate for the equipment.

Utilize “quiet” models of air compressors and other stationary noise sources where technology exists. Select hydraulically or electrically powered equ ipment and avoid pneumatically powered equipment where feasible.

Locate stationary noise -generating equipment as far as possible from sensitive receptors when adjoining construction sites. Construct temporary noise barriers or partial enclosures to acoustically shield such equipment where feasible.

Prohibit unnecessary idling of internal combustion engines.

If impact pile driving is required, pre -drill foundation pile holes to minimize the number of impacts required to seat the pile.

Construct solid plywood fences around construction sites adjacent to operational business, residences or other noise -sensitive land uses where the noise control plan analysis determines that a barrier would be effective at reducing noise.

Erect temporary noise control blanket barriers, if necessary, along building facades facing construction sites. This mitigation would only be necessary if conflicts occurred which were irresolvable by proper scheduling. Noise control blanket barriers can be rented and quickly erected.

Route cons truction related traffic along major roadways and away from sensitive receptors where feasible.

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7. Construction Noise Management . Public Notice Required. At least two weeks prior to initiating any construction activities at the site, the applicant shall provide notice to businesses and residents within 500 feet of the project site. This notice shall at a minimum provide the following: (1) project description, (2) description of construction activities during extended work hours and reason for extended hours, (3) daily construction schedule (i.e., time of day) and expected duration (number of months), (4) the name and phone number of the Project Liaison for the project that is responsible for responding to any local complaints, and (5) that construction work is about to commence. The liaison would determine the cause of all construction -related complaints (e.g., starting too early, bad muffler, worker parking, etc.) and institute reasonable measures to correct the problem. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval.

8. Damage Due to Construction Vibration. The project applicant shall submit screening level a
nalysis prior to, or concurrent with demolition building permit. If a screening level analysis shows that the project has the potential to result in damage to structures, a structural engineer or other appropriate professional shall be retained to prepare a vibration impact assessment (assessment). The assessment shall c
onsider project specific information
such as the composition of the structures, location of the various types of equipment used during each phase of the project, as well as the soil characteristics in the project area, in order to determine whether project construction may cause damage to any of the structures identified as potentially impacted in the screening level analysis. If the assessment finds that the project may cause damage to nearby structures, the structural engineer or other appropriate professional shall recommend design means and methods of construction that to avoid the potential damage, if feasible. The assessment and its recommendations shall be reviewed and approved by the Building and Safety Division and the Zoning Officer. If there are no feasible design means or methods to eliminate the potential for damage, the structural engineer or other appropriate professional shall undertake study of existing conditions (study) of any structures (or, in case of large buildings, of the portions of the structures) that may experience damage.

This study shall establish the baseline condition of these structures, including, but not limited to, the location and extent of any visible cracks or spalls; and include written descriptions and photographs.

The study shall be reviewed and approved by the Building and Safety Division and the Zoning Officer prior to issuance of a grading permit. Upon completion of the project, the structures (or, in case of large buildings, of the portions of the structures) previously inspected will be resurveyed, and any new cracks or other changes shall be compared to pre-construction conditions and a determination shall be made as to whether the proposed project caused the damage. The findings shall be submitted to the Building and Safety Division and the Zoning Officer for review. If it is determined that project construction has resulted in damage to the structure, the damage shall be repaired to the pre-existing condition by the project sponsor, provided that the property owner approves of the repair.

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Memorandum of Covenants

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9. Avoid Disturbance of Nesting Birds. Initial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the MBTA and CFGC, nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground-disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.

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Memorandum of Covenants

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State of California )
) ss.

County of )
On _______________, , before me, ________________________________________, a Notary Public in and for said State, personally appeared _____________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her /their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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Memorandum of Covenants

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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SCHEDULE 4.4.4
Grant Deed – East Lot
Exhibit A

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RECORDING REQUESTED BY:

Old Republic Title Company

WHEN RECORDED MAIL TO AND MAIL
TAX STATEMENTS TO:

Farimah Brown
City Attorney
City of Berkeley
2180 Milvia Street
Berkeley, CA 94704

APN 053-1703-009

SPACE ABOVE THIS LINE FOR RECORDER’S USE

Document Entitled to Free Recordation Pursuant
to Government Code Sections 6103 and 27383
The undersigned grantor(s) declare(s):

Documentary Transfer Tax is $0.00; Exempt pursuant to Revenue & Taxation Code § 11922 (X ) computed on full value of property conveyed, or
( ) computed on full value less of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: (X) City of Berkeley, CA

Grant Deed

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Grant Deed

FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,

SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“Grantor”), hereby GRANTS to
CITY OF BERKELEY, a municipal corporation of the State of California, all that property in the City of Berkeley, County of Alameda, State of California, more particularly described in “EXHIBIT A” attached hereto and incorporated herein by reference (“Property”), free and clear of any reserved rights of Grantor (including without limitation any claim of easement for mid-block pedestrian passage).

Grantor has consented to, accepted, approved, and authorized this conveyance of land pursuant to its Resolution No. (add Resolution number) entitled (add name of Resolution).

Dated: _________________

SAN FRANCISCO BAY AREA RAPID TRANSIT

DISTRICT

By:

Its:

Approved as to Form

_____________________________________
By:

Its:

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State of California )
) ss.

County of )

On __________ before me, , personally appeared

who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature
N otary Public [seal]

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CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by this Grant Deed dated ______________ from the San Francisco Bay Area Rapid Transit District to the City of Berkeley, a political corporation and/or governmental agency, is hereby accepted by the undersigned officer or agent on behalf of the City of Berkeley, pursuant to authority conferred by City Council Resolution _________ adopted on __________________, and the City of Berkeley consents to recordation thereof by its duly authorized officer.

Dated: _____________________

CITY OF BERKELEY

By:

Title: City Manager

ATTEST:

______________________________

CITY CLERK

Approved as to form:

Date: _________________
By: __________________
City Attorney

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EXHIBIT A

The real property situated in the City of Berkeley, County of Alameda, State of California, described as follows:

PARCEL ONE:

Parcel B as shown on Parcel Map 9797, filed August 12, 2008, in Book 308 of Parcel Maps at pages 76 through 78, inclusive, Official Records of Alameda County.

PARCEL TWO:

APN: 053-1703-009

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Exhibit A

SCHEDULE 5.2
Schedule

Activity Lead Party Outside Date
Exchange Agreement Execution BART & City 10-Jan-25
West Lot Developer Solicitation
Issuance
BART 10-Dec-24
West Lot Developer Selection BART Board of
Directors
No later than 7 months after
West Lot Developer
Solicitation Issuance
Execution of an Exclusive
Negotiating Agreement or other
appropriate agreement (“ENA”) with
West Lot Developer
BART No later than 9 months after
West Lot Developer selection
City Affordable Housing
Predevelopment Housing funds (if
requested) to East Lot Developer
and/or West Lot Developer
City No later than 60 days after
Developer selection
Adoption of Objective Design
Standards for West Lot
City No later than 9 months after
ENA execution, subject to
potential 30-day extension for
approved force majeure event
Infrastructure Financing Strategy:

Draft strategy prepared by City and
BART with collaboration by West
Lot Developer
City & BART with
collaboration by
West Lot Developer
No later than 9 months after
ENA execution; failure to
complete this shall not
constitute
default.

West Lot Developer submits a
complete application for a Master
Development Permit, or for at least
one affordable housing building’s
entitlements/permit
West Lot Developer No sooner than Adoption of
ODS (or 9 months from
execution of ENA, whichever
comes first) and no later than
3 years from execution of
ENA
Project Financing: For each
affordable housing project,
development team secures complete
project financing. If this milestone is
not met, the City may rescind the
development funding reservation for
that project component.

West Lot Developer
and East Lot
Developer
31-Dec-2035

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Exhibit A

SCHEDULE 5.5

CITY STANDARD CONDITIONS OF APPROVAL RELIED ON IN R-BMU ZONING EIR

The project applicant shall prepare a health risk assessment that demonstrates the project’s on-site emissions of diesel particulate matter during construction will not exceed health risk screening criteria after a screening -level health risk assessment is conducted in accordance with current guidance from BAAQMD and OEHHA. The health risk assessment shall be submitted to the Land Use Planning Division for review and approval prior to the issuance of building permits; or
All construction equipment shall be equipped with Tier 2 or higher engines and the most effective Verified Diesel Emission Control Strategies (VDECS) available for the engine type (Tier 4 engines automatically meet this requirement) as certified by the California Air Resources Board (CARB). The equipment shall be properly maintained and tuned in accordance with manufacturer specifications.

In addition, a Construction Emissions Minimization Plan (Emissions Plan) shall be prepared that includes the following:
i. An equipment inventory summarizing the type of off-road equipment required for each phase of construction, including the equipment manufacturer, equipment identification number, engine model year, engine certification (tier rating), horsepower, and engine serial number. For all VDECS, the equipment inventory shall also include the technology type, serial number, make, model, manufacturer, CARB verification number level, and installation date.
ii. A Certification Statement that the Contractor agrees to comply fully with the Emissions Plan and acknowledges that a significant violation of the Emissions Plan shall constitute a material breach of contract. The Emissions Plan shall be submitted to the Public Works Department for review and approval prior to the issuance of building permits.

2. Archaeological Resources (Ongoing throughout demolition, grading, and/or construction).

Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.

Therefore:

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Exhibit A

If any find is determined to be significant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appropriate avoidance measures or other appropriate measure, with the ultimate determination to be made by the City of Berkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curat ion, and/or a report prepared by the qualified professional according to current professional standards.

If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery) shall be in stituted. Work may proceed on other parts of the project site while mitigation measures for cultural resources is carried out.

If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.

3. Human Remains (Ongoing throughout demolition, grading, and/or construction). In the event that human skeletal remains are uncovered at the project site during ground-disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50-foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities. Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.

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Exhibit A

The noise reduction program shall include the time limits for construction listed above, as measures needed to ensure that construction complies with BMC Section 13.40.070, Prohibited Acts. The noise reduction program should include, but shall not be limited to, the following available controls to reduce construction noise levels as low as practical:

Construction equipment should be well maintained and used judiciously to be as quiet as practical.

Equip all internal combustion engine -driven equipment with mufflers, which are in good condition and appropriate for the equipment.

Utilize “quiet” models of air compressors and other stationary noise sources where technology exists. Select hydraulically or electrically powered equipment and avoid pneumatically powered equipment where feasible.

Prohibit unnecessary idling of internal combustion engines.

If impact pile driving is required, pre -drill foundation pile holes to minimize the number of impacts required to seat the pile.

Construct solid plywood fences around construction sites adjacent to operational business, residences or other noise-sensitive land uses where the noise control plan analysis determines that a barrier would be effective at reducing noise.

Route construction related traffic along major roadways and away from sensitive receptors where feasible.

7. Construction Noise Management . Public Notice Required. At least two weeks prior to initiating any construction activities at the site, the applicant shall provide notice to businesses and residents within 500 feet of the project site. This notice shall at a minimum provide the following:
(1) project description, (2) description of construction activities during extended work hours and reason for extended hours, (3) daily construction schedule (i.e., time of day) and expe cted duration (number of months), (4) the name and phone number of the Project Liaison for the project that is responsible for responding to any local complaints, and (5) that construction work is about to commence. The liaison would determine the cause of all construction- related complaints (e.g., starting too early, bad muffler, worker parking, etc.) and institute reasonable measures to correct the problem. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval.

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Exhibit A

8. Damage Due to Construction Vibration. The project applicant shall submit screening level analysis prior to, or concurrent with demolition building permit. If a screening level analysis shows that the project has the potential to result in damage to structures, a structural engineer or other appropriate professional shall be retained to prepare a vibration impact assessment (assessment). The assessment shall consider project specific information such as the composition of the structures, location of the various types of equipment used during each phase of the project, as well as the soil characteristics in the project area, in order to determine whether project construction may cause damage to any of the structures identified as potentially impacted in the screening level analysis. If the assessment finds that the project may cause damage to nearby structures, the structural engineer or other appropriate professional shall recommend design means and methods of construction that to avoid the potential damage, if feasible. The assessment and its recommendations shall be reviewed and approved by the Building and Safety Division and the Zoning Officer. If there are no feasible design means or methods to eliminate the potential for damage, the structural engineer or other appropriate professional shall undertake study of existing conditions (study) of any structures (or, in case of large buildings, of the portions of the structures) that may experience damage.

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Exhibit A

SCHEDULE 7.2
West Lot City Funds Conditions

1. West Lot City Funds shall be used only to support development of Affordable Housing units on the West Lot over and above 20% of the total units (including density bonus units).

2. West Lot City Funds shall comply with the City’s Housing Trust Fund Guidelines.

3. The City shall not be obligated to provide more than an average of $200,000 per Affordable Housing unit, counting only those Affordable Housing units provided above and beyond 20% of the total units (including density bonus units) in the West Lot project in the event that market rate units are planned, and counting only those units that are affordable to Extremely Low Income Households, Very Low Income Households, and Low Income Households.

4. West Lot City Funds shall be available to buildings which are 100% Affordable Housing, or, at the City’s sole discretion, to Affordable Housing units dispersed amongst mixed-income housing buildings which meet the City’s Housing Trust Fund Guidelines.

5. For any West Lot Developer planning to construct market-rate units and to cluster Affordable Housing units into one or more 100% Affordable Housing buildings, West Lot City Funds shall only be available to a developer who submits an Affordable Housing Compliance Plan (“AHCP”) to confirm that the project’s affordable proforma(s) shows the following developer contribution as a source and the market rate proforma(s) shows the following developer contribution as a use. The amount of this developer contribution shall be calculated by: 1) multiplying $56.25 (as this amount may be adjusted biennially pursuant to City of Berkeley Resolution No. 70,698-N.S.) by the Total Residential Unit Floor Area of the project or projects after excluding the floor area in any 100% affordable housing buildings and any floor area in market rate or mixed income buildings that is included as a result of the state density bonus; and then 2) multiplying the result by the percentage of the City’s 20% affordable housing requirement remaining after accounting for any on-site Affordable Units provided within mixed income buildings that comply with all of the requirements of Berkeley’s Inclusionary Housing Ordinance (codified in Berkeley Municipal Code section 23.328). For example, buildings that are 10% affordable would contribute $28.12 per foot (half of $56.25), adjusted for inflation. For the purpose of calculating the Total Residential Unit Floor Area, the area resulting from the density bonus is the total Residential Unit Floor Area (for the whole market rate/mixed income project) times the proportion of total units in the project in excess of those allowed under base zoning (the “Density Bonus Percentage”). As a result of this formula, a project that clustered all affordable units in 100% affordable buildings would contribute $56.25 times (as adjusted) the base residential square footage of any market rate buildings, excluding any density bonus square footage. A project that included some affordable units on-site within the market rate buildings would make a pro-rated contribution.

If the AHCP is completed before BART’s Board of Directors approves the final terms with West Lot Developer, then BART shall review and approve the AHCP prior to City review.

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Exhibit A

West Lot City Funds shall only be available to a developer who agrees to all feasible measures to mitigate significant development impacts adopted in connection with the City’s adoption on June 28, 2022 of the Residential - BART Mixed Use (R-BMU) zoning district and all applicable standard conditions of approval relied upon in the associated EIR.

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Exhibit A

SCHEDULE 7.3
East Lot City Funds Conditions

1. East Lot City Funds shall be used only to support development of Affordable Housing units on the East Lot over and above 20% of the total units (including density bonus units).

2. East Lot City Funds shall comply with the City’s Housing Trust Fund Guidelines.

3. The City shall not be obligated to provide more than an average of $200,000 per Affordable Housing unit, counting only those Affordable Housing units provided above and beyond 20% of the total units (including density bonus units) in the project, and counting only those Affordable Housing Units that are affordable to very low income or lower-income households as defined in California Health and Safety Code sections 50052.5 and 50053.

4. East Lot City Funds shall be available to buildings which are 100% Affordable Housing, or, at the City’s sole discretion, to Affordable Housing units dispersed amongst mixed-income housing buildings which meet the City’s Housing Trust Fund Guidelines.

5. East Lot City Funds shall only be available to a developer who agrees to all feasible measures to mitigate significant development impacts, as determined by City.

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Exhibit A

SCHEDULE 8.1.2

INFRASTRUCTURE MAP

Note: The number and footprint of structural elements, as well as the spaces between them, have not been designed and are illustrative. The actual location of various structural elements may differ from the depictions below.

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Exhibit A

SCHEDULE 8.1.3

INFRASTRUCTURE MATRIX

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Exhibit A

SCHEDULE 9.2.1

ODS REQUIREMENTS

The City’s future Objective Design Standards (ODS) for the West Lot shall be binding on BART and the West Lot Developer without respect to any waivers, incentives or other exceptions that may otherwise be available under the Density Bonus Law or other provision of law, and BART shall require the West Lot Developer to comply with the Final ODS utilizing its real estate agreements, provided that:

1. City zoning is consistent with AB 2923 in that it allows a density of at least 75 dwelling units per acre and a height of at least 7 stories, and does not require parking in excess of the AB 2923 maximums;

2. The ODS is adopted by City for the West Lot within the Approval Period;

3. City’s Preliminary and Final ODS include standards that are applicable to development that qualifies for a density bonus under the state Density Bonus Law and allow for greater heights than existing zoning (“ODS Density Bonus Standards”). The ODS Density Bonus Standards must (a) allow heights of at least 85 feet without a maximum number of stories, and (b) allow (but not require) that development occur in BART’s Zone of Influence (“ZOI”);

4. The ODS Density Bonus Standards, when applied to a hypothetical development that (a) is within the net developable area (“NDA”) footprint shown in Schedule 9.2.2, the Capacity Study, and (b) has a height no greater than 8 stories, allow for a gross residential square footage of at least 600,000 sq ft.; and

5. The ODS Density Bonus Standards, when applied to a hypothetical development within the NDA that has a height over 85 feet but within the maximum height allowed by the ODS Density Bonus Standards, allow for a gross residential square footage of at least 750,000 square feet.

The Parties agree that an 8-story development under ODS Density Bonus Standards meeting the above requirements will allow for at least 600 units, based on an average net floor area of 750 square feet per unit, assuming a 75% efficiency factor.

Notwithstanding the foregoing, the West Lot Developer may invoke waivers, incentives or other exceptions, to the extent permitted by law, but only with respect to (a) zoning requirements other than those set forth in or modified by the ODS, (b) ODS requirements pertaining to minimum square footage of active or non-residential ground floor uses , but only to the extent such requirements exceed 15,000 square feet, inclusive of the 5,000 square feet of community/civic commercial space, and (c) other ODS requirements that do not pertain to height limits, setbacks/step-backs, open space or massing breaks.

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Exhibit A

Net Developable Area

The NDA is defined as the gross developable area of the West Lot, as shown in Schedule 9.2.2, the Capacity Study. The NDA assumes development will occur in the BART ZOI. The NDA shown in the Capacity Study shall not be altered for purposes of determining compliance of ODS with these ODS Requirements, regardless of any later alterations made to the location of BART infrastructure, public site circulation, or building footprints, or any other considerations of development feasibility that may arise in connection with a proposed development project.

The final NDA shall be used solely for the purposes of calculating ODS Capacity and shall not otherwise bind BART, the City or the West Lot Developer in any manner, including with respect to the size, location or configuration of the development footprint for the final project.

ODS Capacity

The amount of gross residential square footage allowed under the applicable Density Bonus Standards (“ODS Capacity”) shall be calculated by applying R-BMU zoning requirements to a hypothetical project eligible for density bonus within the NDA at the heights specified in paragraphs 4 and 5 above, as applicable, and accounting for square footage that is lost due to required setbacks, step-backs, massing breaks, or other required features (e.g. fire and life safety requirements) required under by the ODS Density Bonus Standards. The determination of ODS Capacity shall be made by Raimi if mutually agreed by the Parties, or if not, then a design professional such as a member of the American Institute of Certified Planners (AICP) or licensed architect, to be selected by mutual agreement of BART and the City. The determination of ODS Capacity shall use the same extrinsic assumptions used in the agreed-upon Capacity Study (to the extent not impacted by the ODS), including without limitation the number of stories (with respect to paragraph 4 above only), space required for emergency access, and the amount of parking assumed for each building. ODS Capacity will be calculated for the entirety of the West Lot development and not individual buildings or blocks. For purposes of the ODS Capacity calculation, residential square footage shall not include square footage for parking.

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Exhibit A

SCHEDULE 9.2.2

CAPACITY STUDY
Purpose
BART and the City of Berkeley engaged Raimi + Associates to analyze the development capacity of the Ashby BART Station West Lot to inform their negotiations over future transit- oriented development projects at the site. The net developable area of the site, as defined below, will be used to calculate the total amount of development that is permitted under the objective design standards for the site that are to be developed and adopted by the City of Berkeley, to ensure that the ODS meet the provisions of Schedule 9.2.1. ODS meeting the provisions of Schedule 9.2.1 will be binding on the West Lot Developer via restrictive covenants and BART’s real estate agreements.

