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2004-07-06 PacketThe Planning Manager responded that the final EIR addresses the alternatives for a 66 -space lot in several locations; the staff report analyzes whether or not 17 spaces could be placed in some alternate locations and determined that another location would not meet the project objectives because it would not provide 66 spaces on site; the only adjacent property that could meet the objectives would be the Times Star parking lot which would require a parking structure. Elizabeth Krase, AAPS, stated that she opposed the change in the Library's plans to build a surface - parking garage. Randy Horton discussed environmental issues; requested Council to reconsider the purchase of Gim's Chinese Kitchen due to the unknown contamination of the property. Betsy Mathieson, Alameda, stated that she opposed surface parking. Robb Ratto, Park Street Business Association (PSBA), stated that the parking structure creates additional traffic problems; PSBA's official policy is that there is no opposition to the parking structure. * ** Mayor Johnson called a recess at 8:40 p.m. and reconvened the Regular City Council Meeting at 8:42 p.m. * ** The Planning and Building Director stated that the City understands that the mitigation alone would not adequately reduce the impacts of the potential demolition to a less than significant level; the EIR concludes that with all the proposed mitigation measures, impacts of the potential demolition of the structure would still remain significant and unavoidable; that with .regard to the proposal to relocate the building, the mitigation measure would not be adequate to reduce the impacts to a less than significant level; the certification of the EIR does not commit the Council to any course of action. The Library Project Manager stated a Phase II environmental report has not been ordered because the subject site is not in the City's control; the Phase II environmental report for the LinOaks site indicates that the site is clear. Vice Mayor Daysog stated that there are varied numbers regarding the cost of the parking structure or parking lot; that Council cannot make sound decisions until definitive numbers are given. Regular Meeting Alameda City Council June 15, 2004 4 Councilmember Matarrese moved adoption of resolution. Councilmember Kerr stated that the EIR is not an authorization for demolition; one end of Times Way could be used as parking with an exit on Lincoln Avenue; that she would like to see alternatives to demolishing historic properties; concurred with Vice Mayor Daysog regarding the need for accurate numbers. Councilmember Gilmore seconded the motion, which carried by the following voice vote: Ayes: Councilmembers Gilmore, Kerr, Matarrese and Mayor Johnson - 4. Abstentions: Vice Mayor Daysog - 1. ( *04- ) Ratified bills in the amount of $ 3,040,343.02. REGULAR AGENDA ITEMS (04- ) Resolution No.13731, "Appointing Amanda Flores Witte as a Member of the Social Service Human Relations Board." Adopted. Vice Mayor Daysog moved adoption of the resolution. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath and presented a certificate of appointment to Ms. Flores Witte. (04- ) Resolution No.13732, "Recognizing and Expressing Appreciation to Zenda James for Fifteen Years of Dedicated Service as the City of Alameda Finance Director." Adopted; and (04- A) Presentation of the Government Finance Officers Association Certificate of Achievement for Excellence in Financial Reporting to Finance Director Zenda James for the City of Alameda's Comprehensive Annual Financial Report for the Fiscal Year ending June 30, 2003. Noel Folsom, Alameda, stated that the Finance Director served professionally and has the ability to make complex issues seem understandable. Councilmember Kerr stated that she was sorry to see the Finance Director leave; that questions have always been answered completely, accurately and thoroughly. Mayor Johnson read the Resolution and Certificate of Achievement. Adoption of the resolution carried by consensus - 5. Regular Meeting Alameda City Council 5 June 15, 2004 (04- ) Recommendation to appoint Oakland Chinatown Advisory Committee representatives. Mayor Johnson stated that she received a call from an Oakland Councilmember regarding the committee; Oakland prefers to have elected representatives serve on the committee, however, plans to nominate non - elected members. Councilmember Kerr stated that she is concerned about having . elected officials serve because the committee could end up becoming a general discussion committee. Mayor Johnson stated parameters set the scope of the committee. Councilmember Kerr stated two Councilmembers serving on a committee could reach an agreement and only one more vote would be needed to confirm the agreement; that she is not happy with that arrangement. Mayor Johnson noted two Councilmembers attend School District meetings; issues discussed are always brought back to Council. Councilmember Matarrese stated he would oppose appointment of elected officials if discussions could be made on other issues. Mayor Johnson noted that she and Vice Mayor Daysog meet periodically with Councilmembers from Oakland to discuss issues that involve both cities. Councilmember Gilmore stated that an alternative could be to appoint one Councilmember and one non - elected individual. Councilmember Kerr stated that she would like to see individuals with traffic and financial expertise appointed. Mayor Johnson stated Council should select non - elected members to serve on the committee; that Sherri Stieg and Aidan Barry have been recommended to be on the committee. Councilmember Kerr stated that she was concerned with having anyone with financial interests on the committee. Mayor Johnson requested Council to provide her with suggestions for committee members prior to the matter returning at a future Council meeting. (04- ) Resolution No.13733, "Extending the Single - Family Residential Rebate of the Solid Waste and Recycling Infrastructure Regular Meeting Alameda City Council 6 June 15, 2004 Impact Fee for Fiscal Year 2004 - 2005." Adopted. Councilmember Gilmore moved adoption of resolution. Vice Mayor Daysog seconded the motion. Under discussion, Councilmember Kerr stated that mitigation and rebate is only given to residents living in single- family dwellings; seniors live in multiple -unit dwellings; single- family residential districts are least able to handle the weight and hardware of the recycling trucks and will be damaged the most. On the call for the question, the motion carried by the following voice vote: Ayes: Councilmembers Daysog, Gilmore, Matarrese, and Mayor Johnson - 4. Noes: Councilmember Kerr - 1. (04- ) Public Hearing to establish Proposition 4 Limit (Appropriation Limit) for Fiscal Year 2004 -05; and (04- A) Resolution No.13734, "Establishing Appropriations Limit for Fiscal Year 2004 -05." Adopted. Mayor Johnson opened the public portion of the Hearing. There being no speakers, Mayor Johnson closed the public portion of the Hearing. Vice Mayor Daysog moved adoption of the resolution. Councilmember Kerr seconded the motion, which carried by unanimous voice vote - 5. (04- ) Resolution No.13735, "Approving Engineer's Report, Confirming Diagram and Assessment and Ordering Levy of Assessments, Maintenance Assessment District 01 -01 (Marina Cove)." Adopted. Councilmember Kerr moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. (04- ) Resolution No.13736, "Approving Engineer's Report, Confirming Diagram and Assessment and Ordering Levy of Assessments, Island City Landscaping and Lighting District 84 -2." Adopted. Councilmember Gilmore moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by Regular Meeting Alameda City Council 7 June 15, 2004 unanimous voice vote - 5. (04- ) Public hearing to consider appeals of the Planning Board approval of a Use Permit to allow the conversion of a 15,840 square foot industrial building at 2515 Blanding Avenue into seven work /live studios with associated parking and landscaping; and adoption of related resolution. The site is located within the M- 2, General Industrial Zoning District. Applicant: Janet Koike for Cal Vita LLC. Appellants: Ed Murphy and Pat Bail. [Continued to July 6, 2004.] The Supervising Planner gave a brief presentation on the project. Mayor Johnson opened the public portion of the Hearing. Proponents (In favor of appeal): Michael Kahn, Applied Engineering and Production; Dorothy Boynton, Alameda; Len Grzanka, Alameda; Joseph Wood, Attorney representing Matthew Murphy; Marlene Kerr, Alameda; Jon Janes, Allied Engineering and Production; Pat Bail, Appellant; Helena Lengel, Alameda; and Barbara Thomas (former Councilmember). Opponents (Opposed to appeal): Melissa Harmon, Alameda; Charlene Milgrim, Alameda; Tom Matthews, Renewed Hope; Joan Konrad; Robin Gianattassio - Malle; Lee Smith (deferred time to Stuart Flashman); Pamela Nishiyama, Alameda; Margot Lederer; Robert Bell, Alameda; Carolyn West, Alameda; Barbara Krummel, Alameda; Jon Spangler, Alameda; Stuart Flashmall; Mark Schiess (deferred time to Janet Koike); Michael Schiess, Alameda; and Janet Koike, Applicant. There being no further speakers, Mayor Johnson closed the public portion of the Hearing. Jon Janes, Allied Engineering, stated the Planning Board exempted the project under California Environmental Quality Act (CEQA) regulations Section 15303; environmental concerns dealing with the noise have been ignored; that the Planning Board exempted the conversion under Section 15303B or C; Section 15303B addresses conversion of the building from one use to a six -unit residential use in an urbanized area; that the project is for seven units and does not fall within the CEQA regulation; that by the Work -Live Ordinance, the project does not deal with residences thereby making said section inapplicable to the conversion; Section 15303C addresses conversion of an existing unit to a commercial use; the unit must have 10,000 square feet or less in an urbanized area; the Regular Meeting Alameda City Council 8 June 15, 2004 unit has 15,800 square feet and does not fit within the exception; Allied Engineering requests Council to initiate an environmental study to determine the impact that the noise in the existing area will have on the residents of these units; notice should be given to that effect. The City Attorney stated that the actual CEQA exemption is Section 15332, which addresses infill development projects. The Supervising Planner stated that one of the regulations of the Work -Live Ordinance requires occupants be notified about noise. In response to Councilmember Kerr's inquiry about the 10,000 square -foot limitation, the Supervising Planner stated that a categorical exception under CEQA was used; however, that is not the section that the Planning Board used to exempt the particular project; the section used does not have said [10,000 square -foot] limitation. Councilmember Kerr inquired whether the Planning Board did not depend upon the section of CEQA [Mr. Janes addressed] when the project was approved, to which the Supervising Planner responded that Section 15332 was used by the Planning Board to make its finding. Mr. Janes stated the April 27 Notice of City Council Public Hearing states: "Staff has determined that this project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303;" that he would like to reserve a written response to the Section 15332 exemption. Mayor Johnson inquired whether there was a notice problem. In response to Pamela Nishiyama's comments regarding drug and prostitution activity in the area, Councilmember Kerr inquired whether the area was a red light district. Ms. Nishiyama responded that a couple of homes are questionable on Clement Avenue; stated more people living in the area would result in better monitoring of activity. Councilmember Kerr inquired whether Ms. Nishiyama contacted the Police Department on the questionable dwelling units, to which Ms. Nishiyama responded in the affirmative. In response to Mayor Johnson's inquiry about whether Ms. Nishiyama was certain of the activity, Ms. Nishiyama responded that she suspects prostitution activity. Regular Meeting Alameda City Council 9 June 15, 2004 Mayor Johnson suggested that Ms. Nishiyama provide Council with information regarding the activity. Vice Mayor Daysog stated that he was shocked to hear about said type of activity; enforcement is needed. Mayor Johnson requested that the City Attorney address the notice issue. The City Attorney responded that the Notice of Hearing stated that the staff determined the project to be categorically exempt under Section 15303; the notice was to meet the expanded noticing provision required by the Council; the notice was not required under CEQA and is not a basis for appeal; Mr. Janes has requested that the Hearing be held over for two weeks in order to provide him with an opportunity to address the code section; in order to avoid any possible process argument, she suggests Mr. Janes's request for continuance be met in order to allow him to address the applicable, categorical exemption section. Councilmember Kerr inquired whether Matthew Murphy filed a lawsuit in 1998, to which the City Attorney responded that she would provide an off agenda report on the matter. Councilmember Gilmore inquired whether the Council would be addressing only the CEQA section at the July 6, 2004 City Council Meeting. The City Attorney responded that the Council could request that the speakers stand on their testimony which would be consider as part of the decision; under the Brown Act, the public cannot be prohibited from speaking but can be requested not to speak twice on the same subject; Council would consider that portion of the Public Hearing finalized. Mayor Johnson stated that the Council is concerned that people get adequate notice. Councilmember Kerr moved that the item be continued to the July 6, 2004 City Council Meeting in order to allow sufficient time for renoticing. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. Councilmember Kerr thanked everyone for coming to the meeting and for staying so late. Regular Meeting Alameda City Council 10 June 15, 2004 Mayor Johnson apologized that the Council could not finish the matter at the meeting. (04- ) Adoption of Resolution of Necessity to Acquire Property by Eminent Domain for Public Use (Library and Public Parking); Authorizing Commencement of Litigation to Acquire Property and for Order of Possession; Finding and Determining that All Requirements Have Been Met for Consideration of Adoption of Resolution; Code of Civil Procedure Section 1245.235 et seq.; Adopting Findings and a Statement of Overriding Considerations, Mitigation Measures, and a Mitigation Monitoring Program (2320 -2322 Lincoln Avenue, Alameda). Continued to July 6, 2004. (04- ) Ordinance No. 2925, "Approving and Authorizing the Execution of a Lease for Real Property Located at 1435 Webster Street (Parking Lot D)." Finally passed. Vice Mayor Daysog moved final passage of the ordinance. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. (04- ) Ordinance No. 2926, "Amending the Alameda Municipal Code by Adding Section 30 -16, (Inclusionary Housing Requirement for Residential Projects) to Chapter XXX (Development Regulations)." Finally passed. Councilmember Matarrese moved final passage of the ordinance. Councilmember Gilmore seconded the motion. Vice Mayor Daysog inquired whether the ordinance included a $14,000 fee, to which the Planning Manager responded that there are fees associated with the ordinance; if an affordable dwelling unit is not constructed, the in -lieu fee is available for developments between five and nine dwelling units; if there are more than nine dwelling units, the ordinance requires that the housing units be developed. Vice Mayor Daysog inquired whether the ordinance satisfies the 25% goal set by Council, to which the Planning Manager responded in the negative; stated that the ordinance is Citywide and includes a 15% set aside; the 25% goal is within redevelopment areas; the ordinance satisfies one of the program requirements necessary to finalize the recently adopted Housing Element. Vice Mayor Daysog inquired the amount of the fee, to which the Regular Meeting Alameda City Council 11 June 15, 2004 Planning Manager responded that the fee is based upon development cost of a unit. On the call for the question, the motion carried by the following vote: Ayes: Councilmembers Gilmore, Matarrese, and Mayor Johnson - 3. Noes: Councilmembers Daysog and Kerr - 2. ORAL COMMUNICATIONS, NON - AGENDA (04- ) Bill Smith, Alameda, spoke about community involvement. (04- )Betsy Elgar, National Association of Social Workers, spoke about the homeless. (04- )Hellena Lengel, Alameda, urged Council to do everything possible to retrieve federal money that has been taken away from Section 8 housing funding. COUNCIL COMMUNICATIONS (04- ) Consideration of Mayor's nomination for appointment to the Library Board. Mayor Johnson nominated Leslie Krongold for reappointment to the Library Board (04- ) Consideration of Mayor's nomination for appointment to the Planning Board. Mayor Johnson nominated Patrick Lynch for reappointment to the Planning Board (04- ) Consideration of Mayor's nomination for appointment to the Public Utilities Board. Mayor Johnson nominated Karin Lucas for reappointment to the Public Utilities Board (04- ) Consideration of Mayor's nominations (2) for appointment to the Social Service Human Relations Board. Mayor Johnson nominated Robert Bonta and Jim Franz for reappointment to the Social Service Human Relations Board. (04- ) Councilmember Kerr stated that the Housing Authority acts as a pass through for the federal money that subsidizes the Section 8 program; the Federal Government cut off the money; encouraged political activists to go to the source of the problem and, if Regular Meeting Alameda City Council 12 June 15, 2004 necessary, picket the offices of Pete Stark, Barbara Boxer and Diane Feinstein; stated that the Council has considered the issue at least three times in addition to a Saturday meeting with Pete Stark. Mayor Johnson stated that each of the meetings were open noticed meetings. (04- ) Councilmember Matarrese requested that the City officially request Alcohol Beverage and Control (ABC) to close down Suzi Q's. The City Manager stated that the item could be placed on the July 6, 2004 agenda. (04- ) Councilmember Matarrese stated that Applied Engineering's letter makes reference to a barge that is tethered behind their building in the estuary; that one boat yard is being closed because of the cost associated with capturing the runoff from an active boat yard and protecting the waterway; that work is being done on a boat that is suspended out of the water without the benefit of collection of any of the runoff that might occur; requested staff to urge the Coast Guard to take action against the barge. ADJOURNMENT There being no further business, Mayor Johnson adjourned the Regular Meeting at 10:50 p.m. Respectfully Submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Brown Act. Regular Meeting Alameda City Council June 15, 2004 13 CITY OF ALAMEDA MEMORANDUM Date: June 22, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Recommendation to Accept the Work of Linear Options, Inc., for Traffic Striping Project, No. P.W. 12- 03 -19, and Authorize the City Manager to Extend the Agreement with Linear Options, Inc., for an Additional Year BACKGROUND On January 6, 2004, the City Council adopted plans and specifications for the Traffic Striping Project at various locations in the City of Alameda. The purpose of the project was to provide thermoplastic replacement of crosswalk markings, limit lines, bicycle lanes, arrow markings, stop markings, school crossings, and lane lines. On April 6, 2004, the City awarded a contract in the amount of $119,040, including contingencies, to Linear Options, Inc. DISCUSSION /ANALYSIS The project has been completed in accordance with the Plans and Specifications and is acceptable to the Public Works Department. One extra work order was issued to add new thermoplastic striping and pavement markings to various new locations. This extra work order added five additional workdays to the contract. The final project cost, including the extra work order, is $96,916.69. The project specifications and construction agreement allow the City to annually extend the agreement for up to four (4) additional