and
passport
number)
malicious, deceptive,
fraudulent, or illegal
activity. Other audit or
operational purposes.
Personal
information
described in
California
Customer
Records
statute (Cal.
Civ. Code §
1798.80(e))
(Including
Social security
number,
driver’s license
number or
state
identification
card number,
passport
number, bank
account
number,
citizenship,
and
immigration
status)
Name, signature, social security
number, physical characteristics
or description, address,
telephone number, passport
number, driver’s license or state
identification card number,
insurance policy number,
education, employment,
employment history, bank
account number, credit card
number, debit card number, or
any other financial information,
medical information, or health
insurance information.
“Personal information” does not
include publicly available
information that is lawfully
made available to the general
public from federal, state, or
local government records.
Underwriting or
providing other
products or services,
responding to
policyholder/consumer
claims, inquiries or
complaints, detecting
security incidents,
protecting against
malicious, deceptive,
fraudulent, or illegal
activity. Other audit or
operational purposes.
Service
providers
associated with
the transaction
for a business
purpose
Characteristics
of protected
classifications
under
California or
federal law
(Including
marital status,
sex,
citizenship,
and physical
disability)
Age (40 years or older), race,
color, ancestry, national origin,
citizenship, religions or creed,
marital status, medical
condition, physical or mental
disability, sex (including gender,
gender identity, gender
expression, pregnancy or
childbirth and related medical
conditions), sexual orientation,
veteran or military status, or
genetic information (including
familial genetic information).
Underwriting or
providing other
products or services,
responding to
policyholder/consumer
claims, inquiries or
complaints. Other
audit or operational
purposes.
Service
providers
associated with
the transaction
for a business
purpose
Internet or
other
electronic
Browsing history, search
history, information about a
consumer’s interaction with a
To provide access to
certain online
services. To
Not Disclosed
network
activity
website, application, or
advertisement.
understand the
interests of visitors to
our online services, to
support certain
features of our site, for
navigation and to
display certain
features more
effectively. Detecting
security incidents,
protecting against
malicious, deceptive,
fraudulent, or illegal
activity. Other audit or
operational purposes.
We may also transfer to a third party the personal information of a consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the business.
Our Retention of Your Personal Information
The length of time that we retain personal information largely depends upon the purpose for which the information was collected rather than the category of the information as set forth in this Notice. When establishing retention periods, we consider applicable statutes of limitation and legal and regulatory requirements and guidelines.
Personal information is generally retained for periods of time that permit the company to meet its legal and regulatory obligations.
Your Rights and Choices
The CCPA provides California consumers with certain rights regarding their personal information. This chart describes those rights and certain limitations to those rights.
Right What This Means
Notice At or before the time your personal information is collected, you will be given written notice of the categories of personal information to be collected, the purposes for which the categories of personal information will be used, and whether that information is sold or shared.
Access At your verifiable request, but no more than twice in a twelve month period, we shall disclose to you: 1) the categories of personal information we have collected about you, 2) the categories of sources for the personal information we collected about you, 3) our business or commercial purpose for collecting, selling or sharing your personal information, 4) the categories of third parties to whom we disclose your personal information, 5) the specific pieces of information we have collected about you, 6) the categories of personal
information disclosed about you for a business purpose and the categories of persons to whom your personal information was disclosed for a business purpose, and 7) if we sold or shared personal information, the categories of personal information sold or shared and the categories of third parties to whom it was sold or shared.
Deletion You have the right to request that we delete any of your personal information that we collected from you, subject to certain exceptions. Once we receive and verify your request, we will delete (and direct our service providers and contractors to delete) your personal information from our records unless an exception applies. We may deny your request if retention of the information is necessary for us or our service providers to:
• Complete the transaction for which we collected the personal information, provide a good or service that you requested, take actions reasonably anticipated within the context of our ongoing business relationship with you, or otherwise perform our contract with you.
• Help to ensure security and integrity to the extent the use of your personal information is reasonably necessary and proportionate to that purpose. Debug to identify and repair errors that impair existing intended functionality.
• Exercise free speech, ensure the right of another consumer to exercise their free speech rights, or exercise another right provided for by law. • Comply with the California Electronic Communications Privacy Act (Cal.
Penal Code §1546 et seq.)
• Engage in public or peer reviewed scientific, historical, or statistical research that conforms or adheres to all other applicable ethics and privacy laws, when the information’s deletion is likely to render impossible or seriously impair the research’s completion, if you previously provided informed consent.
• Enable solely internal uses that are reasonably aligned with consumer expectations based on your relationship with us and compatible with the context in which you provided the information.
• Comply with a legal obligation.
• Or if it is the type of personal information that falls outside the scope of the CCPA, (HIPAA, CIMA, GLBA, or publicly available information) Correct You have the right to request that we correct inaccurate personal information about you, taking into account the nature of the personal information and the purposes of the processing of the personal information. After we receive and verify your request, we will use commercially reasonable efforts to correct the inaccurate personal information as directed by you.
Opt-Out of Sale or
Sharing
With some limitations, you may direct a business that sells or shares personal information to third parties not to sell or share the personal information to these third parties.
A business may not sell or share the personal information of persons less than sixteen years of age without their affirmative consent, and in the case of those less than thirteen years of age, the consent must come from a parent.
Opt-In to Sale or
Sharing
Limit Use of
Sensitive Personal
Information
You may direct a business to limit the use of your sensitive personal information to that use which is necessary to perform the services or provide the goods reasonably expected by an average consumer who requests those goods or services and certain other limited uses as described in the CCPA and applicable regulations.
Non-Discrimination We will not discriminate against you for exercising your rights under the CCPA.
Unless otherwise permitted by the CCPA we will not:
• Deny you goods or service
• Charge you different prices or rates for goods or services, including through granting discounts or other benefits, or imposing penalties • Provide a different level or quality of goods or services • Suggest that you will receive a different price or rate for goods or services or a different level or quality of goods or services To Exercise Your Rights
To Opt-out of the Sale or Sharing of Your Personal
Information
The CCPA gives consumers the right to direct a business that sells or shares personal information about the consumer to third parties not to sell or share the consumer’s personal information. We do not sell and will not sell your personal information as that term is commonly understood. We also do not sell and will not sell your personal information, as that term is defined by the CCPA. We do not share your personal information as that term is defined in the CCPA.
To Limit the Use of Sensitive Personal Information
The CCPA gives consumers the right to direct a business to limit the use of the consumer’s sensitive personal information to that use which is necessary to perform the services or provide the goods reasonably expected by an average consumer who requests those goods or services and certain other limited uses as described in the CCPA and applicable regulations. We do not use or disclose sensitive personal information for purposes other than those purposes specified in Section 7027, subsection (m) of the California Consumer Privacy Act Regulations. If we begin using or disclosing your sensitive personal information outside of those purposes, then we will provide you with the option to limit our use or disclosure through a clear and conspicuous link on our internet homepage.
To Request Access to, Correction or Deletion of Your
Personal Information
To exercise your access, correction or deletion rights described above, please submit a verifiable consumer request to us by either: Calling us at 1-855-557-8437 or contacting us through our website https://ccpa.oldrepublictitle.com .
Only you or your representative that you authorize to act on your behalf (Authorized Agent) can make a verifiable consumer request for your personal information. You may also make a request for your minor child. The verifiable request must provide enough information that allows us to reasonably verify you are the person about whom we collected personal information. We cannot respond to your request or provide you with personal information if we cannot verify your identity or authority to make the request and to confirm the personal information relates to you.
We work to respond to a verifiable consumer request within 45 days of its receipt. If we require additional time, we will inform you of the extension period (up to an additional 45 days), and the reason for the extension in writing. If you have an account with us, we will deliver our response to that account. If you do not have an account with us, we will deliver our response by mail or electronically, depending on your preference. The response we provide will also explain any reasons why we cannot comply with a request.
You may only make a consumer request for access twice within a twelve-month period.
Any disclosures we provide will apply to the twelve-month period preceding the consumer request’s receipt.
Contact Us
If you have any questions regarding our Privacy Notice or practices, please contact us or send your written request to: [email protected], 1-855-557-8437, or 3000 Bayport Drive, Suite 1000 Tampa FL 33707
SCHEDULE 2.1(c)
Updated East Lot Preliminary Title Report
[Will be attached upon execution of the Exchange Agreement.]
SCHEDULE 2.1(d)
Updated West Lot Preliminary Title Report
[Will be attached upon execution of the Exchange Agreement.]
SCHEDULE 4.3.1
Quitclaim Deed – West Lot Air Rights Option
RECORDING REQUESTED BY:
Old Republic Title Company
WHEN RECORDED MAIL 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
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Document Entitled to Free Recordation Pursuant
to Government Code Section 27383
The undersigned grantor(s) declare(s):
Documentary Transfer Tax is $0.00; Exempt pursuant to Revenue & Taxation Code § 11922 ( ) 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
Quitclaim Deed
(Extinguishment of Option to Purchase Air Rights)
Quitclaim Deed
(Extinguishment of Option to Purchase Air Rights)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CITY OF BERKELEY, a municipal corporation of the State of California (“City”), hereby remises, releases and forever quitclaims to
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“BART”), all of City’s rights under that certain unrecorded agreement dated as of October 22, 1964, as amended, between BART and the City (“Air Rights Agreement”) to acquire an interest in that real property situated in the City of Berkeley, County of Alameda, State of California more particularly described in “EXHIBIT A” attached hereto and incorporated herein by reference (“Subject Property”),
City has consented to, accepted, approved, and authorized this Quitclaim Deed pursuant to its Ordinance No.
(add Ordinance number) entitled (add name of
Ordinance). This Quitclaim Deed is recorded for the purpose of extinguishing all right, title, and interest that the City has in the Subject Property arising from the Air Rights Agreement, including without limitation any option to purchase air rights in the Subject Property. Accordingly, for tax assessment purposes this Quitclaim Deed is not a change of ownership under Revenue and Taxation section 60, et seq.
Mail tax statements to owners of record.