M
ethodology
Net developable area (NDA) is defined as the developable area of the West Lot, exclusive of surface areas utilized for public site circulation and BART infrastructure. For the purpose of this capacity study, hypothetical West Lot development areas were determined by the access requirements for the site that were established in consultation with BART and City of Berkeley transportation planners, engineers and public safety staff. An additional emergency vehicle access (EVA) is required through development area B. The total NDA is calculated as 123,000 square feet (see table 1), or approximately 2.82 acres.

R
aimi + Associates created architectural models of hypothetical buildings within the NDA, as shown in Figure 1, using the site design assumptions agreed upon by the parties and listed below, for the purpose of estimating the maximum potential development capacity of the site.

Figure 1. Net Developable Area

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Exhibit A

Table 1. Net Developable Area
Development Area A ~58,300 SF
Development Area B ~41,400 SF
Development Area C ~23,300 SF
Net Developable Area 123,000 SF

Si
te Design Assumptions
• Gross residential floor area, as calculated in “Capacity Findings” below, includes residential units, horizontal and vertical circulation, common spaces, and utility and maintenance spaces. • Estimated unit counts assume an average gross unit size 1000 sf. Unit counts were calculated per floor per building and rounded down to number of full units per floor. • Approximately 12,850 square feet of commercial / non-residential space. Any additional commercial space would reduce residential floor area and unit count. • Development project is assumed to take advantage of state density bonus waivers and concessions to supersede the following R-BMU zoning provisions:
• Maximum height of 7 stories
• Active frontage location requirements
• Parking structure design, underground or located behind conditioned building space • On-site pedestrian access from Ashby Avenue
• Mid-rise construction, with Buildings A and B up to 7 stories, and Building C up to 8 stories (requires all access to Building C to be from Adeline or MLK, no access to Station Entrance Plaza).
• EVA modeled through building B included a 60-foot wide connection that included a 20-foot wide emergency vehicle accessway (to be expanded to 26 feet if aerial operations required) and landscaped/stoop areas to activate the through access. The emergency vehicle access is likely to be required to be designed as a pedestrian pathway in the ODS. Bridges will be allowed over the EVA if they do not exceed 30 feet in depth and include a minimum 20 feet high passageway for emergency vehicles.
• 65-foot wide double loaded corridor buildings. In practice, this would be an average and provide space for building articulation, projections, and balconies that may increase or decrease the building width.
• Construction within the BART tunnel Zone of Influence is assumed (8,220 sf of net developable area, about 7% of total net developable area).
• Sidewalks: 13 feet on Ashby, 15 feet on MLK north of station access, 22 feet on MLK south of station access which also includes two-way cycletrack.
• Vehicle Parking:
• BART rider parking: minimum 11 ADA spaces + 3 staff spaces (co-located in a residential garage).
• Residential parking goal: 1 space per 5 units (not necessarily located evenly across the site; spaces may be in one garage located within a single building). Goal is only achievable with parking below grade under Building C, which may be costly. • Bike Parking:
• Bike station: minimum of 128 spaces – 3,000 to 4,000 sf

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Exhibit A
• Shared bike facilities: 23 spaces, external to buildings, easy access to station at 3 feet per bike = ~70 linear feet.
• Bike lockers: minimum 46 lockers, internal space, ~2,250 sf, about 102 feet x 22 feet • Bike racks: minimum 134 racks at 3 feet per 2 bikes, 200 linear feet of bike racks. • Approximately 17,000 sf reduction of floor area is assumed for façade articulation and other design requirements that would likely result from ODS, including the following potential requirements:
• Maximum building length fronting Ashby Avenue shall not exceed 240 feet. • Façade planes shall not exceed 160 measured from a building corner or major building break.
• Major breaks shall be a minimum 8 feet wide and 8 feet in depth. • Where ground floor residential units front MLK Jr Way, the first two floors shall be set back a minimum of 5 feet to provide space for stoops, landscaping, and improve privacy for ground floor units.
• Enclosed Courtyards shall have a minimum width of 60 feet.

Capacity Findings
Raimi + Associates estimated the West Lot development capacity at approximately 632,000 square feet of gross residential floor area, or approximately 624 dwelling units (see Table 2).

These assumptions and findings shall be used solely for the purposes of calculating ODS Capacity per Schedule 9.2.1, and shall not otherwise bind BART, the City, or the West Lot Developer in any manner, including with respect to the size, location, or configuration of the development footprint for the final project.

Table 2. Estimated Development Capacity
Gross
Residential
Floor Area,
square feet (SF)
Commercial /
Non-
residential
Floor Area, SF
Total Floor
Area, SF
Dwelling
Units
Residential
Parking
Spaces
Other
Parking
Building A 299,158 4,390 303,548 298 118 Building B 189,854 3,915 193,769 187 - 28 Building C 143,311 4,570 147,881 139 -
Totals 632,323 12,875 645,198 624 118 28

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SCHEDULE 12.3.1
West Lot Notice of CC&R Termination
Exhibit A

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Termination of Covenants Affecting Real Property

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RECORDING REQUESTED BY:

Old Republic Title Company
AND WHEN RECORDED RETURN TO:

San Francisco Bay Area Rapid
Transit District
2150 Webster Street, 9th Floor
Oakland, CA 94612
Attn: Real Estate Manager
APN 053-1597-039-04 & unassessed parcel SPACE ABOVE THIS LINE FOR RECORDER'S USE Document Entitled to Free Recordation Pursuant
to Government Code Section 27383. Government
Agency Acquiring Title.

The undersigned(s) declare(s):

TERMINATION OF COVENANTS A

FFECTING REAL PROPERTY

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Termination of Covenants Affecting Real Property
This Termination of Covenants Affecting Real Property (“Termination”) is made by and between the San Francisco Bay Area Rapid Transit District, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“Owner”) and the City of Berkeley, a charter city (“City”), effective as of the date of its recordation in the Official Records of Alameda County, California.

RECITALS
A. Owner is the fee simple owner of the real property in the City of Berkeley, County of Alameda, State of California, consisting of the parcel identified by Assesso r
Parcel Number 053-1597-039-04 and the non-assessed parcel (collectively “Property”), more particularly described as follows:

PARCEL ONE:

Being lots 1 through 42, inclusive, Block 6, as shown on that certain m ap
entitled “Amended Map of Central Park, Alcatraz and Newbury Stations, Oakland Twp.”, which map was filed in the Office of the Recorder of the County of Alameda, State of California on March 14, 1889, in Book 10 of Maps Page 40.

Said Lots 1 through 42, are as shown on the San Francisco Bay Area Rapid Transit District Record Maps of Right of Way RRW 9 and RRW 10A.

Said RRW 9 in Book 68 of Maps at Page 150, filed for record on December 22, 1971, in Book 68 of Maps at Pages 147-1
57, Document 71-167837, in
the Office of the Recorder of Alameda County.

Said RRW 10A in Book 68 of Maps at Page 127, filed for record on September 20, 1971, in Book 68 of Maps at Pages 122-14
6, Document 71-
122851, in the Office of the Recorder of Alameda County.

EXCEPTING THERE
FROM the interest conveyed to City of Berkeley by
Grant Deed recorded November 5, 1971, as Instrument No. 71-146356 in Reel 2989, Image 645 of Official Records and being more particularly described as follows:

Document 71-167837, in the Office of the Recorder of Alameda County.

APN: 053-159
7-039-04

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PARCEL TWO:

Parcel R9-2 as shown on the San Francisco Bay Area Rapid Transit District Record Map of Right of Way RRW 9, in Book 68 of Maps at Page 150, filed for record on December 22, 1971, in Book 68 of Maps at Pages 147-157 a
s Document 71-167837, in the Office of the Recorder of Alameda County.

APN: non-assessed parcel.

B. Owner caused the Memorandum of Covenants affecting the Property to be recorded on _______________
as Instrument Number __________________ in the
Official Records of Alameda County, California (“Memorandum of Covenants”).

C. Section 24 of the Memorandum of Covenants provides that the Memorandum of Covenants shall be terminated upon the recordation of a notice of termination, signed by Owner and City, in the Official Records of Alameda County, California.

D. Owner and City have agreed that the conditions for the termination of the Memorandum of Covenants have been satisfied, and they desire that the Memorandum of Covenants is terminated.

E. City’s termination of the Memorandum of Covenants is authorized in accordance with the “Ashby Bart Station Transit-Oriented Development Exchange Agreement” dated _______________, consented to, accepted, approved, and authorized by the City pursuant to Ordinance No. ________________ e ntitled
“Ordinance Authorizing Exchange of Real Property for Development of Ashby Bart Station Property”, recorded on _______________ as Instrument Number __________________ in the Official Records of Alameda County, California.

NOW, THEREFORE, f
or valuable consideration, receipt of which is
acknowledged, Owner and City agree as follows:

AGREEMENT TERMINATING COVENANTS

1. Owner and City agree that the above recitals are accurate.

2. Owner and City agree that the Memorandum of Covenants is hereby terminated, and of no further force and effect, as of the date of recordation of this Termination. Upon recordation of this Termination, the Memorandum of Covenants shall no longer affect or encumber the Property in any way. (signatures on following page)

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OWNER:

Date:_____________________ SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established
pursuant to Public Utilities Code section 28500 et seq.

By:

Its:

Approved as to Form
_____________________________________
By
:

Its:

CITY:

Date:_____________________ CITY OF BERKELEY, a charter city.

By:

Its:

Approved as to Form
_____________________________________
By
:

Its:

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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Termination of Covenants Affecting Real Property

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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SCHEDULE 12.3.2
East Lot Notice of CC&R Termination
Exhibit A

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Termination of Covenants Affecting Real Property

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RECORDING REQUESTED BY:

Old Republic Title Company
AND WHEN RECORDED RETURN TO:

Farimah Brown
City Attorney
City of Berkeley
2180 Milvia Street
Berkeley, CA 94704
APN 053-1703-009 SPACE ABOVE THIS LINE FOR RECORDER'S USE Document Entitled to Free Recordation Pursuant
to Government Code Section 27383. Government
Agency Acquiring Title.

The undersigned(s) d
eclare(s):

TERMINATION OF COVENANTS A

FFECTING REAL PROPERTY

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Termination of Covenants Affecting Real Property
This Termination of Covenants Affecting Real Property (“Termination”) is made by and between the City of Berkeley, a charter city (“Owner”) and San Francisco Bay Area Rapid Transit District, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“BART”), effective as of the date of its recordation in the Official Records of Alameda County, California.

RECITALS
A. Owner is the fee simple owner of the real property in the City of Berkeley, County of Alameda, State of California, consisting of the parcel identified by Assesso r
Parcel Number 053-1703-009 (“Property”), more particularly described as follows:

PARCEL ONE:

Parcel B as shown on Parcel Map 9797, filed August 12, 2008, in Book 308 of Parcel Maps at pages 76 through 78, inclusive, Official Records of Alameda County.

PARCEL TWO:

APN: 053-170
3-009
B. Owner caused the Memorandum of Covenants affecting the Property to be recorded on _______________
as Instrument Number __________________ in the
Official Records of Alameda County, California (“Memorandum of Covenants”).

C. Section 14 of the Memorandum of Covenants provides that the Memorandum of Covenants shall be terminated upon the recordation of a notice of termination, signed by Owner and BART, in the Official Records of Alameda County, California.

D. Owner and BART have agreed that the conditions for the termination of the Memorandum of Covenants have been satisfied, and they desire that the Memorandum of Covenants is terminated.

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E. City’s termination of the Memorandum of Covenants is authorized in accordance with the “Ashby Bart Station Transit-Oriented Development Exchange Agreement” dated _______________, consented to, accepted, approved, and authorized by the City pursuant to Ordinance No. ________________ entitled “Ordinance Authorizing Exchange of Real Property for Development of Ashby Bart Station Property”, recorded on _______________ as Instrument Number __________________ in the Official Records of Alameda County, California.

NOW, THEREFORE, f
or valuable consideration, receipt of which is
acknowledged, Owner and BART agree as follows:

AGREEMENT TERMINATING COVENANTS

1. Owner and BA
RT agree that the above recitals are accurate.

2. Owner and BA
RT agree that the Memorandum of Covenants is hereby
terminated, and of no further force and effect, as of the date of recordation of this Termination. Upon recordation of this Termination, the Memorandum of Covenants shall no longer affect or encumber the Property in any way.

OWNER:

Date:_____________________ CITY OF BERKELEY, a charter city.

By:

Its:

Approved as to Form
_____________________________________
By
:

Its:
(signatures continued on following page)

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BART:

Date:_____________________ SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established
pursuant to Public Utilities Code section 28500 et seq.

By:

Its:

Approved as to Form
_____________________________________
By
:

Its:

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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State of California )
) ss.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ___________________________
Notary Public [seal]

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Exhibit B
Ashby BART TOD Contractual Agreement
Addendum to the
Ashby and North Berkeley BART Stations Transit-Oriented Development Zoning Project Environmental Impact Report
(SCH # 22020110320) and the Adeline Corridor Specific Plan Environmental Impact Report (SCH # 2018072009)
prepared by
City of Berkeley Planning & Development Department
Land Use Division
1947 Center Street, 2nd Floor
Berkeley, California 94704
Contact: Alisa Shen, Principal Planner
prepared with the assistance of
Rincon Consultants, Inc.
66 Franklin Street, Suite 300
Oakland, California 94607
November 2024

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Table of Contents
Addendum to the TOD Zoning EIR and the ACSP EIR i
Table of Contents
1 Introduction ...................................................................................................................................2 2 Background ....................................................................................................................................4

2.1 Ashby and North Berkeley BART Stations TOD Zoning Project ..........................................4

2.2 Ashby and North Berkeley BART Stations TOD Zoning Project EIR ....................................4

2.3 Adeline Corridor Specific Plan and EIR and Conceptual Design for Adeline at Ashby BART ...................................................................................................................................7 3 The Project: Ashby BART TOD Contractual Agreement .................................................................9

3.1 Project Location..................................................................................................................9

3.2 Project Description...........................................................................................................10

3.3 Proposed Project in Relation to the Previous EIRs ...........................................................12 4 Environmental Impacts ................................................................................................................13 5 Conclusion....................................................................................................................................25 6 References and Preparers............................................................................................................26 Documents Incorporated by Reference.......................................................................................26 List of Preparers ...........................................................................................................................26 Tables
Table 1 Buildout Projection 1 ...........................................................................................................5 Table 2 Comparison of TOD Zoning EIR Buildout Projections and Proposed Project ...................15 Table 3. Comparison of 2020 ACSP and 2022 Conceptual Design for Adeline Street at Ashby BART .17 Table 4. Comparison of Transportation Impacts: 2020 ACSP EIR and the Proposed Project...............20 Figures
Figure 1: Adeline Street at Ashby BART Conceptual Design (Approved by City of Berkeley City Council, November 29, 2022..........................................................................................................8 Figure 2 Ashby BART Station Properties ..........................................................................................9 Figure 3. Long-term Improvements within the Ashby BART Subarea (Source: Adeline Corridor Specific Plan) ................................................................................................................................16

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 2
1 Introduction
This addendum evaluates the consistency of the proposed Ashby BART TOD Contractual Agreement (“Agreement” or “Project”) with the Ashby and North Berkeley BART Stations Transit-Oriented Development (TOD) Zoning Project Environmental Impact Report (EIR) (State Clearinghouse [SCH] #2020110320) (“TOD Zoning EIR”).
1 The TOD Zoning EIR was certified, the mitigation measures in the EIR were adopted and incorporated into the zoning project, and the zoning project was approved by the City of Berkeley (“City”) on June 2, 2022.

The TOD Zoning EIR is available for public review at:

City of Berkeley
Land Use Planning Division
1947 Center Street, Second Floor
Berkeley, California 94704
The TOD Zoning EIR is available on the City’s website: https://berkeleyca.gov/construction- development/land-use-development/general-plan-and-area-plans/ashby-and-north-berkeley. The TOD Zoning EIR is hereby incorporated into this document by reference.

This document also considers consistency with the Adeline Corridor Specific Plan (“ACSP”) EIR (SCH#2018072009).2 The ACSP EIR was certified and the Specific Plan was approved in December 2020. The ACSP EIR is available for public review at the same address listed above and on the City’s website at https://berkeleyca.gov/your-government/our-work/adopted-plans/adeline-corridor- specific-plan. The ACSP EIR is also incorporated into this document by reference.

Section 15168 of the California Environmental Quality Act (CEQA) Guidelines3 discusses the use of a Program EIR for environmental review of a subsequent project that is consistent with the program analyzed in the EIR. A lead agency may approve the subsequent activity as being within the scope of the project covered by the EIR; in that event, no new environmental document is required. “Whether a later activity is within the scope of a program EIR is a factual question that the lead agency determines based on substantial evidence in the record.” Section 15168(c)(2). “Factors that an agency may consider in making that determination include, but are not limited to, consistency of the later activity with the type of allowable land use, overall planned density and building intensity, geographic area analyzed for environmental impacts, and covered infrastructure, as described in the program EIR.” Id.

Section 15168(c) also refers to Section 15162 as a guide for this determination. Section 15162 states that “no subsequent EIR shall be prepared for a project unless the lead agency determines, based on substantial evidence in light of the whole record, one of more of the following:”

1. Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
1 City of Berkeley. 2022. Ashby and North Berkeley BART Stations Transit-Oriented Development (TOD) Zoning Project Environmental Impact Report. State Clearinghouse #2020110320.
2 City of Berkeley. 2020. Adeline Corridor Specific Plan Environmental Impact Report. State Clearinghouse #2018072009. 3 The CEQA Guidelines are found in California Code of Regulations, Title 14, Section 15000 et seq.

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Introduction
Addendum to the TOD Zoning EIR and the ACSP EIR 3

2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;

3. “New information of substantial importance” shows that the project would “have one or more significant effects not discussed in the previous EIR or negative declaration” or that "significant effects previously examined will be substantially more severe than shown in the previous EIR.”
Pursuant to CEQA Guidelines Section 15163, the Lead Agency may choose to prepare a supplement to an EIR rather than a subsequent EIR if “(1) Any of the conditions described in Section 15162 would require the preparation of a subsequent EIR, and (2) Only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.” CEQA Guideline Section 15164 states that an addendum to an EIR may be prepared if only minor technical changes or additions are necessary and none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.

The following analysis concludes, based on substantial evidence, that approval of the proposed Project does not require the preparation of a subsequent or supplemental EIR; therefore, based on the analysis in the TOD Zoning EIR and the ACSP EIR and substantial evidence, the City has prepared an addendum to the TOD Zoning EIR and the ACSP EIR documenting that no further environmental review is required in accordance with CEQA Guidelines Section 15164 and Section 15168(c).

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 4
2 Background
This section provides an overview of the Ashby and North Berkeley BART Stations TOD Zoning Project and its EIR, and the Adeline Corridor Specific Plan and its EIR as it relates to the Ashby BART subarea. Because the purpose of this discussion is to provide background for the consistency evaluation in this addendum, the discussion is limited to those details that pertain to the Project.

2.1 Ashby and North Berkeley BART Stations TOD Zoning
Project
On June 28, 2022, the Berkeley City Council adopted the Ashby and North Berkeley BART Stations TOD Zoning Project. The project involved the adoption of a new zoning district establishing transit- oriented zoning and development standards, and associated amendments to the Berkeley General Plan, at the Ashby and North Berkeley San Francisco Bay Area Rapid Transit District (BART) stations.

The project created a new zoning district, the Residential BART Mixed-Use District (R-BMU), and applied the zoning district to parcels encompassing and surrounding both stations. The zoning requirements were subsequently adopted in Section 23.202.150, R-BMU Residential BART Mixed Use District, of the Berkeley Municipal Code (BMC). Key features of the R-BMU district include a maximum building height of 80 feet and 7 stories, a minimum residential density of 75 units per acre, and no motor vehicle parking requirement. The zoning also includes standards related to open space, setbacks, step-backs, ground-floor residential and non-residential frontage, on-site pedestrian access, massing, building entrances, and parking design and access.

2.2 Ashby and North Berkeley BART Stations TOD Zoning
Project EIR
The TOD Zoning EIR, which was adopted by Council along with the TOD Zoning Project, analyzed the potentially significant environmental effects of the Ashby and North Berkeley BART Stations TOD Zoning Project. Those significant effects are described in detail in Section 2, Project Description, of the TOD Zoning EIR.

TOD Zoning EIR Buildout
The buildout projections for the Ashby and North Berkeley station areas, shown in Table 1, below, are the reasonable maximum development projections based on the zoning standards that were used for analysis of impacts in the EIR. As discussed in Subsection 2.6 in Section 2, Project Description, of the TOD Zoning EIR, to ensure a conservative but realistic approach in analyzing environmental effects under CEQA, the EIR analyzed what could be considered a maximum reasonably foreseeable impact scenario in order to evaluate the full extent of significant environmental impacts that could be reasonably expected as a result of the project. For purposes of analysis, buildout was assumed to occur by the year 2030.