years, upon satisfactory performance if mutually agreed. The Public Works Department recommends that the current agreement with Linear Options, Inc., be extended for an additional year when the next striping project is ready for construction. Unit costs for the amendment would be adjusted in accordance with the contract based on the Engineering New Record Cost Index. BUDGET CONSIDERATION/FINANCIAL IMPACT Funding for this project is budgeted under CIP #92 -29 and utilizes Measure B funds. Required GASB -34 forms for the project have been completed and forwarded to the Finance Department. Gtvo(Alameda tub!icWOrks Uepariment Public Walk Wmr for lied Dedicated to Excellence, Committed to Service Report #4 -B CC 7 -6 -04 Honorable Mayor and Councilmembers RECOMMENDATION Page 2 June 22, 2004 The City Manager recommends that City Council, by motion, accept the work of Linear Options, Inc., for Traffic Striping Project, No. P.W. 12 -03 -19 and authorize the City Manager to extend the agreement with Linear Options, Inc., for an additional year. Respect 1y submitted, Matthew T. Naclerio Public Works Director By: ,hn V. Wankum upervising Civil Engineer MTN/JVW:gc G:\PUB WORKS\P WADMIN \COUNCIL\2004 \070604 \Striping_Accept. doc Dedicated to Excellence, Committed to Service firyofAlanede I ubIicWorks UQpaitment Public Works ;Pablo, You! City of Alameda Date: Memorandum June 30, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint, City Manager Re: Recommendation to enter into a Joint Powers Agreement with the City of Fremont to provide plan review services to the City of Alameda BACKGROUND The Building Services Division of the Planning and Building Department provides plan review for compliance with the California Building Standards Code. All plan review is assigned to one Structural Plan Check Engineer and one Plans Examiner. In April 2004 the position of Plans Examiner became vacant. During the recruitment process, to fill the Plans Examiner position, the Building Official sought to obtain outside plan review services. The City of Fremont has stepped forward and has agreed to offer plan review services to the City of Alameda under a Joint Powers Agreement. DISCUSSION /ANALYSIS The demand for plan review services is at an historic high for the City of Alameda. In May 2004 there were projects totaling $153,000,000 in for plan review. In order to maintain an acceptable level of service during the recruitment process for a new Plans Examiner it is necessary to obtain the assistance of outside plan review services. The City of Fremont currently provides plan review services for the City of Salinas and has the capacity to assist us during our recruitment period. Building Services intends to utilize the plan review services of the City of Fremont until such time as the position of Plans Examiner is filled. After that date, Building Services intends to use the City of Fremont during peak times to maintain a high level of customer service. The Building Official will monitor the quality of the plan reviews performed by the City of Fremont. Permit customers will continue to interact with City of Alameda staff throughout the process. Report #4 -C CC 7 -6 -04 Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers BUDGET CONSIDERATION/FISCAL IMPACT Page 2 June 30, 2004 Plan review services provided by the City of Fremont will be paid for out of plan check fees collected on projects. Costs for these plan review services will be 45% to 80 % of the Building Services plan check fee charged by the City of Alameda. The exact amount is based on the complexity of the project and the scope of the review. 45% for structural review on projects valued over $1,000,000 up to 80% for a comprehensive review including building, plumbing, mechanical, electrical, energy and accessibility. On a single - family dwelling alteration project valued at $50,000 the City of Alameda would charge $664 for Building Services plan check. Dependent on the scope of the review the City of Alameda would pay the City of Fremont between $299 and $531. MUNICIPAL CODE CROSS REFERENCE None RECOMMENDATION The City Manager recommends that the City Council enter into a Joint Powers Agreement with the City of Fremont to provide plan review services to the City of Alameda. Respectfully submitted, Gregory Fuz Planning and Building Director By: Gregory Jean % Building Official Attachments: 1. Joint Powers Agreement 2. Scope of Services (Exhibit A) 3. Payment Provisions (Appendix B) Dedicated to Excellence, Committed to Service JOINT POWERS AGREEMENT CITY OF FREMONT and CITY OF ALAMEDA BUILDING PLAN CHECK SERVICES (2003) This Joint Powers Agreement (hereinafter "Agreement ") is made and entered into by and between the CITY OF FREMONT, a municipal corporation (hereinafter "Fremont "), and the CITY OF ALAMEDA, a municipal corporation (hereinafter "Alameda "). RECITALS A. Fremont and Alameda are each a "public agency" as defined by Government Code section 6500. B. Fremont and Alameda each share a common power, as defmed by Government Code section 6502, generally described as the authority to check building plans and specifications to regulate compliance with the building and safety codes adopted by each city, and more particularly described in this Agreement. C. The general purpose of this Agreement is for Fremont to provide building plan check services to Alameda, in return for Alameda' payment to Fremont, based on the terms more particularly described in this Agreement. D. Fremont and Alameda desire to enter into this Agreement in accordance with the provisions of the Joint Exercise of Powers Act (Government Code sections 6500, et seq.), and the provisions of Government Code sections 895 through 895.8. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. SCOPE OF SERVICES. Alameda hereby delegates authority to Fremont to perform, and Fremont hereby agrees to perform, the services described in Exhibit "A," attached hereto and incorporated herein by reference, in accordance with the terms and conditions contained in this Agreement. 2. BILLING AND PAYMENT. In order to request payment for services provided in accordance with this Agreement, Fremont shall submit invoices to Alameda identifying the services performed and the charges therefor, based upon the billing rates (set forth on Exhibit "B," attached hereto and incorporated herein by reference). Alameda shall make payments to Fremont for services performed in accordance with this Agreement within thirty days after receipt of invoice from Fremont. If Alameda disputes any portion of the request for payment from Fremont, Alameda shall provide written notice of the dispute to Fremont within thirty days after receipt of invoice from Fremont. 1 Attachment #1 [C][F]JPA- PlanCheck- Alameda(003 -1). Joint Powers Agreement - City of Fremont and City of Alameda Building Plan Check Services 3. AUTHORIZED REPRESENTATIVES. 3(A). Fremont's Authorized Representative. All services performed by Fremont under this Agreement shall be performed by, or under the supervision of, Fremont's Authorized Representative, the City Building Official, unless otherwise designated in writing by Fremont's Authorized Representative or the Fremont Director of the Department of Development and Environmental Services. 3(B). Alameda' Authorized Representative. For the performance of services under this Agreement, Fremont shall take direction from Alameda' Authorized Representative: , unless otherwise designated in writing by Alameda' Authorized Representative. 4. INFORMATION AND DOCUMENTATION. 4(A). Accounting Records. Alameda and Fremont shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four years. The accounting records to be maintained in accordance with this Agreement shall include, at a minimum, documents which support Fremont's costs and expenses related to this Agreement, including documentation of requests for services, services performed, invoices, and payments. Each party's accounting records shall be made available to the other party within a reasonable time after request, during normal business hours. 4(B). Ownership of Work Product. All original documents prepared by Fremont (including its employees and agents) for this Agreement ( "work product "), whether complete or in progress, are the property of Alameda, and shall be given to Alameda at the completion of Fremont's services, or upon demand by Alameda. Fremont shall have a right to make and keep copies of the work product. 5. RELATIONSHIP BETWEEN THE PARTIES. Alameda and Fremont are each an independent "public agency," as defined by Government Code section 6500, and this Agreement does not create a separate legal entity. Each party shall, at all times, remain an independent public agency solely responsible for all acts of its employees or agents, including any negligent acts or omissions. 5(A). Fremont (including its employees and agents) is not Alameda' agent, and shall have no authority to act on behalf. of Alameda, or to bind Alameda to any obligation whatsoever, unless Alameda provides prior written authorization to Fremont. Fremont is not an officer or employee of Alameda, and Fremont shall 2 [C][F]JPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 5(B). Alameda (including its employees and agents) is not Fremont's agent, and shall have no authority to act on behalf of Fremont, or to bind Fremont to any obligation whatsoever, unless Fremont provides prior written authorization to Alameda. Alameda is not an officer or employee of Fremont, and Alameda shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 6. COMPLIANCE WITH LAW. Each party shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. 7. INSURANCE AND BONDS. 7(A). Each party shall, throughout the duration of this Agreement, maintain insurance (including, for . the purpose of this section, coverage under a self - insurance pool) to cover each of their respective interests related to work performed under this Agreement (including coverage for their employees and agents). Concurrently with the execution of this Agreement, and prior to the commencement of any services, each party shall provide the other with written proof of insurance (certificates and endorsements), in a form acceptable to the other party. Each party shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance coverage required by this Agreement. 7(B). The parties hereby agree that, to the extent that a public officer has charge of any property, the public officer for each party shall be that parties' Authorized Representative. However, the parties further agree that, due to the nature of the services provided by Fremont to Alameda pursuant to this Agreement, the amount of any official bond, as otherwise required by Government Code section 6505.1, shall be $0. 8. INDEMNIFICATION. Fremont shall indemnify, hold harmless, and defend Alameda (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attorney's fees) resulting from Fremont's negligent performance, or willful misconduct, under this Agreement. Alameda shall cooperate with Fremont in the defense of any action required by this section. Notwithstanding the foregoing, if Fremont is held liable upon a judgment for damages pursuant to this section, and Fremont pays in excess of its pro rata share in satisfaction of such judgment, Fremont is entitled 3 [C][F]J PA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services to contribution from Alameda pursuant to Government Code section 895.6. 9. TERM OF THE AGREEMENT. The term of this Agreement shall commence on the date last signed by the parties, below, and shall continue until completion of all services in accordance with the requirements set forth in Exhibit "A" of this Agreement. This Agreement may be terminated by either party without cause upon thirty (30) days written notice to the other party. If Alameda exercises its right to terminate this Agreement in accordance with this paragraph, Alameda shall pay Fremont for all services performed in accordance with this Agreement, through and including the date of termination, but not to exceed the payments according to the rates specified in Exhibit "B." 10. DEFAULT. If either party ( "demanding party ") has a good faith belief that the other party ( "defaulting party ") is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specifiFremont) to the defaulting party, and demand the default to be cured within ten days of the notice. If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten_ days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party. 11. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party's Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party- TO: Fremont To: Alameda Attn: [ ** *INSERT * * *]_ Attn:[ ** *INSERT * * *]_ 12. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 4 [C][FJJPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 13. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties' intent under this Agreement. 14. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda. 15. ATTORNEY'S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses incurred. 16. ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of either party's duties be delegated, without the written consent of the other party. Any attempt to assign or delegate this Agreement without the written consent of the other party shall be void and of no force or effect. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. 17. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. 18. WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 19. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. 20. EACH PARTY'S ROLE IN DRAFTING THE AGREEMENT. Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code section 1654 in order to interpret any uncertainty in the meaning of the Agreement. 5 [C][F]JPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 21. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Alameda and Fremont. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Fremont and Alameda do hereby agree to the full performance of the terms set forth herein. CITY OF FREMONT CITY OF ALAMEDA By: Lynn Dantzker By: [ ** *INSERT * * *1 Title: Assistant City Manager Title: [ ** *INSERT * * *] Date: Date: APPROVED AS TO FORM: APPROVED AS TO FORM: By: Michael W. Barrett Title: Senior Deputy City Attorney 6 [C][F]JPA- PlanCheck- Alameda(003 -1) Titl •ivy' *INSE' ' * ** 4 : ** *INSERT * * *] Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services Pg_1 of 2 EXHIBIT "A" SCOPE OF SERVICES This Scope of Services, Exhibit "A," is hereby incorporated by reference into the above referenced Agreement, pursuant to Agreement section 1. The City of Fremont hereby agrees to render the following services to the City of Alameda: 1. For the purpose of this Exhibit "A," the term `Building Plans" shall be used to mean building drawings and plans, soil report, structural calculations, energy compliance calculations and specifications to the extent customarily prepared in the industry, as required to support an application for a building permit. 2. At the request of the City of Alameda, and upon receipt of Building Plans from the City of Alameda, the City of Fremont shall check Building Plans for compliance with the requirements of the current California Building Codes, as adopted by the City of Alameda. The review will not include civil drawings for grading or drainage or soil stability analysis. The review will not address any planning or zoning issues or requirement of the California Fire Code that are not repeated in the California Building Code. The Regular Project Plan Review Fee identified in Exhibit `B" includes one original plan check and, if necessary, up to two re- checks per project. Any additional plan checks will be charged on a time and material basis. 3. The City of Alameda shall provide the City of Fremont with a written list of any local amendments to the California Building Code along with copies of all relevant amendments and local policies relevant to this Agreement. The City of Alameda shall provide written notice to the City of Fremont of any changes to any of the relevant amendments or local policies that occur during the term of this Agreement. 4. Building Plans, for which the City of Alameda requests the City of Fremont to review in accordance with this Agreement, shall be delivered to the Development Services of City of Fremont currently located at 39950 Liberty Street, First Floor, Fremont, California. 5. After Building Plans are received by the City of Fremont for review, the City of Fremont shall furnish to City of Alameda a written notice wherein the City of Fremont shall either indicate such plans and supporting documents are in general compliance with the applicable codes (pursuant to section 6 of this Exhibit "A ") or list the items that are not in compliance with the relevant codes. The reviewed comments shall be transmitted via e- mail for fax to the designated city staff in the City of Alameda. 6. Only final approved plans will be returned to the City of Alameda. The approved plans will bear an stamp on each drawing sheet reviewed and first sheet of structural calculations stating: "This design documents is reviewed and deemed to be in general compliance with California Building Code as adopted and amended by the City of Alameda subject to limitation and exemption provided under sections 104.2.6 and Attachment #2 Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 12g2 of 2 106.4.3 of California Building Code. Approval of these plans and design documents shall not be construed as an approval of any violations of pertaining codes." 7. Specification documents and soil reports will not be stamped approved. 8. The City of Fremont management staff responsible for plan check services shall be available to discuss the project via telephone or at a conference room in the City of Alameda or City of Fremont at a specific time mutually agreeable to the City of Alameda and the City of Fremont. The proposed meeting shall be held to discuss issues that otherwise can not be resolved through telephone conversation or when such a meeting is requested and deemed by the City of Alameda management in the Building Department as necessary to achieve resolution on a project. The Regular Project Plan Review Fee identified in Exhibit `B" includes one meeting per project. Any additional meetings will be charged on a time and material basis. 9. All Building Plans to be reviewed under the terms of this Agreement shall be picked up and delivered by next day delivery services (e.g. Federal Express) at the expense of the City of Fremont. The City Of Fremont shall furnish City of Alameda with an package delivery account number or shipping slips that provides for the next day delivery. 10. Plan Check Deadlines. The City of Fremont will endeavor to adhere to the plan check time scheduled as follows: 10.1 Ten working days after receipt for initial plan checks. 10.2 Five working days after receipt for each recheck. 10.3 The first day of review is the first working day after receipt of Building Plans by the City of Fremont. At the completion of each review, a list of plan review comments will be sent to the applicant (or designated party), and a copy will be sent to the City of Alameda Building Official. Modifications to the plan check schedule may be necessary due to workload and/or quantity of plan submission by City of Alameda. City of Fremont will notify City of Alameda at the earliest possible time as to the possibility of a delay on meeting the established deadlines. 11. For projects over 2 million dollars in valuation the timetable for plan review may need to longer than provided under items 10.1 and 10.2 in order to provide proper review consistent with the complexity of the project. The review time for such a project shall be discussed and agreed on between the City of Fremont and City of Alameda management staff in the Building Department/Division of each city. A fax transmittal or an e -mail to document the agreed timetable shall suffice as a clarification of the requirements of this Agreement on the timetable. APPENDIX B PAYMENT PROVISIONS Invoices shall be paid upon the approval of appropriate City staff, in accordance with the following: Compensation: City of Alameda hereby agrees to pay City of Fremont: 1. As total compensation for the regular plan check services to be rendered by City of Fremont pursuant to Appendix A Scope of Services of this Contract, City of Fremont shall be paid a percentage of the plan check fee collected by the City of Alameda from the applicant, based upon the following schedule: 1.1 Structural Structural & Project Type Only Life Safety Valuation up to $1,000,000 50% 70% Valuation over $1,000,000 45% 65% City of Alameda shall provide to City of Fremont a record indicating the Building plan check fee collected by the city of Alameda. Such record will be used as the basis for establishing fees and invoices for services by the City of Fremont. City of Alameda shall provide a copy of any adjustment or subsequent revisions made to the building plan check fee at the time the revisions or adjustments are made. 1.2 All plan check services shall include the original check and, if necessary, up to two re- checks. 