Date:_______________________
CITY OF BERKELEY
_________________________________
By:
Its:
(Seal)
Attest:_________________________________
By: __________________, City Clerk
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, , 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]
CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by this Quitclaim Deed (Extinguishment of Option to Purchase Air Rights) dated ______________ from the City of Berkeley to the San Francisco Bay Area Rapid Transit District, a rapid transit district, is hereby accepted by the undersigned officer or agent on behalf of the San Francisco Bay Area Rapid Transit District, pursuant to authority conferred by resolution of the Board of Directors of the San Francisco Bay Area Rapid Transit District entitled “In The Matter of Authorizing Acceptance of Deeds and Grants”, bearing No. 291, adopted on October 24, 1963, and the San Francisco Bay Area Rapid Transit District consents to recordation thereof by its duly authorized officer.
Dated: _____________________
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
By:
Title:
EXHIBIT A
(Subject Property )
The real property situated in the City of Berkeley, County of Alameda, State of California, 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.
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.
171918.4
SCHEDULE 4.3.2
Quitclaim Deed – R9‐2 Parcel
171918.4
RECORDING REQUESTED BY:
Old Republic Title Company
WHEN RECORDED MAIL TO:
San Francisco Bay Area Rapid
Transit District
2150 Webster Street, 9th Floor
Oakland, CA 94612
Attn: Real Estate Manager
APN: Non-Assessed Parcel
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Document Entitled to Free Recordation Pursuant
to Government Code Section 27383
The undersigned grantor(s) declare(s):
Documentary Transfer Tax is $0.00; Exempt pursuant to Revenue & Taxation Code § 11922 ( ) 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
Quitclaim Deed
171918.4
Quitclaim Deed
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CITY OF BERKELEY, a municipal corporation of the State of California (“City”), hereby remises, releases and forever quitclaims to
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq., the real property situated in the City of Berkeley, County of Alameda, State of California more particularly described in “EXHIBIT A” attached hereto and incorporated herein by reference (“Subject Property”), reserving therefrom the rights specified in said “EXHIBIT A.”
City intends pursuant to this Quitclaim Deed to relinquish its right, title, and interest in the Subject Property, including without limitation its public rights-of-way, except the rights reserved herein, in accordance with the “Ashby BART Station Transit-Oriented Development Exchange Agreement” consented to, accepted, approved, and authorized by the City pursuant to Ordinance No. (add Ordinance number) entitled “Ordinance Authorizing Exchange of Real Property for Development of Ashby BART Station Property”, recorded (concurrently herewith OR on __________ as Instrument Number _______________ in the Official Records of Alameda County, California).
Mail tax statements to owners of record.
Date:_______________________
CITY OF BERKELEY
_________________________________
By:
Its:
(Seal)
Attest:_________________________________
By: __________________, City Clerk
171918.4
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, , 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 o t a r y P u b l i c [seal]
171918.4
CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by this Quitclaim Deed dated ______________ from the City of Berkeley to the San Francisco Bay Area Rapid Transit District, a rapid transit district, is hereby accepted by the undersigned officer or agent on behalf of the San Francisco Bay Area Rapid Transit Distri ct, pursuant to authority conferred by resolution of the Board of Di rectors of the San Francisco Bay Area Rapid Transit District entitled “In The Matter of Authorizing Acceptance of Deeds and Grants”, bearing No. 291, adopted on October 24, 1 963, and the San Francisco Bay Area Rapid Transit District consents to recordation thereof by its duly authorized officer.
Dated: ____________________
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
By:
Title:
171918.4
EXHIBIT A
(Subject Property)
The real property situated in the City of Berkeley, County of Alameda, State of California, described as follows:
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.
RESERVING THEREFROM an easement to the City of Berkeley for stormwater drainage and sanitary pipe line facilities (collectively “Facilities”) and appurtenances therefor, together with access thereto, including without limitation for the use, installation, maintenance, repair, replacement, upgrade, improvement, removal of obsolete or redundant Facilities, inspection, and testing thereof.
Except in the event of an emergency necessitating immediate access, City shall use good faith efforts to provide BART with at least 10 business days’ advance notice of any work within the easement area, and shall provide at least 72 hours’ advance notice of such work. In the event of an emergency, BART shall be notified within 24 hours of entry onto, or work within, said easement area. All such work within the easement area shall be performed in a manner so as to not unreasonably interfere with or damage BART’s facilities on or adjacent to R9-2.
Except where the installation of new or expanded Facilities is required by law or a California state regulatory agency, the installation of any new or expanded Facilities within the easement area/R9-2 shall be subject to BART’s review and approval consistent with its standard practices, which approval shall not be unreasonably withheld. In the event that law or a California state regulatory agency requires installation within R9-2 of new or expanded Facilities, or installation of other utilities not within the scope of this easement, the City and BART shall work together in good faith to ensure that the installation complies with all regulatory agency timelines and requirements and that said Facilities or other utilities do not unreasonably interfere with or damage BART’s facilities on or adjacent to R9-2. The City’s compliance with regulatory timelines and requirements shall be prioritized as part of this coordination process.
APN: Non-Assessed Parcel
SCHEDULE 4.3.3
East Lot Covenants
Memorandum of Covenants
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 053-1703-009 SPACE ABOVE THIS LINE FOR RECORDER'S USE
Document Entitled to Free Recordation Pursuant
to
Government Code Section 27383. G
overnment
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
MEMOR
ANDUM OF COVENANTS
Memorandum of Covenants
Memorandum of Cov enants
This Memorandum of Covenants (“Memorandum”) is made by the City of Berkeley, a charter city (“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, identified by Assessor 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:
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.
APN: 053-1703-009
B. Owner and the San Francisco Bay Area Rapid Transit District, a rapid transit district established pursuant to Public Utilities Code section 28500 et seq. (“BART”), entered into that certain ASHBY BART STATION TRANSIT-ORIENTED DEVELOPMENT EXCHANGE AGREEMENT dated ____ (“Exchange Agreement”), by which, inter alia, BART agreed to convey the Property to Owner, and Owner agreed to quitclaim to BART certain of Owner’s interests in a parcel of land owned by BART (“West Lot”) situated in the City and more particularly described as follows:
PARCEL ONE:
Memorandum of Covenants
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.
Sai
d 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.
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.
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
Memorandum of Covenants
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 West Lot and BART as the owner of the West Lot, as follows:
MEM
ORANDUM OF COVENANTS
Development Requirements
1. Any development of the Property shall achieve a minimum density of 75 dwelling units per acre.
Affordable Housing Requirements
2. At least 35% of any new housing units developed on the Property, including any units that may be added as a result of a density bonus, shall be Affordable Housing units. Owner, together with any developer(s) of the property, shall explore the potential for exceeding the 35% requirement, with the goal of 50% of Affordable Housing units, taking into consideration development costs, values and potential for additional City subsidy.
“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 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.
3. 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 (i) for the duration of the applicable ground lease (each of which shall have a minimum
Memorandum of Covenants
duration of 99 years), including any lease term extensions, or (ii) for 99 years, for any units on the Property that are not subject to a ground lease.
4. Development of the P roperty 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.
5. Any project on the Property that includes construction of both Affordable Housing units and market-rate housing units shall construct the Affordable Housing units prior to or concurrently with any market-rate housing.
6. 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.
7. If a development project will meet all or a portion of the requirements of the Inclusionary Ordinance through clustering as described in Paragraph 6, 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 Resolution No. 70,698-N.S.) by the total residential unit floor area of the project or projects 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
Memorandum of Covenants
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 S tate 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
Memorandum of Covenants
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: Br each of any restriction or provision of this Memor andum
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)
Memorandum of Covenants
Attest:_______________________________
By: __________________, City Clerk
Approv
ed as to Form
_____________________________________
By:
Its
:
Memorandum of Covenants
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:
Memorandum of Covenants
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]
Memorandum of Covenants
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]
SCHEDULE 4.3.4
West Lot Covenants
Memorandum of Covenants
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
to
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
MEMOR
ANDUM OF COVENANTS
Memorandum of Covenants
Memorandum of Cov enants
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.
Memorandum of Covenants
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.
Memorandum of Covenants
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 devel
opment 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
Memorandum of Covenants
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. In the event that more than 602 total housing units are built on the Property (i
nclusive of any density bonus units), there shall be no fewer than 301 Affor dable 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.
Memorandum of Covenants
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. Any project on the Property that includes construction of both Affordable 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
Memorandum of Covenants
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. Development of the Property shall make space available to the Berkeley Flea Mar
ket 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
Memorandum of Covenants
California Civil Code.
20. Subdivision and Development of the Property.
a) T
he City understands and acknowledges that, in order to achieve the intent of the Exchange Agreement, the Property may be subdiv
ided 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 provi
sions 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: Inval idation 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 a
mendment or modification of this
Memorandum shall be valid unless in writing, executed by Owner and City, and
Memorandum of Covenants
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. Mortgage Protection: Br each 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.
26. Rights Inseverable: The rights or obligations creat ed 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:
Memorandum of Covenants
Its:
CITY:
Date:_____________________ CITY OF BERKELEY, a charter city.
By:
Its:
Memorandum of Covenants
Approved as to Form
_____________________________________
By:
Its:
Memorandum of Covenants
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.
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:
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.
Memorandum of Covenants
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.
Memorandum of Covenants
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-speci fic 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 inc lude, 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.
Memorandum of Covenants
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 anal
ysis 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 consi der 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.
Memorandum of Covenants
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.
Memorandum of Covenants
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]
Memorandum of Covenants
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]
SCHEDULE 4.4.4
Grant Deed – East Lot
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
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:
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, , 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]
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
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:
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.
APN: 053-1703-009
SCHEDULE 5.2
Schedule
Activity Lead Party Outside Date
Exchange Agreement Execution BART & Cit y 10-Jan-25
West Lot Developer Solicitation
Issuance
BART 10-Dec-24
West Lot Consideration of 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 Develope
r
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 Develope
r
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 ma
jeure 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 pro
ject component.
West Lot Developer
and East Lot
Developer
31-Dec-2035
SCHEDULE 5.5
CITY STANDARD CONDITIONS OF APPROVAL RELIED ON IN R-BMU ZONING EIR
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 prepar e a health risk assessment that demonstrates the project’s on- site emissions of diesel particulate matter dur ing 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 w ith Tier 2 or higher engines and the most effective Verified Diesel Emission Control Stra tegies (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:
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 cons ult with a qualified archaeologist, historian or paleontologist to assess the significance of the find.