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Background
Addendum to the TOD Zoning EIR and the ACSP EIR 5
Table 1 Buildout Projection 1
Ashby North Berkeley (Main Site)
Lot Area 4.4 acres (west lot)

1.9 acres (east lot)

8.1 acres
Project Area2 6.1 acres 6.4 acres
Building Gross Square Footage (sf) 1,000,000 950,000
Residential Units 1,200 1,200
Non-Residential (sf) 100,000 25,000
Height 7 stories 7 stories
FAR 3.8 3.4
Density (du/acre) 200 188
Parking for Development (# Spaces) 350 375
Parking for Development (Ratio of spaces/unit) 0.3 0.3
BART Rider Parking3 0 spaces 0 spaces (on-site)
1 All numbers have been rounded for ease of comparison. Due to rounding, some of the totals in the table above may not correspond exactly to each other when divided.
2Project Area does not include area used for BART facilities/infrastructure. For the purposes of the EIR, the reasonable maximum development projection includes the Zone of Influence at North Berkeley as buildable area (which is approximately one acre) and does not include the auxiliary parking lots.
3 The proposed project assumes no replacement of the existing BART rider surface parking spaces eliminated as a result of new development on the main station area sites. However, it is assumed that 79 parking spaces in the auxiliary parking lots at the North Berkeley BART station site would remain.

Abbreviations: sf = square feet, du = dwelling units
Source: Table 2-3 in Section 2, Project Description, of the TOD Zoning EIR At the Ashby BART station site, the buildout assumptions included development of up to 1,200 dwelling units and 100,000 square feet of non-residential space distributed between the 4.4-acre station site and the 1.9-acre surface parking lot east of the Ed Roberts campus. The buildout projections for both station sites were based on the following assumptions: buildings with a maximum height of seven stories and an average unit size of 700 square feet, and exclusion of non- buildable areas for circulation and BART station infrastructure. For the purposes of CEQA, the EIR assumed no BART rider replacement parking spaces on the Ashby BART station site.

TOD Zoning EIR Summary of Conclusions
The TOD Zoning EIR found the following impacts to be less than significant without mitigation:
 Aesthetics
 Agricultural Resources
 Energy
 Hydrology and Water Quality
 Land Use and Planning
 Mineral Resources
 Population and Housing
 Public Services and Recreation
 Transportation
 Utilities and Service Systems
 Wildfire.

The TOD Zoning EIR found that the following impacts would have less-than-significant impacts with implementation of mitigation measures identified in the EIR:

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 6
 Air Quality
 Biological Resources
 Cultural Resources
 Geology and Soils
 Greenhouse Gas Emissions
 Hazards and Hazardous Materials
 Noise
The TOD Zoning EIR found that the Ashby and North Berkeley BART Stations TOD Zoning Project would have significant and unavoidable impacts related to construction noise.

TOD Zoning EIR Alternative 3, Increased Height Alternative Analysis The EIR also analyzed the impacts of Alternative 3: Increased Height, which was an environmentally superior alternative that analyzed the impacts of increasing the height of the buildout at the station site. Specifically, the Alternative 3 scenario analyzed a floor area ratio of up to 5.5, a maximum building height of 12 stories, and the possibility of constructing up to 1,800 units at each station. For the Ashby Station, Alternative 3 also included 1,500,000 gross building square feet, a residential density of 300 units per gross acre, and 550 parking spaces.

The TOD Zoning EIR found that Alternative 3 would be environmentally superior because it would result in slightly reduced impacts to air quality and GHG emissions due to the resulting increase in density in proximity to transit, which is an effective way to encourage alternative transportation and reduce vehicle use. The TOD Zoning EIR also found that Alternative 3 would still result in an unavoidably significant impact related to construction noise, and that mitigation related to air quality, biological resources, cultural resources, geology and soils, GHG emissions, hazardous materials, and noise would still be required.

Supplemental Alternative 3 Analysis
As part of the staff report for the City Council hearing on June 2, 2022, additional information was provided to clarify the discussion of Alternative 3 in the TOD Zoning EIR. This additional information is available on page 115 of the packet at the following web address: https://berkeleyca.gov/ sites/default/files/documents/2022-06-02%20Special%20Item%2001%20Ashby%20 and%20North%20Berkeley%20BART.pdf and is hereby incorporated into this document by reference.

The additional information clarified that the projected buildout analyzed for Alternative 3 assumed a density bonus pursuant to the state density bonus law of 50 percent, along with a concession to allow for a height increase up to 12 stories, an increase in Floor Area Ratio to 5.5, and a maximum projected buildout of 3,600 dwelling units (1,800 at each station site). This analysis also assumed that any state density bonus project would likely take advantage of various incentives within the state density bonus law designed to make development more economical, such as the ability to waive height standards and setback requirements set forth in local zoning ordinances.

The EIR analyzed a 50 percent density bonus scenario because a 50 percent bonus is ordinarily the maximum allowable density bonus for mixed-income projects pursuant to the state density bonus law. See Gov. Code section 65915 et seq. A 50-percent bonus scenario was also considered to be realistic in light of feasibility studies which had been shared with the community during the Community Advisory Group process. Thus, such a scenario was reasonably foreseeable.

The supplemental analysis included additional discussions of air quality, energy, greenhouse gas emissions, land use, and noise impacts to clarify potential impacts associated with Alternative 3. No new or more severe impacts were identified and recirculation of the TOD Zoning EIR was therefore not required.

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Background
Addendum to the TOD Zoning EIR and the ACSP EIR 7

2.3 Adeline Corridor Specific Plan and EIR and
Conceptual Design for Adeline at Ashby BART
Because the Project includes development on parcels surrounding the Ashby BART Station, which is within the area of the Adeline Corridor Specific Plan (“ACSP”), this section provides a brief overview of that plan (a copy of which is available on the City’s website at: https://berkeleyca.gov/your- government/our-work/adopted-plans/adeline-corridor-specific-plan).

The City adopted the ACSP in December 2020 to articulate a community vision and planning framework for the ACSP Plan Area. The ACSP Plan Area covers 86 acres of land from the Berkeley/Oakland Border to Dwight Way along 1.3 miles of Adeline Street and a portion of Shattuck Avenue, including the area of Adeline Street adjacent to the Ashby BART station.

With respect to the Ashby BART subarea, the ACSP established objectives for future development, but did not “present a detailed plan for the Station itself,” because “the design of future development is the subject of a community process and coordination between the City, BART, the community, the Berkeley Flea Market, and other stakeholders.” (Adeline Corridor Specific Plan, Ashby BART Station Subarea, page 26.) The ACSP’s objectives include affordable housing and public space for community uses, as well as improvements to bicycle and pedestrian access and transit connections. Toward that end, the ACSP proposed a conceptual change to the street design near the Ashby BART station to calm traffic and enhance pedestrian and bicycle access, including the elimination of the existing median, construction of plazas connecting to the Ashby BART Station, and a new cycling track. The ACSP explained that this and other proposed designs were “conceptual, and could be refined or varied in the future, with further design work to identify detailed features such as exact intersection geometries, bicycle facility types and alignments, pedestrian crossing facilities, and the exact location of street trees and public space.” At the time that it adopted the ACSP, the City certified a program EIR (the “ACSP EIR”) that analyzed the ACSP’s significant effects on the environment. The ACSP EIR studied, among other things, the transportation improvements to pedestrian, bicycle, and automobile infrastructure, as well as public space improvements, such as new parks, plazas, community gathering spaces, and landscaping, all as conceptualized in the ACSP.

The ACSP EIR found the following impacts to be less than significant, or less than significant with mitigation:
 Air Quality
 Biological Resources
 Cultural Resources
 Geology and Soils
 Greenhouse Gas Emissions
 Hazards and Hazardous Materials
 Hydrology and Water Quality
 Land Use and Planning
 Noise (other than construction noise)
 Population and Housing
 Utilities and Service Systems
The ACSP EIR found that the ACSP would have significant and unavoidable impacts related to construction noise and intersection levels of service.

Adeline at Ashby Conceptual Design
In 2022, in connection with the Ashby and North Berkeley BART TOD Zoning Project, the City identified conceptual design options for the Ashby BART station that would include changes to the

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 8
portion of Adeline Street abutting the Ashby BART station. While the conceptual designs in the ACSP had contemplated four lanes on Adeline in this subarea along with a small plaza, the options identified by City staff included a “road diet” whereby Adeline Street would be reduced to a two- lane roadway with access restricted to right-in/right-out along the east side of Adeline between Ashby Avenue and Martin Luther King Jr. Way. The road diet would enable the creation of protected bike lanes, improved pedestrian access, and a large plaza gathering space on the west side of Adeline Street, next to the BART station.

On November 29, 2022, City Council approved the preliminary conceptual design identified by staff, pending identification of funding to develop specific design plans. A figure of the conceptual design approved by City Council is below:

Figure 1: Adeline Street at Ashby BART Conceptual Design (Approved by City of Berkeley City Council, November 29, 2022.

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The Project: Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 9
3 The Project: Ashby BART TOD Contractual
Agreement

3.1 Project Location
The Project location is the Ashby BART Station, one of the two rezoning sites analyzed in the TOD Zoning EIR. The Ashby BART station site is shown on Figure 1 and consists of two parcels referred to as the “West Lot” and the “East Lot.” The West Lot includes a 4.4-acre parcel that makes up the block surrounded by Adeline Street, Ashby Avenue and Martin Luther King Jr. Way, which includes the BART station building and surface parking lot (Assessor Parcel Number (APN) 053-1597-039-04) The East Lot includes a 1.9-acre surface parking lot located on the east side of Adeline Street on the block surrounded by Woolsey Street, Tremont Street, Adeline Street and Essex Street (APN 053- 1703-009-00). Adeline Street and the Ed Roberts Campus are located between the two parcels. The northern portion of the 4.4-acre parcel is used by the Berkeley Flea Market on weekends.

Figure 2 Ashby BART Station Properties

The two parcels that make up the West Lot and East Lot are currently owned by BART. The City retains an option to purchase air rights over the West Lot pursuant to an existing agreement dated October 22, 1964, as amended, between BART and the City (“Air Rights Option”). The Air Rights Option, if exercised by the City, would provide the City with ownership of the air rights 10 feet above the parking lot located on the West Lot shown in Figure 1.

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 10
The Ashby BART station site is located along the Adeline Street corridor, which is a commercial/ mixed-use corridor that runs through south Berkeley. The site is surrounded by a mix of uses, including residential, commercial, educational, and institutional uses. The 4.4-acre parcel west of Adeline Street contains a BART station entrance and surface parking totaling 348 spaces and the 1.9- acre parcel east of Adeline Street contains a parking lot with 187 parking spaces, 3 of which are reserved for users of the Ed Roberts Center. The Project site is in the Ashby BART subarea of the Adeline Corridor Specific Plan (ACSP) area (City of Berkeley 2020). The area generally has a high volume of station-bound pedestrian, bicycle, and bus traffic.

3.2 Project Description
The City of Berkeley and BART intend to execute a Real Estate Agreement (“Agreement”) and associated contractual Agreement (including covenants and deeds) in order to effectuate transit- oriented development at the Ashby BART Station site in accordance with mutually agreed upon terms.4 Pursuant to the Agreement, the City would relinquish its air rights option to the West Lot. In return, BART would transfer fee-simple ownership of the East Lot to the City of Berkeley along with specified project requirements and community benefits. BART would maintain fee simple ownership of the West Lot. Following the execution of the Agreement, BART and the City would pursue separate developer solicitations for the West Lot and East Lot, respectively.

The Agreement is attached as Exhibit A to the Ordinance. . Many of the provisions in the Agreement will not affect the physical development of the East Lot or the West Lot, but instead relate to legal obligations and other technical Agreement between the parties. For example, the Agreement includes provisions relating to the structure of the developer solicitation process, the establishment of a community benefits fund, the creation of special financing districts pursuant to state statute, and required percentages and funding sources for affordable housing. These legal provisions will not affect physical development on the site or have any environmental effects, except as described below and as described in the previous EIRs incorporated by reference into this document.

The proposed parameters in the Agreement that pertain to the future physical development of the Ashby BART Station site are summarized below. As discussed more fully below in Section 4, the physical buildout contemplated by the Agreement was previously considered by the City Council either as part of the Ashby and North Berkeley BART Stations TOD Zoning Project or as part of the Adeline Corridor Specific Plan; accordingly, the physical buildout contemplated by the agreement was previously analyzed in the EIRs associated with those projects.

ODS Requirements
The Agreement requires the Parties to establish Objective Design Standards (“ODS”) on their respective lots – i.e., the City for the East Lot and BART for the West Lot - for future transit-oriented development on the site. This development will primarily consist of affordable and market-rate housing units; however, the Agreement also provides for the inclusion of some non-residential space, including at least 5,000 square feet of interior ground floor space for community-based organizations and small businesses. The ODS for each lot are informed by a Capacity Study5 conducted by a third-party consultant (Raimi & Associates), which assessed how many housing units 4 Term Sheet for Transit Oriented Development at Ashby BART, executed by City of Berkeley and San Francisco Bay Area Rapid Transit, 9/21/24.
5 The Capacity Study establishes the net developable area of the West Lot for purposes of determining the compliance of the ODS with the ODS Requirements. The Capacity Study is incorporated as Schedule 9.2.2 of the Agreement (Appendix A).

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The Project: Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 11
the lots could feasibly support. ODS are required to be developed for the West Lot and the East Lot, respectively, as follows:

For the West Lot:
 ODS will include both standards that would comply with the R-BMU zoning previously adopted by Council as part of the Ashby and North Berkeley BART Stations TOD Zoning Project, and standards that would be applicable to development that qualifies for a reasonably foreseeable density bonus under the state density bonus law (a possibility that was previously considered as part of Alternative 3). As discussed above, the existing R-BMU zoning allows for buildings of up to 7 stories/80 feet. The Agreement provides that the Density Bonus Standards developed as part of the ODS (the “ODS Density Bonus Standards”) will be required to a) allow heights of at least 85 feet without a maximum number of stories, and b) allow (but not require) that development occur in BART’s Zone of Influence.
 The proposed Agreement also requires that the ODS Density Bonus Standards for the West Lot will include the following additional requirements:
o The ODS Density Bonus Standards, when applied to a hypothetical development that a) is within the net developable area (“NDA”) footprint shown in the Capacity Study and b) has a height no greater than 8 stories, must allow for a gross residential square footage of at least 600,000 square feet;
o The ODS Density Bonus Standards, when applied to a hypothetical development within the NDA that has a height over 85 feet but within the maximum height that will be allowed by the ODS Density Bonus Standards, must allow for a gross residential square footage of at least 750,000 square feet;
o An 8-story development under ODS Density Bonus Standards meeting the above requirements must allow for at least 600 units, based on an average net floor area of 750 square feet per unit, assuming a 75% efficiency factor; and Notwithstanding the above, the Agreement imposes certain limitations on the ability of the West Lot Developer to waive requirements of the R-BMU zoning under the state density bonus law.

Specifically, the Agreement states that the West Lot Developer may request waivers, incentives or other exceptions, to the extent permitted by law, but only with respect to a) zoning requirements other than those set forth in or modified by the ODS, b) ODS requirements pertaining to minimum square footage of active or non-residential ground floor uses to the extent such requirements exceed 15,000 square feet (inclusive of the 5,000 square feet of community/civic commercial space), and c) ODS requirements other than those pertaining to height limits, setbacks/step-backs, open space or massing breaks.

The Agreement also includes the following requirements for the East Lot :
 The City’s developer solicitation for the East Lot shall require that the project include at least 300 bedrooms, and;
 Objective Design Standards for the East Lot must allow for at least 248 units and 300 bedrooms.

Roadway Reconfiguration
The proposed Agreement contemplates that the City will embark upon an Adeline Street Transportation Improvements Project after the transaction closes. However, the Agreement does not impose new

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Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 12
obligations on the City to engage in such a project; rather, it outlines expected responsibilities for funding as between BART and the City based on previous plans adopted by the City in connection with the Adeline Corridor Specific Plan and the 2022 choice of conceptual design.

The Adeline Street Transportation Improvements Project would involve changes to Adeline Street from the Ashby BART station to the Berkeley/Oakland border. As applicable here, the project would repurpose two of the existing four traffic lanes on Adeline Street to create a new public pedestrian plaza interfacing with the West Lot, as well as protected bikeways, upgraded traffic signal infrastructure and enhanced public transit operations on Adeline Street. The project scope of work includes redesigning the intersections of Adeline Street/Ashby Avenue and MLK Way /Adeline Street/Woolsey Avenue adjacent to Ashby BART. The project also would include widening of the sidewalk along Ashby Avenue and MLK Way, and widening of the sidewalk and construction of a new protected bikeway along MLK Way at the southern portion of the West Lot.

Public Infrastructure
The proposed Agreement includes a series of provisions relating to Public Infrastructure (as distinct from privately-owned housing or commercial development) that will be included at the site. This infrastructure may include plaza improvements along Adeline Street and extensions of the plaza to connect to the new development on the West Lot; BART rider parking for vehicles and bicycles; new pedestrian, bicycle, transit, and passenger loading; lighting; station improvements for the Ashby BART station such as new station entry plaza, stairs, ramping, and Traction Power Substation (“TPSS”) access area and crane area; an elevator into the BART station; and vehicular access roads (individually or collectively “Public Infrastructure”).

The Agreement discusses these improvements for purposes of assigning financial responsibility for maintenance and constructions for each element of infrastructure that will be constructed at the site.

For the infrastructure elements that are specific to BART’s operations and its station at Ashby (such as the TPSS, elevator, and related station improvements), the Agreement states that such improvements, if BART decides to make them, will be within BART’s discretion and would, if BART chose to make such improvements, be the responsibility of BART after the transaction closes.6

3.3 Proposed Project in Relation to the Previous EIRs
In sum, the physical buildout contemplated by the Agreement includes a TOD project on the East Lot and West Lot; a roadway redesign on Adeline Street adjacent to the station; and plazas and other public infrastructure to connect the street to the TOD development. This physical buildout was previously considered by the City Council as part of the Ashby and North Berkeley BART Stations TOD Zoning Project and/or as part of the Adeline Corridor Specific Plan. Accordingly, it was previously analyzed in the EIRs associated with those projects. Further, the infrastructure discussed in the Agreement would not result in any new significant environmental impacts, increase the severity of significant impacts previously identified and studied in the TOD Zoning EIR or the ACSP EIR, or require the adoption of any new or considerably different mitigation measures or alternatives. This will be analyzed in more detail in the following section.
6 If and when BART does elect to make such improvements, BART would be the lead agency, and would be responsible for conducting any further environmental analysis that is needed for such improvements.

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Addendum to the TOD Zoning EIR and the ACSP EIR 13
4 Environmental Impacts
This section evaluates the Project’s potential environmental impacts in relation to the impact analysis and conclusions in the TOD Zoning EIR and the ACSP EIR, consistent with CEQA Guidelines sections 15168(c)(2) and 15162. The existing environmental conditions at the Ashby BART Station are substantially the same under present conditions as described in the Section 3, Environmental Setting, of the TOD Zoning EIR.

CEQA Guidelines Sections 15168(c)(2) and 15164
Pursuant to CEQA Guidelines Section 15168(c)(2), if a lead agency finds that a later activity is within the scope of a program EIR, no new environmental document is required. Factors that a lead agency should consider when making this determination include if the later activity is within the type of allowable land use, overall planning density and building intensity, geographic area, and covered infrastructure as described in the program EIR.

As discussed above in Section 1, even if the later activity may involve some minor changes or additions to the approved project, pursuant to CEQA Guidelines Section 15164 the lead agency may prepare an addendum to the program EIR if none of the conditions described in CEQA Guidelines Section 15162 requiring preparation of a subsequent EIR exist.

The Project would set terms for a real estate exchange between the City of Berkeley and BART related to rights to develop the West Lot and East Lot of the Ashby BART Station site. The Project, which is a later activity requiring discretionary approval by the City of Berkeley, is within the scope of the TOD Zoning EIR for the reasons discussed below. It is also consistent with the ACSP EIR for the reasons discussed below.

Allowable land use:

The Project involves the same types of land uses described and analyzed in the TOD Zoning EIR. The R-BMU district, as adopted in the Ashby and North Berkeley TOD Zoning Project and as studied in the TOD Zoning EIR, permits residential uses and non-residential uses such as retail, community- serving uses, and civic spaces, in the R-BMU zone. The Project does not modify the uses in the R- BMU zone. Instead, it contemplates a project on the West Lot and the East Lot that would be within the bounds of the R-BMU requirements. Therefore, development under the proposed Agreement would be required to comply with the R-BMU development standards that were previously analyzed in the TOD Zoning EIR.