1.3 Hourly rate for services for a third or additional re- check, or design change check after the issuance of permits, is $0 per hour ( to be increased to $89.70 after July 12, 2004) plus all cost associated with additional pick -up and delivery of plans and materials. 1.4 Title 24 Plan Check Fees: 1.4.1 For plan checks under Title 24 of the State Administrative Code Energy and Handicapped Accessibility City of Fremont shall be entitled to 10% of the plan check fee collected by the City of Alameda. 1.5 The plan check for electrical, mechanical and plumbing shall be on hourly rate of $78 (to be increased to $89.70 after July 12, 2004) charged at 1/4 of hour increment. 1.6 The plan check for deferred submittal shall be on hourly rate of $78 (to be increased to $89.70 after July 12, 2004) charged at 1/4 of hour increment. Attachment #3 2. In the event City of Fremont is requested by the City of Alameda to review changes on plans or specifications previously checked and re- checked by City of Fremont, or to perform any other additional services beyond those described in Appendix A Scope of Services of this Contract, City of Fremont shall be compensated for such services based upon City of Fremont's standard hourly rate of $78 (to be increased to $89.70 after July 12, 2004) per hour . 3. The City of Fremont is entitled to 80% of fees outlined above at the completion of first plan review. The remaining 20% of fees are due at completion of second recheck, or final approval of plans and supports document by the City of Fremont in the event of rechecks. City of Alameda shall raise any concern about the plan review work within 30 days of the receiving the plan review comments or approved drawings. The fee payment of a particular project may be deferred until the concerns are resolved, but 110 longer than 90 days after they were originally due. Fees for additional and hourly services shall be paid within 30 days of receipt of invoice by the City of Alameda 4. Except for the compensation described herein and subject to paragraph 5 of this Agreement (Indemnification), City of Alameda shall have no liability for payment of any costs or expenses incurred by City of Fremont in connection with the performance of its services under this Contract. CITY OF ALAMEDA Memorandum Date: June 4, 2004 To: Honorable Mayor and Councilmembers From: Lara Weisiger City Clerk Re: Calling for a General Municipal Election to be consolidated with the Statewide General Election to be held in the City of Alameda on Tuesday, November 2, 2004 and requesting the Alameda County Board of Supervisors to permit the County Clerk/Registrar of Voters to render specified services to the City relating to the conduct of Said Election Background The City Charter requires a General Municipal Election to be held biennially on the date of, and consolidated with, the Statewide General Election in each even - numbered year. Discussion In accordance with the City Charter and the California Elections Code, the City Council shall call for the November 2, 2004 General Municipal Election to be consolidated with the Statewide General Election. The following City and School Board offices will appear on the ballot: two (2) City Councilmembers; one (1) City Auditor; one (1) City Treasurer; and three (3) Members of the Board of Education. The Registrar of Voters will provide certain election - related services upon request and upon agreement to reimburse costs. Budget Consideration An appropriation of $35,600 has been requested in the FY 2004 -05 Elections Budget to cover the cost of the Election. Recommendation It is recommended that the City Council adopt the Resolution calling for the Consolidated General Municipal Election and requesting Registrar of Voters' services. Respectfully submitted, .6- Lax' lA (1 a Lara Weisiger City Clerk Re: Resolution #4 -D CC 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE CONSOLIDATED WITH THE STATEWIDE GENERAL ELECTION TO BE HELD IN THE CITY OF ALAMEDA ON TUESDAY, NOVEMBER 2, 2004 AND REQUESTING THE ALAMEDA COUNTY BOARD OF SUPERVISORS TO PERMIT THE COUNTY CLERK/REGISTRAR OF VOTERS TO RENDER SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF SAID ELECTION WHEREAS, the Charter of the City of Alameda (the "Charter ") provides that the City's General Municipal Election will be held on each even - numbered year and shall be consolidated with the Statewide General Election (the "Consolidated General Municipal Election ") and that the Statewide General Election shall be held in said City on Tuesday, November 2, 2004; and WHEREAS, pursuant to the Charter, it is necessary to elect: two (2) persons to fill the office of City Councilmember; one (1) person to fill the office of City Auditor; one (1) person to fill the office of City Treasurer; and three (3) persons to fill the office of Member of the Board of Education. >- NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Alameda as follows: CC Section 1. The City's General Municipal Election is hereby called and ordered to be consolidated with the Statewide General Election to be held in said City of Alameda, State of California, on Tuesday, November 2, 2004, in accordance with the provisions of the Charter and the Elections Code of the State of California, for the purpose of voting upon any ballot measures and electing the following named officers of the City for the terms specified: a) Two (2) Councilmembers for the City Council of the City of Alameda, each term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004, and continuing for four (4) years thereafter and until a successor is elected and qualified. b) One (1) City Auditor of the City of Alameda, term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004 and continuing for four (4),years thereafter and until a successor is elected and qualified. c) One (1) City Treasurer of the City of Alameda, term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004 and continuing for four (4) years thereafter and . until a successor is elected and qualified. d) Three (3) Members of the Board of Education of the City of Alameda, each term commencing at 7:30 o'clock p.m. on the fourth Tuesday of the month in December, 2004, and continuing for four (4) years thereafter and until a successor is elected and qualified. Resolution # 4 -D CC 7 -6 -04 e) All ballot measures or advisory measures or propositions which may lawfully be submitted at said Election. Section 2. The election precincts within the City for the Consolidated General Municipal Election shall be the same as those established, designated, numbered, fixed and established by the Board of Supervisors of the County of Alameda, State of California, as the election precincts. Section 3. The Consolidated General Municipal Election shall be held and conducted, election officers appointed, voting precincts designated, candidates nominated, ballots printed, polls opened and closed, ballots counted and returned, returns canvassed, results declared, certificates of election issued and all other proceedings incidental to and connected with the Election shall be regulated and done, all in accordance with the provisions of law regulating the Statewide Election. Section 4. The City Clerk is hereby authorized, instructed and directed to provide the Alameda County Registrar of Voters with all pertinent information and material as required. Section 5. The City Clerk shall certify the results of the Election and Council shall meet at its usual meeting place to review the certified statement of the results of the Election within 28 days of the Election and shall thereafter declare the results. Section 6. The City Council hereby requests the Alameda County Board of Supervisors (the "Board ") to consolidate the Election on the Measures with the Statewide General Election to be held on November 2, 2004. Section 7. The Board is hereby requested to make its order and to take such other and further proceedings as may be necessary to effect the consolidation of said election with the Statewide General Election in accordance with the laws of the State of California regulating and providing for the consolidation of elections. Section 8. The Board is hereby authorized and empowered to canvass the returns of the Election on the Measures and to certify the results thereof, that only one form of ballot shall be used, and that said consolidated elections shall be held in all respects as if there were only one election. Section 9. The City Clerk shall publish, or shall provide for the publication of, any notices as required by Division 12 of the Elections Code and in particular section 12111. Section 10. The City Clerk is hereby directed to file immediately a certified copy of this Resolution with the Alameda County Board of Supervisors and with the Alameda County Clerk. Section 11. The City Council, pursuant to Section 10002 of the California Elections Code, hereby requests the Alameda County Board of Supervisors to permit the County Clerk/Registrar of Voters to render specified services to the City relating to the conduct of the Consolidated General Municipal Election on November 2, 2004. Section 12. Specified services include pre - election, election day, post - election and data processing services, Registrar stock supplies and vendor services and supplies, all as set out in the certain document entitled "Election Services and Supplies - Registrar /City Clerk" and agreed upon by the Alameda County Registrar of Voters and the City Clerk of the City of Alameda. Section 13. The City shall reimburse the County for services performed when the work is completed and upon presentation to the City of a properly approved bill. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the. Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of the said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda CITY OF ALAMEDA MEMORANDUM Date: June 22, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Introduction of Ordinance Amending the Alameda Municipal Code (AMC) Section 2 -8.2 to Reduce the Size of the Transportation Commission from Nine to Seven Members and to Allow for Staggered Terms and t o A mend S ection 2 -8.3 t o R educe the Size o f t he Quorum of the TC From Five to Four Members BACKGROUND At the May 4, 2004, Council meeting, City Manager presented an ordinance to reduce the size of the Transportation Commission (TC) and to allow for staggered terms. Council asked City Manager to investigate the turnover and staggering of the terms of other City boards, commissions and committees including the Public Art Advisory Committee so that there would be citywide consistency. DISCUSSION /ANALYSIS The practice of staggering the terms of a Board, Commission or Committee, hereafter referred to as an official group, ensures that there is minimum disruption to the composition of the group in question in order to preserve institutional knowledge and so that the work of the body in question is impacted as little as possible. In the case of the TC, it also presents more frequent opportunities to appoint members in order to keep the membership "balanced between commuter, business, and recreational use, " as stated in the ordinance establishing the TC. Staff researched all thirteen City Boards and Commissions as well as three City Committees. Of these sixteen groups, the fifteen with four -year terms are presented in Table 1. There are nine five - person groups, three seven - person groups and two nine - person commissions, (of which one is the TC). The Mayor's Committee on Disability Issues is currently in flux and is transitioning from eight to eleven members. Table 1 presents the name of the official group, the number of members, and the number of years within the four -year cycle where at least one member's term expires. This latter number reflects how the terms are staggered: two years indicates that every other year about half of the terms expire and new members must be appointed or reappointed, three i ndicates t hat a bout o ne -third o f t he t erms e xpire i n t hree c onsecutive years o f t he four year - cycle, and four indicates that every year of the four -year cycle, about one -fourth of the terms expire. Dedicated to Excellence, Committed to Service GhtalSieeda blicWoda Public Wr.* for NW Re: Introduction of Ordinance #4 -E CC 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 22, 2004 The number of staggered terms per four -year cycle was also analyzed. As presented in Table 1, only four of the 14 groups stagger their membership every two years, and all of these have five members. The four official groups with a size similar to the TC, i.e. seven or nine members, are the Housing Commission, the Social Service Human Relations Board and the Planning Board, all with seven members, and the Economic Development Commission with nine members. Three of these four groups have staggered terms with three rotations within the four -year cycle where one- third of the members turnover in three consecutive years. The Planning Board, the fourth, has turnover in every year of the four -year cycle: 2 -2 -2 -and 1. Of the nine groups with five members, four have at least one term expiring every year of the four -year cycle. Four of the nine turn over half their membership every two years, including the Public Art Advisory Committee. The ninth, the Historical Advisory Board, turns over members in three years of the four -year cycle. Based on this research it seem most appropriate for the TC to have staggered terms similar to the other seven or nine- member commissions i.e. with one -third of the membership rotating in three consecutive years of the four -year cycle. On September 25, 2002, the TC's first meeting, a random drawing was conducted in order to stagger the nine terms so that they all did not expire in 2006. Based on the drawing, four (4) terms were identified to expire in 2004, (Spangler, Barry, Ratto and Clem). With the recommended reduction in membership from 9 to 7, only 2 commission openings would be filled. It is also recommended that the TC have staggered terms similar to the other seven or nine- member committees i.e. with one -third of the members rotating in three consecutive years of the four- year cycle. To fill the two positions, the standard procedure would be followed: • The City Clerk would advertise the available positions (a press release was distributed on April 26, 2004, and three applications have been received as of June 2004); • Incumbents may reapply and be considered along with other applicants; • The Mayor would recommend to Council two nominees to fill the vacated seats whose terms would expire in 2008. • Council will vote on the two nominees. To stagger the terms in one -third increments, a random drawing of the remaining 5 members would be conducted to identified the two members whose terms would expire in 2005 and the remaining three members' terms would expire as scheduled in 2006. BUDGET CONSIDERATION/FINANCIAL IMPACT There is no impact to the General Fund for this change. Dedicated to Excellence, Committed to Service GtyofAINneda Qubii(Works uepat lent nmr Wo Work,- for r Honorable Mayor and Councilmembers RECOMMENDATION Page 3 June 22, 2004 The City Manager recommends that the City Council introduce the proposed ordinance to amend AMC Section 2 -8.2 to reduce the size of the TC from nine to seven members and to allow for staggered terms and to amend Section 2 -8.3 to reduce the size of the quorum of the TC from five to four members. The City Manager also recommends that the City Council accept the staggered terms by one -third rotation using the methodology described above. Respectfully submitted, Matthew T. Naclerio Public Works Director By: Michelle DeRobertis P.E. Associate Civil Engineer MTN:MD:gc G:\PUB WORKS\PWADMIN\COUNCIL\2004 \070604 \TCreduction.doc Dedicated to Excellence, Committed to Service GHnf/Janeda uuIbIICWorks epattlmQnt Public Wily Nf kf Yid Honorable Mayor and Councilmembers TABLE 1 -CITY OF ALAMEDA BOARDS AND COMMISSIONS MEMBERSHIP TURNOVER Page 4 June 22, 2004 Board or Commission (four -year terms) # of Members # of yrs in 4 -yr cycle that terms expire 1. Civil Service Board 5 4 B (2/1/1/1) 2. Economic Development Commission 9 3 B (3/3/3) 3. Golf Commission 5 4 8 (2/1/1/1) 4. Historical Advisory Board 5 3 A (1/2/2) 5. Housing /Building Code Appeals Board 5 2 B (1/4) 6. Housing Commission 7 3 B (3/2/2) 7. Library Board 5 4 B (2/1/1/1 8. Planning Board 7 4 C (2/2/2/1) 9. Public Utilities Board 5 4 B (1/1/1/1) 10. Recreation And Park Commission 5 2 B (3/2) 11. Social Service Human Relations Board 7 3 B (3/2/2) 12. Transportation Commission (recommend) 7 3 (2/2/3) Committees (four -year terms) 1. Public Arts Advisory Committee . 