If any find is determined to be significant, representatives of the proj ect proponent and/or lead agency and the qualified professional would m eet to determine the appropriate avoidance measures or other appropriate measure, with th e ultimate determination to be made by the City of Berkeley. All significant cultur al 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 qualif ied professional, the project applicant shall determine whether avoidance is nece ssary or feasible in light of factors such as the uniqueness of the find, project design, costs, and other considerations.
If avoidance is unnecessary or in feasible, 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 profession al 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.
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 maintain ed and used judiciousl y 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 ot her 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 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 requi red, pre-drill foundation pile hol es to minimize the number of impacts required to seat the pile.
Construct solid plywood fences around constructi on sites adjacent to operational business, residences or other noise-sensit ive land uses where the noise control plan analysis determines that a barrier would be effective at reducing noise.
Erect temporary noise control blanket barrie rs, 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 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 ap plicant 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 dete rmine 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.
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.
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.
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, provided that said Housing Trust Fund Guidelines do not restrict or otherwise regulate the project’s height, density, or development capacity.
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.
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.
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.
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.
SCHEDULE 8.1.3
INFRASTRUCTURE MATRIX
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.
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.
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.
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
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
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
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
SCHEDULE 12.3.1
West Lot Notice of CC&R Termination
Termination of Covenants Affecting Real Property
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):
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
TER
MINATION OF COVENANTS AFFECT
ING REAL PROPERTY
Termination of Covenants Affecting Real Property
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 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.
APN: 053-1597-039-04
Termination of Covenants Affecting Real Property
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.
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. ________________ 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, for 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)
Termination of Covenants Affecting Real Property
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:
Termination of Covenants Affecting Real Property
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]
Termination of Covenants Affecting Real Property
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]
SCHEDULE 12.3.2
East Lot Notice of CC&R Termination
Termination of Covenants Affecting Real Property
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) decl
are(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
TER
MINATION OF COVENANTS AFFECT
ING REAL PROPERTY
Termination of Covenants Affecting Real Property
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 Assessor 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:
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.
APN: 053-1703-009
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.
Termination of Covenants Affecting Real Property
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, for valuable consideration, receipt of which is acknowledged, Owner and BART agree as follows:
AGREEMENT TERMINATING COVENANTS
1. Owner and BART agree that the above recitals are accurate.
2. Owner and BART 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)
Termination of Covenants Affecting Real Property
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:
Termination of Covenants Affecting Real Property
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]
Termination of Covenants Affecting Real Property
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]
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
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
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.
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).
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.
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:
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.
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
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.
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.
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).
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
City of Berkeley
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.
Environmental Impacts
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.
City of Berkeley
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.
Environmental Impacts
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.
City of Berkeley
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.
Environmental Impacts
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.
City of Berkeley
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
Environmental Impacts
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.
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 substantially the same as they were when they were studied and 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.
City of Berkeley
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
Environmental Impacts
Addendum to the TOD Zoning EIR and the ACSP EIR 21
Impacts and Impact Level in
2020 ACSP EIR1
Environmental Effects of the
Proposed Project
Impact Impact
Leve
l
Ne
w Less-
Than-
Significant
Impact
Same
Impact
as E
IR
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
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
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.
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.
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).
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
Ordinance No. 7,940-N.S. Page 1 of 9
ORDINANCE NO.7,940-N.S.
AMENDING THE ANNUAL APPROPRIATIONS ORDINANCE NO. 7,926–N.S. FOR FISCAL YEAR 2025
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That the Annual Appropriations Ordinance based on the budget for FY 2025 submitted by the City Manager and passed by the City Council be amended as follows and as summarized in Exhibit A:
A. General Fund (Funds 001-099) 341,520,808
B. Special Funds (Funds 100-199) 212,518,984
C. Grant Funds (Funds 300-399) 102,697,311
D. Capital Projects Funds (Funds 500-550) 98,737,295
E. Debt Service Fund (Funds 551-599) 13,363,356
F. Enterprise Funds (Funds 600-669) 219,965,527
G. Internal Service Funds (Funds 146, 670-699) 85,648,145 H. Trust Funds (Funds 701-759) 257,618
H. Successor Agency (Funds 760-769) 57,120
I. Agency Funds (Funds 771-799) 5,858,816
J. Other Funds (Funds 800-899) 10,085,784
K. Total
Total General Fund 341,520,808
Add: Total Other Than General Fund 749,189,957
Gross Revenue Appropriated 1,090,710,765
Less: Dual Appropriations -54,075,441
Less: Revolving/Internal Service Funds -77,928,090
Net Revenue Appropriated 958,707,235
Ordinance No. 7,940-N.S. Page 2 of 9
Section 2. The City Manager is hereby permitted, without further authority from the City Council, to make the following transfers by giving written notice to the Director of Finance:
a. From the General Fund to the General Fund – Stability Reserve Fund; Catastrophic Reserve Fund; Paramedic Tax Fund; Health State Aid Realignment; Fair Election Fund; Capital Improvement Fund; Phone System Replacement; Equipment Replacement Fund; Public Liability Fund; Catastrophic Loss Fund; Police Employee Retiree Health Assistance Plan; Safety Members Pension Fund; and Sick Leave Entitlement Fund.
b. To the General Fund from the General Fund – Stability Reserves Fund; Catastrophic Reserves Fund; Community Development Block Grant Fund; Street Lighting Assessment District Fund; Zero Waste Fund; Marina Operations and Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Permit Service Center Fund; Parking Meter Fund; Unified Program (CUPA); IT Cost Allocation Fund; and Health State Aid Realignment Fund. c. To the First Source Fund from the Parks Tax Fund; Capital Improvement Fund; and the Marina Fund.
d. From Gilman Sports Field Fund to Gilman Field Reserve Fund e. From Measure FF Fund to Paramedic Tax Fund.
f. From the American Rescue Plan Fund to the General Fund; Sports Field Fund; Playground Camp Fund; Marina Fund; Off-Street Parking Fund; and Parking Meter Fund.
g. From Capital Improvement Fund to PERS Savings Fund; Berkeley Repertory Theater Fund; and 2010 COP (Animal Shelter) Fund.
h. To the Public Art Fund from the Parks Tax Fund; Capital Improvement Fund; and the Marina Fund.
i. To CFD#1 District Fire Protection Bond (Measure Q) from Special Tax Bonds CFD#1 ML-ROOS.
j. To Private Sewer Lateral Fund from Sanitary Sewer Operation Fund. k. To Catastrophic Loss Fund from Permit Service Center Fund. l. To Catastrophic Loss Fund from Unified Program (CUPA) Fund. m. To the Building Purchases and Management Fund from General Fund; Health (General) Fund; Rental Housing Safety Program Fund; Measure B Local Streets & Road Fund; Employee Training Fund; Zero Waste Fund; Sanitary Sewer
Ordinance No. 7,940-N.S. Page 3 of 9
Operation Fund; Clean Storm Water Fund; Permit Service Center Fund; Off Street Parking Fund; Parking Meter Fund; Unified Program (CUPA) Fund; Building Purchases & Management Fund; Building Maintenance Fund; Central Services Fund; and Health State Aide Realignment Trust Fund.
n. To Equipment Replacement Fund from General Fund; Mental Health Services Act Fund; Health (Short/Doyle) Fund; Vector Control Fund; Paramedic Tax Fund; Playground Camp Fund; State Transportation Tax Fund; Rental Housing Safety Program Fund; Parks Tax Fund; Street Light Assessment District Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Permit Service Center Fund; Parking Meter Fund; Equipment Maintenance Fund; Building Maintenance Fund; and Central Services Fund.
o. To the Equipment Maintenance Fund from General Fund; Health (General) Fund; Mental Health Services Act Fund; Health (Short/Doyle) Fund; Vector Control Fund; Paramedic Tax Fund; Library - Discretionary Fund; Playground Camp Fund; State Transportation Tax Fund; Rental Housing Safety Program Fund; Rent Stabilization Board Fund; Parks Ta Fund; Street Light Assessment District Fund; FEMA Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Permit Service Center Fund; Off Street Parking Fund; Parking Meter Fund; Equipment Maintenance Fund; Building Maintenance Fund; and Central Services Fund.
p. To the Building Maintenance Fund from the General Fund; Health (General) Fund; Health (Short/Doyle) Fund; Measure B Local Street & Road Fund; Parks Tax Fund; Street Light Assessment District Fund; Zero Waste Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Off Street Parking Fund; Parking Meter Fund; Equipment Maintenance Fund; Building Maintenance Fund; and Mental Health State Aid Realignment Fund.
q. To the Central Services Fund from the General Fund; First Source Fund; Health (Short/Doyle) Fund; Library-Discretionary Fund; Playground Camp Fund; Rent Stabilization Board Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation; Building Purchases & Management Fund; Building Maintenance Fund; Central Services Fund; and Mental Health State Aid Realignment Fund.
r. To Information Technology Cost Allocation Plan Fund from General Fund; Target Case Management/Linkages Fund; Health (Short/Doyle); Library Fund; Playground Camp Fund; State Transportation Tax Fund; CDBG Fund; Rental Housing Safety Program; Rent Stabilization Board Fund; Parks Tax Fund; Street Light Assessment District Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation; Clean Storm Water Fund; Permit Service Center Fund; Off Street Parking Fund; Parking Meter Fund; Unified Program (CUPA) Fund; Equipment Maintenance Fund; Building
Ordinance No. 7,940-N.S. Page 4 of 9
Maintenance Fund; Information Technology Cost Allocation Plan Fund; Health State Aid Realignment Trust Fund; and Mental Health State Aid Realignment Fund.