Similarly, the Project involves the same types of land uses that were described in the ACSP, which are analyzed in the ACSP EIR. The land use objectives in the ACSP for the Ashby BART subarea include affordable housing, public space (including plazas and pedestrian-accessible spaces), and pedestrian and bicycle connections to Adeline Street. The Project is consistent with these objectives because it provides for an agreement with BART to promote the construction of affordable housing on the West Lot and the East Lot, new pedestrian plazas and other public spaces, and pedestrian- friendly and bicycle-friendly infrastructure on Adeline Street near the Ashby BART station.

Overall planning density and building intensity:

The Project involves the same overall planning density and building intensity that was analyzed in the TOD Zoning EIR.

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Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 14
The TOD Zoning EIR analyzed the development standards for the R-BMU district, which include a maximum building height of 80 feet and 7 stories, a minimum residential density of 75 units per acre, and a buildout projection of up to 1,200 dwelling units (based on an average unit size of 700 square feet) in buildings up to 7 stories in height, along with 100,000 square feet of non-residential space distributed between the West Lot and East Lot. Because future development on the Ashby BART Station site would be eligible to utilize provisions of the State Density Bonus Law (California Government Code Sections 65915 – 65918), which encourages the development of affordable housing by allowing developers to obtain “bonus” housing units, the TOD Zoning EIR studied a reasonably foreseeable buildout that would include up to a 50 percent increase in project densities for mixed-income projects, and up to an 80 percent increase in density for 100 percent affordable projects. Specifically, the TOD Zoning EIR analyzed the impacts of ”Alternative 3,” an “Increased Height” alternative that included a floor area ratio up to 5.5, a maximum building height of 12 stories, and a maximum buildout of up to 1,800 units and 1.5 million gross building square feet the Ashby BART Station site.

The Project would not increase the overall planning density or building intensity beyond that studied in the TOD Zoning EIR, for two reasons. First, the Project would involve the development of ODS that would comply with the same R-BMU zoning standards studied in the TOD Zoning EIR and adopted by the City. Second, the Project would involve the development of ODS for state density bonus projects; reasonably foreseeable development for a state density bonus project was previously analyzed as Alternative 3. Specifically, the Agreement would include the following parameters:
 For the West Lot, ODS Density Bonus Standards will provide for (1) building heights of at least 85 feet (up from 80 feet in the R-BMU zoning); (2) a minimum of 600 units, based on an average net floor area of 750 square feet per unit, for buildings that are 8 stories tall (up from 7 stories in the R-BMU zoning); and (3) gross residential footage of at least 600,000 to 750,000 square feet.
 For the East Lot, the Agreement provide that the ODS will be created that will allows for at least 248 units and 300 bedrooms.

These parameters are stated as unit, height, and square-footage minimums rather than maximums, and they do not address every metric that was studied in the TOD Zoning EIR. The exact maximum heights and other measurements that will authorized by the ODS for a density bonus project are unknown at this time because the ODS have not yet been prepared and no developer has submitted a proposal at this time. Nonetheless, reasonably foreseeable development allowed under the proposed Agreement would be well within the scope of the analysis in the TOD Zoning EIR, because even a project substantially larger than the minimum ODS requirements above would be within the scope of Alternative 3 (i.e., a development of 1,500,000 gross square feet, 12 stories in height, and 1,800 units as in the TOD Zoning EIR for Alternative 3), which was analyzed in the TOD Zoning EIR and would not have any new or greater significant impacts than the approved project.

The following table illustrates the above analysis.

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Addendum to the TOD Zoning EIR and the ACSP EIR 15
Table 2 Comparison of TOD Zoning EIR Buildout Projections and Proposed Project TOD Zoning EIR
Main Project
TOD Zoning EIR
Alternative 3 (for State
Density Bonus Project)
Proposed Project, Based on ODS
Requirements
Building Gross Square
Footage (sf) 1,000,000 1,500,000
West Lot: Min. 600,000 to 750,000
square feet on West Lot for density
bonus project, depending on building
height
East Lot: No set requirement for ODS,
but ODS will be based on R-BMU
standards.

Residential Units 1,200 1,800
West Lot: Min. 600 units on West Lot for
8 story building.

East Lot: ODS must allow a min. of 248
units (and 300 bedrooms)
Height 7 stories (80 feet) 12 stories (130 feet)
West Lot: Min. 8 stories or 85 feet on
West Lot for density bonus projects
East Lot: No set requirement for ODS,
but ODS will be based on R-BMU
standards.

Geographic area:

The Project is in the same geographic area that was analyzed in the TOD Zoning EIR and the ACSP EIR. Specifically, the proposed Agreement would facilitate development on the Ashby BART Station site as shown on Figure 1 in Section 3.1, Project Location, above. The boundary of the Ashby BART station site is the same as the boundary of the Ashby BART station site that was analyzed in the TOD Zoning EIR (see Figure 2-2 in Section 2, Project Description, of the TOD Zoning EIR). The boundary of the Ashby BART station site is also the same as the boundary of the Ashby BART Subarea studied as part of the ACSP EIR (see Figure 2-5 in Section 2, Project Description, of the ACSP EIR).

Covered infrastructure:

The Project covers substantially the same infrastructure analyzed in the TOD Zoning EIR and the ACSP EIR, as described below.

1. Affordable Housing and Non-Residential Development
The proposed Agreement are intended to facilitate transit-oriented housing development and approximately 100,000 square feet of non-residential space distributed between the West Lot and East Lot. This proposed infrastructure was analyzed in the TOD Zoning EIR, and the reasonably foreseeable buildout contemplated by the Agreement is within the scope of the analysis of the TOD Zoning EIR, as discussed above.

2. Roadway Reconstruction and Associated Public Infrastructure With respect to the roadway reconfiguration, plazas, and related public infrastructure discussed in the Agreement, the Project covers substantially the same infrastructure analyzed in the ACSP EIR, with the exception of a slightly narrower roadway at Adeline Street, as discussed in the background section above.

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Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 16
Specifically, the ACSP identified interim and long-term improvements to the transportation network identified in the Specific Plan for the Ashby BART Subarea. The recommended interim improvements consisted of, among other things, pedestrian crossing improvements along Adeline Street, traffic calming devices, and bicycle improvements consistent with the City’s Bicycle Plan (See Section 2.3.5, of the ACSP EIR.) The recommended long-term improvements included plazas and landscaped areas adjacent to the west side of Adeline Street, a new bicycle boulevard, landscaped medians and buffers, and similar infrastructure.

The below diagram illustrates the contemplated long-term improvements in the ACSP:

Figure 3. Long-term Improvements within the Ashby BART Subarea (Source: Adeline Corridor Specific Plan)
These interim- and long-term improvements are substantially the same as those that would be covered by the Agreement. As discussed in Section 3.2, Project Description, above, the project scope of work includes redesigning the intersections of Adeline Street/Ashby Avenue and MLK Way/Adeline Street/Woolsey Avenue adjacent to Ashby BART, and would include widening the sidewalk along Ashby Avenue and MLK Way. The Agreement would also involve implementing the possibility of plazas on the West side of Adeline Street to connect the street to the station and to the TOD project, as well as new pedestrian, bicycle, transit, and passenger loading infrastructure.

These infrastructure elements were included in the ACSP, and were analyzed in the ACSP EIR.

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Addendum to the TOD Zoning EIR and the ACSP EIR 17
There is, however, a minor difference between the roadway reconfiguration contemplated in the Project and the roadway infrastructure contemplated in the ACSP. While the conceptual designs in the ACSP had involved four lanes on Adeline in this subarea along with a small plaza, the Street Improvements Project discussed in the Agreement would involve a “road diet” whereby Adeline Street would be reduced to a two-lane roadway with access restricted to right-in/right-out along the east side of Adeline between Ashby Avenue and Martin Luther King Jr. Way. This “road diet” is based on and consistent with the conceptual design approved by Council in 2022, and would enable the creation of protected bike lanes, improved pedestrian access, and a large plaza gathering space on the west side of Adeline Street, next to the BART station.

The differences between the roadway concept in the ACSP for this area and the “road diet” contemplated by the 2022 conceptual design (which is the design contemplated by the Agreement) are summarized in the below table:

Table 3. Comparison of 2020 ACSP and 2022 Conceptual Design for Adeline Street at Ashby BART
2020 ACSP EIR 2022 Conceptual Design (anticipated to be part of the Adeline Street Transportation Improvement Project discussed in Agreement) A new pedestrian island at the
Ashby Avenue intersection
between the right-turn lane and
through lanes to shorten travel
time for pedestrians on the
northbound, east side of the
intersection
No change
Two lanes north and southbound
plus left-turn lane, widened
sidewalk, protected bike lanes in
each direction, and low speed
drive aisle for access and drop-off,
emergency access
Southbound Adeline Street north of Ashby Avenue transitions from 2 lanes to 1 lane through traffic lane, providing left and right-turn lanes, protected bike lanes in each direction, and dedicated bus queue jump lane, plus parking. Northbound Adeline is similar to the 2020 ACSP design. Parking aisle with diagonal parking on west side of street is existing condition with a narrowed exit opening.

Widened sidewalk bulbs at angle
side-street entrances
Street entrances at Emerson Street, Essex Street entrance to the Ed Roberts Campus, and Woolsey Street would be straightened and narrowed to increase ped safety.

One-way cycle track becomes two-
way track just north of Woolsey
One-way protected bikeways on both sides of Adeline in the segment with a northbound buffered bike lane at Ed Roberts Campus passenger loading area. Two-way bike path is proposed on the south side of the segment connecting the one-way bike paths into a single path on the west shoulder of Adeline Street
On-street parallel parking on both
sides of Adeline
West side of Adeline includes short-term parking and BART passenger- loading area which will be mainly longer-term parking on weekends allowing for vendor parking when Berkeley Flea Market could use the plaza area. West side of Adeline includes on-street parking that is somewhat reduced.

Plaza public space opportunity
west of the adjacent bikeway.

Wider plaza than in the 2020 ACSP design with additional expansion area beyond the public right-of-way.

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Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 18
Traffic calming devices, mainly
curb extensions and narrower
lanes
Curb extensions on both sides of Adeline. Reduced in number on east side of the street. Reduction to one traffic lane in each direction provides additional traffic calming.

Vegetated landscaping Reduced landscaping from the original design on the west side, given improved understanding of constraint presented by the shallow distance between the plaza surface and the BART station box.

No median on Adeline Raised median proposed between the traffic operating lanes of Adeline Street, supports pedestrian safety and traffic calming and removed left turn access from and to east side intersecting streets.

Despite these small differences, nothing in the proposed Agreement would result in new significant environmental impacts, increase the severity of significant impacts previously identified and studied, or require the adoption of any new or considerably different mitigation measures or alternatives from those considered in the ACSP EIR for the reasons discussed below.

CEQA Guidelines Section 15162
CEQA Guidelines Section 15162 states that if substantial changes in the project, substantial changes in circumstances, or new information of substantial importance would result in new or substantially more severe significant effects not discussed in the previous EIR, a subsequent EIR is required.

For the reasons stated below, a subsequent EIR is not required for either the TOD Zoning EIR or the ACSP EIR.

TOD Zoning EIR

1. Substantial Changes in the Project
There are no substantial changes in the project that would affect the findings and conclusions of the TOD Zoning EIR. As discussed above in Section 2.2, the TOD Zoning EIR determined that the environmental impacts of the proposed Project would be less than significant or could be reduced to below a level of significance with proposed mitigation measures for all of the topical areas studied except for construction noise. The Agreement would not change the project footprint, would not change the allowed uses, and would not change the potential physical buildout studied in the TOD Zoning EIR. Instead, the Proposed Agreement would implement the goals of the R-BMU zoning studied in the TOD Zoning EIR by facilitating housing development projects to be constructed on the East and West Lots of the same size and scope analyzed in the TOD Zoning EIR. In addition, because “aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment,” (Pub. Res. Code section 21099(d)), the aesthetic impact of a building due to its height would not be considered a substantial change causing a significant impact on the environment.

2. Substantial Changes in Circumstances
There are no substantial changes in circumstances that would require major revisions of the TOD Zoning EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The conditions on the ground at the Ashby BART station have not changed substantially between the time the TOD Zoning EIR was adopted and the execution of the Agreement at issue here. The West Lot continues to contain a BART station entrance and surface parking lot with 348 spaces, while the East Lot continues to contain a parking

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Addendum to the TOD Zoning EIR and the ACSP EIR 19
lot with 187 parking spaces, 3 of which are reserved for users of the Ed Roberts Center. Further, the legal environment under which housing development will proceed at the site, including the possibility of a housing development project using a state density bonus, has not changed substantially since 2022 in a manner that would affect the physical buildout of the site or cause any new significant environmental effects. Therefore, there would be no new significant environmental effects that were not identified and analyzed in the TOD Zoning EIR. The only previously identified significant and unavoidable environmental effect of the approved project—construction noise— would continue to be an impact of the project but would not substantially increase TOD Zoning EIR because the amount and location of development that is the subject of the Agreement would be similar to the development analyzed in the TOD Zoning EIR.

ACSP EIR

1. Substantial Changes in the Project
While the Project would involve minor changes to the roadway design of Adeline Street compared to that studied in the ACSP EIR, as discussed above, these changes are not substantial, and will not require major revisions of the ACSP EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. They are also consistent with the conceptual design adopted by Council in November 2022.

As discussed above in Section 2.3, the ACSP EIR found that the effects of the ACSP would be less than significant or could be reduced to below a level of significance with proposed mitigation measures for all of the topical areas studied except for construction noise and traffic (intersection levels of service), where the impacts were significant and unavoidable.

Construction noise, would not change compared to the effects studied in the ACSP EIR because the Project does not involve construction of any permanent noise generating facilities or buildings. To the extent that travel modes shift from cars to walking and bicycling, traffic noise may diminish. The 2020 ACSP EIR lists 9 potential mitigation activities to reduce construction noise. The City will work with contractors to implement these as appropriate. The Project will not involve blasting or pile driving – common sources of groundborne vibration, so this impact is not expected. To the extent that travel modes shift from cars to walking and bicycling, traffic noise may diminish.

With respect to traffic, the Project would not result in any new significant impacts or more severe impacts that were not analyzed in the ACSP EIR. A metric-by-metric comparison is provided in the table below. The table shows “Impact Level” or the level of significance identified for the 2020 ACSP in the 2020 ACSP EIR, using the following acronyms:
 NI = no impact. For these topics, there is no adverse effect on the environment.  LTS = less than significant. These effects are noticeable but do not exceed established or defined thresholds, and no mitigation is required.

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Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 20
 LTS/M = less than significant with mitigation. For these circumstances, an established or defined threshold would be exceeded, and a significant impact would occur; mitigation is required and would reduce the impact to a less-than-significant level.  SU = significant and unavoidable. For these topics, a significant impact would occur, and continuing best practices (CBPs) and/or feasible mitigation measures would not diminish these effects to less-than-significant levels.

Table 4. Comparison of Transportation Impacts: 2020 ACSP EIR and the Proposed Project Impacts and Impact Level in
2020 ACSP EIR1
Environmental Effects of the
Proposed Project
Impact Impact
Level
New Less-
Than-
Significant
Impact
Same
Impact
as EIR
Less
Impact
than EIR
Not
Applic-
able
T-1: The addition of traffic generated by the
development projects facilitated by the Specific
Plan and the roadway modifications proposed by
the Specific Plan would cause the signalized Adeline
Street/Alcatraz Avenue intersection to deteriorate
from LOS D during the am peak hour and LOS E
during the pm peak hour under existing conditions
to LOS F during both am and pm peak hours Under
Existing Plus Project Conditions.

SU X
T-2: The addition of traffic generated by the
development projects facilitated by the Specific
Plan may add 10 or more peak hour trips to the
critical movement of an unsignalized intersection
that operates at LOS F and result in the peak hour
signal warrant (MUTCD, Warrant 3) being met
under Existing Plus Project Conditions.

LTS/M X
T-3: The addition of traffic generated by the
development projects facilitated by the Specific
Plan and the roadway modifications proposed by
the Specific Plan would increase the V/C ratio by
more than 0.01 at the signalized Adeline
Street/Alcatraz Avenue intersection, which would
operate at LOS F during both am and pm peak
hours in 2040 regardless of the proposed Specific
Plan.

SU X
T-4: The addition of traffic generated by the
development projects facilitated by the Specific
Plan may add 10 or more peak hour trips to the
critical movement of an unsignalized intersection
that operates at LOS F and result in the peak hour
signal warrant (MUTCD, Warrant 3) being met
under 2040 Plus Project Conditions.

LTS/M X
T-5: The roadway modifications proposed by the
Specific Plan would not cause streetscore+ of 3 or
higher for pedestrians and bicyclists on the street
segments along the Adeline corridor.

LTS X

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Impacts and Impact Level in
2020 ACSP EIR1
Environmental Effects of the
Proposed Project
Impact Impact
Leve
l
New Less-
Than-
Significant
Impact
Same
Impact
as EIR
Less
Impact
than EIR
Not
Applic-
able
T-6: The addition of traffic generated by the
development projects facilitated by the Specific
Plan and the roadway modifications proposed by
the Specific Plan would result in the study CMP
roadway segments to deteriorate from LOS E or
better to LOS F, or increase V/C ratio by 0.03 or
more for a facility operating at LOS F without the
Specific Plan.

SU X
T-7: The proposed Specific Plan would not result in
a change in air traffic patterns, including either an
increase in traffic levels or a change in location that results in substantial safety risks.

LTS X
T-8: The proposed Specific Plan would not
substantially increase hazards due to a design
feature (e.g., sharp curves or dangerous
intersections) or incompatible uses (e.g., farm
equipment) the proposed Specific Plan would not
substantially increase hazards due to a design
feature (e.g., sharp curves or dangerous
intersections) or incompatible uses (e.g., farm
equipment),
LTS X
T-9: The proposed Specific Plan would not result in
inadequate emergency access. LTS X
T-10: The proposed Specific Plan would not conflict
with adopted policies, plans, or programs regarding
public transit, bicycle, or pedestrian facilities, or
otherwise decrease the performance or safety of
such facilities.

LTS X
1The complete impact analysis is presented in Section 4 of the 2020 ACSP EIR. If mitigations are called for in the EIR, they remain the same.

The “road diet” contemplated by the Project will not increase motor vehicle traffic, but instead will increase safety for bicyclists and pedestrians, thereby potentially shifting travel modes away from motor vehicles.

State CEQA Guidelines includes guidance on determining the significance of transportation impacts. This Project will improve local access to an important BART station, and increase opportunities for walking and bicycle trips to replace auto trips. The project thus would not have significant transportation impacts under the CEQA Sections outlined:
 15064.3 (b)(1) states in part “…Generally, projects within on-half mile of either an existing major transit stop or stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact.”  15064.3 (b)(2) states in part, “Transportation projects that reduce, or have no impact on, vehicle miles traveled should be presumed to cause a less than significant transportation

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 22
impact.”
 15064.3 Sections (b)(3) and (b)(4) give an agency the ability to evaluate changes in vehicle miles travelled qualitatively. The ACSP EIR looked at changes to the pedestrian and bicycle environment using a qualitative metric, called the Streetscore+ tool. Overall, scores for pedestrian and bicycle safety improved with the Project along the corridor evaluated for the Ashby BART subarea.

The Final EIR response to Comment A2.4) states that no changes are necessary in the Draft EIR VMT (vehicle miles traveled) discussion. The Draft EIR finds that bicycle, transit, and pedestrian improvements will help lead to an overall drop in corridor VMT by 2040 (please refer to the ACSP Draft EIR, page 14.12-38).

The Project will have a less than significant impact, is consistent with the CEQA Guidelines provisions listed above for projects that do not have significant transportation impacts, and will promote City goals to decrease overall VMT.

2. Substantial Changes in Circumstances
There are no substantial changes in circumstances that would require major revisions of the ACSP EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The conditions on the ground at the Ashby BART station remain largely the same as they were at the time of the ACSP EIR, although some interim improvements such as installation of Rectangular Rapid Flashing Beacons (RRFBs) and improvements to bicycle lanes along Adeline Street at Ashby within the existing right of way, have been made consistent with the Specific Plan. Further, the legal environment under which the roadway and plaza construction will proceed at the site has not changed significantly in a manner that would cause any new significant environmental effects. Additionally, there are no new significant environmental effects at the site that were not identified and analyzed in the ACSP EIR.

3. New Information
There is no new information of substantial importance showing any new or substantially more severe significant effects not discussed in the previous EIR, or showing that any mitigation measures or alternatives found not to be feasible would be feasible. As discussed above, conditions at the site remain the same as they were when they were studied and analyzed in the ACSP EIR. The only new information relates to the “road diet” concept approved by Council in 2022 and anticipated to be included in the Project here. This will not result in any new or substantially more severe impacts not previously studied, as discussed above.