5 2 A (3/2) 2. Cable TV Advisory Committee 5 2 C (2/3) 3. Mayor's Committee on Disability Issues 8 -11 Proposed 2 (5/6) Note A: Terms shall be staggered so that the number of terms expiring any year shall not differ in any other year. or charter or charter 4 year cycle (by) more than one (1) from the number of terms expiring Note B: Staggering of terms is not specified in ordinance Note C: Staggering of terms is specified in ordinance (2/1/1/1) - # of seats that expire in each rotation of the Dedicated to Excellence, Committed to Service Gtyof Alameda PUbiicWOrks Department Public Works Work f You! CITY OF ALAMEDA ORDINANCE NO. New Series AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING SUBSECTIONS 2 -8.2 (MEMBERSHIP; TERM OF OFFICE; REMOVAL) AND 2 -8.3 (QUALIFICATIONS; QUORUM; VOTING) OF SECTION 2 -8 (TRANSPORTATION) OF CHAPTER II (ADMINISTRATION) TO REDUCE THE SIZE OF THE TRANSPORTATION COMMISSION FROM NINE TO SEVEN MEMBERS; ALLOW FOR STAGGERED TERMS AND TO REDUCE THE SIZE OF THE QUORUM FROM FIVE TO FOUR MEMBERS BE IT ORDAINED by the City Council of the City of Alameda that: Section 1. The Alameda Municipal Code is hereby amended by amending subsection 2 -8.2 (Membership, Term of Office; Removal) of Section 2 -8 (Transportation Commission) of Chapter II (Administration) to read as follows: 2 -8.2 Membership; Term of Office; Removal. The Transportation Commission shall consist of seven (7) voting members nominated by the Mayor and approved by Council. The voting members shall be selected to represent a diversity of transportation modes and be balanced between commuter, business, and recreational use. The term of the appointed representative shall be four (4) years. Terms shall be staggered so that one -third of the terms expires in three consecutive years, which shall be implemented by a one -time term of two years for two seats and three years for two seats. Appointed representatives shall serve a maximum of two full terms plus any unexpired term. Any appointed member may be removed by majority vote of the City Council. A vacancy in the office of any such member shall be filled and appointed in the manner hereinabove set forth and shall be for the unexpired portion of the term of office vacated. Section 2. The Alameda Municipal Code is hereby amended by amending subsection 2 -8.3 (Qualification; Quorum; Voting.) of section 2 -8 (Transportation Commission) of Chapter II (Administration) to read as follows: 2 -8.3 Qualifications; Quorum; Voting. The seven (7) appointed representatives of the Transportation Commission shall, at the time of their appointment and continuously during their incumbency, either be residents of the City of Alameda or employed by a business operating within the City. A maximum of two (2) appointees can be non - residents of Alameda. A quorum will consist of four (4) members of the Transportation Commission. The vote of four (4) members shall be necessary for any action of the Transportation Commission. Introduction of Ordinance # 4 -E CC 7 -6 -04 Section 3. This Ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage. Presiding Officer of the Council Attest: Lara Weisiger, City Clerk City of Alameda I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda City of Alameda Memorandum Date: June 23, 2004 To: Honorable Mayor and Councihnembers From: Re: James M. Flint, City Manager Public Hearing to approve a Master Plan Amendment MPA04 -0002 to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for a stormwater treatment and detention pond, pump station and force main along the western edge of the proposed business park and a stormwater outfall into the Estuary at the Former FISC Site, north of Tinker Avenue, Tract 7179 for the Bayport housing development BACKGROUND An application was made on May 10, 2004 by the City of Alameda Community Improvement Commission (CIC) requesting approval of, and amendment to, the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for a stonnwater treatment and detention pond, pump station and force main along the western edge of the proposed business park and a stormwater outfall into the Estuary. On June 14, 2004, the Planning Board recommended Council approval of the City's application for an amendment to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for the Bayport Stormwater Improvement Project. The Planning Board staff report, Planning Board Resolution, and Addendum to the EIR are on file in the Office of the City Clerk. DISCUSSION /ANALYSIS The proposed improvements include the construction of the following facilities on an existing mostly vacant site: 1. stormwater treatment and detention pond and associated landscaping; 2. stormwater pump station; 3. stormwater force main; and 4. stonnwater outfall. Dedicated to Excellence, Committed to Service Re: Introduction of Ordinance #4 -F CC 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 23, 2004 All of these improvements would be located along the western edge of the proposed Catellus Business Park, north of Tinker Avenue. The proposed project meets all the applicable objectives of the Catellus Master Plan, as discussed in the attached Planning Board staff report. The specific portions of the Catellus Master Plan and Site - Wide Landscape Development Plan that would be amended include the following: A. Catellus Master Plan, page 6: The proposed project would amend the Master Plan to include the stormwater improvements as an allowable use. B. Catellus Master Plan, page 60: The proposed project would amend the Master Plan to add an item to the purpose and intent of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main. C. Catellus Site -Wide Landscape Development Plan, page 8: The proposed project would amend the Master Plan to add an item to the Commercial District of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main to serve as landscape buffer areas. A detailed discussion of the issues involved with this application is included in the Planning Board staff report on file with the Office of the City Clerk. The third EIR Addendum has been prepared to examine the environmental impacts that may result from the project and concludes that: 1) The project would not introduce new significant environmental effects or substantially increase the severity of previously identified significant effects; and 2) No substantial changes have occurred with respect to the circumstances under which the project would be undertaken and there has been no discovery of new information of substantial importance that would require major revisions to the previous EIR or EIR Addendum. This project would provide the benefit of improved stormwater treatment prior to discharge into the Estuary, consistent with State, regional and local stormwater policies. The City Manager believes that the project, including amendments to the Master Plan and Site -Wide Landscape Development Plan, is consistent with the objectives and standards included in the Master Plan and is recommending approval of the project, subject to the conditions in Exhibit C of the proposed Ordinance. BUDGET CONSIDERATION /FINANCIAL IMPACT There would be no budget or financial impact of the proposed amendments. Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers RECOMMENDATION Page 3 June 23, 2004 The City Manager recommends that the City Council approve an amendment to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan based on the fmdings and the conditions contained in the proposed Ordinance. Respectfully Subm Gregory Fuz, Planning and Building Director Redevelopment Manager G:\ PLANNING \CC\REPORTS\2004 \m -July 06\Pond CCSR- 7- 06- 04.doc Dedicated to Excellence, Committed to Service E 0 LL 4- () ct3 0 0. CITY OF ALAMEDA ORDINANCE NO. New Series APPROVING MASTER PLAN AMENDMENT MPA04 -0002 TO THE CATELLUS MASTER PLAN AND CATELLUS SITE -WIDE LANDSCAPE DEVELOPMENT PLAN TO ALLOW FOR A STORMWATER TREATMENT AND DETENTION POND, PUMP STATION AND FORCE MAIN ALONG THE WESTERN EDGE OF THE PROPOSED BUSINESS PARK AND A STORMWATER OUTFALL INTO THE ESTUARY AT THE FORMER FISC SITE, NORTH OF TINKER AVENUE, TRACT 7179 FOR THE BAYPORT HOUSING DEVELOPMENT BE IT ORDAINED by the City Council of the City of Alameda that: Section 1. In accordance with Subsection 30 -4.20 of the Alameda Municipal Code, Master Plan MPA04 -0001, as shown on Exhibit 0 and Exhibit B amended by the amendments contained in Exhibit C is hereby adopted for all the real property within the 215 - acre site situated within the City of Alameda, County of Alameda, State of California, located generally south of the Oakland - Alameda Estuary, west of the Mariner Square commercial area, north of the College of Alameda and Atlantic Avenue, and east of Main Street, exclusive of the Alameda Gateway Center, U.S. Coast Guard Housing, and Miller Elementary School. Section 2. The above Master Plan Amendment MPA04 -0001 shall be known as and referenced to, as the Catellus Alameda Project Master Plan (hereinafter Catellus Master HPlan) dated October 2001, as amended. Section 3. This Ordinance shall be in full force and effect from, and after, the expiration of thirty (30) days from the date of its final passage, subject to the signature of the Development Agreement. Attest: Lara Weisiger, City Clerk City of Alameda 1 Presiding Officer of the City Council Introduction of Ordinance # 4 -F CC 7 -6 -04 Exhibit A — Catellus Alameda Project Master Plan (on file in the Office of the City Clerk) Exhibit B — Catellus Site -Wide Landscape Development Plan Amendment (on file in the Office of the City Clerk) Exhibit C — Catellus Master Plan and Site -Wide Landscape Development Plan Amendment, MPA04 -0002 2 EXHIBIT C CATELLUS MASTER PLAN AND SITE -WIDE LANDSCAPE DEVELOPMENT PLAN AMENDMENT MPA04 -0002 The specific portions of the Catellus Master Plan and Site -Wide Landscape Development Plan that would be amended include the following (revisions are shown in bold face type): A. Catellus Master Plan, page 6, third paragraph: The Master Plan would be amended to include the stormwater improvements as an allowable use, as follows: `In the area north of Tinker Avenue is a Business Park encompassing 77 acres which will house up to 1.3 million gross square feet of flex -tech office and research & development uses, with supporting retail and related uses, including a stormwater treatment and detention pond, pump station, force main, outfall and associated landscaping along the western edge of the proposed business park." B. Catellus Master Plan, page 60, seventh bullet: The Master Plan would be amended to add an item to the purpose and intent of the business park that would include the preservation of open spaces, as follows: "Preserve open spaces surrounding the stormwater pond and a five foot planter strip above the force main." C. Catellus Site -Wide Landscape Development Plan, page 8, first paragraph right side of page: The proposed projeci would amend the Site -Wide Landscape Development Plan to add an item to the Commercial District of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main to serve as landscape buffer areas, as follows: "Landscape buffer areas which include eastern and western boundaries of the Business Sub - District, including open spaces surrounding the stormwater pond and a five foot planter strip above the stormwater force main." CONDITIONS EFFECTIVE DATE 1. The Master Plan Amendment shall not be in force and effect, unless and until, the following conditions have been satisfied: a. The City Council first approves the Master Plan Amendment (MPA04 -0002) and it is in effect. RESPONSIBILITY 2. Catellus and the Community Improvement Commission of the City of Alameda shall be responsible for the costs associated with obtaining, implementing, and defending any necessary amendments of the Mitigation Measures and Project Approvals and any required environmental review related thereto. 3 HOLD HARMLESS 3. The applicant, or its successors in interest, shall defend, indemnify, and hold harmless the City of Alameda or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, and employees to attack, set aside, void, or annul, an approval of the City concerning this project, which action is brought within the time period provided for in the Government Code. The City of Alameda shall promptly notify the applicant of any claim, action or proceeding and the City shall cooperate in the defense. If the City fails to notify the applicant of any claim, action, or proceeding, or if the City fails to cooperate in the defense, the subdivider shall not hereafter be responsible to defend, indemnify, or hold harmless the City. APPROVED PLANS 4. The Project shall be constructed in substantial compliance with the document titled Catellus Alameda Project Master Plan, prepared by Catellus Development Corporation, as amended on January 2, 2002, on file in the office of the City of Alameda Planning and Building Department, except as modified by the Master Plan conditions approved herein. 5. The above ground pump station enclosure shall be screened from view with a wood or wood slat fence. No barbed wire or razor fences shall be allowed. The enclosure shall be coated with stucco and the roof be constructed of a material similar to one of the roof options used on the Bayport project to the south. VESTING 6. These conditions run with the land and shall apply to the life of the Project, except as satisfied pursuant to their express terms. DEVELOPMENT REGULATIONS 7. All regulations of the Alameda Municipal Code shall apply to MPA04 -0001 except where express provisions have otherwise been made in this Master Plan approval or in any Development Agreement between the City and the applicant. 8. The Master Plan shall include the following specific limitations and exceptions to the Alameda Municipal Code (AMC): a. Within the business park, no outdoor storage of materials is approved as part of this Master Plan Amendment. Any such storage may be permitted subject to an approved Use Permit. AMENDMENTS 9. Any amendments to this Master Plan Amendment shall be subject to the provisions established in the Master Plan (page I -10) and the Development Agreement (article 6.4). Major amendments to this Master Plan shall remain within the authority of the City Council. The determination of minor and major amendments shall be processed in accordance with the Development Agreement. 4 ACKNOWLEDGMENT OF CONDITIONS 10. Prior to the issuance of any building permit, the permittee shall acknowledge in writing all of the conditions of approval of the Master Plan Amendment and must accept this Master Plan Amendment subject to those conditions and with full awareness of the provisions of Chapter 30 of the Alameda Municipal Code in order for the Master Plan, as approved herein, Planned Development and Design Review to be exercised. MASTER PLAN, TENTATIVE MAP AND MMRP COMPLIANCE 11. The Master Plan Amendment shall be in substantial compliance with the provisions of the Catellus Alameda Project Master Plan (January 2, 2002), Amended Tentative Map (November 19, 2001), Development Agreement, Disposition and Development Agreement, and other entitlements, as amended; City infrastructure design standards, as revised by the City Engineer; as well as the mitigations contained in the Mitigation Monitoring and Reporting Program, as amended, prepared for the Catellus Mixed Use Development Project. 5 I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda twaswarmwon • July 1, 2004 Honorable Mayor and Councilmembers: This is to certify that the claims listed on the check register and shown below have been approved by the proper officials and, in my opinion, represent fair and just charges against the City in accordance with their respective amounts as indicated thereon. Check Numbers 124938 - 125737 Void Checks: 124042 124611 124629 124733 124818 125271 GRAND TOTAL Allowed in open session: Date: City Clerk Approved -for payment: Date: Finance Director Council Warrants 07/06/04 Amount 3,965,628.16 (10,160.68) (25.30) (25.30) (6,000.00) (113.57) (387.14) 3,948,916.17 Respectfully submitted, Pamela J. Sib ey BILLS #4 -G 07/06/04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING LESLIE KRONGOLD AS A MEMBER OF THE CITY LIBRARY BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, LESLIE KRONGOLD is hereby reappointed to the office of member of.the Library Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until her successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -A 7 -6 -04 d as to Form CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING PATRICK LYNCH AS A MEMBER OF THE CITY PLANNING BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, PATRICK LYNCH is hereby reappointed to the office of member of the Planning Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008 and to serve until his successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly w adopted and passed by the Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: ce 0 t— t— AYES: td 0 NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -B 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING ROBERT A BONTA AS A MEMBER OF THE SOCIAL SERVICE HUMAN RELATIONS BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination by the Mayor, ROBERT A. BONTA is hereby reappointed to the office of member of the Social Service Human Relations Board of the City of Alameda for the . term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until his successor is appointed and is qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly w adopted and passed by the Council of the City of Alameda in regular meeting assembled on the z ce day of 2004, by the following vote to wit: 0 1- 1— a AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -C 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING JIM C. FRANZ AS A MEMBER OF THE SOCIAL SERVICE HUMAN RELATIONS BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination by the Mayor, JIM C. FRANZ is hereby appointed to the office of member of the Social Service Human Relations Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until his successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly E adopted and passed by the Council of the City of Alameda in adjourned regular meeting assembled o on the day of , 2004, by the following vote to wit: Li. uJ o. - 2 CC co 1 ® AYES: J►- ie.,* %jp NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -D 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING KARIN LUCAS AS A MEMBER OF THE CITY PUBLIC UTILITIES BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, KARIN LUCAS is hereby reappointed to the office of member of the Public Utilities Board of the City of Alameda, for the term commencing July 1, 2004, and expiring on June 30, 2008, and to serve until her successor is appointed and qualified. >- I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly .� cc cc and passed by the Council of the City of Alameda in regular meeting assembled on the co _ ®r day of , 2004, by the following vote to wit: v cc o AYES: .o. NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -E 7 -6 -04 ' City of Alameda Memorandum Date: To: From: Re: May 13, 2004 Honorable Mayor and Council Members James M. Flint, City Manager Request for Oakland Chinatown Advisory Committee Representatives Background: On May 21, 2003, the City Council certified the Environmental Impact Report ( "EIR ") for the Alameda Point General Plan Amendment ( "GPA "). Shortly thereafter, the City of Oakland, the Chinatown Chamber of Conunerce, and Asian Health Services filed notices with the City of Alameda indicating their intension to challenge the adequacy of the GPA EIR. After several months of discussions, the City of Oakland filed a petition for writ of mandate and complaint for declaratory and injunctive relief in December 2003. Chinatown Chamber of Commerce and Asian Health Services filed their writin January 2004. After several more months of negotiations, the City of Alameda, the City of Oakland, the Chinatown Chamber of Commerce, and Asian Health Services executed a four party settlement agreement on April 19, 2004. A copy of the Agreement is attached. The key terms of the agreement are summarized below: > Oakland agrees to drop its challenge to the GPA EIR, agrees to not challenge any future EIR for projects at Alameda Point or FISC, agrees to fund at least $462,000 for improvements in Chinatown, and agrees to participate in and help staff a new committee called the Oakland Chinatown Advisory Committee (OCAC). > The Chinatown Chamber of Commerce and Asian Health Services agree to drop their challenge to the GPA EIR, agree to not challenge any future EIR for a "phase 1 " project at Alameda Point (the first 1,100 new housing units and 100,000 square feet of new neighborhood commercial development), and participate in the OCAC. > Alameda agrees to prepare environmental documents for future developments at Alameda Point, conduct certain transportation feasibility studies, participate in and help staff the OCAC, fund up to $75,000 for technical consultants and staff in support of the OCAC's work, and provide $500,000 forirnprovements in Chinatown subject to specific conditions through future impact fees on the new, market rate housing constructed at Alameda Point. Discussion: Per the agreement, the OCAC will "serve as an advisory committee to the Alameda City Council and Planning Board and the Oakland City Council and Planning Commission for the purpose of providing ongoing communication and feedback on Oakland Chinatown issues related to the future development and environmental review (CEQA) process for projects within Alameda Point and Downtown Oakland." Report #5 -F 7 -6 -04 Report 6- - The Planning Manager responded that the final EIR addresses the alternatives for a 66 -space lot in several locations; the staff report analyzes whether or not 17 spaces could be placed in some alternate locations and determined that another location would not meet the project objectives because it would not provide 66 spaces on site; the only adjacent property that could meet the objectives would be the Times Star parking lot which would require a parking structure. Elizabeth Krase, AAPS, stated that she opposed the change in the Library's plans to build a surface - parking garage. Randy Horton discussed environmental issues; requested Council to reconsider the purchase of Gim's Chinese Kitchen due to the unknown contamination of the property. Betsy Mathieson, Alameda, stated that she opposed surface parking. Robb Ratto, Park Street Business Association (PSBA), stated that the parking structure creates additional traffic problems; PSBA's official policy is that there is no opposition to the parking structure. * ** Mayor Johnson called a recess at 8:40 p.m. and reconvened the Regular City Council Meeting at 8:42 p.m. * ** The Planning and Building Director stated that the City understands that the mitigation alone would not adequately reduce the impacts of the potential demolition to a less than significant level; the EIR concludes that with all the proposed mitigation measures, impacts of the potential demolition of the structure would still remain significant and unavoidable; that with .regard to the proposal to relocate the building, the mitigation measure would not be adequate to reduce the impacts to a less than significant level; the certification of the EIR does not commit the Council to any course of action. The Library Project Manager stated a Phase II environmental report has not been ordered because the subject site is not in the City's control; the Phase II environmental report for the LinOaks site indicates that the site is clear. Vice Mayor Daysog stated that there are varied numbers regarding the cost of the parking structure or parking lot; that Council cannot make sound decisions until definitive numbers are given. Regular Meeting Alameda City Council June 15, 2004 4 Councilmember Matarrese moved adoption of resolution. Councilmember Kerr stated that the EIR is not an authorization for demolition; one end of Times Way could be used as parking with an exit on Lincoln Avenue; that she would like to see alternatives to demolishing historic properties; concurred with Vice Mayor Daysog regarding the need for accurate numbers. Councilmember Gilmore seconded the motion, which carried by the following voice vote: Ayes: Councilmembers Gilmore, Kerr, Matarrese and Mayor Johnson - 4. Abstentions: Vice Mayor Daysog - 1. ( *04- ) Ratified bills in the amount of $ 3,040,343.02. REGULAR AGENDA ITEMS (04- ) Resolution No.13731, "Appointing Amanda Flores Witte as a Member of the Social Service Human Relations Board." Adopted. Vice Mayor Daysog moved adoption of the resolution. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath and presented a certificate of appointment to Ms. Flores Witte. (04- ) Resolution No.13732, "Recognizing and Expressing Appreciation to Zenda James for Fifteen Years of Dedicated Service as the City of Alameda Finance Director." Adopted; and (04- A) Presentation of the Government Finance Officers Association Certificate of Achievement for Excellence in Financial Reporting to Finance Director Zenda James for the City of Alameda's Comprehensive Annual Financial Report for the Fiscal Year ending June 30, 2003. Noel Folsom, Alameda, stated that the Finance Director served professionally and has the ability to make complex issues seem understandable. Councilmember Kerr stated that she was sorry to see the Finance Director leave; that questions have always been answered completely, accurately and thoroughly. Mayor Johnson read the Resolution and Certificate of Achievement. Adoption of the resolution carried by consensus - 5. Regular Meeting Alameda City Council 5 June 15, 2004 (04- ) Recommendation to appoint Oakland Chinatown Advisory Committee representatives. Mayor Johnson stated that she received a call from an Oakland Councilmember regarding the committee; Oakland prefers to have elected representatives serve on the committee, however, plans to nominate non - elected members. Councilmember Kerr stated that she is concerned about having . elected officials serve because the committee could end up becoming a general discussion committee. Mayor Johnson stated parameters set the scope of the committee. Councilmember Kerr stated two Councilmembers serving on a committee could reach an agreement and only one more vote would be needed to confirm the agreement; that she is not happy with that arrangement. Mayor Johnson noted two Councilmembers attend School District meetings; issues discussed are always brought back to Council. Councilmember Matarrese stated he would oppose appointment of elected officials if discussions could be made on other issues. Mayor Johnson noted that she and Vice Mayor Daysog meet periodically with Councilmembers from Oakland to discuss issues that involve both cities. Councilmember Gilmore stated that an alternative could be to appoint one Councilmember and one non - elected individual. Councilmember Kerr stated that she would like to see individuals with traffic and financial expertise appointed. Mayor Johnson stated Council should select non - elected members to serve on the committee; that Sherri Stieg and Aidan Barry have been recommended to be on the committee. Councilmember Kerr stated that she was concerned with having anyone with financial interests on the committee. Mayor Johnson requested Council to provide her with suggestions for committee members prior to the matter returning at a future Council meeting. (04- ) Resolution No.13733, "Extending the Single - Family Residential Rebate of the Solid Waste and Recycling Infrastructure Regular Meeting Alameda City Council 6 June 15, 2004 Impact Fee for Fiscal Year 2004 - 2005." Adopted. Councilmember Gilmore moved adoption of resolution. Vice Mayor Daysog seconded the motion. Under discussion, Councilmember Kerr stated that mitigation and rebate is only given to residents living in single- family dwellings; seniors live in multiple -unit dwellings; single- family residential districts are least able to handle the weight and hardware of the recycling trucks and will be damaged the most. On the call for the question, the motion carried by the following voice vote: Ayes: Councilmembers Daysog, Gilmore, Matarrese, and Mayor Johnson - 4. Noes: Councilmember Kerr - 1. (04- ) Public Hearing to establish Proposition 4 Limit (Appropriation Limit) for Fiscal Year 2004 -05; and (04- A) Resolution No.13734, "Establishing Appropriations Limit for Fiscal Year 2004 -05." Adopted. Mayor Johnson opened the public portion of the Hearing. There being no speakers, Mayor Johnson closed the public portion of the Hearing. Vice Mayor Daysog moved adoption of the resolution. Councilmember Kerr seconded the motion, which carried by unanimous voice vote - 5. (04- ) Resolution No.13735, "Approving Engineer's Report, Confirming Diagram and Assessment and Ordering Levy of Assessments, Maintenance Assessment District 01 -01 (Marina Cove)." Adopted. Councilmember Kerr moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. (04- ) Resolution No.13736, "Approving Engineer's Report, Confirming Diagram and Assessment and Ordering Levy of Assessments, Island City Landscaping and Lighting District 84 -2." Adopted. Councilmember Gilmore moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by Regular Meeting Alameda City Council 7 June 15, 2004 unanimous voice vote - 5. (04- ) Public hearing to consider appeals of the Planning Board approval of a Use Permit to allow the conversion of a 15,840 square foot industrial building at 2515 Blanding Avenue into seven work /live studios with associated parking and landscaping; and adoption of related resolution. The site is located within the M- 2, General Industrial Zoning District. Applicant: Janet Koike for Cal Vita LLC. Appellants: Ed Murphy and Pat Bail. [Continued to July 6, 2004.] The Supervising Planner gave a brief presentation on the project. Mayor Johnson opened the public portion of the Hearing. Proponents (In favor of appeal): Michael Kahn, Applied Engineering and Production; Dorothy Boynton, Alameda; Len Grzanka, Alameda; Joseph Wood, Attorney representing Matthew Murphy; Marlene Kerr, Alameda; Jon Janes, Allied Engineering and Production; Pat Bail, Appellant; Helena Lengel, Alameda; and Barbara Thomas (former Councilmember). Opponents (Opposed to appeal): Melissa Harmon, Alameda; Charlene Milgrim, Alameda; Tom Matthews, Renewed Hope; Joan Konrad; Robin Gianattassio - Malle; Lee Smith (deferred time to Stuart Flashman); Pamela Nishiyama, Alameda; Margot Lederer; Robert Bell, Alameda; Carolyn West, Alameda; Barbara Krummel, Alameda; Jon Spangler, Alameda; Stuart Flashmall; Mark Schiess (deferred time to Janet Koike); Michael Schiess, Alameda; and Janet Koike, Applicant. There being no further speakers, Mayor Johnson closed the public portion of the Hearing. Jon Janes, Allied Engineering, stated the Planning Board exempted the project under California Environmental Quality Act (CEQA) regulations Section 15303; environmental concerns dealing with the noise have been ignored; that the Planning Board exempted the conversion under Section 15303B or C; Section 15303B addresses conversion of the building from one use to a six -unit residential use in an urbanized area; that the project is for seven units and does not fall within the CEQA regulation; that by the Work -Live Ordinance, the project does not deal with residences thereby making said section inapplicable to the conversion; Section 15303C addresses conversion of an existing unit to a commercial use; the unit must have 10,000 square feet or less in an urbanized area; the Regular Meeting Alameda City Council 8 June 15, 2004 unit has 15,800 square feet and does not fit within the exception; Allied Engineering requests Council to initiate an environmental study to determine the impact that the noise in the existing area will have on the residents of these units; notice should be given to that effect. The City Attorney stated that the actual CEQA exemption is Section 15332, which addresses infill development projects. The Supervising Planner stated that one of the regulations of the Work -Live Ordinance requires occupants be notified about noise. In response to Councilmember Kerr's inquiry about the 10,000 square -foot limitation, the Supervising Planner stated that a categorical exception under CEQA was used; however, that is not the section that the Planning Board used to exempt the particular project; the section used does not have said [10,000 square -foot] limitation. Councilmember Kerr inquired whether the Planning Board did not depend upon the section of CEQA [Mr. Janes addressed] when the project was approved, to which the Supervising Planner responded that Section 15332 was used by the Planning Board to make its finding. Mr. Janes stated the April 27 Notice of City Council Public Hearing states: "Staff has determined that this project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303;" that he would like to reserve a written response to the Section 15332 exemption. Mayor Johnson inquired whether there was a notice problem. In response to Pamela Nishiyama's comments regarding drug and prostitution activity in the area, Councilmember Kerr inquired whether the area was a red light district. Ms. Nishiyama responded that a couple of homes are questionable on Clement Avenue; stated more people living in the area would result in better monitoring of activity. Councilmember Kerr inquired whether Ms. Nishiyama contacted the Police Department on the questionable dwelling units, to which Ms. Nishiyama responded in the affirmative. In response to Mayor Johnson's inquiry about whether Ms. Nishiyama was certain of the activity, Ms. Nishiyama responded that she suspects prostitution activity. Regular Meeting Alameda City Council 9 June 15, 2004 Mayor Johnson suggested that Ms. Nishiyama provide Council with information regarding the activity. Vice Mayor Daysog stated that he was shocked to hear about said type of activity; enforcement is needed. Mayor Johnson requested that the City Attorney address the notice issue. The City Attorney responded that the Notice of Hearing stated that the staff determined the project to be categorically exempt under Section 15303; the notice was to meet the expanded noticing provision required by the Council; the notice was not required under CEQA and is not a basis for appeal; Mr. Janes has requested that the Hearing be held over for two weeks in order to provide him with an opportunity to address the code section; in order to avoid any possible process argument, she suggests Mr. Janes's request for continuance be met in order to allow him to address the applicable, categorical exemption section. Councilmember Kerr inquired whether Matthew Murphy filed a lawsuit in 1998, to which the City Attorney responded that she would provide an off agenda report on the matter. Councilmember Gilmore inquired whether the Council would be addressing only the CEQA section at the July 6, 2004 City Council Meeting. The City Attorney responded that the Council could request that the speakers stand on their testimony which would be consider as part of the decision; under the Brown Act, the public cannot be prohibited from speaking but can be requested not to speak twice on the same subject; Council would consider that portion of the Public Hearing finalized. Mayor Johnson stated that the Council is concerned that people get adequate notice. Councilmember Kerr moved that the item be continued to the July 6, 2004 City Council Meeting in order to allow sufficient time for renoticing. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. Councilmember Kerr thanked everyone for coming to the meeting and for staying so late. Regular Meeting Alameda City Council 10 June 15, 2004 Mayor Johnson apologized that the Council could not finish the matter at the meeting. (04- ) Adoption of Resolution of Necessity to Acquire Property by Eminent Domain for Public Use (Library and Public Parking); Authorizing Commencement of Litigation to Acquire Property and for Order of Possession; Finding and Determining that All Requirements Have Been Met for Consideration of Adoption of Resolution; Code of Civil Procedure Section 1245.235 et seq.; Adopting Findings and a Statement of Overriding Considerations, Mitigation Measures, and a Mitigation Monitoring Program (2320 -2322 Lincoln Avenue, Alameda). Continued to July 6, 2004. (04- ) Ordinance No. 2925, "Approving and Authorizing the Execution of a Lease for Real Property Located at 1435 Webster Street (Parking Lot D)." Finally passed. Vice Mayor Daysog moved final passage of the ordinance. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. (04- ) Ordinance No. 2926, "Amending the Alameda Municipal Code by Adding Section 30 -16, (Inclusionary Housing Requirement for Residential Projects) to Chapter XXX (Development Regulations)." Finally passed. Councilmember Matarrese moved final passage of the ordinance. Councilmember Gilmore seconded the motion. Vice Mayor Daysog inquired whether the ordinance included a $14,000 fee, to which the Planning Manager responded that there are fees associated with the ordinance; if an affordable dwelling unit is not constructed, the in -lieu fee is available for developments between five and nine dwelling units; if there are more than nine dwelling units, the ordinance requires that the housing units be developed. Vice Mayor Daysog inquired whether the ordinance satisfies the 25% goal set by Council, to which the Planning Manager responded in the negative; stated that the ordinance is Citywide and includes a 15% set aside; the 25% goal is within redevelopment areas; the ordinance satisfies one of the program requirements necessary to finalize the recently adopted Housing Element. Vice Mayor Daysog inquired the amount of the fee, to which the Regular Meeting Alameda City Council 11 June 15, 2004 Planning Manager responded that the fee is based upon development cost of a unit. On the call for the question, the motion carried by the following vote: Ayes: Councilmembers Gilmore, Matarrese, and Mayor Johnson - 3. Noes: Councilmembers Daysog and Kerr - 2. ORAL COMMUNICATIONS, NON - AGENDA (04- ) Bill Smith, Alameda, spoke about community involvement. (04- )Betsy Elgar, National Association of Social Workers, spoke about the homeless. (04- )Hellena Lengel, Alameda, urged Council to do everything possible to retrieve federal money that has been taken away from Section 8 housing funding. COUNCIL COMMUNICATIONS (04- ) Consideration of Mayor's nomination for appointment to the Library Board. Mayor Johnson nominated Leslie Krongold for reappointment to the Library Board (04- ) Consideration of Mayor's nomination for appointment to the Planning Board. Mayor Johnson nominated Patrick Lynch for reappointment to the Planning Board (04- ) Consideration of Mayor's nomination for appointment to the Public Utilities Board. Mayor Johnson nominated Karin Lucas for reappointment to the Public Utilities Board (04- ) Consideration of Mayor's nominations (2) for appointment to the Social Service Human Relations Board. Mayor Johnson nominated Robert Bonta and Jim Franz for reappointment to the Social Service Human Relations Board. (04- ) Councilmember Kerr stated that the Housing Authority acts as a pass through for the federal money that subsidizes the Section 8 program; the Federal Government cut off the money; encouraged political activists to go to the source of the problem and, if Regular Meeting Alameda City Council 12 June 15, 2004 necessary, picket the offices of Pete Stark, Barbara Boxer and Diane Feinstein; stated that the Council has considered the issue at least three times in addition to a Saturday meeting with Pete Stark. Mayor Johnson stated that each of the meetings were open noticed meetings. (04- ) Councilmember Matarrese requested that the City officially request Alcohol Beverage and Control (ABC) to close down Suzi Q's. The City Manager stated that the item could be placed on the July 6, 2004 agenda. (04- ) Councilmember Matarrese stated that Applied Engineering's letter makes reference to a barge that is tethered behind their building in the estuary; that one boat yard is being closed because of the cost associated with capturing the runoff from an active boat yard and protecting the waterway; that work is being done on a boat that is suspended out of the water without the benefit of collection of any of the runoff that might occur; requested staff to urge the Coast Guard to take action against the barge. ADJOURNMENT There being no further business, Mayor Johnson adjourned the Regular Meeting at 10:50 p.m. Respectfully Submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Brown Act. Regular Meeting Alameda City Council June 15, 2004 13 CITY OF ALAMEDA MEMORANDUM Date: June 22, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Recommendation to Accept the Work of Linear Options, Inc., for Traffic Striping Project, No. P.W. 12- 03 -19, and Authorize the City Manager to Extend the Agreement with Linear Options, Inc., for an Additional Year BACKGROUND On January 6, 2004, the City Council adopted plans and specifications for the Traffic Striping Project at various locations in the City of Alameda. The purpose of the project was to provide thermoplastic replacement of crosswalk markings, limit lines, bicycle lanes, arrow markings, stop markings, school crossings, and lane lines. On April 6, 2004, the City awarded a contract in the amount of $119,040, including contingencies, to Linear Options, Inc. DISCUSSION /ANALYSIS The project has been completed in accordance with the Plans and Specifications and is acceptable to the Public Works Department. One extra work order was issued to add new thermoplastic striping and pavement markings to various new locations. This extra work order added five additional workdays to the contract. The final project cost, including the extra work order, is $96,916.69. The project specifications and construction agreement allow the City to annually extend the agreement for up to four (4) additional years, upon satisfactory performance if mutually agreed. The Public Works Department recommends that the current agreement with Linear Options, Inc., be extended for an additional year when the next striping project is ready for construction. Unit costs for the amendment would be adjusted in accordance with the contract based on the Engineering New Record Cost Index. BUDGET CONSIDERATION/FINANCIAL IMPACT Funding for this project is budgeted under CIP #92 -29 and utilizes Measure B funds. Required GASB -34 forms for the project have been completed and forwarded to the Finance Department. Gtvo(Alameda tub!icWOrks Uepariment Public Walk Wmr for lied Dedicated to Excellence, Committed to Service Report #4 -B CC 7 -6 -04 Honorable Mayor and Councilmembers RECOMMENDATION Page 2 June 22, 2004 The City Manager recommends that City Council, by motion, accept the work of Linear Options, Inc., for Traffic Striping Project, No. P.W. 12 -03 -19 and authorize the City Manager to extend the agreement with Linear Options, Inc., for an additional year. Respect 1y submitted, Matthew T. Naclerio Public Works Director By: ,hn V. Wankum upervising Civil Engineer MTN/JVW:gc G:\PUB WORKS\P WADMIN \COUNCIL\2004 \070604 \Striping_Accept. doc Dedicated to Excellence, Committed to Service firyofAlanede I ubIicWorks UQpaitment Public Works ;Pablo, You! City of Alameda Date: Memorandum June 30, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint, City Manager Re: Recommendation to enter into a Joint Powers Agreement with the City of Fremont to provide plan review services to the City of Alameda BACKGROUND The Building Services Division of the Planning and Building Department provides plan review for compliance with the California Building Standards Code. All plan review is assigned to one Structural Plan Check Engineer and one Plans Examiner. In April 2004 the position of Plans Examiner became vacant. During the recruitment process, to fill the Plans Examiner position, the Building Official sought to obtain outside plan review services. The City of Fremont has stepped forward and has agreed to offer plan review services to the City of Alameda under a Joint Powers Agreement. DISCUSSION /ANALYSIS The demand for plan review services is at an historic high for the City of Alameda. In May 2004 there were projects totaling $153,000,000 in for plan review. In order to maintain an acceptable level of service during the recruitment process for a new Plans Examiner it is necessary to obtain the assistance of outside plan review services. The City of Fremont currently provides plan review services for the City of Salinas and has the capacity to assist us during our recruitment period. Building Services intends to utilize the plan review services of the City of Fremont until such time as the position of Plans Examiner is filled. After that date, Building Services intends to use the City of Fremont during peak times to maintain a high level of customer service. The Building Official will monitor the quality of the plan reviews performed by the City of Fremont. Permit customers will continue to interact with City of Alameda staff throughout the process. Report #4 -C CC 7 -6 -04 Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers BUDGET CONSIDERATION/FISCAL IMPACT Page 2 June 30, 2004 Plan review services provided by the City of Fremont will be paid for out of plan check fees collected on projects. Costs for these plan review services will be 45% to 80 % of the Building Services plan check fee charged by the City of Alameda. The exact amount is based on the complexity of the project and the scope of the review. 