s. To the Workers' Compensation Self-Insurance Fund from General Fund; Special Tax for Severely Disabled Measure E Fund; First Source Fund; HUD Fund; ESGP Fund; Health (General) Fund; Target Case Management/Linkages Fund; Mental Health Service Act Fund; Health (Short/Doyle) Fund; EPSDT Expansion Proposal Fund; Senior Nutrition (Title III) Fund; C.F.P. Title X Fund; Fund Raising Activities Fund; Berkeley Unified School District Grant; Vector Control Fund; Paramedic Tax Fund; Alameda County Grants Fund; Senior Supportive Social Services Fund; Family Care Support Program Fund; Domestic Violence Prevention – Vital Statistics Fund; Affordable Housing Mitigation; Inclusionary Housing Program; Library – Discretionary Fund; Playground Camp Fund; Community Action Program Fund; State Proposition 172 Public Safety Fund; State Transportation Tax Fund; CDBG Fund; Rental Housing Safety Program; Measure B Local State & Road Fund; Measure B Bike & Pedestrian Fund; Measure B – Paratransit Fund; Measure F Alameda County Vehicle Registration Fee Streets & Roads Fund; Measure BB – Paratransit Fund; Fair Election Fund; Measure U1 Fund; One-Time Grant: No Cap Expense Fund; Rent Stabilization Board Fund; Parks Tax Fund; Measure GG – Fire Prep Tax Fund; Street Lighting Assessment District Fund; Employee Training Fund; Private Percent – Art Fund; Measure T1 – Infrastructure & Facilities Fund; FUND$ Replacement Fund; Capital Improvement Fund; FEMA Fund; CFD #1 District Fire Protect Bond Fund; Special Tax Bonds CFD#1 ML-ROOS Fund; Shelter+Care HUD Fund; Shelter+Care County Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Private Sewer Lateral Fund; Permit Service Center Fund; Off-Street Parking Fund; Parking Meter Fund; Unified Program (CUPA) Fund; Building Purchases & Management Fund; Equipment Replacement Fund; Equipment Maintenance Fund; Building Maintenance Fund; Central Services Fund; Workers’ Compensation Fund; Public Liability Fund; Information Technology Cost Allocation Plan Fund; Health State Aid Realignment Trust Fund; Tobacco Control Trust Fund; Mental Health State Aid Realignment Fund; Alameda Abandoned Vehicle Abatement Authority; and Bio-Terrorism Grant Fund.
t. To the Sick Leave and Vacation Leave Accrual Fund from General Fund; Special Tax for Severely Disabled Measure E Fund; First Source Fund; HUD Fund; ESGP Fund; Health (General) Fund; Target Case Management/Linkages Fund; Mental Health Service Act Fund; Health (Short/Doyle) Fund; EPSDT Expansion Proposal Fund; Senior Nutrition (Title III) Fund; C.F.P. Title X Fund; Fund Raising Activities Fund; Berkeley Unified School District Grant; Vector Control Fund; Paramedic Tax Fund; Alameda County Grants Fund; Senior Supportive Social Services Fund; Family Care Support Program Fund; Domestic Violence Prevention – Vital Statistics Fund; Affordable Housing Mitigation; Inclusionary Housing Program; Library – Discretionary Fund; Playground Camp Fund; Community Action Program Fund; State Proposition 172 Public Safety Fund; State Transportation Tax Fund;
Ordinance No. 7,940-N.S. Page 5 of 9
CDBG Fund; Rental Housing Safety Program; Measure B Local State & Road Fund; Measure B Bike & Pedestrian Fund; Measure B – Paratransit Fund; Measure F Alameda County Vehicle Registration Fee Streets & Roads Fund; Measure BB – Paratransit Fund; Fair Election Fund; Measure U1 Fund; One-Time Grant: No Cap Expense Fund; Rent Stabilization Board Fund; Parks Tax Fund; Measure GG – Fire Prep Tax Fund; Street Lighting Assessment District Fund; Employee Training Fund; Private Percent – Art Fund; Measure T1 – Infrastructure & Facilities Fund; FUND$ Replacement Fund; Capital Improvement Fund; FEMA Fund; CFD #1 District Fire Protect Bond Fund; Special Tax Bonds CFD#1 ML-ROOS Fund; Shelter+Care HUD Fund; Shelter+Care County Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Private Sewer Lateral Fund; Permit Service Center Fund; Off-Street Parking Fund; Parking Meter Fund; Unified Program (CUPA) Fund; Building Purchases & Management Fund; Equipment Replacement Fund; Equipment Maintenance Fund; Building Maintenance Fund; Central Services Fund; Workers’ Compensation Fund; Public Liability Fund; Information Technology Cost Allocation Plan Fund; Health State Aid Realignment Trust Fund; Tobacco Control Trust Fund; Mental Health State Aid Realignment Fund; Alameda Abandoned Vehicle Abatement Authority; and Bio-Terrorism Grant Fund.
u. To the Payroll Deduction Trust Fund from General Fund; Special Tax for Severely Disabled Measure E Fund; First Source Fund; HUD Fund; ESGP Fund; Health (General) Fund; Target Case Management/Linkages Fund; Mental Health Service Act Fund; Health (Short/Doyle) Fund; EPSDT Expansion Proposal Fund; Senior Nutrition (Title III) Fund; C.F.P. Title X Fund; Fund Raising Activities Fund; Berkeley Unified School District Grant; Vector Control Fund; Paramedic Tax Fund; Alameda County Grants Fund; Senior Supportive Social Services Fund; Family Care Support Program Fund; Domestic Violence Prevention – Vital Statistics Fund; Affordable Housing Mitigation; Inclusionary Housing Program; Library – Discretionary Fund; Playground Camp Fund; Community Action Program Fund; State Proposition 172 Public Safety Fund; State Transportation Tax Fund; CDBG Fund; Rental Housing Safety Program; Measure B Local State & Road Fund; Measure B Bike & Pedestrian Fund; Measure B – Paratransit Fund; Measure F Alameda County Vehicle Registration Fee Streets & Roads Fund; Measure BB – Paratransit Fund; Fair Election Fund; Measure U1 Fund; One-Time Grant: No Cap Expense Fund; Rent Stabilization Board Fund; Parks Tax Fund; Measure GG – Fire Prep Tax Fund; Street Lighting Assessment District Fund; Employee Training Fund; Private Percent – Art Fund; Measure T1 – Infrastructure & Facilities Fund; FUND$ Replacement Fund; Capital Improvement Fund; FEMA Fund; CFD #1 District Fire Protect Bond Fund; Special Tax Bonds CFD#1 ML-ROOS Fund; Shelter+Care HUD Fund; Shelter+Care County Fund; Zero Waste Fund; Marina Operations/Maintenance Fund; Sanitary Sewer Operation Fund; Clean Storm Water Fund; Private Sewer Lateral Fund; Permit Service Center Fund; Off-Street Parking Fund; Parking Meter Fund; Unified Program (CUPA) Fund; Building Purchases & Management Fund; Equipment Replacement Fund; Equipment Maintenance Fund; Building Maintenance Fund; Central Services Fund; Workers’
Ordinance No. 7,940-N.S. Page 6 of 9
Compensation Fund; Public Liability Fund; Information Technology Cost Allocation Plan Fund; Health State Aid Realignment Trust Fund; Tobacco Control Trust Fund; Mental Health State Aid Realignment Fund; Alameda Abandoned Vehicle Abatement Authority; and Bio-Terrorism Grant Fund.
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
Ordinance No. 7,940-N.S. Page 7 of 9
Attachment for Annual Appropriations Ordinance - Fiscal Year 2025
REVOLVING FUNDS/INTERNAL SERVICE FUNDS
Appropriations are identified with revolving and internal service funds. Such funds derive revenue by virtue of payment from other fund sources as benefits are received by such funds, and the total is reflected in the "Less Revolving Funds and Internal Service Funds" in item I. The funds are:
Revolving/Internal Service Funds
Employee Training Fund 958,763
Equipment Replacement Fund 23,304,599
Equipment Maintenance Fund 11,859,231
Building Maintenance Fund 6,893,540
Central Services Fund 414,530
Workers' Compensation Fund 6,905,936
Public Liability Fund 4,366,401
23,225,091
Subtotal Revolving/Internal Service Funds 77,928,090$
Dual Appropriations
Transfers to the General Fund
Indirect Cost Reimbursement
CDBG Fund 176,194
Street Light Assessment District Fund 115,502
One-Time Grant: No Cap Exp 78,545
Zero Waste Fund 2,643,473
Marina Enterprise Fund 449,252
Sanitary Sewer Fund 1,091,386
Clean Storm Water Fund 176,832
Permit Service Center Fund 2,172,889
Unified Program (CUPA) Fund 88,045
Subtotal Transfers to General Fund: 6,992,118$
Information Technology Fund
Ordinance No. 7,940-N.S. Page 8 of 9
Transfer to Safety Members Pension Fund from General Fund 551,804 6,500,000
Transfer to Health State Aid Realignment from General Fund 1,953,018 Transfer to Fair Election Fund from General Fund 612,210 Transfer to Capital Improvement Fund (CIP) from General Fund 14,099,209 Transfer to Equipment Replacement Fund from General Fund 1,081,699 Transfer to Public Liability Fund from General Fund 2,450,111 Transfer to Catastrophic Loss Fund from General Fund 7,322,003 Transfer to IT Cost Allocation Fund from General Fund 71,335 400,136
Transfer to Sick Leave Entitlement Fund from General Fund 201,501 750,000
5,000,000
Transfer to General Fund from Health State Aid Realignment Fund 2,643,280 757,925
499,802
Transfer from CIP Fund to 2010 COP (Animal Shelter) Fund 402,613 90,501
50,555
5,082
Transfer to General Fund from Parking Meter Fund 1,042,288 498,355
Transfer to First Source Fund from Parks Tax Fund 6,234 Transfer to First Source Fund from Capital Improvement Fund 29,917 Transfer to First Source Fund from Marina Fund 1,875
Transfer to Public Art Fund from Parks Tax Fund 6,234
Transfer to Public Art Fund from Capital Improvement Fund 52,355 Transfer to Public Art Fund from Marina Fund 3,281
Subtotal Transfers to Other Funds: 47,083,323
Sub-Total Dual Appropriations 54,075,441$
Grand Total Dual Appropriations 132,003,530$
Transfer to Police Employee Retiree Health Assistance Plan from General Fund Transfer to General Fund from IT Cost Allocation Fund
Transfer to Catastrophic Loss Fund from Permit Service Center Fund Transfer to Catastrophic Loss Fund from Unified Program (CUPA) Fund Transfer to Private Sewer Lateral Fund from Sewer Fund
Transfer to Berkeley Repertory Theater Debt Service Fund from CIP Fund Transfer to Measure U1 Fund from General Fund
Transfer to Paramedic Tax Fund from Measure FF - Public Safety Fund Transfer from GF Payroll Deduction Trust Fund to Employee Training Fund Transfer from Library Tax Fund to Library - Trans Based Fund
Ordinance No. 7,940-N.S. Page 9 of 9
At a regular meeting of the Council of the City of Berkeley held on November 19, 2024, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Hahn, Humbert, Kesarwani, Lunaparra, Taplin, Tregub, Wengraf, and Arreguin.