CEQA Guidelines Section 15163
CEQA Guidelines Section 15163 provides that a Lead Agency may choose to prepare a supplement to an EIR instead of a subsequent EIR if (1) any of the conditions described in Section 15162 would require the preparation of a subsequent EIR, and (2) only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.

As discussed above, none of the conditions described in Section 15162 require the preparation of a subsequent EIR. Therefore, neither a supplement to the TOD Zoning EIR nor a supplement to the ACSP EIR is required.

CEQA Guidelines Section 15164

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Environmental Impacts
Addendum to the TOD Zoning EIR and the ACSP EIR 23
CEQA Guideline Section 15164 states that an addendum to an EIR may be prepared if only minor technical changes or additions are necessary and none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred. As discussed above, none of the conditions described in CEQA Guidelines Section 15162 requiring preparation of a subsequent EIR exist. Thus, this addendum to the Ashby and North Berkeley BART Stations Transit-Oriented Development Zoning Project Environmental Impact Report (SCH # 22020110320) and the Adeline Corridor Specific Plan Environmental Impact Report (SCH # 2018072009) documents minor changes to the approved Projects in these EIRs.

Pertinent Exemptions
Finally, in addition to being covered by the TOD Zoning EIR and the ACSP EIR, the roadway redesign and other public infrastructure aspects of the Project are covered by one or more CEQA exemptions, including the following:
 Public Resources Code Section 21080.25(b)(1) (SB 922) specifically exempts “pedestrian and bicycle facilities that improve safety, access, or mobility, including new facilities, within the public right-of-way” (PRC Section 21080.25(b)(1)). The infrastructure changes proposed in the Agreement increase safety for pedestrians and bicyclists and meet the needs of public transit and emergency vehicles within the right-of-way on Adeline Street. These infrastructure changes would also be in conformance with the additional requirements articulated in PRC Section 21080.25(c) because the local agency carrying out the project (City of Berkeley) is the agency carrying out the project, the changes would not add automobile capacity, and construction does not involve the demolition of affordable housing units. These proposed improvements would likely qualify for a statutory exemption under SB 922 as a pedestrian and bicycle facility within the public ROW because they involve various pedestrian and bicycle improvements and traffic calming measures to improve safety, access, and mobility.
 CEQA Guidelines Section 15301 exempts projects that consist of “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.” In the examples of projects eligible for this exemption listed in this section, the Guidelines include “Existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this includes road grading for the purpose of public safety), and other alterations such as the addition of bicycle facilities, including but not limited to bicycle parking, bicycle-share facilities and bicycle lanes, transit improvements such as bus lanes, pedestrian crossings, street trees, and other similar alterations that do not create additional automobile lanes).” The proposed changes to the streets and other public infrastructure in the Agreement would likely qualify for this exemption because they consist of the “alteration” of “existing highways and streets,” sidewalks, bicycle facilities, and other access and mobility improvements, and they would not create additional automobile lanes.
 Public Resources Code Sections 21080(b)(10) exempts projects “for the institution or increase of passenger or commuter services on rail or highway rights-of-way already in use, including modernization of existing stations and parking facilities.” The Project would modernize and improve the safety of the existing Ashby BART station and a right-of-way already in use. Therefore, these aspects of the Project would likely be covered by this exemption.

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 24
 Public Resources Code Section 21080.25(b)(3) exempts “[t]ransit prioritization projects”, which section 21080.25(a)(11)(E) defines as including “[t]ransit stop access and safety improvements”. The Project would make transit stop access and safety improvements on Adeline Street and the East and West Lots near the Ashby BART station. These, these stop access and safety improvements would likely be covered by this exemption.  Public Resources Code Section 21080.25(b)(9) exempts “[a] planning decision carried out by a local agency to … remove or restrict parking”. The Project would eliminate parking spots at the Ashby BART station in order to build affordable housing and other community benefits; therefore, the elimination of parking spots would likely be covered by this exemption.

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Conclusion
Addendum to the TOD Zoning EIR and the ACSP EIR 25
5 Conclusion
This report shows based on substantial evidence that the Project would be consistent with the type of allowable land use, overall planned density and building intensity, covered infrastructure, and geographic area analyzed for environmental impacts as described in the TOD Zoning EIR and/or the ACSP EIR, and that potential impacts associated with the proposed Project would be consistent with potential impacts characterized in and mitigation measures developed for the TOD Zoning EIR and/or the ACSP EIR. Major revisions to the TOD Zoning EIR and/or ACSP EIR are not required because no new significant impacts or impacts of substantially greater severity than previously described would occur as a result of the proposed Project. Therefore, the following determinations are applicable:
 No subsequent or supplemental EIR or negative declaration is required pursuant to CEQA Guidelines Section 15162 and 15163.
 Therefore, an addendum is an appropriate level of environmental analysis and documentation for the proposed Project in accordance with CEQA Guidelines Sections 15162, 15154, and 15168(c).

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City of Berkeley
Ashby BART TOD Contractual Agreement
Addendum to the TOD Zoning EIR and the ACSP EIR 26
6 References and Preparers
Documents Incorporated by Reference
City of Berkeley. 2022. City of Berkeley Ashby and North Berkeley BART Stations Transit-Oriented Development (TOD) Zoning Project Final Environmental Impact Report. https://berkeleyca.gov/sites/default/files/documents/Ashby%20and%20NB%20BART%20St ations%20TOD%20Zoning%20Project_Final%20EIR_3-29-22.pdf City of Berkeley. 2020. Adeline Corridor Specific Plan Environmental Impact Report. State Clearinghouse #2018072009. https://berkeleyca.gov/your-government/our-work/adopted- plans/adeline-corridor-specific-plan
City of Berkeley. 2022. Supplemental Alternative 3 Analysis. Ashby and North Berkeley BART Stations TOD Zoning Project. https://berkeleyca.gov/sites/default/files/documents/2022- 06-02%20Special%20Item%2001%20Ashby%20and%20North%20Berkeley%20BART.pdf List of Preparers
Rincon Consultants, Inc. prepared this consistency analysis under contract to the City of Berkeley.

Persons and firms involved in data gathering, analysis, project management, and quality control include the following:

RINCON CONSULTANTS, INC.

Abe Leider, AICP CEP, Principal-in-Charge
Karly Kaufman, MESM, Senior Supervising Planner

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1 TERM SHEET FOR ASHBY BART TRANSIT-ORIENTED DEVELOPMENT This Term Sheet is entered into on this ___ day of __________, 2024, by and between the San Francisco Bay Area Rapid Transit District (“ BART”) and the City of Berkeley (“City”) (collectively the “Parties”) in connection with their c ooperative pursuit of transit -oriented development (“TOD") at the Ashby BART Station (“the Ashby Project” or “Project”). This Term Sheet is made in furtherance of the Memorandum of Agreement signed on June 29, 2022, between BART and the City (“MOA”), the Memorandum of Understanding between BART and the City, signed on March 3, 2020 (“MOU”), and the Joint Vision and Priorities Document approved by the City on June 2, 2022, and by BART on June 9, 2022 (“JVP”), which address TOD projects at the North Berkeley and Ashby BART Stations. This Term Sheet solely addresses the Ashby Project and the business terms thereon amongst the Parties.

RECITALS
A. In 2020, the Parties entered into the MOU to identify their shared vision and priorities for TOD at the North Berkeley and Ashby BART Stations, to provide clarity on the process and timelines for pursuing development, and to begin to identify the roles and responsibilities of the City and BART in that process. Among other things, the MOU called on the City to establish a Community Advisory Group, reserve funding to support affordable housing development at the sites, and to adopt zoning for the sites consistent with Assembly Bill 2923 (“AB 2923”).

B. On December 8, 2020, the City adopted the Adeline Corridor Specific Plan and certified a corresponding environmental impact report, which set forth a comprehensive plan for development, including new affordable and market rate housing, in the area of the City including the Ashby BART Station.

C. On April 27, 2021, the Berkeley City Council unanimously adopted Resolution 69,833- N.S. which, in part, provisionally reserves $53 million of City-controlled funds as the subsidy needed to achieve at least 35% affordable housing at each of the Ashby and North Berkeley BART sites, and allows for a portion of the funding to be allocated to predevelopment uses.

D. On June 2, 2022, the Berkeley City Council approved the JVP with Resolution 70,402-N.S. and on June 9, 2022, the BART Board approved the JVP. The JVP expresses the City and BART’s shared, high-level expectations for future development of both the Ashby and North Berkeley BART stations. The JVP was

ATTACHMENT 2

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2 incorporated into BART’s Request for Qualifications (“RFQ”) for development of the North Berkeley BART Station site.

E. On June 28, 2022 the Berkeley City Council adopted Chapter 23.202.150 in its Zoning Ordinance, as part of the City of Berkeley Municipal Code, adding a “Residential - BART Mixed Use (R- BMU)” zoning district, as we ll as additional conforming amendments to the General Plan and other sections of the Municipal Code in order to ensure that the provisions are comprehensively and consistently incorporated into its Zoning Ordinance, to govern development at the North Berkeley and Ashby BART Stations consistent with AB 2923.

F. On November 29, 2022, the Berkeley City Council adopted Resolution No. 70,622- N.S. approving a conceptual design for a st reet reconfiguration and new plaza along Adeline Street between Ashby Avenue and Martin Luther King, Jr., Way, in order to increase safety for pedestrians and bicyclists and to enhance access to the Ashby BART Station.

G. To the extent that this Term Sheet provides for the negotiation of terms that contradict or are inconsistent with the MOA, MOU or JVP on matters relating to the Ashby Project, this Term Sheet, being latest in time, shall supersede the MOA, MOU and JVP with respect to guiding the negotiation of final agreements. The MOA, MOU and JVP remain in effect except to the extent supers eded by agreements negotiated pursuant to this Term Sheet with respect to the Ashby Station.

H. The purpose of this Term Sheet is to set forth the principal business and legal terms on which BART and the City will negotiate an Exchange Agreement and related deeds and easement agreements and other agreements necessary to effectuate the Parties’ intent, as expressed in this Term Sheet. These definitive agreements, if approved, will provide for the relinquishment of the City’s option to purchase air rights over the West Lot in exchange for the City’s fee simple ownership of the East Lot, and for establishing certain minimum community benefits and project requirements for the West Lot and East Lot, including a minimum of 50% onsite affordable housing for the first 602 units on the West Lot and a minimum of 35% onsite affordable housing on the East Lot as more particularly described in Section II .A, below. The Parties have determined the exchange of property rights and land value is an equitable exchange with the City receiving additional community benefits in the form of additional affordable housing units and community benefits on the West Lot, in addition to fee simple ownership of the East Lot, as compensation for the release of its option to purchase air rights over the West Lot.

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3 PROPOSED TERMS AND CONDITIONS
I. Framework for Development at Ashby BART Station
A. Property. The Ashby BART Station site consists of two parcels: (1) a 4.4-acre parcel that makes up the block surrounded by Adeline Street, Ashby Avenue and Martin Luther King Jr. Way, which includes surface parking lot s and BART’s traction power substation (Assessor Parcel Number (APN) 053-1597-039- 04) (“West Lot”), and (2) a 1.9-acre surface parking lot located on the east side of Adeline Street on the block surrounded by Woolsey Street, Tremont Street, Adeline Street and Essex Street (APN 053-1703-009-00) (“East Lot”) (collectively the West Lot and the East Lot are referred to herein as the “Property”). Adeline Street and the Ed Roberts Campus are located between the two parcels. The two parcels are owned in fee simple by BART. In addition, the City retains an option to purchase air rights over the West Lot pursuant to an agreement dated as of October 22, 1964, as amended, between BART and the City (“Air Rights Option”) . The Air Rights Option, if exercised by the City, would provide the City with ownership of the air rights ten feet above the parking lot located on the West Lot shown on the diagram attached as Appendix A.

B. Background and Scope of Term Sheet.

1. The Parties share a desire to transform th e Property from its current primary use as surface parking to a transit-oriented deve lopment that will provide much needed housing (including affordable housing), enliven Adeline Street, and benefit the surrounding community, while continuing to ensure access to the Ashby BART Station. The current property interests of th e Parties in the Property and various site constraints make development of the Property complex, and there are many unknowns that will become clearer after de veloper teams are selected and more information is known about funding sources, prevailing economic conditions and proposed development concepts for the sites. The Term Sheet serves as a roadmap for how the City and BART will work together to effectuate an economically feasible transaction structure among the Parties as well as with the selected developer(s).

2. The Term Sheet outlines how the Ashby Project negotiati on and entitlement process will proceed; the objectives and minimum requirements for the Ashby Project in terms of design, affordability, and infrastructure; the anticipated City and BART contributions to the Ashby Project; and the terms of an exchange that will rationalize the Parties’ owners hip interests in the Property . The Term Sheet is intended to provide transparency and accountability for the City, BART, the community, and potential developers ba sed on all the information currently

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4 available. The Term Sheet is intended to form the basis for negotiating an enforceable exchange agreement between BART and the City. In addition, the Term Sheet memorializes certain understandings of the Parties with respect to other agreements and actions that will be necessary to effectuate and enforcethe Parties’ agreed requirements on future Projec t developers, including City-adopted Objective Design Standards (“ODS”) , master leases with the Project developers, and affordable housing funding and regulato ry agreements between the City and the Project developers. The following provi sions in this Term Sheet are non- binding but are intended to guide the binding provisions of the enforceable exchange agreement.

C. Entitlement Streamlining. Public Utilities Code section 29010.7(b) (“Section 29010.7(b)”) establishes that TOD projects at BART stations that meet certain minimum requirements will be eligible for entitle ment streamlining pursuant to Senate Bill 35, codified by Government Code section 65913.4 (as amended, “SB 35”) . To minimize entitlement risk, reduce project costs and accelerate the entitlement phase of development, the Parties intend that the developers of the West Lot and East Lot shall have the ability to utilize applicable state and/or local laws providing for applicable entitlement streamlining mechanisms including, but not limited to, Section 29010.7(b) and SB 35, to the extent a project qualifies for streamlined review under those laws, such that project entitlements will be ministerial and not subject to discretionary review; provided, however, any projects developed on the West and East Lots must comply with all applicable mitigation measures adopted in connection with the City’s adoption on June 28, 2022 of the Residential - BART Mixed Use (R-BMU) zoning district and al l applicable standard conditions of approval relied upon in the associated EIR, as set forth in Appendix F.

D. Real Estate Transaction Structure

1. The City and BART will rationalize their respective interests in the Property through an exchange that will occur through one or more escrows by which the City will relinquish its Air Rights Option in the West Lot and vacate any portion of the existing Adeline Street right of way within the West Lot that is not currently in use as a public street or sidewalk in exchange for (1) the transfer of fee simple ownership of the East Lot to the City, subject to existing easements thereon but free and clear of any reserved rights of BART (including any easement for mid- block pedestrian passage) except as may be provided in the Exchange Agreement, (2) the minimum affordability requireme nts described in this Term Sheet, including the requirement that at least 50%of the first 602 new housing units to be developed on the West Lot be affordable (and that at least 35% of the total number of housing units be affordable in the event that more than 602 units are constructed), (3) the provision of 5,000 square feet of community/civic commercial

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5 ground floor interior space on the West Lot at 50% of market rate rent, and (4) the other terms and conditions of the Exchange Agreement as set forth in this Term Sheet.

2. BART, as owner of the West Lot, and the City, as future owner of the East Lot, would separately solicit development proposals for their respective properties and enter into an Exclusive NegotiatingAgreement (“ENA”) with a selected developer or development team for each of their respective properties. (For the avoidance of doubt, references in this Term Sheet to ‘a developer’ shall include a development team in the event that more than one developer is duly selected to develop the East Lot, or in the event that more than one developer is duly selected to develop the West Lot.) Each ENA will provide fo r the negotiation of one or more ground leases, or, on the East Lot, the negotiation of a ground lease or contract of sale, to commence following the termination of the Air Rights Option in the West Lot, or following transfer of title in the East Lot, as applicable.

3. It is anticipated that the West Lot will be entitled as one project with multiple parcels by BART ’s selected developer on the West Lot (the “West Lot Developer”). The City shall be obligated to re-convey the Air Rights Option to BART within 10 days following BART’s execution of an ENA with the West Lot Developer, and BART shall be obligated to convey fee simple ownership of the East Lot to the City at the same time that the Air Rights Option is re-conveyed to BART by the City, or at such later date as may be specified by the City, provided that in the latter case, BART shall have at least 10 days’ notice prior to conveyance of fee simple ownership of the East Lot to the City. It shall be a condition precedent to these transfers that the zoning for the West Lot as of the date of this Term Sheet has not been modified or changed to be more restrictive or to reduce the development capacity prior to BART entering into an ENA with the West Lot Developer.

4. Upon (a) the delivery of the Air Rights Option reconveyance to BART and (b) completion of street vacation proceedings for any portion of the existing Adeline Street right of way within the West Lot that is not currently in use as a public street or sidewalk, the West Lot shall be encumbered with covenants imposing and allowing the City to enforce the requirements for development on the West Lot as described in this Term Sheet, includi ng, but not limited to, the minimum affordability requirements, the requirement that the West Lot Developer comply with the ODS adopted by the City for the site (provided that the ODS comply with the requirements set forth in Appendix D), applicable mitigation measures adopted in connection with the City’s adoption on June 28, 2022 of the Residential –BART Mixed Use (R-BMU) zoning district, and all applicable standard conditions of approval relied upon by the TOD Zoning EIR. The East Lot shall also be

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6 encumbered with covenants imposing and allowing BART to enforce the requirements for development on the East Lot as described in this Term Sheet, including but not limited to a requirement that City’s ODS for the East Lot allow for at least 248 residential units and at least 300 bedrooms. Such covenants shall run with the land. The West Lot covenant shall be recorded at close of escrow for the Air Rights Option reconveyance, and th e East Lot covenant shall be recorded at close of escrow on the East Lot conveyance.

5. No later than the City Council’s approval of the Exchange Agreement, the City shall direct staff to initiate street vacation proceedings for any portion of the existing Adeline Street right of way within the West Lot, including but not limited to any portion of the approximately 900-foot-long strip of the West Lot abutting the existing Adeline Street sidewalk as shown on San Francisco Bay Area Rapid Transit District Amended Record Map of Right of Way RRW 9, dated December 7, 1971 in book 68 of maps, at page 150 (“Parcel R9-2”) within the right of way, that is not currently in use as a public street or sidewalk.

E. Surplus Land Act. AB 1486 (Statutes of 2019, Chapter 664) and AB 1255 (Statutes of 2019, Chapter 661) made changes to the Surplus Land Act (“SLA”) found in Government Code Sections 54220 et seq. Generally, th e purpose of the amendments is to promote affordable housing development on unused or underutilized public land throughout the state to address the existing affordable housing crisis. The amendments to the SLA adopted via AB 1486 and AB 1255 clarify and strengthen reporting and enforcement provisions of the SLA to promote increased compliance with the Act. The parties shall confirm adherence to the SLA and shall jointly work with the California Department of Housing and Community Development (“HCD”) to comply with all requirements under the SLAin connection with conveyance by BART of the East Lot to the City, and with a Request for Proposals or similar document (“RFP”) for the West Lot or the East Lot.

F. City Funding

1. The City will make available a total of $53 million in affordable housing funds (e.g., Measure O Funding and Afforda ble Housing Trust Fund Revenues), including up to $4 million in predevelopment funds (collectively the “City Funds”), for the North Berkeley and Ashby Projec ts, of which it anticipates 50% of this funding will be invested at the Ashby Project for permanently affordable housing units in the amount of $26.5 million. As part of the developer selection processes, up to $2,000,000 in City pre-development loan funds shall be made available, with half of the proceeds available to the West Lot and half of the proceeds available to the East Lot, the award of which shall be subject to City Council approval.

2. The City may, but shall not be obliged to, condition funding for the West Lot project and East Lot project, respectively, on each project’s compliance with the

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7 applicable ODS adopted pursuant to the process described in Section II.F, provided the ODS comply with the requirements of Appendix D. The funding shall also be subject to affordability requirements, project milestones, and other requirements set forth in the funding agreements between the City and developer(s).

3. Of the City Funds allocated to the Ashby Project, $18.5 million shall be held aside for the West Lot and $8.0 million shall be held aside for the East Lot, in all events subject to the limitations in paragraph 4 below. The funds have been provisionally allocated based upon lot size and anticipated affordable housing units at each site.

The funds shall be used only to support development of affordable units over and above 20% of the total units (including density bonus units) in the project.