45% for structural review on projects valued over $1,000,000 up to 80% for a comprehensive review including building, plumbing, mechanical, electrical, energy and accessibility. On a single - family dwelling alteration project valued at $50,000 the City of Alameda would charge $664 for Building Services plan check. Dependent on the scope of the review the City of Alameda would pay the City of Fremont between $299 and $531. MUNICIPAL CODE CROSS REFERENCE None RECOMMENDATION The City Manager recommends that the City Council enter into a Joint Powers Agreement with the City of Fremont to provide plan review services to the City of Alameda. Respectfully submitted, Gregory Fuz Planning and Building Director By: Gregory Jean % Building Official Attachments: 1. Joint Powers Agreement 2. Scope of Services (Exhibit A) 3. Payment Provisions (Appendix B) Dedicated to Excellence, Committed to Service JOINT POWERS AGREEMENT CITY OF FREMONT and CITY OF ALAMEDA BUILDING PLAN CHECK SERVICES (2003) This Joint Powers Agreement (hereinafter "Agreement ") is made and entered into by and between the CITY OF FREMONT, a municipal corporation (hereinafter "Fremont "), and the CITY OF ALAMEDA, a municipal corporation (hereinafter "Alameda "). RECITALS A. Fremont and Alameda are each a "public agency" as defined by Government Code section 6500. B. Fremont and Alameda each share a common power, as defmed by Government Code section 6502, generally described as the authority to check building plans and specifications to regulate compliance with the building and safety codes adopted by each city, and more particularly described in this Agreement. C. The general purpose of this Agreement is for Fremont to provide building plan check services to Alameda, in return for Alameda' payment to Fremont, based on the terms more particularly described in this Agreement. D. Fremont and Alameda desire to enter into this Agreement in accordance with the provisions of the Joint Exercise of Powers Act (Government Code sections 6500, et seq.), and the provisions of Government Code sections 895 through 895.8. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. SCOPE OF SERVICES. Alameda hereby delegates authority to Fremont to perform, and Fremont hereby agrees to perform, the services described in Exhibit "A," attached hereto and incorporated herein by reference, in accordance with the terms and conditions contained in this Agreement. 2. BILLING AND PAYMENT. In order to request payment for services provided in accordance with this Agreement, Fremont shall submit invoices to Alameda identifying the services performed and the charges therefor, based upon the billing rates (set forth on Exhibit "B," attached hereto and incorporated herein by reference). Alameda shall make payments to Fremont for services performed in accordance with this Agreement within thirty days after receipt of invoice from Fremont. If Alameda disputes any portion of the request for payment from Fremont, Alameda shall provide written notice of the dispute to Fremont within thirty days after receipt of invoice from Fremont. 1 Attachment #1 [C][F]JPA- PlanCheck- Alameda(003 -1). Joint Powers Agreement - City of Fremont and City of Alameda Building Plan Check Services 3. AUTHORIZED REPRESENTATIVES. 3(A). Fremont's Authorized Representative. All services performed by Fremont under this Agreement shall be performed by, or under the supervision of, Fremont's Authorized Representative, the City Building Official, unless otherwise designated in writing by Fremont's Authorized Representative or the Fremont Director of the Department of Development and Environmental Services. 3(B). Alameda' Authorized Representative. For the performance of services under this Agreement, Fremont shall take direction from Alameda' Authorized Representative: , unless otherwise designated in writing by Alameda' Authorized Representative. 4. INFORMATION AND DOCUMENTATION. 4(A). Accounting Records. Alameda and Fremont shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four years. The accounting records to be maintained in accordance with this Agreement shall include, at a minimum, documents which support Fremont's costs and expenses related to this Agreement, including documentation of requests for services, services performed, invoices, and payments. Each party's accounting records shall be made available to the other party within a reasonable time after request, during normal business hours. 4(B). Ownership of Work Product. All original documents prepared by Fremont (including its employees and agents) for this Agreement ( "work product "), whether complete or in progress, are the property of Alameda, and shall be given to Alameda at the completion of Fremont's services, or upon demand by Alameda. Fremont shall have a right to make and keep copies of the work product. 5. RELATIONSHIP BETWEEN THE PARTIES. Alameda and Fremont are each an independent "public agency," as defined by Government Code section 6500, and this Agreement does not create a separate legal entity. Each party shall, at all times, remain an independent public agency solely responsible for all acts of its employees or agents, including any negligent acts or omissions. 5(A). Fremont (including its employees and agents) is not Alameda' agent, and shall have no authority to act on behalf. of Alameda, or to bind Alameda to any obligation whatsoever, unless Alameda provides prior written authorization to Fremont. Fremont is not an officer or employee of Alameda, and Fremont shall 2 [C][F]JPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 5(B). Alameda (including its employees and agents) is not Fremont's agent, and shall have no authority to act on behalf of Fremont, or to bind Fremont to any obligation whatsoever, unless Fremont provides prior written authorization to Alameda. Alameda is not an officer or employee of Fremont, and Alameda shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. 6. COMPLIANCE WITH LAW. Each party shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. 7. INSURANCE AND BONDS. 7(A). Each party shall, throughout the duration of this Agreement, maintain insurance (including, for . the purpose of this section, coverage under a self - insurance pool) to cover each of their respective interests related to work performed under this Agreement (including coverage for their employees and agents). Concurrently with the execution of this Agreement, and prior to the commencement of any services, each party shall provide the other with written proof of insurance (certificates and endorsements), in a form acceptable to the other party. Each party shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance coverage required by this Agreement. 7(B). The parties hereby agree that, to the extent that a public officer has charge of any property, the public officer for each party shall be that parties' Authorized Representative. However, the parties further agree that, due to the nature of the services provided by Fremont to Alameda pursuant to this Agreement, the amount of any official bond, as otherwise required by Government Code section 6505.1, shall be $0. 8. INDEMNIFICATION. Fremont shall indemnify, hold harmless, and defend Alameda (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attorney's fees) resulting from Fremont's negligent performance, or willful misconduct, under this Agreement. Alameda shall cooperate with Fremont in the defense of any action required by this section. Notwithstanding the foregoing, if Fremont is held liable upon a judgment for damages pursuant to this section, and Fremont pays in excess of its pro rata share in satisfaction of such judgment, Fremont is entitled 3 [C][F]J PA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services to contribution from Alameda pursuant to Government Code section 895.6. 9. TERM OF THE AGREEMENT. The term of this Agreement shall commence on the date last signed by the parties, below, and shall continue until completion of all services in accordance with the requirements set forth in Exhibit "A" of this Agreement. This Agreement may be terminated by either party without cause upon thirty (30) days written notice to the other party. If Alameda exercises its right to terminate this Agreement in accordance with this paragraph, Alameda shall pay Fremont for all services performed in accordance with this Agreement, through and including the date of termination, but not to exceed the payments according to the rates specified in Exhibit "B." 10. DEFAULT. If either party ( "demanding party ") has a good faith belief that the other party ( "defaulting party ") is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specifiFremont) to the defaulting party, and demand the default to be cured within ten days of the notice. If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten_ days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party. 11. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party's Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party- TO: Fremont To: Alameda Attn: [ ** *INSERT * * *]_ Attn:[ ** *INSERT * * *]_ 12. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 4 [C][FJJPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 13. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties' intent under this Agreement. 14. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda. 15. ATTORNEY'S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses incurred. 16. ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of either party's duties be delegated, without the written consent of the other party. Any attempt to assign or delegate this Agreement without the written consent of the other party shall be void and of no force or effect. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. 17. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. 18. WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 19. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. 20. EACH PARTY'S ROLE IN DRAFTING THE AGREEMENT. Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code section 1654 in order to interpret any uncertainty in the meaning of the Agreement. 5 [C][F]JPA- PlanCheck- Alameda(003 -1) Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 21. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Alameda and Fremont. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Fremont and Alameda do hereby agree to the full performance of the terms set forth herein. CITY OF FREMONT CITY OF ALAMEDA By: Lynn Dantzker By: [ ** *INSERT * * *1 Title: Assistant City Manager Title: [ ** *INSERT * * *] Date: Date: APPROVED AS TO FORM: APPROVED AS TO FORM: By: Michael W. Barrett Title: Senior Deputy City Attorney 6 [C][F]JPA- PlanCheck- Alameda(003 -1) Titl •ivy' *INSE' ' * ** 4 : ** *INSERT * * *] Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services Pg_1 of 2 EXHIBIT "A" SCOPE OF SERVICES This Scope of Services, Exhibit "A," is hereby incorporated by reference into the above referenced Agreement, pursuant to Agreement section 1. The City of Fremont hereby agrees to render the following services to the City of Alameda: 1. For the purpose of this Exhibit "A," the term `Building Plans" shall be used to mean building drawings and plans, soil report, structural calculations, energy compliance calculations and specifications to the extent customarily prepared in the industry, as required to support an application for a building permit. 2. At the request of the City of Alameda, and upon receipt of Building Plans from the City of Alameda, the City of Fremont shall check Building Plans for compliance with the requirements of the current California Building Codes, as adopted by the City of Alameda. The review will not include civil drawings for grading or drainage or soil stability analysis. The review will not address any planning or zoning issues or requirement of the California Fire Code that are not repeated in the California Building Code. The Regular Project Plan Review Fee identified in Exhibit `B" includes one original plan check and, if necessary, up to two re- checks per project. Any additional plan checks will be charged on a time and material basis. 3. The City of Alameda shall provide the City of Fremont with a written list of any local amendments to the California Building Code along with copies of all relevant amendments and local policies relevant to this Agreement. The City of Alameda shall provide written notice to the City of Fremont of any changes to any of the relevant amendments or local policies that occur during the term of this Agreement. 4. Building Plans, for which the City of Alameda requests the City of Fremont to review in accordance with this Agreement, shall be delivered to the Development Services of City of Fremont currently located at 39950 Liberty Street, First Floor, Fremont, California. 5. After Building Plans are received by the City of Fremont for review, the City of Fremont shall furnish to City of Alameda a written notice wherein the City of Fremont shall either indicate such plans and supporting documents are in general compliance with the applicable codes (pursuant to section 6 of this Exhibit "A ") or list the items that are not in compliance with the relevant codes. The reviewed comments shall be transmitted via e- mail for fax to the designated city staff in the City of Alameda. 6. Only final approved plans will be returned to the City of Alameda. The approved plans will bear an stamp on each drawing sheet reviewed and first sheet of structural calculations stating: "This design documents is reviewed and deemed to be in general compliance with California Building Code as adopted and amended by the City of Alameda subject to limitation and exemption provided under sections 104.2.6 and Attachment #2 Joint Powers Agreement — City of Fremont and City of Alameda Building Plan Check Services 12g2 of 2 106.4.3 of California Building Code. Approval of these plans and design documents shall not be construed as an approval of any violations of pertaining codes." 7. Specification documents and soil reports will not be stamped approved. 8. The City of Fremont management staff responsible for plan check services shall be available to discuss the project via telephone or at a conference room in the City of Alameda or City of Fremont at a specific time mutually agreeable to the City of Alameda and the City of Fremont. The proposed meeting shall be held to discuss issues that otherwise can not be resolved through telephone conversation or when such a meeting is requested and deemed by the City of Alameda management in the Building Department as necessary to achieve resolution on a project. The Regular Project Plan Review Fee identified in Exhibit `B" includes one meeting per project. Any additional meetings will be charged on a time and material basis. 9. All Building Plans to be reviewed under the terms of this Agreement shall be picked up and delivered by next day delivery services (e.g. Federal Express) at the expense of the City of Fremont. The City Of Fremont shall furnish City of Alameda with an package delivery account number or shipping slips that provides for the next day delivery. 10. Plan Check Deadlines. The City of Fremont will endeavor to adhere to the plan check time scheduled as follows: 10.1 Ten working days after receipt for initial plan checks. 10.2 Five working days after receipt for each recheck. 10.3 The first day of review is the first working day after receipt of Building Plans by the City of Fremont. At the completion of each review, a list of plan review comments will be sent to the applicant (or designated party), and a copy will be sent to the City of Alameda Building Official. Modifications to the plan check schedule may be necessary due to workload and/or quantity of plan submission by City of Alameda. City of Fremont will notify City of Alameda at the earliest possible time as to the possibility of a delay on meeting the established deadlines. 11. For projects over 2 million dollars in valuation the timetable for plan review may need to longer than provided under items 10.1 and 10.2 in order to provide proper review consistent with the complexity of the project. The review time for such a project shall be discussed and agreed on between the City of Fremont and City of Alameda management staff in the Building Department/Division of each city. A fax transmittal or an e -mail to document the agreed timetable shall suffice as a clarification of the requirements of this Agreement on the timetable. APPENDIX B PAYMENT PROVISIONS Invoices shall be paid upon the approval of appropriate City staff, in accordance with the following: Compensation: City of Alameda hereby agrees to pay City of Fremont: 1. As total compensation for the regular plan check services to be rendered by City of Fremont pursuant to Appendix A Scope of Services of this Contract, City of Fremont shall be paid a percentage of the plan check fee collected by the City of Alameda from the applicant, based upon the following schedule: 1.1 Structural Structural & Project Type Only Life Safety Valuation up to $1,000,000 50% 70% Valuation over $1,000,000 45% 65% City of Alameda shall provide to City of Fremont a record indicating the Building plan check fee collected by the city of Alameda. Such record will be used as the basis for establishing fees and invoices for services by the City of Fremont. City of Alameda shall provide a copy of any adjustment or subsequent revisions made to the building plan check fee at the time the revisions or adjustments are made. 1.2 All plan check services shall include the original check and, if necessary, up to two re- checks. 1.3 Hourly rate for services for a third or additional re- check, or design change check after the issuance of permits, is $0 per hour ( to be increased to $89.70 after July 12, 2004) plus all cost associated with additional pick -up and delivery of plans and materials. 1.4 Title 24 Plan Check Fees: 1.4.1 For plan checks under Title 24 of the State Administrative Code Energy and Handicapped Accessibility City of Fremont shall be entitled to 10% of the plan check fee collected by the City of Alameda. 1.5 The plan check for electrical, mechanical and plumbing shall be on hourly rate of $78 (to be increased to $89.70 after July 12, 2004) charged at 1/4 of hour increment. 1.6 The plan check for deferred submittal shall be on hourly rate of $78 (to be increased to $89.70 after July 12, 2004) charged at 1/4 of hour increment. Attachment #3 2. In the event City of Fremont is requested by the City of Alameda to review changes on plans or specifications previously checked and re- checked by City of Fremont, or to perform any other additional services beyond those described in Appendix A Scope of Services of this Contract, City of Fremont shall be compensated for such services based upon City of Fremont's standard hourly rate of $78 (to be increased to $89.70 after July 12, 2004) per hour . 