Noes: None.
Absent: None.
EXHIBIT A
Encumbered Unencum. Other Total FY 2025
ERMA
Fund # Fund
FY 2025
Adopted
Rollovers Carryovers Adjustments Amend. Revised #1
011 General Fund Discretionary 285,550,053 30,334,347 12,779,271 4,988,063 48,101,681 333,651,734 013 GF - Payroll Deduction Trust 750,000 - - - - 750,000 016 Measure U1 - Housing 6,142,668 717,117 88,574 - 805,691 6,948, 359 017 Climate Equity - 170,715 - - 170,715 170,715
101 Library - Tax 31,815,703 504,118 - - 504,118 32,319,821 102 Library - Trans Based 2,000,000 - - - - 2,000,000 103 Library - Grants 67,526 - - - - 67,526
104 Library - Friends & Gift 150,000 33 - 25,600 25,633 175,633 105 Library - Foundation 200,000 20,653 - - 20,653 220,653 106 Asset Forefeiture 201,000 113,208 - - 113,208 314,208 107 Special Tax Measure E 1,733,706 - - - - 1,733,706 108 Workforce Investment 58,311 - - - - 58,311
110 Sec 108 Loan Gty Asst. 1,183,612 - - - - 1,183,612 111 Fund Raising Activities 50,333 310 - 13,150 13,460 63,794 113 Gilman Sports Field 318,415 29,624 - - 29,624 348,039 115 Animal Shelter 52,480 7,407 - - 7,407 59,887 116 Paramedic Tax 4,486,586 - - - - 4,486,
586
117 CA Energy Commission - 44,249 - - 44,249 44,249 119 Domestic Violence Prev - Vit Stat 29,065 - - - - 29,065 120 Affordable Housing Mitigation 28,694,717 3,943,274 - 253,374 4,196,648 32,891,365 121 Affordable Child Care 13,275 5,906 - - 5,906
19,181
122 Inclusionary Housing Program 712,265 - - - - 712,265 123 Condo Conversion 509,478 - - - - 509,478
125 Playground Camp 3,911,261 585,641 216,146 - 801,786 4,713,047 126 State-Prop 172 Pub.Safety 446,694 123,215 - 1,199,834 1,323,049 1,769,743 127 State Transportation Tax 7,954,591 429,815 4,514,536 2,200,000 7,144,351 15,098,943 128 CDBG 4,566,152 1,807,427 1,075,311 - 2,882,738 7,448,890 129 Rental Housing Safety Program 2,657,072 142,740 - - 142,740 2,799,813 130 Measure B - Local St & Road 2,007,551 89,420 2,764, 883 750,000 3, 604,303 5,611, 854 131 Measure B - Bike & Pedestrian 47,646 601,111 15,767 - 616,878 664,524 132 Measure B - Paratransit 36,797 14,371 - - 14,371 51, 168 133 Measure F Alameda County VRF St & Rd 562,218 512,576 2,155,110 - 2, 667,686 3,229, 904 134 Measure BB - Local St & Road 9,586,869 1,271,244 7,147,494 443,968 8, 862,707 18,449, 576 135 Meaure BB - Bike & Pedestrian 2,028,132 181,615 627,530 123,343 932, 488 2,960, 620 136 Measure BB - Paratransit 975,667 85,454 - 120, 000 205,454 1,181, 121 137 One Time Funding - 19,080 50,000 319,800 388,880 388,880 138 Parks Tax 19,783,148 906,148 3,403,771 300,000 4,609,919 24,393,067 139 Streets and Open Space Improvement (SOSIP) 200,000 - 200,000 - 200,000 400,000 140 Measure GG - Fire Prep Tax 5,900,588 409,377 - - 409,377 6,309,965 142 Streetlight Assesment District 3,252,909 149,402 725,754 150,000 1,025,156 4,278,066 143 Berkeley Bus Ec Dev 156,387 16,800 - - 16,800 173,187 145 BAYER - MILES LAB - - 49,613 - 49,613 49,613
146 Employee Training 860,645 98,118 - - 98,118 958,763 147 UC Settlement 5,111,175 1,228,721 1,300,742 - 2,529,463 7,640,638 148 Cultural Trust 116,780 553,446 - 687,632 1,241,078 1,357,858 149 Private Party Sidewalks 100,000 260,584 905,001 - 1,165,585 1,265,585 150 Public Art Fund 121,001 5,500 - 66,500 72,000 193,001 152 Vital & Health Statistics Trust Fund 30,292 1,000 - - 1,000 31,292 156 Hlth State Aid Realign Trust 4,500,238 - - 761,950 761,950 5,262, 188
157 Tobacco Cont.Trust 368,910 34,182 - - 34,182 403,092 158 Mental Health State Aid Realign 5,276,501 299,542 - - 299,542 5,576,042 159 Citizens Option Public Safety Trust 272,394 9,793 - 150,000 159,793 432,188 161 Alameda Cty Abandoned Vehicle Abatement 121,233 17 - - 17 121,250 164 M
easure FF 11,090,910 1,284,652 - - 1,284,652 12,375,562 165 Fair Elections 650,932 - - - - 650,932
301 Operating Grants - Federal 35,162 - - - - 35,162 302 Operating Grants - State 8,260,364 1,074,873 - - 1,074,873 9,335,237 305 Capital Grants - Federal - 4,228,058 21,769 - 4,249,827 4,249,827 306 Capital Grants - State 750,000 220,249 2,281,888 148,983 2,651,120 3,401,120 307 Capital Grants - Local 100,000 1,031,691 5,877,876 - 6,909,567 7,009,567 309 OTS DUI Enforcement Education Prg. 145,074 - - 353,000 353,000 498,074 310 HUD/Home 904,340 176,283 - 1,627,862 1,804,145 2,708,485 311 ESGP 235,744 45,037 - 237,965 283,002 518,746 312 Health (General) 2,753,296 11,021 - 78,759 89,780 2,843,075 313 Target Case Management Linkages 1,507,317 85,582 - 289,011 374,593 1,881,911 315 Mental Health Service Act 11,713,181 3,037,963 - - 3,037,963 14,751,144 316 Health (Short/Doyle) 7,506,568 190,576 - - 190,576 7,697,144 317 EPSDT Expansion Proposal 493,511 - - - - 493,511 318 Alcoholic Bev Ctr OTS/UC 58,644 - - - - 58,644 319 Youth Lunch 111,153 100,733 - - 100,733 211,886 320 Sr. Nutrition Title III 214,038 98 - 20,572 20,670 234,708 321 CFP Title X 203,566 790 - - 790 204,356
324 BUSD Grant 216,521 - - - - 216,521
1st AAO
SUMMARY OF APPROPRIATIONS BY FUND
EXHIBIT A
Encumbered Unencum. Other Total FY 2025
ERMA
Fund # Fund
FY 2025
Adopted
Rollovers Carryovers Ad justments Amend. Revised #1
1st AAO
SUMMARY OF APPROPRIATIONS BY FUND
325 Vector Control 372,174 10,458 - - 10,458 382,632 326 Alameda County Grants 908,861 2,115 - - 2,115 910,977 327 Senior Supportive Social Services 126,557 - - 54,649 54,649 181,206 328 Family Care Support Program 91,307 - - 70,856 70,856 162,163 329 CA Integrated Waste Management 5,244 5,000 17,062 - 22,062 27,306 331 Housing Mitigation 1,126,763 136,393 - 52,232 188,625 1,315,388 333 CALHOME 200,000 - - - - 200,000
334 Community Action 283,416 - - 7,000 7,000 290,416 336 One-Time Grant: No Cap Exp 3,482,470 3,433,508 8,576,046 9,618, 725 21,628,279 25,110,749 339 MTC 752,827 225,533 22,552 - 248,085 1,000,912 340 FEMA 657,132 804,332 - 2,530,728 3,335,060 3,992,193 341 Alameda Cty Waste Mgt. 345,000 - - - - 345,000 343 State Dept Conserv/Recylg 32,000 - 31,213 - 31,213 63,213 344 Caltrans Grant - 9,664 8,637 - 18,301 18,301 347 Shelter+Care HUD 6,644,440 1,516 - - 1,516 6,645,956 348 Shelter+Care County 924,119 - - - - 924,119
349 JAG Grant 58,989 - - 50,000 50,000 108,989
350 Bioterrorism Grant 533,027 27,097 - - 27,097 560,124 354 ARPA - Local Fiscal Recovery Fund 372,194 3,736,356 - - 3,736, 356 4,108, 550 501 Capital Improvement Fund 16,880,486 6,521,803 20,101,009 440,000 27,062,813 43,943,299 502 Phone System Replacement 449,408 407,949 - - 407,949 857,357 503 FUND$ Replacement 2,807,857 901,452 - - 901,452 3,709,309 504 PEG-Public, Education & Government 100,000 - - 267,210 267,210 367,210 506 Measure M - St and Watershed Improvement - 72,276 721,759 - 794,035 794,035 511 Measure T1 - Infra & Facil. 10,696,058 3,361,836 23,312,243 - 26,674,079 37,370,137 512 Measure O 6,445,567 3,250,381 - 2,000,000 5,250,381 11,695,948 552 09 Measure FF Debt Service 1,337,638 - - - - 1,337,638 553 2015 GORBS 2,047,259 - - - - 2,047,259
554 2012 Lease Revenue Bonds BJPFA 499,820 - - - - 499,820 555 2015 GORBS - 2002 G.O. Refunding Bonds 378,696 - - - - 378,696 556 2015 GORBS (2007, Series A) 142,540 - - - - 142,540 557 2015 GORBS (2008 Measure I) 480,184 - - - - 480,184 558 2010 COP (Animal Shelter) 140,085 - - - - 140,085 559 Measure M GO Street & Water Imps 1,630,863 - - - - 1,630, 863 560 Infrastucture & Facilities Measure T1 4,699,006 - - - - 4,699, 006 561 Measure O - Housing Bonds 2,007,265 - - - - 2,007,265 601 Zero Waste 63,843,856 3,345,538 180,331 1,744,532 5,270,401 69,114,258 606 Marina - Coastal Conservancy - 311,820 14,431,161 221,733 14,964,715 14,964,715 607 Marina - Dept of Boating & Waterway - 50 18,366 60,000 78,416 78,416 608 Marina Operation 8,431,392 566,039 1,026,462 6,000 1,598,501 10,029,893 611 Sewer 32,682,155 11,273,412 13,404,469 2,105,503 26,783,384 59,465,540 612 Private Sewer Lateral FD 82,732 - - - - 82,732 616 Clean Storm Water 9,085,787 1,148,190 2,063,111 - 3,211,301 12,297,088 621 Permit Service Center 26,739,100 2,403,014 - - 2,403,014 29,142,113 622 Unified Program (CUPA) 967,783 51,161 - 22,077 73,238 1,041,021 627 Off Street Parking 7,112,934 606,843 764 1,536,416 2,144,023 9,256,957 631 Parking Meter 9,812,436 515,847 43,035 - 558,882 10,371, 318 636 Building Purchases and Management 3,869,919 151,557 - 100,000 251,557 4,121,476 671 Equipment Replacement 6,572,107 7,051,991 711,000 8,969,501 16,732,492 23,304,599 672 Equipment Maintenance 11,551,467 307,764 - - 307,764 11,859,231 673 Building Maintenance Fund 5,677,341 216,199 - 1,000,000 1,216,199 6,893,540 674 Central Services 399,519 15,011 - - 15,011
414,530
676 Workers Compensation 6,620,627 285,309 - - 285,309 6,905,936 678 Public Liability 3,678,458 687,943 - - 687,943 4,366,401 679 Catastrophic Loss 3,447,023 - - 4,273,032 4,273,032 7,720,055 680 IT Cost Allocation 18,802,533 1,522,558 - 2,900,000 4,422,558 23,225,091 706 Police Medical Trust Fund 48,281 - - - - 48,281 721 Retiree Medical Trust Fund - BHA 2,970 - - - - 2,970 722 Retiree Medical Trust Fund - IBEW 2,563 2,775 - - 2,775 5,338 723 Retiree Medical Trust Fund - Local 1 22,595 7,099 - - 7,099 29,694 724 Retiree Medical Trust Fund - Z1 Mgmt. 4,000 626 - - 626 4,626 725 Retiree Medical Trust Fund - Z2 To Z6 12,000 3,815 - - 3,815 15,815 726 Retiree Medical Trust Fund - Local 535 32,191 12,232 - - 12,232 44,423 727 Retiree Medical Trust Fund - Local 790 37,106 10,327 - - 10,327 47,433 731 Police EE Retiree Health Ast Plan 6,500 3,253 - - 3,253 9,753 736 Fire Medical Trust Fund 45,571 3,712 - - 3,712 49,283 762 Successor Agency - Savo DSF 57,120 - - - - 57,120 776 Thousand Oaks Underground 98,448 - - - - 98,448 777 Measure H - School Tax 500,000 2 - - 2 500,002 778 Measure Q - CFD#1 Dis. Fire Protect Bond 507,914 14,062 - - 14,062 521,976 779 Spl Tax Bds. CFD#1 ML-ROOS 776,665 - - - - 776,665 780 Sick Leave Entitlement 322,955 - - - - 322,955 781 Berkeley Tourism BID 740,277 - 90,207 - 90,207 830,484