4. Any commitment of City funds to the Ashby Project ’s West Lot or East Lot shall comply with the City’s Housing Trust Fund Guidelines , and in no event shall the City be obligated to provide more than an average of $200,000 per rent-restricted affordable unit (i.e., units that are in perpetuity affordable to very low income or lower-income households as defined in California Health and Safety Code sections 50052.5 and 50053), counting only units provided above and beyond 20% of the total units (including density bonus units) in the project. The City Funds shall be available to buildings which are 100% affordable housing, or, at the City’s sole discretion, to affordable units dispersed amongst mixed-income housing buildings which meet the Housing Trust Fund Guidelines.

G. Developer Solicitation Process

1. BART shall pursue a separate solicitation for development of the West Lot, and the City shall pursue a separate solicita tion for development of the East Lot, in accordance with the following:

2. BART and the City shall each conduct a solicitation whereby an RFP or RFP/RFQ is issued to solicit qualified develope rs, and respondents will be asked to submit their qualifications, as well as proposa ls demonstrating workable business frameworks for development that are consistent with the specific goals outlined in the JVP and the developer solicitation document(s). Because time is of the essence, both the City and BART shall take every action to ensure that the milestone targets included in the Schedule (attached as Appendix B) are achieved and sufficient staff is dedicated by both BART and the City to meet the Schedule.

3. The RFP or RFP/RFQ for the East Lot shall include, without limitation, a request to respondents to demonstrate how their proposal addresses (i) the negative impacts to African American residents, businesse s, and cultural institutions displaced by construction of the Ashby Station, (ii) the JVP priority to “maximize the number of new homes;” the number of residential units shall be a quantitative factor in the

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8 City’s evaluation of proposals, and (iii) the requirement that the project include at least 300 bedrooms. In the event that the East Lot capacity study currently underway by Raimi & Associates concludes that 300 bedrooms is not feasible for a project on the site with a maximum height of 85 feet, the City and BART shall meet and confer to discuss alternative requirements to mitigate the reduced capacity. BART staff will not participate in the solicitation process for the East Lot other than to review and approve solicitation materials with respect to matters relating to BART access and operations in order to ensure that BART’s access and operational requirements are satisfied. Following the receipt of proposals, the selection process will include a public meeting of shortlisted RFP respondents that includes presentations from the respondents. The East Lot selection committee will make a recommendation to the Berkeley City Council based upon selection criteria prepared by the City. The Berkeley City Council shall consider and act upon the East Lot selection committee’s recommendation of a developer for the East Lot.

4. The RFP or RFP/RFQ for the West Lot shall include, without limitation, a request to proposers to demonstrate (i) how they would incorporate an exhibit honoring the history of the Berkeley Flea Market, (ii) how their proposal addresses the negative impacts to African American residents, businesses, and cultural institutions displaced by construction of the Ashby Station; and (iii) how their proposal would provide a direct connection from the project to Adeline Street, which shall be a quantitative factor in the evaluation of propo sals. The City will have two three- week periods as specified in the Schedule to provide suggestions and input on the West Lot RFP or RFP/RFQ for BART’s consideration. The West Lot selection committee will be composed of four BART representatives, two City representatives, and a representative from Equitable Black Berkeley (“ EBB”) approved by the City Manager (total of 7). Following the receipt of proposals, the selection process will include a public meeting of shortlisted RFP respondents that includes presentations from the respondents. The West Lot selection committee will make a recommendation to the BART General Manager based upon selection criteria prepared for the RFP or RFQ/RFP. The BART General Manager shall make a recommendation of a developer to the BART Board of Directors which the BART Board of Directors shall consider and act upon.

H. Timeline. The Parties shall use best efforts to complete and execute the Exchange Agreement by November 26, 2024, as specified in the Schedule in Appendix B.

I. Enforcement of Public Benefits and Project Requirements. BART recognizes the City needs assurance that the portion of the Ashby Project to be built on the West Lot will

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9 provide the agreed public benefits and comply with the agreed project requirements. The City similarly recognizes that BART needs assurance that the development of the East Lot will provide its agreed share of public benefits. To this end, the ENA and ground lease provisions (or, in the case of an eventual sale of the East Lot by the City, the contract of sale) for each lot will require the developer t o comply with all project requirements and community benefits required by the Exch ange Agreement, and to maintain those requirements for the life of the lease or, in the event that the City elects to sell the East Lot to a developer, that said requirements and b enefits run with the land. These requirements will also be incorporated into restrictive covenants that will run with the land as a condition of BART’s acquisition of the City’s Air Rights Option and the City’s acquisition of BART’s interest in the East Lot . The form of the covenants will be included in the Exchange Agreement between City and BART and provided to prospective developers in the RFQs/RFPs.

II. Public Benefits and Project Requirements
A. Affordable & Market Rate Housing

1. The City and BART each have an interest in having the Ashby Project developed with high density use, to maximize the amount of new housing and to enhance transit ridership. To this end, BART and the City shall require that any development on their respective parcels achieve a minimum of 75 units per acre.

2. On the West Lot, at least 50% of the first 602 units shall be affordable units. In the event that the total residential component of the West Lot project has more than 602 total housing units (whether through density bonus or otherwise), there shall be no fewer than 301 affordable units, and overall at least 35% of the units (including density bonus units) shall be affordable units. BART and the West Lot Developer shall consult with the City to explore economic potential for additional affordable units, with an aspirational goal of up to 50% affordability based on economic feasibility and availability of funding resources if the West Lot includes more than 602 total housing units, taking into consideration development costs, values and potential for additional City subsidy or funding from external sources.

3. At least 35% of the new housing units to be developed on the East Lot, inclusive of units built to satisfy the City’s inclusionary requirement and including any units that may be added as a result of a density bonus, shall be affordable, with a goal of achieving 50% affordability. The City and the East Lot Developer shall explore economic potential for additional afforda ble units, with the goal of 50% affordability for the total project, taking into consideration development costs, values and potential for additional City subsidy.

4. Any affordable units on the East Lot or West Lot that are provided to satisfy the

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10 City’s inclusionary housing ordinance and are included in a mixed-income building shall be rent- and income-restricted in per petuity as required by the City’s inclusionary housing ordinance. All other affordable units shall be rent- and income-restricted (i) for the duration of the applicable ground lease (each of which shall have a minimum duration of 99 years), including any lease term extensions, or (ii) for 99 years, for any units on the East Lot that the City chooses to sell rather than ground lease.

5. The affordability requirements identified below shall be incorporated into the ground leases for both the East and West Lots(or in the contract of sale for the East Lot should the City decide to sell that lot), and will also be enforceable by the City pursuant to regulatory agreements between the City and the developer(s), in accordance with the income targets identified in the JVP:
i. At least 35% of new housing, inclusive of density bonus units, must be affordable to households earning an average of up to 60% of Area Median Income (“AMI”).
ii. At least 20% of the required 35% affordable units referred to in subparagraph (i) must be affordable to Extremely Low-Income(“ELI”) households, which are defined as those earning up to 30% of AMI. iii. Of the required 35% affordable units referred to in subparagraph (i), additional affordable units aside from the ELI units should prioritize Very Low Income (up to 50% of AMI) households and Low Income (up to 80%) households but may include some housing restricted to households with moderate incomes (up to 120% of AM I), provided that the moderate- income units have rents that are still below market and are not funded by City subsidies.
iv. While the aforementioned goals are established in the JVP and the City and BART have policies regarding affordable housing requirements, any project receiving the City’s Housing Trust Fund (“HTF”) funding must meet the City’s HTF Guidelines. BART’s TOD Policy provides that BART will consider a deeper land discount to its determination of ground lease rent for affordable units that serve very low income (<50% AMI), low income (51-80% AMI) and/or transit-dependent populations. v. Affordable units shall be constructed prior to or concurrently with any market-rate housing component on the parcels. No market rate housing on a Party’s parcel will receive its notice to proceed until an affordable housing project on another parcel owned by that Party receives its notice to proceed. In the event there are multiple phases of market rate or affordable housing, a phasing plan shall be approved by the City to ensure

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11 consistency with the JVP goal of affordable housing being built along with market rate housing, with such approval not to be unreasonably withheld.
vi. Affordable units may be clustered into one or more 100% affordable housing buildings (provided the minimum developer equity contribution described below is satisfied) or dispersed amongst mixed-income housing buildings, but must be designed in a way that integrates with the larger project and shares comparable design standards and quality.

6. The RFPs or RFQs/RFPs for the West Lot and East Lot shall state the applicable minimum onsite affordability requirements for each lot, as set forth in this Term Sheet. In the event respondents to the RFP or RFQ/RFP for the West Lot propose a project that includes more than 602 units, said respondents will be requested to provide a detailed pro forma demonstrating how the respondent could potentially increase the affordability of the full project, inclusive of any density bonus units, beyond the required 35% minimum to reach an aspirational goal of up to 50%, as discussed in Section II.A.2. The respondents to the RFP or RFQ/RFP for the East Lot shall also be requested to provide in their response to the RFP a detailed pro forma demonstrating how the development team could potentially achieve a goal of 50% affordability, as discussed in Section II.A.3.

7. In order to facilitate the provision of affordable housing, BART will provide the West Lot Developer with a discount on land costs for the BART-owned parcels on the West Lot in keeping with BART’s Framework for Financial Return from Affordable Housing. BART shall require the West Lot Developer to utilize this land discount solely for the benefit of the affordable components of the West Lot.

B. Developer Contribution for Affordable Housing

1. For projects on the East or West Lots that will meet all or a portion of the City’s affordable housing requirements through clustering as described in Section II.A.5.vi above, the developers of market-rate housing shall be required to contribute funding to assist in the construction of the clustered affordable units.

A plan for either Lot to provide some or all affordable units in 100% affordable housing projects shall not eliminate or re duce the obligation of the market-rate units to contribute to such affordable units.

2. The amount of this developer contribution shall be calculated by 1) multiplying $56.25 (as this amount may be adjusted biennially pursuant to City of Berkeley Resolution No. 70,698-N.S.) by the Tota l Residential Unit Floor Area of the project or projects after excluding the floor area in any 100% affordable housing buildings and any floor area in market rate or mixed income buildings that is included as a result of the state density bonus; and then 2) multiplying the result

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12 by the percentage of the City’s 20% affordable housing requirement remaining after accounting for any on-site Affordable Units provided within mixed income buildings that comply with all of th e requirements of Berkeley’s Inclusionary Housing Ordinance (codified in Berkeley Municipal Code section 23.328). For example, buildings that are 10% affordable would contribute $28.12 per foot (half of $56.25), adjusted for inflation. For the purpose of calculating the Total Residential Unit Floor Area, the area resulting from the density bonus is the total Residential Unit Floor Area (for the whole market rate/mixed income project) times the proportion of total units in the project in excess of those allowed under base zoning (the “Density Bonus Percentage ”). As a result of this formula, a project that clustered all affordable units in 100% affordable buildings would contribute $56.25 times (as adjusted) the ba se residential square footage of any market rate buildings, excluding any density bonus square footage. A project that included some affordable units on-site within the market rate buildings would make a pro-rated contribution.

3. The City shall require that the West Lot Developer submit an Affordable Housing Compliance Plan (“AHCP”) to confirm that the requisite amount is shown as a source in the affordable proforma(s) and as a use in the market rate proforma(s).

If the AHCP is completed before BART’s Board of Directors approves a final term sheet with West Lot Developer, then BART shall review and approve the AHCP prior to City review. The City may condition its affordable housing funding on compliance.

4. Market rate units built through the density bonus shall not be subject to any further affordability requirements or in-lieu fee obligations; provided, however, that the application of the density bonus to the West Lot shall not yield a project that has less than 35% affordable housing as a proportion of the total units on the West Lot.

C. Public Infrastructure

1. Definitions and Summary.
i. Future transit-oriented developmen t at the Ashby Project will require substantial investments in public infrastructure, which may include, but is not limited to, reconfiguration of Adeline Street, Woolsey Street, Ashby Avenue, and Martin Luther King (“MLK”) Junior Way; plaza improvements along Adeline Street and extensions of the plaza to connect to the new development; BART rider parking for vehicles and bicycles; new pedestrian, bicycle, transit, and passenger loading; lighting; station improvements necessitated by the West Lot project including but not limited to a new station entry plaza, stairs, ramping, and Traction Power Substation (“TPSS”)

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13 access area and crane area; and vehicular access roads (“Public Infrastructure”). Public Infrastructure does not include infrastructure necessary to serve a specific development parcel, the cost of which shall be borne by the developer selected by the City for the East Lot (the “East Lot Developer”), or by the West Lot Developer, as applicable. Public Infrastructure also does not include BART’s construction or operation of a new TPSS, which is anticipated to be on the West Lot.
ii. The location of certain specific Public Infrastructure and TPSS Improvements anticipated to be needed for the development of the West Lot are depicted on the diagram attached hereto as Appendix C (“Infrastructure Map”). The “TPSS Improvements” consist of improvements 7A and 7B as depicted on the Infrastructure Map. Public Infrastructure shown in Appendix C consists of the following categories:
• Roadway Reconfigurations. The “Roadway Reconfigurations” consist of improvements:
• 1A (“Adeline Street Reconfiguration”), and
•3 B ( “ MLK/Adeline/Woolsey Intersection Redesign”).
• Adeline Plaza Improvements. The “Adeline Plaza Improvements” consist of improvements:
•1 B ( “ Adeline Main Plaza”),
•2 A ( “ Ashby/Adeline Corner Plaza”), and
•3 A ( “ MLK/Adeline/Woolsey Plaza”).
• Adeline Plaza Extensions. The “Adeline Plaza Extensions” consist of improvements:
• 11 (“ South Plaza Extension”), and
• 2B (“Ashby/Adeline Corner Plaza Extension”).
• BART Terrace Improvements. The “BART Terrace Improvements” consist of improvements:
• 9A (“Existing BART Terrace”), and

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14 • 9B (“BART Terrace Extension”)
• Sidewalk Improvements. The “Sidewalk Improvements” consist of improvements:
• 15 (“Ashby Sidewalk Widening”),
• 16 (“MLK Sidewalk Widening (north)”), and
• 17 (“MLK Sidewalk/Bikeway Widening (south)”)
• BART Improvements. The “BART Improvements” consist of improvements:
• 4B (“Required Emergency Access”),
• 5 (“TPSS Access Area”),
• 6 (“Station Entrance Plaza”),
• 8 (“North Plaza Stair (to be rebuilt)”),
• 10 (“South Plaza Stair (to be rebuilt)”),
• 12 (“South Platform Egress Stair and BART Storage
(access to be reconfigured)”),
• 13 (“BART Vents (to be extended above plaza)”), and
• 14 (“ADA/Bike Ramp (new)”).
iii. The funds to construct and maintain Public Infrastructure and the TPSS Improvements are expected to come from a combination of sources. The responsibilities of the parties with respect to constructing, maintaining, and seeking funding for Public Infrastructure and the TPSS Improvements shall be as set forth in this Term Sheet and in the matrix attached hereto as Appendix E (“Infrastructure Matrix”). To the extent there is a conflict between the Term Sheet and the Infrastructure Matrix, the Term Sheet shall control.
iv. The Parties understand that available funding sources, financing estimates, and economic conditions could change as this Project proceeds. The Parties

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15 shall cooperate to prepare a mutually agreeable financing strategy for Public Infrastructure that will respect the priorities for external funding identified in the term sheet, except to the extent the parties agree that flexibility is needed to maximize the external funding available for Public Infrastructure. BART shall require the West Lot Developer to collaborate with the Parties in preparing the financing strategy. Failure of the Parties and the West Lot Developer to prepare such a financing strategy shall not preclude either party from applying for external funding nor relieve either party of the obligations identified in this Term Sheet to cooperate on funding applications. Parties acknowledge that the financing strategy may need to be updated over time to reflect availability of financing sources.

2. General Responsibilities of the Parties . Except as otherwise provided in this Term Sheet and in the Infrastructure Matrix, BART and/or the West Lot Developer shall be responsible for constructing and maintaining the TPSS Improvements (7A and 7B) and the Public Infrastructure on the West Lot, the City and/or the East Lot Developer shall be responsible for constructing and maintaining Public Infrastructure on the East Lot, and the City shall be responsible for constructing and maintaining the Roadway Reconfigurations and the Adeline Plaza Im provements. The parties shall take future maintenance costs into consideration when designing and costing Public Infrastructure.

3. External Funding. Throughout the development proce ss, BART, the City, the West Lot Developer, and the East Lot Developer shall collaborate on securing funding for Public Infrastructure. Such collaboration may include, for example, coordination on the scope and requests for applications to state funding sources that support transit- oriented development such as the Afforda ble Housing & Sustainable Communities (“AHSC”), Infill Infrastructure Grants (“IIG”), and Transit and Intercity Rail Capital (“TIRCP”) programs. The anticipated external funding sources for each of the Public Infrastructure are identified in, but shall not be limited to, those sources listed in the Infrastructure Matrix. To the extent exter nal funding opportunities are limited, first priority for use of grant funds shall be gi ven to “essential” improvements, second priority shall be given to “high priority” improvements, and third priority shall be given to “medium priority” improvements, as those prioriti es are identified in the Infrastructure Matrix (Appendix E). BART and the City shall make good faith efforts to develop an infrastructure grant funding strategy that seeks to maximize the total amount of grant funding available for the essential improvements.

4. Eastside Elevator. It is anticipated that BART may (but is not required to) determine that it is necessary to make upgrades to the elevator on the east side of Adeline Street that is used by BART riders to access the station (the “Eastside Elevator”).In the event

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16 that BART, in its sole discretion, determines that upgrades to the Eastside Elevator are necessary, BART shall be responsible for securing grants or other funding for such upgrades. To the extent necessary, and as a showing of good faith, the City or the East Lot Developer will cooperate with BART in seeking external funding to support BART-related infrastructure needs necessitate d by the East Lot project. However, if external funding is unavailable, neither the City nor the East Lot developer shall be responsible for construction or maintenance funding for BART-related infrastructure.

5. Adeline Plaza Improvements (1B, 2A, and 3A). Adjacent to the West Lot, within the City’s right of way, the City shall be responsible for constructing and maintaining Adeline Plaza Improvements (Adeline Main Plaza, Ashby/Adeline Corner Plaza, and MLK/Adeline/Woolsey Plaza), including improvements related to the anticipated flea market space, which may include, but are not limited to, public open plazas, plantings, and green space. The City, BART, and the West Lot Developer shall collaborate on securing funding for the Adeline Plaza Improvements with the goal of marshalling financial resources from external sources (s uch as from the county, region, or state) and, for Adeline Main Plaza (1B), through the City’s formation of an Enhanced Infrastructure Financing District (“EIFD”) for the West Lot, which is more particularly described in Section II.D.1, below. For purposes of determining priority in allocating EIFD funds or external funding for the project, the Adeline Main Plaza (1B) is considered essential to the projec t, the Ashby/Adeline Corner Plaza (2A) is considered high priority, and MLK/Adeline/Woolsey Plaza (3A) is considered medium priority.

6. Traction Power Substation (7A and 7B).
i. The TPSS Improvements (7A and 7B) consist of a new Traction Power Substation (“TPSS”) proposed by BART, together with related improvements, which are 100% designed and will be constructed in the locations shown in Appendix C labeled 7A and 7B. All direct, indirect, and ongoing operating costs associated with the TPSS Improvemen ts shall be the sole responsibility of BART. BART currently anticipates using the TPSS Access Area (5) to provide the crane access required for TPSS maintenance. BART shall not use the existing Adeline Street sidewalk or future Adeline Plaza Improvements for crane access unless BART provides temporary or permanent supports sufficient to support the crane, at BART’s sole cost and expense. BART’s construction of the TPSS shall conform to the location shown as 7A and 7B in Appendix C. BART shall meet and confer with the City before materially altering the TPSS location and shall work in good faith to address any concerns with the revised location that the City may identify. Any increased TPSS infrastructure construction or operating costs that may result from

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17 modifications to the TPSS location shall be the sole responsibility of BART; neither the City nor the East Lot developer shall be responsible for such costs. ii. The TPSS Improvements shall include decorative fencing with artistic treatments or other mutually agreeable screening treatment, along Adeline Street, and along the public facing edges at the north and south ends of the replacement TPSS, to screen the replacement TPSS from pedestrians (the “TPSS Screening Improvements ”). BART shall be responsible for the construction and maintenance of the TPSS Screening Improvements. The City shall cooperate with BART in seek ing external funding for the TPSS Screening Improvements, but the obligation to construct and maintain the improvements shall not be contingent on the availability of such funding.

7. West Lot BART Infrastructure. BART is committed to supporting the West Lot Developer in seeking external funding to pay for the BART Improvements and any other BART-related infrastructure needs ne cessitated by new development that may result in costs above and beyond those a developer would incur on similar privately- owned property. To the extent these external funding sources are not sufficient to cover the costs of BART-related infrastruc ture, such funding shortfall shall be considered a factor affecting project feasibility for purposes of this Term Sheet. BART shall also be responsible for, and may seek external funding for, any necessary upgrades to ventilation, lighting, vertical circulation, utilities, or other BART-related infrastructure, which responsibility may be delegated to the West Lot Developer. As indicated on the Infrastructure Matrix , BART has identified certain BART Improvements as essential to the West Lot project and the sole responsibility of West Lot Developer. However, the ultimate responsibility for the BART Improvements as between BART and West Lot Developer shall be determined by BART in its sole discretion. The City shall have no respons ibility for the construction or maintenance of the BART Improvements or any other BART-related infrastructure on the West Lot.