EXHIBIT A
Encumbered Unencum. Other Total FY 2025
ERMA
Fund # Fund
FY 2025
Adopted
Rollovers Carryovers Adjustments Amend. Revised #1
1st AAO
SUMMARY OF APPROPRIATIONS BY FUND
782 Elmwood Business Improvement District 30,000 15,815 30,290 - 46,105 76,105 783 Solano Ave BID 25,000 - 20,136 - 20,136 45,136 784 Telegraph Avenue Bus. Imp. District 616,664 - 157,831 - 157,831 774,495 785 North Shattuck BID 228,135 - - - - 228,135
786 Downtown Berkeley Prop & Improv. District 1,604,760 - 79,656 - 79,656 1,684,416 801 Rent Board 7,939,208 405,304 - 1,741,272 2,146,576 10,085,784 GROSS EXPENDITURE: 793,319,711 111,061,845 131,248,377 55,080,833 297,391,054 1,090,710,765 Dual Appropriations (53,031,895) - - - (54,075,441) Revolving & Internal Service Funds (54,162,697) (10,184,892) (711,000) (12,869,501) (23,765,393) (77,928,090) NET EXPENDITURE: 686,125,119 100,876,953 130,537,377 42,211,332 273,625,661 958,707,235
Ordinance No. 7,941-N.S. Page 1 of 10
ORDINANCE NO.7,941-N.S.
DEVELOPMENT AGREEMENT PROCEDURES AMENDMENTS; AMENDING
BERKELEY MUNICIPAL CODE CHAPTER 22.16
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 22.16 is amended to read as follows:
DEVELOPMENT AGREEMENT PROCEDURES AMENDMENTS
Chapter 22.16
DEVELOPMENT AGREEMENT PROCEDURES
Sections:
22.16.010 Intent and purpose.
22.16.020 Definitions.
22.16.030 Applications.
22.16.040 Contents of development agreements.
22.16.050 Consideration of proposed development agreements and their enabling ordinances.
22.16.060 Recordation.
22.16.070 Annual review.
22.16.080 Amendment or cancellation.
22.16.090 Miscellaneous provisions.
Section 22.16.010 Intent and purpose.
A. Declaration of intent and purpose.
1. Intent. A development agreement is a contract that is negotiated and voluntarily entered into by the City and an applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties. Development agreements provide assurance to the applicant that the project may proceed in accordance with existing policies, rules and regulations, and subject to conditions of approval, thereby strengthening the public planning process, encouraging private participation in comprehensive planning, and reducing the economic costs of development. Development agreements promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved.
2. Purpose. Where there are unique or compelling circumstances, development agreements may be used to advance community benefits that are mutually beneficial to the City and the applicant and cannot otherwise be achieved through the land use regulatory process.
Ordinance No. 7,941-N.S. Page 2 of 10
Section 22.16.020 Definitions.
A. Definitions. The following terms when used in this chapter shall have the following respective meanings:
1. "City" means the City of Berkeley, a municipal corporation.
2. "City Clerk" means the Berkeley City Clerk.
3. "City Council" means the Berkeley City Council.
4. "City Manager" means the Berkeley City Manager or the person they designate to carry out all or part of the responsibilities for implementing this chapter.
5. "Applicant" means a person who has a legal or equitable interest in real property, and who applies for a development agreement for a project on that property pursuant to the procedures specified in this chapter, and who executes and is bound by the terms of the development agreement. "Applicant" includes a successor in interest to the rights and duties of the original applicant for a development agreement.
6. "Development agreement" means a development agreement entered into between the City and an applicant pursuant to this chapter.
7. "General plan" means the Berkeley General Plan.
8. "Person" means an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body, tribunal or any other form of business or legal entity.
9. "Planning Commission" means the Planning Commission of the City of Berkeley.
10. "Project" means the development project that is the subject of a development agreement.
Section 22.16.030 Applications.
A. Authority for Adoption. An applicant for a development project may request that the City review the application as a development agreement application in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864-65869.5. In the event of any conflict between these statutory provisions and this chapter, this chapter shall control, to the extent permitted by state law.
B. Forms and Information. The applicant shall submit an application for a development agreement on a form prescribed by the City Manager. The City Manager shall identify submittal requirements for applications for development agreements. They may require
Ordinance No. 7,941-N.S. Page 3 of 10
an applicant to submit such additional information and supporting data as they consider necessary to process the application.
C. Fees. The applicant shall pay such fees and charges for the filing and processing of applications for development agreements and the administration of approved development agreements, including annual reviews, in amounts as may be established by resolution of the City Council.
D. Qualified Applicant. A qualified applicant shall have a legal or equitable interest in the real property which is the subject of the proposed development agreement. The City Manager shall require an applicant to submit proof of their interest in the real property, and of the authority of any agent to act for the applicant.
E. Initial review of application.
1. Complete Application. The City Manager shall review each application to determine completeness. If the application is deemed complete, the City Manager shall, within forty-five (45) days after submittal of the application, inform the applicant.
2. Incomplete Application. If the application is found to be incomplete, the City Manager shall, within forty-five (45) days after submittal of the application, inform the applicant that the application has been rejected and provide a list of the items necessary to properly complete the application.
Section 22.16.040 Contents of development agreements.
A. Project Description. A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability.
B. Improvements & Fees. A development agreement may include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.
C. Requirement for Project Approvals. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.
D. CEQA. A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project including those conditions and restrictions proposed in any environmental impact report or mitigated negative declaration applicable to the project prepared and certified
Ordinance No. 7,941-N.S. Page 4 of 10
under the California Environmental Quality Act, and the City's regulations with respect thereto, in order to eliminate or mitigate adverse environmental impacts of the project.
E. Phased Development. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.
F. Public Financing. If the development agreement requires applicant financing of necessary public facilities, it may include terms.
G. Indemnification. A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the City harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.
H. Performance Guarantee. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.
I. Terms. A development agreement shall be a contract that is negotiated and voluntarily entered into by City and applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.
Section 22.16.050 Consideration of proposed development agreements and their enabling ordinances.
A. Negotiations. The City Manager shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council. The City Council may, but need not, appoint a subcommittee of the City Council to advise the City Manager on the negotiations.
B Advisory bodies. The Planning Commission shall advise the City Council on development agreements, including the matters specified in subsection 22.16.050 (E) of this chapter. The Planning Commission may seek recommendations from the following boards or commissions consistent with the charge of those bodies as set forth below.
1. Zoning Adjustments Board - permitted uses and development standards, and future discretionary review for use permits.
2. Design Review Committee - development standards as they relate to existing and planned urban design of the surrounding area, architectural guidelines, site plan and site plan standards.
Ordinance No. 7,941-N.S. Page 5 of 10
3. Landmarks Preservation Commission - development standards as they relate to designated landmarks or structures of merit on the subject site or adjacent sites, mitigation programs for loss of designated landmarks, and demolition of non- residential buildings forty years old or older.
C. Availability of draft development agreement. The City Manager shall make a draft of the proposed development agreement available for public review at least thirty (30) days prior to the Planning Commission’s public hearing on the proposed development agreement.
D. Planning Commission public hearing. Prior to making a recommendation for City Council action on a proposed development agreement, the Planning Commission shall hold a noticed public hearing to consider comments on the development agreement from members of the public. Notice of the intention to consider adoption of a development agreement shall be given as provided in California Government Code Sections 65090 and 65091, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement.
E. Recommendation by Planning Commission. Within thirty days after closing its public hearing, the Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission's determination and supporting reasoning whether or not the proposed development agreement:
1. Is consistent with the goals, objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan.
2. Is compatible with the uses authorized in, and the zoning district in which the real property is located.
3. Has duly considered City mitigation programs in effect at the time of execution of the agreement.
4. Will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood and to property and improvements in the neighborhood.
5. Complies with the provisions of the California Environmental Quality Act and City's procedures adopted pursuant thereto.
F. City Council public hearing. The City Council shall hold a noticed public hearing prior to adoption of any development agreement. Notice of the intention to consider adoption of a development agreement shall be given as provided in California Government Code Sections 65090 and 65091, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement. The City
Ordinance No. 7,941-N.S. Page 6 of 10
Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.
G. Decision by City Council.
1. After the City Council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the Planning Commission; or in the event the Planning Commission has failed to make a recommendation pursuant to subsection 22.16. 050 E of this chapter, the City Council shall approve, disapprove or conditionally approve the development agreement.
2. The City Council shall not approve a proposed development agreement unless it finds that its provisions are consistent with the general plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with proposed general plan or specific plan provisions which are to be adopted concurrently with the approval of the proposed development agreement. A finding of consistency may be made if, considering the general plan and/or specific plan as a whole and balancing competing provisions as appropriate, the City determines that the proposed development agreement does not conflict with the provisions of the general plan and/or specific plan.
The City Council shall not approve a proposed development agreement that includes a subdivision, unless the agreement provides that any tentative map prepared for the subdivision will comply with California Government Code Section 66473.7.
Notwithstanding any other provision of law, this subsection shall not be interpreted to impose upon the City any of the legal requirements applicable to general law cities but not charter cities.
3. A proposed development agreement shall be executed by the applicant before it is placed before the City Council for consideration at a public hearing.
H. Approval of development agreement. The City Council shall have the exclusive authority to approve the development agreement. Approval of a development agreement shall be by ordinance.
Section 22.16.060 Recordation.
A. Execution and recordation of development agreement.
1. Within ten days after the ordinance approving the development agreement takes effect, the City Manager shall execute the development agreement on behalf of the City, and the City Clerk shall record the development agreement with the Alameda County Recorder.
2. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the City terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the
Ordinance No. 7,941-N.S. Page 7 of 10
development agreement, the City Clerk shall record notice of such action with the Alameda County Recorder.
Section 22.16.070 Annual review.
A. Time for and initiation of review.
1. The City Manager shall review each approved development agreement at least once a year at which time the applicant shall be required to demonstrate compliance with the provisions of the development agreement.
2. The applicant shall initiate the required annual review by submitting a written request at least sixty (60) days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the City Manager to demonstrate compliance with the provisions of the development agreement. The burden of proof by substantial evidence of compliance is upon the applicant.
B. Finding of compliance. If the City Manager, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the City Manager shall issue a finding of compliance, which shall be in recordable form and may be recorded with the county recorder after conclusion of the review.
C. Finding of noncompliance.
1. If the City Manager finds the applicant has not complied with the provisions of the development agreement, the City Manager may issue a finding of noncompliance which may be recorded by the City with the county recorder after it becomes final. The City Manager shall specify in writing to the applicant the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance.
2. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or modification pursuant to subsection 22.16.080B of this chapter.
D. Appeal of determination. Within ten (10) days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council.
The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the City Manager and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.
Ordinance No. 7,941-N.S. Page 8 of 10
Section 22.16.080 Amendment or cancellation.
A. Cancellation or modification by mutual consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in subsections 22.16.050(D) and (F) of this chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the City Manager.
B. Termination or modification after finding of noncompliance . If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the City Manager may refer the development agreement to the City Council for termination or modification. The City Council shall conduct a public hearing. After the public hearing, the City Council may terminate the development agreement modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance C. Rights of the parties after cancellation or termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the City.
Section 22.16.090 Miscellaneous provisions.
A. Effect of development agreement.
1. Unless otherwise provided by the development agreement, the City’s rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. The applicant shall not be exempt from otherwise applicable City ordinances or regulations pertaining to persons contracting with the City.
2. A development agreement shall not prevent the City, in subsequent actions applicable to the property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. A development agreement shall not prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.
B. Rules affecting development agreement. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more
Ordinance No. 7,941-N.S. Page 9 of 10
provisions of the development agreement, then the development agreement shall be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.
C. Interpretation. This chapter governs the interpretation of any development agreement approved under this chapter.
D. Enforcement of a development agreement. The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are non- exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.
E. Severability Clause. Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter and the development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in the development agreement.
F. Judicial review; time limitation.
1. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure; and judicial review of any City action taken by the City pursuant to this chapter, other than initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.
2. Any action or proceeding to attack, review, set aside, void or annul any decision of the City taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety days after the effective date of the decision.
G. Notice requirements. The failure of any person to receive notice required by law or this chapter does not affect the authority of the City to enter into a development agreement.
H. Irregularity in proceedings. No action, inaction, or recommendation regarding a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained was prejudicial and that by reason of the error, the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is not a presumption that an error is prejudicial or that injury was done if an error is shown.
Ordinance No. 7,941-N.S. Page 10 of 10
Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
At a regular meeting of the Council of the City of Berkeley held on November 19, 2024, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Hahn, Humbert, Kesarwani, Lunaparra, Taplin, Tregub, Wengraf, and Arreguin.
Noes: None.
Absent: None.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.berkeleyca.gov
CONSENT CALENDAR
December 3, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Eleanor Hollander, Economic Development Manager Subject: Adopt the updated Revolving Loan Fund (RLF) Administrative Plan and transfer RLF program administration to Working Solutions, a federally certified Community Development Financial Institution (CDFI).
RECOMMENDATION
Adopt two Resolutions to:
1. Adopt changes to the Administrative Plan of the Berkeley Revolving Loan Fund (RLF) to allow for third party administration of the RLF (Attachment 1).
2. Authorize the City Manager to execute a sole source contract and any amendments with Working Solutions, a federally certified Community Development Financial Institution (CDFI), to provide loan origination, servicing, and technical assistance to Berkeley’s existing and future RLF participants and fund management for a renewable ten-year term (Attachment 2).
FISCAL IMPACTS OF RECOMMENDATION
There is minimal fiscal impact because the administrative fee for a third-party organization, Working Solutions (CDFI), to issue and service the RLF loans will be covered by the interest earned on the low interest loans as the loans “revolve” over the course of the next ten years. There will be increased efficiencies by the reduction of staff time spent processing monthly paper payments, and ease of executing monthly electronic loan payments by borrowers.
CURRENT SITUATION AND ITS EFFECTS
The City of Berkeley RLF program offers loans to businesses with interest rates and terms that are below market. Loans are available for use in funding business expansion, fixed assets, equipment, working capital, and real estate. As loan recipients make payments on an issued loan, these funds are used to provide additional loans to new loan recipients; in that way, the fund ‘revolves’ over time. Currently, (October 2024) there are 6 RLF borrowers in the portfolio, representing $690,000 originally disbursed and a total remaining outstanding balance of $383,194. At the close of the last federal reporting period, (December 2023) the total capital base of the RLF fund was $1,103,611.87.
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Transfer the Revolving Loan Fund to Working Solutions CDFI for Administration CONSENT CALENDAR December 3, 2024
Under the RLF’s Administrative Plan, up to 50% of interest payments on outstanding loans can be used to pay for program marketing or administrative costs including retaining the services of a professional underwriter. Since 2019, Working Solutions has been under contract to serve in this role. The City of Berkeley performs the loan servicing in house for the RLF loans (in collaboration with the departments of Health Housing and Community Services, Finance, and the Office of Economic Development) using software licensed from Grants Management System (GMS). The RLF Program is subject to the single audit review of the City’s federally funded programs performed by outside auditors. Since September 24, 1980, the RLF has provided over $2.6 million in critical funding for 43 Berkeley businesses, organizations, and cooperatives resulting in 225 jobs saved and 103 created.
1 In July of 2020, the City of Berkeley was granted $814,000 of United States Economic Development Administration (EDA) Coronavirus Aid, Relief, and Economic Security (CARES) Act recovery assistance funding to administer and provide small business loans to coronavirus-impacted businesses in Berkeley. Berkeley’s existing Revolving Loan Fund (RLF) Administrative Plan and program were modified to accept the EDA CARES Act grant, and to establish a second loan fund, the COVID-19 Resiliency Loan Program (RLP). In March of 2022 the City Council approved a contract for full program administration of the RLP funds to Working Solutions, a qualified CDFI lender, to govern the origination and servicing of the RLP loans in addition to the continued underwriting services for the RLF program. Working Solutions, is a federally certified CDFI is based in San Francisco that specializes in financial services, technical support, lending, and loan servicing for small businesses.
During the past two years, Working Solutions has provided the city (including the Loan Administration Board or LAB) the capacity to complete the RLP and RLF loan application reviews in a timely manner and has delivered comprehensive underwriting services for both funds. Working Solutions is currently contracted to manage and service the City’s COVID-19 RLP program through 2027. As of September 30, 2024, Working Solutions has proficiently serviced 19 RLP loans totaling $803,000 with one default due to bankruptcy. Working Solutions also has proven expertise administering revolving loan funds for other Bay Area cities and counties including San Francisco, Oakland, and Sonoma County.
De-Federalization of the RLF
In April of 2024, at the prompting of the Economic Development Administration (EDA), the City requested that the EDA release its federal interest in the original RLF Award from 1980 consistent with the requirements of the Reinvigorating Lending for the Future Act.
2 After reviewing the request from the City, the EDA determined that: 1) more than 1 City of Berkeley, De-Federalization Request Letter, United States Department of Commerce Economic Development Administration (US EDA), April 9, 2024. To date, no new RLF loans have been made since the letter was sent.
2 As amended, October 30, 2020, full text online: https://www.govinfo.gov/app/details/PLAW-116publ192.
Transfer the Revolving Loan Fund to Working Solutions CDFI for Administration CONSENT CALENDAR December 3, 2024
seven years have passed since the final EDA disbursement to the City of Berkeley for revolving loan funds under the Award, and that 2) the City has complied with the terms and conditions of the Award, and finally 3) the City proposes to use the Award Funds for one or more activities that continue to carry out the economic development purposes of the Public Works and Economic Development Act of 1965 or PWEDA (Attachment 3).