8. Adeline Plaza Extensions (11 and 2B). The Adeline Plaza Extensions consist of the South Plaza Extension (11) and the Ashby/Adeline Corner Plaza Extension (2B).

South Plaza Extension is an extension of th e southern portion of the Adeline Main Plaza by providing an expanded plaza area and/or public accessways on the West Lot.

The South Plaza Extension (11) shall comprise at least 4,800 square feet, and shall be extended as necessary to bridge any gap and connect with the adjacent TOD building.

The Ashby/Adeline Corner Plaza Extension (2B) is an extension of Ashby/Adeline Corner Plaza (2A), at the intersection of Adeline Street and Ashby Avenue, and shall connect Ashby/Adeline Corner Plaza (2A) to the adjacent TOD building through an expanded plaza area and/or public accessways on the West Lot.

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18 i. Purpose. The intended purpose of the Adeline Plaza Extensions is to provide at-grade pedestrian connectivity between the Adeline Plaza Improvements and one or more new TOD buildings with co mmercial and/or residential uses having frontages that support activation of the Adeline Main Plaza (1B), and that complement market activities there. The Adeline Plaza Extensions shall be improved with elements such as a wider sidewalk, outdoor seating area, outdoor dining area, landscaping, or other usable open space. ii. Use by Berkeley Flea Market. At least 50% of the area of the South Plaza Extension shall be publicly accessible open space. The publicly accessible portion of the South Plaza Extension shall be made available for nonexclusive use by the Berkeley Flea Market.
• In the event that BART retains possession of the applicable portion of the South Plaza Extension, the Berkeley Flea Market’s use shall be via a “Concession Permit” (or a similar document permitting the Berkeley Flea Market use) issued by BART, on financial terms comparable to the Flea Market’s current arrangement with BART, as adjusted for inflation, and subject to the Berkeley Flea Market materially satisfying all requirements thereunder, including but not limited to review and approval of the proposed use, which permit shall not be unreasonably withheld.
• In the event that the West Lot Developer has a right to possess the applicable portion of the South Plaza Extension , BART’s ground lease shall obligate the West Lot Developer to make at least 50% of the area open and available to the public, and to, at the Berkeley Flea Market’s option, enter into an agreement for the use of at least 50% of the area of the South Plaza Extension by the Berkeley Flea Market on financial terms comparable to the Flea Market’s current arrangement with BART, as adjusted for inflation and, subject to the terms of the ground lease and to the Berkeley Flea Market satisfying all reasonable requirements of the West Lot Developer.
• The 50% area to be used by the Berkeley Flea Market shall be configured to avoid interference with required building emergency egress and BART rider ingress/egress.
iii. Delivery. The South Plaza Extension (11) is considered essential to the West Lot development and shall be include d in the final project. The Parties acknowledge that the technical issues involved in providing at-grade

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19 pedestrian connectivity between a new TOD building and Adeline Street, and the costs associated therewith, have not been fully evaluated at this time.

BART shall use good-faith efforts to work with the West Lot Developer to ensure that the final project will de liver at-grade pedestrian connectivity between a new TOD building and Adeline Main Plaza (1B) using high quality design and materials; provided that, in the event of a funding shortfall, BART, City and West Lot Developer shall work in good faith to identify value- engineering and other cost saving measures as provided in paragraph iii below.

The Ashby/Adeline Corner Plaza Extension (2B) is considered a high priority improvement and shall be included in the final project to the extent consistent with project feasibility.
iv. Funding. The City, BART, and the West Lot Developer shall collaborate on securing external funding for the Adelin e Plaza Extensions (such as from the county, region, state, or federal government). In addition, the South Plaza Extension (11), to the extent eligible for EIFD funding under state law, shall be given priority among plaza extensions for EIFD funding as more particularly described in Section II .D.1.i, below, contingent upon West Lot Developer committing to a capital contribution of no less than $1 million for the South Plaza Extension.
v. Funding Shortfall. If revenues from the EIFD (including related interim bridge financing) and external funding sources are insufficient (or unavailable) to fund the South Plaza Extension, the parties will meet and confer to discuss value engineering measures to ensure the economic feasibility of the project; provided, however, that in no event shall the South Plaza Extension be constructed using low-quality materials. The West Lot Developer shall be responsible for the costs of constructing the Adeline Plaza Extensions in the event of any funding shortfalls. Neither City nor BART shall be required to contribute funds towards the Adeline Plaza Extensions.

vi. EIFD Bridge Financing: The Parties acknowledge that EIFD funds may not be available until after the improvements associated with the Project are complete and on the tax rolls. The parties will collaborate on a plan to provide bridge financing through creation of a Community Facilities District (“CFD”) or other financing mechanism to be offset, reimbursed, or refinanced when EIFD revenues become available. The City shall be responsible for the maintenance of the public portions of the Adeline Plaza Extensions, which shall be funded by the CFD identified in Section II.D.3.

Any portions of the Adeline Plaza Extensions which are for the exclusive use

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20 of the West Lot project shall be maintained by Developer and shall not be eligible for CFD funding.

9. BART Terrace Improvements (9A and 9B). The BART Terrace Improvements consist of improvements to the Existing BART Terrace (9A) abutting the proposed Adeline Plaza, and any BART Terrace Extension (9B ) necessary to connect the Existing BART Terrace to the adjacent TOD Building. As with the Adeline Plaza Extensions, the purpose of any BART Terrace Extension is to provide at-grade pedestrian connectivity between the Adeline Plaza Improvements and one or more new TOD buildings with commercial and/or residential uses having frontages that support activation of the Adeline Main Plaza (1B), and that complement market activities there.
i. Use by Berkeley Flea Market. The Existing BART Terrace shall be publicly accessible open space, and at least 50% of the area shall be made available for nonexclusive use by the Berkeley Flea Market.
• In the event that BART retains possession of the applicable portion of the Existing BART Terrace, the Berkeley Flea Market’s use shall be via a “Concession Permit” (or a similar document permitting the Berkeley Flea Market Use) issued by BART, on financial terms comparable to the Flea Market’s current arrangement with BART, as adjusted for inflation, and subject to the Berkeley Flea Market materially satisfying all requirements thereunder, including but not limited to review and approval of the proposed use, which permit shall not be unreasonably withheld.
• In the event that the West Lot Developer has a right to possess the applicable portion of the Existing BART Terrace, BART’s ground lease shall obligate the West Lo t Developer to make the area open and accessible to the public, and, at the Berkele y Flea Market’s option, to enter into an agreement for the use of at least 50% of the area of the Existing BART Terrace by the Berkeley Flea Market on financial terms comparable to the Flea Market’s current arrangement with BART, as adjusted for inflation and, subject to the terms of the ground lease and to the Berkeley Flea Market satisfying all reasonable requirements of the West Lot Developer.
• The 50% area to be used by the Berkeley Flea Market shall be configured to avoid interference with building emergency egress, and BART rider ingress/egress.

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21 ii. Delivery. BART and/or the West Lot Developer shall be responsible for constructing any improvements to the Existing BART Terrace and, if it is included in the final Project design , for constructing the BART Terrace Extension. EIFD funding may be made available for eligible BART Terrace Improvements if external funding is insufficient to cover construction costs, consistent with Section II.D.1.ii below. The BART Terrace Improvements are considered a high priority and shall be included in the final project to the extent consistent with project feasibility.

10. Roadway Reconfigurations (1A and 3B).
i. Overview. The Adeline Street Transportation Improvements Project is expected to repurpose two of the existing four traffic lanes to create a new public pedestrian plaza and protected bikeways, along with upgraded traffic signal infrastructure and enhanced public transit operations on Adeline Street.

The project scope of work includes redesigning the intersections of Adeline/Ashby and MLK/Adeline/Woolsey adjacent to Ashby BART. The component of the project to reconfigure Adeline Street is identified in Appendix C as 1A (Adeline Street Reconfiguration), and the component to reconfigure the MLK/Adeline/Woolsey intersection is identified in Appendix C as 3B (MLK/Adeline/Woolsey Intersection Redesign).
ii. Funding of Roadway Reconfigurations . The Adeline Street Reconfiguration (1A) is considered essential to the project. Existing funding for the Adeline Street Reconfiguration is through Preliminary Engineering only, and funding for subsequent engineering design a nd construction phases has not yet been identified. The City and BART shall work collaboratively to identify funding for remaining project phases. The MLK/Adeline/Woolsey Intersection Redesign (3B) is considered a high priority improvement. The West Lot Developer shall collaborate with the City on securing funding for the Roadway Reconfigurations, including, for example, by coordinating on the scope and requests for applications to state fundi ng sources. However, the costs of the Roadway Reconfigurations shall not be borne by BART or the West Lot Developer, but rather by grants, subsidies, or other publicly available funding sources.

11. Sidewalk Improvements (15, 16, and 17). The Sidewalk Improvements consist of the widening of the sidewalks along Ashby Avenue and MLK Way, and the widening of the sidewalk and construction of a new protected bikeway along MLK Way at the southern portion of the West Lot. The Sidewalk Improvements have a medium priority. West Lot Developer is responsible for the construction of the Sidewalk

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22 Improvements and the costs thereof. The City shall be responsible for maintenance of the improved sidewalks.

12. BART Rider Parking. BART rider parking on the West Lot shall be the sole responsibility of BART and shall be within the sole discretion of BART, except that BART shall commit to providing ADA parking spaces in a quantity sufficient to meet user demand (up to the current amount at the station [16]), but in no event fewer than the quantity required by law. BART will monitor ADA space occupancy during the conceptual design process to determine the appropriate number of ADA spaces prior to construction. BART shall not require BART rider parking, including ADA parking, on the East Lot. The City, at its sole di scretion and subject to any required public process and approvals, may elect to accommodate some or all of BART’s ADA parking obligation within the City’s right of way for the purpose of reducing costs and allowing external funding to be directed to other Public Infrastructure.

13. Coordination and Construction Process. The City, BART, and the West Lot Developer shall endeavor to coordinate th e design and construction of the Roadway Reconfigurations, Adeline Plaza Improvements , the Adeline Plaza Extensions, the BART Improvements, and any other public infrastructure necessary for the project that may affect those improvements, to promote efficiency, seek compatibility of design and materials, and minimize conflicts with other City projects. To facilitate coordination and increase efficiency, the City, BART, and/or the West Lot Developer may enter into construction and reimbursement agreements providing for a single party to construct multiple improvements concurrently, with costs allocated as provided in this Term Sheet. However, deve lopment of the West Lot project and necessary Public Infrastructure may proc eed prior to completion of the Roadway Reconfigurations and the Adeline Plaza Improvements. Additionally, nothing in this Term Sheet is intended to bar the City f rom assessing any regular public works fees on the developer associated with processing developmen t permits and mitigating development impacts.

14. Specific Maintenance Responsibility for BART-Related Infrastructure. BART shall be responsible for the costs of maintaining any BART-related infrastructure, such as the Eastside Elevator, the TPSS, and the BART Improvements, regardless of whether such infrastructure is on the East Lot, the West Lot, or within the City’s right of way, with the exception of any on-street ADA parking spaces, which shall be maintained by the City.

D. Special Funding Mechanisms for Public Infrastructure

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23 1. West Lot EIFD. The City will make good faith efforts to pursue formation of an EIFD over the West Lot to improve the economic feasibility of development on the West Lot and potentially increase the level of affordable housing on the site. The City commits to making a good faith effort to form the EIFD within 12 months of approval of the entitlements for the West Lot Proj ect. BART and the developer shall provide the requisite consents to (and refrain from protesting) formation. Priority of funds will be as follows:
i. (a) The South Plaza Extension (11) (to the extent eligible under state law, and contingent upon West Lot Developer committing to a capital contribution of no less than $1 million for the South Pl aza Extension) and (b) Adeline Main Plaza (1B).
ii. The BART Terrace Improvements (9A and 9B) and Ashby/Adeline Corner Plaza (2B).
iii. Public Infrastructure costs with no other available funding source, but excluding the BART Improvements or any other BART-related infrastructure (such as BART rider parking).
iv. Affordable housing funding gap for units in excess of the City’s current inclusionary housing requirement.
v. Tax increment “pay as you go” financ ing to reimburse the developer(s) for eligible capital and maintenance costs for improvements financed by the EIFD.

2. East Lot EIFD . The City may, in its discretion, form an EIFD on the East Lot to improve the economic feasibility of developm ent on the East Lot. The City may use the proceeds from the East Lot EIFD for any eligible costs associated with the East Lot development, provided that the funds sh all not be applied toward any BART- related infrastructure.

3. Community Facilities District .T he City’s costs of maintaining the Adeline Plaza Improvements and the Adeline Plaza Extensions shall be covered by a CFD consisting solely of the West Lot, to fund ongoing main tenance responsibilities carried out by the City. The CFD shall only cover maintenan ce expenses for the public portions of the Adeline Plaza Extensions; it shall not cover maintenance of any portion that is for the exclusive use of the West Lot project. The City will initiate the formation of the CFD. The Parties will collaborate on developing the local goals and policies and, with the West Lot Developer, on determining theCFD’s rate and method of apportionment, which determination shall take into accountthe impact that such additional tax burden

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24 will have on the feasibility of the West Lot Project. BART shall give (and shall require West Lot Developer to give) any consents necessary to form the CFD, and BART or the West Lot Developer, as applicable, will vote in favor of formation of the CFD.

The Parties acknowledge that a CFD will im pact the feasibility of the Project by increasing the tax burden on the West Lot TO D, and agree to seek external funding sources if the CFD cannot feasibly generate enough revenue to cover the maintenance costs of the Adeline Plaza Improvements and Adeline Plaza Extensions.

E. Other Design and Development Considerations

1. West Lot Civic Commercial Uses & Amenities.
i. The West Lot development shall be required to include a minimum of 5,000 net rentable square feet of ground floor interior space for community-based organizations, non-profits, and/or small and minority-owned businesses, including the Berkeley Flea Market, with triple net lease rents less than or equal to 50% of fair market (triple net) rent during the term of the ground lease.

Tenants for this space, other than the Berkeley Flea Market may be recommended by the City but are subject to the West Lot Developer ’s sole discretion.
ii. The West Lot development may incorporate the public artwork by Mildred Howard that was recently commissioned by the City.

2. The Berkeley Flea Market. Following the completion of the Adeline Plaza Improvements (1B, 2A, and 3A), the South Plaza Extension (11), and the BART Terrace Improvements (9A and 9B), those areas shall be made available (consistent with Sections II.C.8.ii and II.C.9.i) as vending space for the Berkeley Flea Market on terms comparable to its current arrangement with BART, as adjusted for inflation, and potentially for other public markets and microenterprise businesses. The City may allow some portion of adjacent right-of-way to also be utilized to support the Berkeley Flea Market (and other public programming), such as for vendor parking at the curb on weekends. BART will not terminate its current arrangement with the Berkeley Flea Market nor increase its rent until the West Lot Developer requires possession of the West Lot for purposes of commencing construction. If, at that time, the Adeline Main Plaza (1B) is not yet completed, the City will assist the Berkeley Flea Market in identifying and securing a suitable alternate location
.

3. Community Benefits Fund. The City intends to require that a portion of net project profit from the East Lot mixed income or market rate development parcels shall be allocated to create a reparative community benefits fund for South Berkeley residents,

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25 as follows: By the earlier of (i) the beginning of the fourth year after a Temporary Certificate of Occupancy (“TCO”) is app roved for a market rate or mixed income parcel on the East Lot, or (ii) stabilization (i.e., 95% occupancy) is achieved for such parcel, the developer of the parcel shall fund its pro rata share, as calculated pursuant to the next sentence, of an $150,000 contribution to the Community Benefits Fund, to be paid annually on the anniversary of the date the first payment was due, with annual cost of living adjustments of no less than 3.0% per annum. The percentage of the total to be paid by each qualifying parcel shall be calculated by dividing the parcel’s net rentable or net sellable square footage by th e total net rentable or net sellable square footage of all market rate or mixed income development approved or proposed on the East Lot. The final terms of any community benefits fund shall be established by the City in its sole discretion.

F. Objective Design Standards

1. Overview. The Parties desire to maintain the ab ility for the City and community to provide effective input as to the design of development proposed at the Ashby Project.

The Parties agree that the primary vehicles for City and community input are set forth in section 23.202.150 of the City’s Zoning Code, in the JVP, and in the ODS that will be developed separately for the West Lot and the East Lot. The Parties agree that the intent of ODS is to allow the City, the community, BART, and the developer to have a strong voice in the design quality of the development at the Ashby Station. The following sections describe the Parties’ mutual understandings regarding the ODS and ODS process for the West Lot. The process a nd content of any ODS for the East Lot shall be determined by the City in its sole discretion provided that the ODS must allow for at least 248 units and at least 300 bedrooms.

2. Binding Nature of ODS. The Parties understand and agree that pursuant to Section I.C of this Term Sheet and applicable law, a de velopment application that qualifies for streamlined review shall be subject to ODS that will be duly adopted by the City prior to the submittal of the development appl ication, and that such ODS shall be enforceable as permit conditions by the City. The West Lot Developer shall not submit any development application (including a preliminary application) before the earlier of the adoption of the ODS or the expiration of the ODS Approval Period. In addition, as part of the consideration for the City’s r elinquishment of its option rights in the West Lot air space, the covenant encumbering the West Lot shall require that development comply with ODS that meet the requirements of Appendix D.B A R T shall ensure through its property agreements with the West Lot Developer that development on the West Lot adheres to ODS meeting the requirements of Appendix D. Notwithstanding anything to the contrary herein or in Appendix D, the West Lot Developer may invoke waivers, incentives or other exceptions, to the extent permitted

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26 by law, but only with respect to (a) zoning requirements other than those set forth in or modified by the ODS, (b) ODS requirements pertaining to minimum square footage of active or non-residential ground floor uses, but only to the extent such requirements exceed 15,000 square feet, inclusive of the 5,000 square feet of community/civic commercial space, and (c) other ODS requirements that do not pertain to height limits, setbacks/step-backs, open space or massing breaks.

3. Development of West Lot ODS. BART has retained a consultant, Raimi & Associates (“Raimi”), directed by the City, to work with both Parties, community stakeholders, and the West Lot Developer to create ODS for the West Lot. Raimi has prepared a “Capacity Study based on a circulation framework and other development assumptions mutually agreed upon by the Parties. The Capacity Study shall be incorporated into the Exchange Agreement and serves to establish the net developable area of the site for purposes of determining ODS compliance with the requirements of Appendix D, as more particularly described therein. The process for adoption of ODS shall occur in two phases: the “Preliminary ODS” and the “Final ODS.” Raimi and City shall complete the Preliminary ODS for the West Lot by November 19, 2024 in advance of the release of the RFP or RFQ/RFP so that it may be included as an exhibit to the RFP or RFQ/RFP. The public and BART shall be given an opportunity to review and comment on the Preliminary and Final ODS, as will the West Lot Developer following developer selection. BART and West Lot Developer shall make good faith efforts to provide the City with information regarding the proposed project design necessary to develop ODS, and any other input they may have on draft or proposed ODS, in a timely fashion. During the ODS Approval Period, the City shall consider the input of the public, BART, and the West Lot Developer in the preparation of Final ODS to be considered for adoption by the Planning Commission and City Council, and shall make a good faith effort to address any objections raised by BART and the West Lot Developer relating to the impact of ODS on project feasibility or design.

4. Requirements for ODS . The Parties agree that the ODS shall comply with the requirements set forth in Appendix D. Main topics in the ODS may include but are not limited to:
• Public realm improvements
• Building form and massing
• Building façade design
• Open space and landscape

5. Appendix D Compliance – Process for Objecting. Prior to submitting proposed Final ODS to the Planning Commission, the City shall provide them to BART and the West

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27 Lot Developer. If BART or the West Lot Developer object to any of the proposed Final ODS based on noncompliance with the requirements set forth in Appendix D, they shall submit such objections to the City, along with an explanation of the basis for the objections, within fifteen (15) business days of receipt. If objections are timely submitted, the City, BART and West Lot Developer shall promptly meet and confer in good faith to resolve the objections and make any revisions before the proposed Final ODS are submitted to the Planning Commission. If BART or West Lot Developer believes the Final ODS recomm ended by the Planning Commission for approval by Council would not comply with Appendix D , BART or West Lot Developer shall have fifteen (15) businessdays following the Planning Commission’s recommendation to submit their objections to the City, along with an explanation of the basis for them, and the City, BART, and the West Lot Developer shall promptly meet and confer in good faith to resolve them prior to submittal to the City Council.