RLF Loan Origination and Servicing Proposal
After this determination, staff from the Office of Economic Development and the commissioners of the Loan Administration Board or LAB, engaged Working Solutions to analyze the current RLF program, review best practices in the lending industry, and provide recommendations for improving RLF loan application review, servicing, and technical assistance for Berkeley’s existing and future RLF loan recipients. This exercise has led to a proposal for a new partnership - Working Solutions will continue to provide loan application review, underwriting, and technical assistance for RLF participants with the addition of loan origination and servicing for existing and new RLF participants.
Since 2019 the city has partnered with Working Solutions, CDFI to serve as the underwriter for RLF loans as well as the program manager for the COVID-RLP loans.
Working Solutions has been able to provide technical assistance and expertise to loan recipients and is adept at rapidly deploying funds and servicing loans electronically.
Taken together, these efforts have already provided enormous benefits to Berkeley businesses in the RLP program. This is in contrast with the current servicing and origination procedures in the RLF program, that require a noticed public hearing for loan consideration and if approved, a lengthy contracting process before RLF loan recipients can receive funding.
Next Steps
To implement this partnership, an amendment to the RLF Administrative Plan was crafted and approved by the LAB (Attachment 1, Exhibit A) to enhance service for Berkeley’s RLF loan recipients and expand the capacity for outreach to new RLF applicants located in Berkeley. By adopting the updated RLF Administration Plan, the City can now engage a third-party administrator to manage Berkeley’s RLF. Given the past strong performance in servicing the RLP Fund and sound technical assistance and underwriting services for the RLF fund, OED staff and the Loan Administration Board (LAB) are recommending Working Solutions as the third-party administrator for the RLF Fund. This will significantly streamline the loan review and approval process while providing RLF applicants with increased technical support and the ability to make secure digital loan payments online. Coupled with the recent de-federalization approval, Working Solutions will be able to leverage the RLF funds with other funds to have a greater impact in Berkeley.
Transfer the Revolving Loan Fund to Working Solutions CDFI for Administration CONSENT CALENDAR December 3, 2024
Working Solutions will provide quarterly reports to city staff and the LAB detailing Berkeley’s existing RLF portfolio and loan applicant pipeline to the City’s specifications including but not limited to:
The origination of new loans;
The performance of the loan portfolio;
Status of repayment;
Loan Breakdown by business type and sector;
Any sale of loans to the secondary market;
Any loan defaults and charge-offs or dispositions of outstanding debt.
In addition, Working Solutions shall provide an annual report summarizing the quarterly data for the year and the impact of the RLF loan fund. The annual report will be provided to the City Council and made publicly accessible on the city’s website.
Loan Administration Board (LAB) Action
On October 1, 2024, the LAB reviewed and approved the RLF Administrative Plan amendments to allow for a third-party administrator of the RLF program. The full text of the revised RLF Administrative Plan (Attachment 1, Exhibit A) and the minutes of the 10/1/24 meeting are posted on the LAB Commission webpage here:
https://berkeleyca.gov/your-government/boards-commissions/loan-administration-board.
BACKGROUND
In 1980, the City of Berkeley received a $500,000 grant from the Economic Development Administration (EDA), a federal agency operating under the auspices of the Department of Commerce. The grant was issued to administer a commercial revolving loan fund to all eligible small businesses in the fund’s Target Area, which at the time of the award was a small geographic area of approximately 35 blocks in South Berkeley. Since then, the program has expanded twice geographically, including the most recent 2010 expansion to the City’s borders, making the loan program available to all business (including non-profits and cooperatives) located in the City of Berkeley.
The City of Berkeley RLF program offers loans to businesses with interest rates and terms that are below market. Loans are available for use in funding business expansion, fixed assets, equipment, working capital, and real estate. As loan recipients make payments on an issued loan, these funds are used to provide additional loans to new loan recipients; in that way, the fund ‘revolves’ over time. The principal goals of the RLF are to support the creation and retention of permanent full-time jobs, facilitate investment and commercial growth, and direct economic development efforts at revitalizing commercial corridors and businesses throughout the City of Berkeley. The fund is primarily intended to provide financing for businesses that are unable to secure traditional private financing. The maximum allowable size of any one loan can only be 25% of the RLF’s capital base at the time of the loan.
Transfer the Revolving Loan Fund to Working Solutions CDFI for Administration CONSENT CALENDAR December 3, 2024
The Loan Administration Board or LAB, is a City of Berkeley Commission appointed by the Mayor and City Council, that provides oversight for the RLF program. City of Berkeley Office of Economic Development (OED) staff serve as the secretary to the LAB Commission, and the LAB meetings are open to the public and subject to the Brown Act. There are special criteria for the LAB members; of the nine seated commissioners, two must have demonstrated business expertise, three must have credit and banking experience, and one must be a lawyer. The LAB outlines policy, guidelines and lending criteria articulated in the Berkeley RLF Administrative Plan based on EDA’s Terms and Conditions. Final approval for all loans, including determination of the loan amount, rests with the LAB, informed by recommendations issued from a contracted third-party underwriter (Working Solutions has been in this role since 2019).
In 2019, the City Council approved an addendum to the RLF Administrative Plan to make the RLF more accessible to worker owned cooperatives seeking to obtain financing. With the outbreak of COVID-19 in early 2020 many Berkeley businesses faced revenue shortfalls that compromised their ability to cover operating expenses like payroll, rent, loan payments, and utilities. To respond, the City of Berkeley applied for a federal EDA CARES Act Recovery Assistance Grant to further capitalize the City’s existing RLF program. On July 29, 2020 the City of Berkeley was granted $814,000 of EDA CARES Act funding to further capitalize and administer the RLF to provide small business loans to coronavirus-impacted businesses in Berkeley. Subsequently, the RLF Administrative Plan was amended and approved first by the LAB and then by the City Council and on October 17, 2020 and a new companion program, the RLP, was established. The RLP’s goal is to provide low interest rate loans to Berkeley businesses negatively impacted by the COVID-19 pandemic. In March of 2022, the City Council approved a contract for full program administration of the RLP funds to Working Solutions, a qualified CDFI lender, to govern the origination and servicing of the RLP loans in addition to the continued underwriting services for the RLF program. As of September 2024, 19 RLP loans (totaling $803,000) have been granted and disbursed to Berkeley businesses in need of support.
In April of 2024, the EDA granted the release of its federal interest in original 1980 EDA award, or the RLF program. This release of interest commonly referred to as de- federalization acknowledges that the City of Berkeley has been a good steward of the funding for the past 44 years and has met all of the requirements set forth by the EDA for de-federalization. It also means that the City is no longer required to report to the EDA and that the City may use the award funds to leverage the RLF asset to utilize additional financial resources, thus maximizing the value and impact of the federal investment in Berkeley. However, the City must continue to use the awards funds to carry out the economic development purposes of the Public Works and Economic Development Act (PWEDA) of 1965. In October 2024, the LAB amended the RLF Administrative Plan, to allow for the RLF fund to be managed by a contracted third-party underwriter provided there is a provision to continue to grow the capital base of the RLF
Transfer the Revolving Loan Fund to Working Solutions CDFI for Administration CONSENT CALENDAR December 3, 2024
fund so it may continue to “revolve” and serve clients in the Target Area aligned with the goals of the PWEDA.
ALTERNATIVE ACTIONS CONSIDERED
Continue the RLF fund management, loan origination, and loan servicing by City staff.
CONTACT PERSON
Kieron Slaughter, Chief Strategist, Economic Innovation, 510-981-2490 Eleanor Hollander, Economic Development Manager, 510-981-7536 Attachments:
1. Resolution adopting changes to the Administrative Plan of the Berkeley Revolving Loan Fund (RLF) to allow for third-party administration of the RLF.
Exhibit A: Berkeley RLF Administrative Plan approved by the Loan Administration Board (LAB), October 1, 2024.
2. Resolution authorizing the City Manager to execute a sole source contract and any amendments with Working Solutions, a federally certified Community Development Financial Institution, to provide loan origination, servicing and technical assistance to Berkeley’s existing and future Revolving Loan Fund (RLF) participants and fund management for a renewable ten-year term.
3. United States Department of Commerce, Economic Development Administration, Agreement to Release the EDA Federal Interest in a Revolving Loan Fund Award, April 25, 2024.
RESOLUTION NO. ##,###-N.S.
ADOPT THE BERKELEY REVOLVING LOAN FUND (RLF) ADMINISTRATIVE PLAN
TO ALLOW FOR THE THIRD-PARTY ADMINISTRATION OF THE RLF
WHEREAS, the City of Berkeley received a $500,000 grant from the federal Economic Development Administration (EDA) in 1980 to administer a commercial Revolving Loan Fund (RLF) for eligible businesses in the South Berkeley Target Area; and WHEREAS, the City of Berkeley adopted revisions to the RLF Administrative Plan in 2005 and 2010, which included two expansions of the original target lending area to the entire City; and
WHEREAS, the City of Berkeley adopted a revision to the RLF Administrative Plan in 2020, which permitted the City to create and administer the COVID-19 Resiliency Loan Program (RLP) to disburse such funds; and
WHEREAS, in April of 2024, the Economic Development Administration (EDA) released its federal interest in the original RLF Award from 1980 stating that the City has complied with the terms and conditions of the Award, and confirmed that the City proposes to use the Award Funds for one or more activities that continue to carry out the economic development purposes of the Public Works and Economic Development Act of 1965; and WHEREAS, on October 1, 2024, the Loan Administration Board approved amendments to the RLF Administrative Plan to permit third-party review, approval, origination, and servicing of the RLF by a qualified third-party administrator; and WHEREAS, pursuant to the amended RLF Administrative Plan, the remaining balance of the RLF can be transferred to a third-party administrator through an agreement provided there is a provision to continue to grow the capital base of the RLF fund so it may continue to “revolve” and serve clients in the Target Area; and NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley hereby adopts the revised Administrative Plan for the RLF. A copy of said Plan shall be placed on file with the City Clerk.
Exhibit
A: Berkeley RLF Administrative Plan approved by the Loan Administration Board, October 1, 2024.
Attachment 1