If no objections based on Appendix D requirements are raised within the applicable fifteen (15) business day period, or if timely raised objections are resolved through the meet and confer process, the Final ODS approved by Council will be deemed to satisfy the requirements set forth in Appendix D unless modified by Council in a manner that affects compliance with the Appendix D requirements. Nothing in this paragraph is intended to limit the ability of BART or West Lot Developer to provide comments on the Preliminary or Final ODS at any time prior to fi nal approval, or to raise concerns or objections to proposed ODS based on considerations other than compliance with Appendix D.

6. Approval of West Lot ODS . Once a complete draft of Final ODS has been prepared and the process for resolving any objections described in the preceding paragraphs 3 and 5 has been completed, City staff will s ubmit the draft Final ODS to the Planning Commission for recommendation. Following the Commission’s recommendation and completion of the process for resolving objecti ons to that recommendation, the City shall submit the Final ODS for the West Lot to the City Council for adoption no later than nine months after the execution of the ENA for the West Lot ( “Approval Period”). Should the City believe that, due to a force majeure event (including but not limited to war, terrorist attack, pandemic, natural disaster, or other similar occurrence beyond the City’s control) , the City is unable to adopt West Lot ODS within the Approval Period, the City may request an extension of the Approval Period from BART not more than 30 days after the co mmencement of the force majeure event, which request shall identify the force majeu re event and specify how it has affected the City’s ability to adopt West Lot ODS within the Approval Period. The extension of the Approval Period requested shall be of a duration equal to the duration of the impact of the force majeure event on the City’s ability to adopt the West Lot ODS.

BART’s approval shall not be unreasonably withheld.

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28 7. Funding of ODS. The City shall bear full responsibility for any costs to develop ODS on the East or West Lot in excess of the available grant funding or those costs incurred after the grant expenditure deadline.

III. Other
A. Additional Requirements . The Ashby Project must comply with all relevant applicable BART and City policies and ordinances to the extent allowable by law. BART’s relevant policies can be found at www.bart.gov/TOD and currently include its Transit-Oriented Development Policy, Affordable Housing Policy, AB 2923 Development Principles, Project Stabilization Agreement Policy for Transit-Oriented Development, and Labor Peace Agreement Policy for Transit-Oriented Development Hotel Operations.

B. Term Sheet Non-Binding. While this Term Sheet summ arizes certain terms and conditions for the Ashby Project, it is not intended to be contractually binding on the City or BART. No legal obligation will exist regarding the transactions described in this Term Sheet, unless and until the parties have nego tiated, executed and delivered mutually acceptable agreements approved by each Party’s decision-making body in accordance with all legal requirements, including, to the extent applicable, the California Environmental Quality Act (CEQA).
(Signatures on following page)

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29 CITY OF BERKELEY

PAUL BUDDENHAGEN

CITY MANAGER
JESSE ARREGUÍN
MAYOR

SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
ROBERT M. POWERS

GENERAL MANAGER

LIST OF EXHIBITS
Appendix A Ashby Project Aerial
Appendix B Schedule
Appendix C Infrastructure Map
Appendix D ODS Requirements
Appendix E Infrastructure Matrix
Appendix F City Standard Conditions of Approval Relied on in R-BMU Zoning EIR Appendix G Capacity Study

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30 APPENDIX A: ASHBY PROJECT AERIAL
Ed Roberts
Campus
Main BART
Entrance
Main Lots
West Lot
Block 1
Block 2
Block 3
Block 4
East Lot

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31 APPENDIX B: SCHEDULE
Activity Lead Party Milestone Outside Date
Term Sheet Execution BART & City
The Parties execute the Term
Sheet following approval by
City Council
23-Sep-24
Provide Draft RFP for City 1st
Review BART
BART to transmit to City
combined Request for Proposals
and Notice of Funding
Availability for City
Predevelopment Funding (RFP)
24-Sep-24
Provide Draft Exchange
Agreement documents for
BART's Review
City
City to transmit to BART all
proposed documents related to
property exchange and covenants
24-Sep-24
Complete 1st Round Comments
on Developer Solicitation
Document (RFP)
City
City to transmit to BART
language on Notice of Funding
Availability for City
Predevelopment Funding as well
as general comments on RFP
15-Oct-24
Provide Draft RFP for City 2nd
Review BART BART to transmit revised RFP
to City 29-Oct-24
Complete 2nd Round Comments
on Developer Solicitation
Document (RFQ-P)
City City to provide final comments
on RFP 19-Nov-24
Preliminary ODS Complete City City finalizes Preliminary ODS for inclusion in RFP 19-Nov-24
Exchange Agreement Approval City
City Council authorizes
execution of Exchange
Agreement documents aligned
with terms approved by City
Council and presented to BART
Board
19-Nov-24
Exchange Agreement Execution BART & City
The Parties execute binding
documents related to the
exchange of property interests
that will be effectuated
following ENA execution
26-Nov-24
Developer Solicitation Issuance BART
BART issues combined RFP and
Notice of Funding Availability
for City Predevelopment Funding
to developer community
3-Dec-24

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32 Activity Lead Party Milestone Outside Date
City Affordable Housing
Funding - Predevelopment
Funding
City
Council award of
predevelopment funds (if
requested) to Developer
No later than 60 days after
Developer Selection
Infrastructure Financing Strategy
City & BART
with
collaboration
by West Lot
Developer
Draft strategy prepared by City
and BART with collaboration by
West Lot Developer
No later than 9 months after
ENA execution; failure to
complete this shall not constitute
default under any binding
agreement.

City Application Development
team
Development team submits a
complete application for a
Master Development Permit, or
for at least one affordable
housing building’s
entitlements/permit
No sooner than Adoption of
ODS (or 9 months from
execution of ENA, whichever
comes first) and no later than 3
years from execution of ENA
Project Financing Development
team
For each affordable housing
project, development team
secures complete project
financing. If this milestone is not
met, the City may rescind the
development funding reservation
for that project component.
31-Dec-33
Adoption of Objective Design
Standards City Objective Design Standards
adopted by City Council
No later than 9 months after
ENA execution
Developer Selection BART Board
of Directors
Identified development team
(selected by a BART-City-EBB
panel), with demonstrated
capacity to complete affordable
housing projects representing at
least 35% of anticipated housing
for the entire site.
26-Jun-25
Execution of an Exclusive
Negotiating Agreement (“ENA”) BART ENA signed with Developer No later than 9 months after Developer selection

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33 APPENDIX C: INFRASTRUCTURE MAP
Note: The number and footprint of structural elements, as well as the spaces between them, have not been designed and are illustrative. The actual location of various structural elements may differ from the depictions below.

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34 APPENDIX D: ODS REQUIREMENTS
Requirements for Objective Design Standards on West Lot The City’s future ODS for the West Lot shall be binding on BART and the West Lot Developer without respect to any waivers, incentives or other exceptions that may otherwise be available under the Density Bonus Law or other provision of law, and BART shall require the West Lot Developer to comply with the Final ODS utilizing its real estate agreements, provided that:

2. The ODS is adopted by the City of Berkeley for the West Lot within the Approval Period;

3. T he City’s Preliminary and Final ODS include standards that are applicable to development that qualifies for a density bonus under the state Density Bonus Law and allows for greater heights than existing zoning (“ODS Density Bonus Standards”). The ODS Density Bonus Standards must (a) allow heights of at least 85 feet without a maximum number of stories, and (b) allow (but not require) that development occur in BART’s Zone of Influence (“ZOI”);

4. The ODS Density Bonus Standards, when applied to a hypothetical development that (a) is within the net developable area (“NDA”) footprint shown in the Capacity Study and (b) has a height no greater than 8 stories, allow for a gross residential square footage of at least 600,000 sq ft.; and

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35 Net Developable Area
The NDA is defined as the gross developable area of the West Lot, as shown in Appendix G, the Capacity Study. The NDA assumes development will occur in the BART ZOI. The NDA shown in the Capacity Study shall not be altered for purposes of determining compliance of ODS with the requirements of this Appendix D, regardless of any later alterations made to the location of BART infrastructure, public site circulation, or building footprints, or any other considerations of development feasibility that may arise in connection with a proposed development project.

ODS Capacity
The amount of gross residential square footage allowed under the applicable Density Bonus Standards (“ODS Capacity”) shall be calculated by applying R-BMU zoning requirements to a hypothetical project eligible for density bonus within the NDA at the heights specified in paragraphs 4 and 5 above, as applicable, and accounting for square footage that is lost due to required setbacks, step-backs, massing breaks, or other required features (e.g. fire and life safety requirements) required under by the ODS Density Bonus Standards. The determination of ODS Capacity shall be made by Raimi if mutually agreed by the Parties, or if not, then a design professional such as a member of the American Institute of Certified Planners (AICP) or licensed architect, to be selected by mutual agreement of BART and the City. The determination of ODS Capacity shall use the same extrinsic assumptions used in the agreed-upon Capacity Study (to the extent not impacted by the ODS), including without limitation the number of stories (with respect to paragraph 4 above only), space required for emergency access, and the amount of parking assumed for each building. ODS Capacity will be calculated for the entirety of the West Lot development and not individual buildings or blocks. For purposes of the ODS Capacity calculation, residential square footage shall not include square footage for parking.

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36 APPENDIX E: INFRASTRUCTURE MATRIX

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37 APPENDIX F: CITY STANDARD CONDITIONS OF APPROVAL RELIED ON IN R-BMU

ZONING EIR

The project applicant shall prepare a health risk assessment that demonstrates the project’s on-site emissions of diesel particulate matter during construction will not exceed health risk screening criteria after a screening-level health risk assessment is conducted in accordance with current gu idance from BAAQMD and OEHHA. The health risk assessment shall be submitted to the Land Use Planning Division for review and approval prior to the issuance of building permits; or All construction equipment shall be equippe d with Tier 2 or higher engines and the most effective Verified Diesel Emission Control Strategies (VDECS) available for the engine type (Tier 4 engines automatically meet this requirement) as certified by the California Air Resources Board (CARB). The equipment shall be properly maintained and tuned in accordance with manufacturer specifications.

2. Archaeological Resources (Ongoing throughout demolition, grading, and/or construction).

Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.

Therefore:

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38 If any find is determined to be signific ant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appropriate avoidance measures or other a ppropriate measure, with the ultimate determination to be made by the City of Be rkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by the qualified profe ssional according to current professional standards.

If avoidance is unnecessary or infeasible , other appropriate measures (e.g., data recovery) shall be instituted. Work may proceed on other parts of the project site while mitigation measures for cultural resources is carried out.

If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.

3. Human Remains (Ongoing throughout demoli tion, grading, and/or construction). In the event that human skeletal remains are uncovered at the project site during ground- disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50-foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities.

Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.

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39 5. Construction Hours. Construction activity shall be limited to between the hours of 8:00 AM and 6:00 PM on Monday through Friday, and between 9:00 AM and Noon on Saturday. No construction-related activity shall occur on Sunday or any Federal Holiday.

6. Construction Noise Reduction Program. The applicant shall develop a site-specific noise reduction program prepared by a qualified acoustical consultant to reduce construction noise impacts to the maximum extent feasible, subject to review and approval of the Zoning Officer. The noise reduction program shall include the time limits for construction listed above, as measures needed to ensure that construction complies with BMC Section

13.40.070, Prohibited Acts. The noise reduction program should include, but shall not be limited to, the following available controls to reduce construction noise levels as low as practical:

Construction equipment should be well maintained and used judiciously to be as quiet as practical.

Equip all internal combustion engine-driven equipment with mufflers, which are in good condition and appropriate for the equipment.

Utilize “quiet” models of air compressors and other stationary noise sources where technology exists. Select hydraulically or electrically powered equipment and avoid pneumatically powered equipment where feasible.

Locate stationary noise-generating equipment as far as possible from sensitive receptors when adjoining construction site s. Construct temporary noise barriers or partial enclosures to acoustically shield such equipment where feasible.

Prohibit unnecessary idling of internal combustion engines.

If impact pile driving is required, pre-drill foundation pile holes to minimize the number of impacts required to seat the pile.

Construct solid plywood fences around c onstruction sites adjacent to operational business, residences or other noise-sensitive land uses where the noise control plan analysis determines that a barrier would be effective at reducing noise.

Erect temporary noise control blanket barriers, if necessary, along building facades facing construction sites. This mitigation would only be necessary if conflicts occurred which were irresolvable by proper schedulin g. Noise control blanket barriers can be rented and quickly erected.

Route construction related traffic along major roadways and away from sensitive receptors where feasible.

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40 7. Construction Noise Management. Public No tice Required. At least two weeks prior to initiating any construction activities at the site, the applicant shall provide notice to businesses and residents within 500 feet of the project site. This notice shall at a minimum provide the following: (1) project description, (2) description of construction activities during extended work hours and reason for ex tended hours, (3) daily construction schedule (i.e., time of day) and expected duration (number of months), (4) the name and phone number of the Project Liaison for the project that is responsible for responding to any local complaints, and (5) that construction work is about to commence. The liaison would determine the cause of all construction-related complaints (e.g., starting too early, bad muffler, worker parking, etc.) and institute reasonable measures to correct the problem. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval.

8. Damage Due to Construction Vibration. The project applicant shall submit screening level analysis prior to, or concurrent with demolition building permit. If a screening level analysis shows that the project has the potential to result in damage to structures, a structural engineer or other appropriate professional shall be retained to prepare a vibration impact assessment (assessment). The assessment shall consider project specific information such as the composition of the structures, location of the various types of equipment used during each phase of the project, as well as the soil characteristics in the project area, in order to determine whether project construction may cause damage to any of the structures identified as potentially impacted in the screening level analysis. If the assessment finds that the project may cause damage to nearby structures, the structural engineer or other appropriate professional shall recommend design means and methods of construction that to avoid the potential damage, if feasible. The assessment and its recommendations shall be reviewed and approved by the Building and Safety Division and the Zoning Officer. If there are no feasible design means or methods to eliminate the potential for damage, the structural engineer or other appropriate professional shall undertake study of existing conditions (study) of any structures (or, in case of large buildings, of the portions of the structures) that may experience damage.

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41 9. Avoid Disturbance of Nesting Birds. Initial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the MBTA and CFGC, nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground-disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.

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42 APPENDIX G: CAPACITY STUDY
Purpose
BART and the City of Berkeley engaged Raimi + Associates to analyze the development capacity of the Ashby BART Station West Lot to inform their negotiations over future transit-oriented development projects at the site. The net developable area of the site, as defined below, will be used to calculate the total amount of development that is permitted under the objective design standards for the site that are to be developed and adopted by the City of Berkeley, to ensure that the ODS meet the provisions of Appendix D. ODS meeting the provisions of Appendix D will be binding on the West Lot Developer via restrictive covenants and BART’s real estate agreements.

Methodology
Net developable area (NDA) is defined as the developable area of the West Lot, exclusive of surface areas utilized for public site circulation and BART infrastructure. For the purpose of this capacity study, hypothetical West Lot development areas were determined by the access requirements for the site that were established in consultation with BART and City of Berkeley transportation planners, engineers and public safety staff. An additional emergency vehicle access (EVA) is required through development area B. The total NDA is calculated as 123,000 square feet (see table 1), or approximately 2.82 acres.

Raimi + Associates created architectural models of hypothetical buildings within the NDA, as shown in Figure 1, using the site design assumptions agreed upon by the parties and listed below, for the purpose of estimating the maximum potential development capacity of the site.

Figure 1. Net Developable Area

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43 Table 1. Net Developable Area
Development Area A ~58,300 SF
Development Area B ~41,400 SF
Development Area C ~23,300 SF
Net Developable Area 123,000 SF
Site Design Assumptions
x Gross residential floor area, as calculated in “Capacity Finding” below, includes residential units, horizontal and vertical circulation, common spaces, and utility and maintenance spaces. x Estimated unit counts assume an average gross unit size 1000 sf. Unit counts were calculated per floor per building and rounded down to number of full units per floor. x Approximately 12,850 square feet of commercial / non-residential space. Any additional commercial space would reduce residential floor area and unit count. x Development project is assumed to take advantage of state density bonus waivers and concessions to supersede the following R-BMU zoning provisions:
x Maximum height of 7 stories
x Active frontage location requirements
x Parking structure design, underground or located behind conditioned building space x On-site pedestrian access from Ashby Avenue
x Mid-rise construction, with Buildings A and B up to 7 stories, and Building C up to 8 stories (requires all access to Building C to be from Adeline or MLK, no access to Station Entrance Plaza).
x EVA modeled through building B included a 60-foot wide connection that included a 20-foot wide emergency vehicle accessway (to be expanded to 26 feet if aerial operations required) and landscaped/stoop areas to activate the through access. The emergency vehicle access is likely to be required to be designed as a pedestrian pathway in the ODS. Bridges will be allowed over the EVA if they do not exceed 30 feet in depth and include a minimum 20 feet high passageway for emergency vehicles.
x 65-foot wide double loaded corridor buildings. In practice, this would be an average and provide space for building articulation, projections, and balconies that may increase or decrease the building width.
x Construction within the BART tunnel Zone of Influence is assumed (8,220 sf of net developable area, about 7% of total net developable area).
x Sidewalks: 13 feet on Ashby, 15 feet on MLK north of station access, 22 feet on MLK south of station access which also includes two-way cycletrack.
x Vehicle Parking:
o BART rider parking: minimum 11 ADA spaces + 3 staff spaces (co-located in a residential garage).
o Residential parking goal: 1 space per 5 units (not necessarily located evenly across the site; spaces may be in one garage located within a single building). Goal is only achievable with barking below grade under Building C, which may be costly. x Bike Parking:
o Bike station: minimum of 128 spaces – 3,000 to 4,000 sf o Shared bike facilities: 23 spaces, external to buildings, easy access to station at 3 feet per bike = ~70 linear feet.
o Bike lockers: minimum 46 lockers, internal space, ~2,250 sf, about 102 feet x 22 feet

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44 o Bike racks: minimum 134 racks at 3 feet per 2 bikes, 200 linear feet of bike racks. x Approximately 17,000 sf reduction of floor area is assumed for façade articulation and other design requirements that would likely result from objective design standards, including the following potential requirements:
o Maximum building length fronting Ashby Avenue shall not exceed 240 feet. o Façade planes shall not exceed 160 measured from a building corner or major building break.
o Major breaks shall be a minimum 8 feet wide and 8 feet in depth. o Where ground floor residential units front MLK Jr Way, the first two floors shall be setback a minimum of 5 feet to provide space for stoops, landscaping, and improve privacy for ground floor units.
o Enclosed Courtyards shall have a minimum width of 60 feet.

These assumptions and findings shall be used solely for the purposes of calculating ODS Capacity per Appendix D, and shall not otherwise bind BART, the City, or the West Lot Developer in any manner, including with respect to the size, location, or configuration of the development footprint for the final project.

Table 2. Estimated Development Capacity
Gross
Residential
Floor Area,
square feet (SF)
Commercial /
Non-
residential
Floor Area, SF
Total Floor
Area, SF
Dwelling
Units
Residential
Parking
Spaces
Other
Parking
Building A 299,158 4,390 303,548 298 118
Building B 189,854 3,915 193,769 187 - 28
Building C 143,311 4,570 147,881 139 -
Totals 632,323 12,875 645,198 624 118 28

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

CONSENT CALENDAR
November 19, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Department of Public Works Subject: Contract: Nema Construction for FY 2023 Street Light Maintenance Project

RECOMMENDATION
Adopt a Resolution:

1. Approving plans and specifications for the Street Rehabilitation FY 2023 Project, Specification No. 24-11668-C;

2. Accepting the bid of the lowest, responsive and responsible bidder, Nema Construction;

3. Authorizing the City Manager to execute a contract and any amendments, extensions, or other change orders until completion of the project, in accordance with the approved plans and specifications, in an amount not to exceed $424,465.

FISCAL IMPACTS OF RECOMMENDATION
Funding is available from the Street Light Assessment Fund. No other funding is required, and no other projects will be delayed due to this expenditure.

Low bid by Nema Construction.…………………………………………….$ 369,100 15% Contingency …………………………………………………………….$ 55,365
$424,465Total construction cost:

FY 2022 Street Light Maintenance Project Funds
Street Lighting Fund (142) ........................................................................$424,465

CURRENT SITUATION AND ITS EFFECTS
The FY 2023 Street Light Maintenance Project (Specification No. 24-11668-C) was released for bids on September 5, 2024, and bids were opened on September 19, 2024 (see Attachment 3, Abstract of Bids). Six non-local bids were received, from a low of $369,100 to a high of $669,600. The engineer’s estimate for the project was $425,000.

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Berkeley City CouncilNovember 19, 2024

Berkeley City Council
November 19, 2024