3. The City of Fremont is entitled to 80% of fees outlined above at the completion of first plan review. The remaining 20% of fees are due at completion of second recheck, or final approval of plans and supports document by the City of Fremont in the event of rechecks. City of Alameda shall raise any concern about the plan review work within 30 days of the receiving the plan review comments or approved drawings. The fee payment of a particular project may be deferred until the concerns are resolved, but 110 longer than 90 days after they were originally due. Fees for additional and hourly services shall be paid within 30 days of receipt of invoice by the City of Alameda 4. Except for the compensation described herein and subject to paragraph 5 of this Agreement (Indemnification), City of Alameda shall have no liability for payment of any costs or expenses incurred by City of Fremont in connection with the performance of its services under this Contract. CITY OF ALAMEDA Memorandum Date: June 4, 2004 To: Honorable Mayor and Councilmembers From: Lara Weisiger City Clerk Re: Calling for a General Municipal Election to be consolidated with the Statewide General Election to be held in the City of Alameda on Tuesday, November 2, 2004 and requesting the Alameda County Board of Supervisors to permit the County Clerk/Registrar of Voters to render specified services to the City relating to the conduct of Said Election Background The City Charter requires a General Municipal Election to be held biennially on the date of, and consolidated with, the Statewide General Election in each even - numbered year. Discussion In accordance with the City Charter and the California Elections Code, the City Council shall call for the November 2, 2004 General Municipal Election to be consolidated with the Statewide General Election. The following City and School Board offices will appear on the ballot: two (2) City Councilmembers; one (1) City Auditor; one (1) City Treasurer; and three (3) Members of the Board of Education. The Registrar of Voters will provide certain election - related services upon request and upon agreement to reimburse costs. Budget Consideration An appropriation of $35,600 has been requested in the FY 2004 -05 Elections Budget to cover the cost of the Election. Recommendation It is recommended that the City Council adopt the Resolution calling for the Consolidated General Municipal Election and requesting Registrar of Voters' services. Respectfully submitted, .6- Lax' lA (1 a Lara Weisiger City Clerk Re: Resolution #4 -D CC 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE CONSOLIDATED WITH THE STATEWIDE GENERAL ELECTION TO BE HELD IN THE CITY OF ALAMEDA ON TUESDAY, NOVEMBER 2, 2004 AND REQUESTING THE ALAMEDA COUNTY BOARD OF SUPERVISORS TO PERMIT THE COUNTY CLERK/REGISTRAR OF VOTERS TO RENDER SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF SAID ELECTION WHEREAS, the Charter of the City of Alameda (the "Charter ") provides that the City's General Municipal Election will be held on each even - numbered year and shall be consolidated with the Statewide General Election (the "Consolidated General Municipal Election ") and that the Statewide General Election shall be held in said City on Tuesday, November 2, 2004; and WHEREAS, pursuant to the Charter, it is necessary to elect: two (2) persons to fill the office of City Councilmember; one (1) person to fill the office of City Auditor; one (1) person to fill the office of City Treasurer; and three (3) persons to fill the office of Member of the Board of Education. >- NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Alameda as follows: CC Section 1. The City's General Municipal Election is hereby called and ordered to be consolidated with the Statewide General Election to be held in said City of Alameda, State of California, on Tuesday, November 2, 2004, in accordance with the provisions of the Charter and the Elections Code of the State of California, for the purpose of voting upon any ballot measures and electing the following named officers of the City for the terms specified: a) Two (2) Councilmembers for the City Council of the City of Alameda, each term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004, and continuing for four (4) years thereafter and until a successor is elected and qualified. b) One (1) City Auditor of the City of Alameda, term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004 and continuing for four (4),years thereafter and until a successor is elected and qualified. c) One (1) City Treasurer of the City of Alameda, term commencing at 8:00 o'clock p.m. on the third Tuesday in December, 2004 and continuing for four (4) years thereafter and . until a successor is elected and qualified. d) Three (3) Members of the Board of Education of the City of Alameda, each term commencing at 7:30 o'clock p.m. on the fourth Tuesday of the month in December, 2004, and continuing for four (4) years thereafter and until a successor is elected and qualified. Resolution # 4 -D CC 7 -6 -04 e) All ballot measures or advisory measures or propositions which may lawfully be submitted at said Election. Section 2. The election precincts within the City for the Consolidated General Municipal Election shall be the same as those established, designated, numbered, fixed and established by the Board of Supervisors of the County of Alameda, State of California, as the election precincts. Section 3. The Consolidated General Municipal Election shall be held and conducted, election officers appointed, voting precincts designated, candidates nominated, ballots printed, polls opened and closed, ballots counted and returned, returns canvassed, results declared, certificates of election issued and all other proceedings incidental to and connected with the Election shall be regulated and done, all in accordance with the provisions of law regulating the Statewide Election. Section 4. The City Clerk is hereby authorized, instructed and directed to provide the Alameda County Registrar of Voters with all pertinent information and material as required. Section 5. The City Clerk shall certify the results of the Election and Council shall meet at its usual meeting place to review the certified statement of the results of the Election within 28 days of the Election and shall thereafter declare the results. Section 6. The City Council hereby requests the Alameda County Board of Supervisors (the "Board ") to consolidate the Election on the Measures with the Statewide General Election to be held on November 2, 2004. Section 7. The Board is hereby requested to make its order and to take such other and further proceedings as may be necessary to effect the consolidation of said election with the Statewide General Election in accordance with the laws of the State of California regulating and providing for the consolidation of elections. Section 8. The Board is hereby authorized and empowered to canvass the returns of the Election on the Measures and to certify the results thereof, that only one form of ballot shall be used, and that said consolidated elections shall be held in all respects as if there were only one election. Section 9. The City Clerk shall publish, or shall provide for the publication of, any notices as required by Division 12 of the Elections Code and in particular section 12111. Section 10. The City Clerk is hereby directed to file immediately a certified copy of this Resolution with the Alameda County Board of Supervisors and with the Alameda County Clerk. Section 11. The City Council, pursuant to Section 10002 of the California Elections Code, hereby requests the Alameda County Board of Supervisors to permit the County Clerk/Registrar of Voters to render specified services to the City relating to the conduct of the Consolidated General Municipal Election on November 2, 2004. Section 12. Specified services include pre - election, election day, post - election and data processing services, Registrar stock supplies and vendor services and supplies, all as set out in the certain document entitled "Election Services and Supplies - Registrar /City Clerk" and agreed upon by the Alameda County Registrar of Voters and the City Clerk of the City of Alameda. Section 13. The City shall reimburse the County for services performed when the work is completed and upon presentation to the City of a properly approved bill. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the. Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of the said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda CITY OF ALAMEDA MEMORANDUM Date: June 22, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Introduction of Ordinance Amending the Alameda Municipal Code (AMC) Section 2 -8.2 to Reduce the Size of the Transportation Commission from Nine to Seven Members and to Allow for Staggered Terms and t o A mend S ection 2 -8.3 t o R educe the Size o f t he Quorum of the TC From Five to Four Members BACKGROUND At the May 4, 2004, Council meeting, City Manager presented an ordinance to reduce the size of the Transportation Commission (TC) and to allow for staggered terms. Council asked City Manager to investigate the turnover and staggering of the terms of other City boards, commissions and committees including the Public Art Advisory Committee so that there would be citywide consistency. DISCUSSION /ANALYSIS The practice of staggering the terms of a Board, Commission or Committee, hereafter referred to as an official group, ensures that there is minimum disruption to the composition of the group in question in order to preserve institutional knowledge and so that the work of the body in question is impacted as little as possible. In the case of the TC, it also presents more frequent opportunities to appoint members in order to keep the membership "balanced between commuter, business, and recreational use, " as stated in the ordinance establishing the TC. Staff researched all thirteen City Boards and Commissions as well as three City Committees. Of these sixteen groups, the fifteen with four -year terms are presented in Table 1. There are nine five - person groups, three seven - person groups and two nine - person commissions, (of which one is the TC). The Mayor's Committee on Disability Issues is currently in flux and is transitioning from eight to eleven members. Table 1 presents the name of the official group, the number of members, and the number of years within the four -year cycle where at least one member's term expires. This latter number reflects how the terms are staggered: two years indicates that every other year about half of the terms expire and new members must be appointed or reappointed, three i ndicates t hat a bout o ne -third o f t he t erms e xpire i n t hree c onsecutive years o f t he four year - cycle, and four indicates that every year of the four -year cycle, about one -fourth of the terms expire. Dedicated to Excellence, Committed to Service GhtalSieeda blicWoda Public Wr.* for NW Re: Introduction of Ordinance #4 -E CC 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 22, 2004 The number of staggered terms per four -year cycle was also analyzed. As presented in Table 1, only four of the 14 groups stagger their membership every two years, and all of these have five members. The four official groups with a size similar to the TC, i.e. seven or nine members, are the Housing Commission, the Social Service Human Relations Board and the Planning Board, all with seven members, and the Economic Development Commission with nine members. Three of these four groups have staggered terms with three rotations within the four -year cycle where one- third of the members turnover in three consecutive years. The Planning Board, the fourth, has turnover in every year of the four -year cycle: 2 -2 -2 -and 1. Of the nine groups with five members, four have at least one term expiring every year of the four -year cycle. Four of the nine turn over half their membership every two years, including the Public Art Advisory Committee. The ninth, the Historical Advisory Board, turns over members in three years of the four -year cycle. Based on this research it seem most appropriate for the TC to have staggered terms similar to the other seven or nine- member commissions i.e. with one -third of the membership rotating in three consecutive years of the four -year cycle. On September 25, 2002, the TC's first meeting, a random drawing was conducted in order to stagger the nine terms so that they all did not expire in 2006. Based on the drawing, four (4) terms were identified to expire in 2004, (Spangler, Barry, Ratto and Clem). With the recommended reduction in membership from 9 to 7, only 2 commission openings would be filled. It is also recommended that the TC have staggered terms similar to the other seven or nine- member committees i.e. with one -third of the members rotating in three consecutive years of the four- year cycle. To fill the two positions, the standard procedure would be followed: • The City Clerk would advertise the available positions (a press release was distributed on April 26, 2004, and three applications have been received as of June 2004); • Incumbents may reapply and be considered along with other applicants; • The Mayor would recommend to Council two nominees to fill the vacated seats whose terms would expire in 2008. • Council will vote on the two nominees. To stagger the terms in one -third increments, a random drawing of the remaining 5 members would be conducted to identified the two members whose terms would expire in 2005 and the remaining three members' terms would expire as scheduled in 2006. BUDGET CONSIDERATION/FINANCIAL IMPACT There is no impact to the General Fund for this change. Dedicated to Excellence, Committed to Service GtyofAINneda Qubii(Works uepat lent nmr Wo Work,- for r Honorable Mayor and Councilmembers RECOMMENDATION Page 3 June 22, 2004 The City Manager recommends that the City Council introduce the proposed ordinance to amend AMC Section 2 -8.2 to reduce the size of the TC from nine to seven members and to allow for staggered terms and to amend Section 2 -8.3 to reduce the size of the quorum of the TC from five to four members. The City Manager also recommends that the City Council accept the staggered terms by one -third rotation using the methodology described above. Respectfully submitted, Matthew T. Naclerio Public Works Director By: Michelle DeRobertis P.E. Associate Civil Engineer MTN:MD:gc G:\PUB WORKS\PWADMIN\COUNCIL\2004 \070604 \TCreduction.doc Dedicated to Excellence, Committed to Service GHnf/Janeda uuIbIICWorks epattlmQnt Public Wily Nf kf Yid Honorable Mayor and Councilmembers TABLE 1 -CITY OF ALAMEDA BOARDS AND COMMISSIONS MEMBERSHIP TURNOVER Page 4 June 22, 2004 Board or Commission (four -year terms) # of Members # of yrs in 4 -yr cycle that terms expire 1. Civil Service Board 5 4 B (2/1/1/1) 2. Economic Development Commission 9 3 B (3/3/3) 3. Golf Commission 5 4 8 (2/1/1/1) 4. Historical Advisory Board 5 3 A (1/2/2) 5. Housing /Building Code Appeals Board 5 2 B (1/4) 6. Housing Commission 7 3 B (3/2/2) 7. Library Board 5 4 B (2/1/1/1 8. Planning Board 7 4 C (2/2/2/1) 9. Public Utilities Board 5 4 B (1/1/1/1) 10. Recreation And Park Commission 5 2 B (3/2) 11. Social Service Human Relations Board 7 3 B (3/2/2) 12. Transportation Commission (recommend) 7 3 (2/2/3) Committees (four -year terms) 1. Public Arts Advisory Committee . 5 2 A (3/2) 2. Cable TV Advisory Committee 5 2 C (2/3) 3. Mayor's Committee on Disability Issues 8 -11 Proposed 2 (5/6) Note A: Terms shall be staggered so that the number of terms expiring any year shall not differ in any other year. or charter or charter 4 year cycle (by) more than one (1) from the number of terms expiring Note B: Staggering of terms is not specified in ordinance Note C: Staggering of terms is specified in ordinance (2/1/1/1) - # of seats that expire in each rotation of the Dedicated to Excellence, Committed to Service Gtyof Alameda PUbiicWOrks Department Public Works Work f You! CITY OF ALAMEDA ORDINANCE NO. New Series AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING SUBSECTIONS 2 -8.2 (MEMBERSHIP; TERM OF OFFICE; REMOVAL) AND 2 -8.3 (QUALIFICATIONS; QUORUM; VOTING) OF SECTION 2 -8 (TRANSPORTATION) OF CHAPTER II (ADMINISTRATION) TO REDUCE THE SIZE OF THE TRANSPORTATION COMMISSION FROM NINE TO SEVEN MEMBERS; ALLOW FOR STAGGERED TERMS AND TO REDUCE THE SIZE OF THE QUORUM FROM FIVE TO FOUR MEMBERS BE IT ORDAINED by the City Council of the City of Alameda that: Section 1. The Alameda Municipal Code is hereby amended by amending subsection 2 -8.2 (Membership, Term of Office; Removal) of Section 2 -8 (Transportation Commission) of Chapter II (Administration) to read as follows: 2 -8.2 Membership; Term of Office; Removal. The Transportation Commission shall consist of seven (7) voting members nominated by the Mayor and approved by Council. The voting members shall be selected to represent a diversity of transportation modes and be balanced between commuter, business, and recreational use. The term of the appointed representative shall be four (4) years. Terms shall be staggered so that one -third of the terms expires in three consecutive years, which shall be implemented by a one -time term of two years for two seats and three years for two seats. Appointed representatives shall serve a maximum of two full terms plus any unexpired term. Any appointed member may be removed by majority vote of the City Council. A vacancy in the office of any such member shall be filled and appointed in the manner hereinabove set forth and shall be for the unexpired portion of the term of office vacated. Section 2. The Alameda Municipal Code is hereby amended by amending subsection 2 -8.3 (Qualification; Quorum; Voting.) of section 2 -8 (Transportation Commission) of Chapter II (Administration) to read as follows: 2 -8.3 Qualifications; Quorum; Voting. The seven (7) appointed representatives of the Transportation Commission shall, at the time of their appointment and continuously during their incumbency, either be residents of the City of Alameda or employed by a business operating within the City. A maximum of two (2) appointees can be non - residents of Alameda. A quorum will consist of four (4) members of the Transportation Commission. The vote of four (4) members shall be necessary for any action of the Transportation Commission. Introduction of Ordinance # 4 -E CC 7 -6 -04 Section 3. This Ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage. Presiding Officer of the Council Attest: Lara Weisiger, City Clerk City of Alameda I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda City of Alameda Memorandum Date: June 23, 2004 To: Honorable Mayor and Councihnembers From: Re: James M. Flint, City Manager Public Hearing to approve a Master Plan Amendment MPA04 -0002 to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for a stormwater treatment and detention pond, pump station and force main along the western edge of the proposed business park and a stormwater outfall into the Estuary at the Former FISC Site, north of Tinker Avenue, Tract 7179 for the Bayport housing development BACKGROUND An application was made on May 10, 2004 by the City of Alameda Community Improvement Commission (CIC) requesting approval of, and amendment to, the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for a stonnwater treatment and detention pond, pump station and force main along the western edge of the proposed business park and a stormwater outfall into the Estuary. On June 14, 2004, the Planning Board recommended Council approval of the City's application for an amendment to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to allow for the Bayport Stormwater Improvement Project. The Planning Board staff report, Planning Board Resolution, and Addendum to the EIR are on file in the Office of the City Clerk. DISCUSSION /ANALYSIS The proposed improvements include the construction of the following facilities on an existing mostly vacant site: 1. stormwater treatment and detention pond and associated landscaping; 2. stormwater pump station; 3. stormwater force main; and 4. stonnwater outfall. Dedicated to Excellence, Committed to Service Re: Introduction of Ordinance #4 -F CC 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 23, 2004 All of these improvements would be located along the western edge of the proposed Catellus Business Park, north of Tinker Avenue. The proposed project meets all the applicable objectives of the Catellus Master Plan, as discussed in the attached Planning Board staff report. The specific portions of the Catellus Master Plan and Site - Wide Landscape Development Plan that would be amended include the following: A. Catellus Master Plan, page 6: The proposed project would amend the Master Plan to include the stormwater improvements as an allowable use. B. Catellus Master Plan, page 60: The proposed project would amend the Master Plan to add an item to the purpose and intent of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main. C. Catellus Site -Wide Landscape Development Plan, page 8: The proposed project would amend the Master Plan to add an item to the Commercial District of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main to serve as landscape buffer areas. A detailed discussion of the issues involved with this application is included in the Planning Board staff report on file with the Office of the City Clerk. The third EIR Addendum has been prepared to examine the environmental impacts that may result from the project and concludes that: 1) The project would not introduce new significant environmental effects or substantially increase the severity of previously identified significant effects; and 2) No substantial changes have occurred with respect to the circumstances under which the project would be undertaken and there has been no discovery of new information of substantial importance that would require major revisions to the previous EIR or EIR Addendum. This project would provide the benefit of improved stormwater treatment prior to discharge into the Estuary, consistent with State, regional and local stormwater policies. The City Manager believes that the project, including amendments to the Master Plan and Site -Wide Landscape Development Plan, is consistent with the objectives and standards included in the Master Plan and is recommending approval of the project, subject to the conditions in Exhibit C of the proposed Ordinance. BUDGET CONSIDERATION /FINANCIAL IMPACT There would be no budget or financial impact of the proposed amendments. Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers RECOMMENDATION Page 3 June 23, 2004 The City Manager recommends that the City Council approve an amendment to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan based on the fmdings and the conditions contained in the proposed Ordinance. Respectfully Subm Gregory Fuz, Planning and Building Director Redevelopment Manager G:\ PLANNING \CC\REPORTS\2004 \m -July 06\Pond CCSR- 7- 06- 04.doc Dedicated to Excellence, Committed to Service E 0 LL 4- () ct3 0 0. CITY OF ALAMEDA ORDINANCE NO. New Series APPROVING MASTER PLAN AMENDMENT MPA04 -0002 TO THE CATELLUS MASTER PLAN AND CATELLUS SITE -WIDE LANDSCAPE DEVELOPMENT PLAN TO ALLOW FOR A STORMWATER TREATMENT AND DETENTION POND, PUMP STATION AND FORCE MAIN ALONG THE WESTERN EDGE OF THE PROPOSED BUSINESS PARK AND A STORMWATER OUTFALL INTO THE ESTUARY AT THE FORMER FISC SITE, NORTH OF TINKER AVENUE, TRACT 7179 FOR THE BAYPORT HOUSING DEVELOPMENT BE IT ORDAINED by the City Council of the City of Alameda that: Section 1. In accordance with Subsection 30 -4.20 of the Alameda Municipal Code, Master Plan MPA04 -0001, as shown on Exhibit 0 and Exhibit B amended by the amendments contained in Exhibit C is hereby adopted for all the real property within the 215 - acre site situated within the City of Alameda, County of Alameda, State of California, located generally south of the Oakland - Alameda Estuary, west of the Mariner Square commercial area, north of the College of Alameda and Atlantic Avenue, and east of Main Street, exclusive of the Alameda Gateway Center, U.S. Coast Guard Housing, and Miller Elementary School. Section 2. The above Master Plan Amendment MPA04 -0001 shall be known as and referenced to, as the Catellus Alameda Project Master Plan (hereinafter Catellus Master HPlan) dated October 2001, as amended. Section 3. This Ordinance shall be in full force and effect from, and after, the expiration of thirty (30) days from the date of its final passage, subject to the signature of the Development Agreement. Attest: Lara Weisiger, City Clerk City of Alameda 1 Presiding Officer of the City Council Introduction of Ordinance # 4 -F CC 7 -6 -04 Exhibit A — Catellus Alameda Project Master Plan (on file in the Office of the City Clerk) Exhibit B — Catellus Site -Wide Landscape Development Plan Amendment (on file in the Office of the City Clerk) Exhibit C — Catellus Master Plan and Site -Wide Landscape Development Plan Amendment, MPA04 -0002 2 EXHIBIT C CATELLUS MASTER PLAN AND SITE -WIDE LANDSCAPE DEVELOPMENT PLAN AMENDMENT MPA04 -0002 The specific portions of the Catellus Master Plan and Site -Wide Landscape Development Plan that would be amended include the following (revisions are shown in bold face type): A. Catellus Master Plan, page 6, third paragraph: The Master Plan would be amended to include the stormwater improvements as an allowable use, as follows: `In the area north of Tinker Avenue is a Business Park encompassing 77 acres which will house up to 1.3 million gross square feet of flex -tech office and research & development uses, with supporting retail and related uses, including a stormwater treatment and detention pond, pump station, force main, outfall and associated landscaping along the western edge of the proposed business park." B. Catellus Master Plan, page 60, seventh bullet: The Master Plan would be amended to add an item to the purpose and intent of the business park that would include the preservation of open spaces, as follows: "Preserve open spaces surrounding the stormwater pond and a five foot planter strip above the force main." C. Catellus Site -Wide Landscape Development Plan, page 8, first paragraph right side of page: The proposed projeci would amend the Site -Wide Landscape Development Plan to add an item to the Commercial District of the business park that would include the preservation of open spaces surrounding the stormwater pond and a five foot planter strip above the force main to serve as landscape buffer areas, as follows: "Landscape buffer areas which include eastern and western boundaries of the Business Sub - District, including open spaces surrounding the stormwater pond and a five foot planter strip above the stormwater force main." CONDITIONS EFFECTIVE DATE 1. The Master Plan Amendment shall not be in force and effect, unless and until, the following conditions have been satisfied: a. The City Council first approves the Master Plan Amendment (MPA04 -0002) and it is in effect. RESPONSIBILITY 2. Catellus and the Community Improvement Commission of the City of Alameda shall be responsible for the costs associated with obtaining, implementing, and defending any necessary amendments of the Mitigation Measures and Project Approvals and any required environmental review related thereto. 3 HOLD HARMLESS 3. The applicant, or its successors in interest, shall defend, indemnify, and hold harmless the City of Alameda or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, and employees to attack, set aside, void, or annul, an approval of the City concerning this project, which action is brought within the time period provided for in the Government Code. The City of Alameda shall promptly notify the applicant of any claim, action or proceeding and the City shall cooperate in the defense. If the City fails to notify the applicant of any claim, action, or proceeding, or if the City fails to cooperate in the defense, the subdivider shall not hereafter be responsible to defend, indemnify, or hold harmless the City. APPROVED PLANS 4. The Project shall be constructed in substantial compliance with the document titled Catellus Alameda Project Master Plan, prepared by Catellus Development Corporation, as amended on January 2, 2002, on file in the office of the City of Alameda Planning and Building Department, except as modified by the Master Plan conditions approved herein. 5. The above ground pump station enclosure shall be screened from view with a wood or wood slat fence. No barbed wire or razor fences shall be allowed. The enclosure shall be coated with stucco and the roof be constructed of a material similar to one of the roof options used on the Bayport project to the south. VESTING 6. These conditions run with the land and shall apply to the life of the Project, except as satisfied pursuant to their express terms. DEVELOPMENT REGULATIONS 7. All regulations of the Alameda Municipal Code shall apply to MPA04 -0001 except where express provisions have otherwise been made in this Master Plan approval or in any Development Agreement between the City and the applicant. 8. The Master Plan shall include the following specific limitations and exceptions to the Alameda Municipal Code (AMC): a. Within the business park, no outdoor storage of materials is approved as part of this Master Plan Amendment. Any such storage may be permitted subject to an approved Use Permit. AMENDMENTS 9. Any amendments to this Master Plan Amendment shall be subject to the provisions established in the Master Plan (page I -10) and the Development Agreement (article 6.4). Major amendments to this Master Plan shall remain within the authority of the City Council. The determination of minor and major amendments shall be processed in accordance with the Development Agreement. 4 ACKNOWLEDGMENT OF CONDITIONS 10. Prior to the issuance of any building permit, the permittee shall acknowledge in writing all of the conditions of approval of the Master Plan Amendment and must accept this Master Plan Amendment subject to those conditions and with full awareness of the provisions of Chapter 30 of the Alameda Municipal Code in order for the Master Plan, as approved herein, Planned Development and Design Review to be exercised. MASTER PLAN, TENTATIVE MAP AND MMRP COMPLIANCE 11. The Master Plan Amendment shall be in substantial compliance with the provisions of the Catellus Alameda Project Master Plan (January 2, 2002), Amended Tentative Map (November 19, 2001), Development Agreement, Disposition and Development Agreement, and other entitlements, as amended; City infrastructure design standards, as revised by the City Engineer; as well as the mitigations contained in the Mitigation Monitoring and Reporting Program, as amended, prepared for the Catellus Mixed Use Development Project. 5 I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda twaswarmwon • July 1, 2004 Honorable Mayor and Councilmembers: This is to certify that the claims listed on the check register and shown below have been approved by the proper officials and, in my opinion, represent fair and just charges against the City in accordance with their respective amounts as indicated thereon. Check Numbers 124938 - 125737 Void Checks: 124042 124611 124629 124733 124818 125271 GRAND TOTAL Allowed in open session: Date: City Clerk Approved -for payment: Date: Finance Director Council Warrants 07/06/04 Amount 3,965,628.16 (10,160.68) (25.30) (25.30) (6,000.00) (113.57) (387.14) 3,948,916.17 Respectfully submitted, Pamela J. Sib ey BILLS #4 -G 07/06/04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING LESLIE KRONGOLD AS A MEMBER OF THE CITY LIBRARY BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, LESLIE KRONGOLD is hereby reappointed to the office of member of.the Library Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until her successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -A 7 -6 -04 d as to Form CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING PATRICK LYNCH AS A MEMBER OF THE CITY PLANNING BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, PATRICK LYNCH is hereby reappointed to the office of member of the Planning Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008 and to serve until his successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly w adopted and passed by the Council of the City of Alameda in regular meeting assembled on the day of , 2004, by the following vote to wit: ce 0 t— t— AYES: td 0 NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -B 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING ROBERT A BONTA AS A MEMBER OF THE SOCIAL SERVICE HUMAN RELATIONS BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination by the Mayor, ROBERT A. BONTA is hereby reappointed to the office of member of the Social Service Human Relations Board of the City of Alameda for the . term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until his successor is appointed and is qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly w adopted and passed by the Council of the City of Alameda in regular meeting assembled on the z ce day of 2004, by the following vote to wit: 0 1- 1— a AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -C 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING JIM C. FRANZ AS A MEMBER OF THE SOCIAL SERVICE HUMAN RELATIONS BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination by the Mayor, JIM C. FRANZ is hereby appointed to the office of member of the Social Service Human Relations Board of the City of Alameda for the term commencing July 1, 2004 and expiring on June 30, 2008, and to serve until his successor is appointed and qualified. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly E adopted and passed by the Council of the City of Alameda in adjourned regular meeting assembled o on the day of , 2004, by the following vote to wit: Li. uJ o. - 2 CC co 1 ® AYES: J►- ie.,* %jp NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -D 7 -6 -04 CITY OF ALAMEDA RESOLUTION NO. REAPPOINTING KARIN LUCAS AS A MEMBER OF THE CITY PUBLIC UTILITIES BOARD BE IT RESOLVED by the Council of the City of Alameda that pursuant to the provisions of Article X of the Charter of the City of Alameda, and upon nomination of the Mayor, KARIN LUCAS is hereby reappointed to the office of member of the Public Utilities Board of the City of Alameda, for the term commencing July 1, 2004, and expiring on June 30, 2008, and to serve until her successor is appointed and qualified. >- I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly .� cc cc and passed by the Council of the City of Alameda in regular meeting assembled on the co _ ®r day of , 2004, by the following vote to wit: v cc o AYES: .o. NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Resolution # 5 -E 7 -6 -04 ' City of Alameda Memorandum Date: To: From: Re: May 13, 2004 Honorable Mayor and Council Members James M. Flint, City Manager Request for Oakland Chinatown Advisory Committee Representatives Background: On May 21, 2003, the City Council certified the Environmental Impact Report ( "EIR ") for the Alameda Point General Plan Amendment ( "GPA "). Shortly thereafter, the City of Oakland, the Chinatown Chamber of Conunerce, and Asian Health Services filed notices with the City of Alameda indicating their intension to challenge the adequacy of the GPA EIR. After several months of discussions, the City of Oakland filed a petition for writ of mandate and complaint for declaratory and injunctive relief in December 2003. Chinatown Chamber of Commerce and Asian Health Services filed their writin January 2004. After several more months of negotiations, the City of Alameda, the City of Oakland, the Chinatown Chamber of Commerce, and Asian Health Services executed a four party settlement agreement on April 19, 2004. A copy of the Agreement is attached. The key terms of the agreement are summarized below: > Oakland agrees to drop its challenge to the GPA EIR, agrees to not challenge any future EIR for projects at Alameda Point or FISC, agrees to fund at least $462,000 for improvements in Chinatown, and agrees to participate in and help staff a new committee called the Oakland Chinatown Advisory Committee (OCAC). > The Chinatown Chamber of Commerce and Asian Health Services agree to drop their challenge to the GPA EIR, agree to not challenge any future EIR for a "phase 1 " project at Alameda Point (the first 1,100 new housing units and 100,000 square feet of new neighborhood commercial development), and participate in the OCAC. > Alameda agrees to prepare environmental documents for future developments at Alameda Point, conduct certain transportation feasibility studies, participate in and help staff the OCAC, fund up to $75,000 for technical consultants and staff in support of the OCAC's work, and provide $500,000 forirnprovements in Chinatown subject to specific conditions through future impact fees on the new, market rate housing constructed at Alameda Point. Discussion: Per the agreement, the OCAC will "serve as an advisory committee to the Alameda City Council and Planning Board and the Oakland City Council and Planning Commission for the purpose of providing ongoing communication and feedback on Oakland Chinatown issues related to the future development and environmental review (CEQA) process for projects within Alameda Point and Downtown Oakland." Report #5 -F 7 -6 -04 Report 6- - Honorable Mayor and Council Members Page.2. May 13, 2004 The OCAC will be comprised of four representatives and one alternate representative from the Oakland Chinatown community, two representatives and one alternate selected by the Oakland City Council, and two representatives and one alternate representative selected by the Alameda City Council. The OCAC will meet as necessary until all project level CEQA documents for build -out of Alameda Point are completed or until the OCAC votes to dissolve itself. Meetings of the OCAC will be public and will alternate between locations in Oakland and Alameda. Neither the Alameda City Council nor the Oakland City Council will be bound by, or required to follow, the recommendations this new advisory body. However, the OCAC should provide an important new venue for airing issues of mutual concern early in the development process, developing mutually beneficial transportation alternatives, solutions and projects, and avoiding future litigation on projects in both Oakland and Alameda. Fiscal Impact The settlement agreement includes a commitment by Alameda t� fund up to $75,000 to support Chinatown staff support or technical consultants. The Council appropriated the funds for this purpose from the General Fund Reserve when approving the settlement agreement in Closed Session. The funds will likely be paid out in monthly increments over a two -year period. Recommendation: The City Manager recommends that the Mayor nominate two representatives and one alternate to serve on the Oakland Chinatown Advisory Committee for City Council consideration and appointment. Attachment: Settlement Agreement. By: Andrew Thomas Supervising Planner Respectful) sub , Gregory F Planning and Building Director Dedicated to Excellence, Committed to Service . AGREEMENT BETWEEN THE CITY OF ALAMEDA, THE CITY OF OAKLAND, THE OAKLAND CHINATOWN CHAMBER OF COMMERCE AND ASIAN HEALTH SERVICES REGARDING COOPERATION TO STUDY AND MITIGATE TRAFFIC AND RELATED IMPACTS IN ALAMEDA, OAKLAND, AND SPECIFICALLY IN OAKLAND CHINATOWN THIS AGREEMENT, dated as ofApril 2004 is by and between, the Oakland Chinatown Chamber of Commerce, ("OCCC'), a California non-profit corporation, Asian Health Services ("AHS'), a California non -profit corporation, the of Oakland ("Oakland), a municipal corporation, acting by and through its City Council, and the City of Alameda ("Alameda'), a municipal corporation, acting by and through its City Council. RECITALS A. Residents and businesses in Oakland Chinatown and Alameda depend upon a • common network ofregional roadways and Local streets. Access to the regional traffic network for trips beginning or ending in Alameda requires the use of certain local streets in Oakland Chinatown and therefore adds to the traffic volumes of those local streets. H. The Oakland Chinatown community is Located at the entrances and exits to the 1-880 freeway and Webster and Posey Tubes. OCCC and AHS contend that existing traffic levels within Oakland Chinatown and other associated impacts are negatively affecting the quality of life within the community and impacting the health, safety and welfare of its residents. Traffic from Alameda that exits and enters the 1-880 freeway and Webster and Posey Tubes currently travels through Chinatown and adds to the traffic volumes in that district. C. Alameda needs and desires Oakland's cooperation in planning, funding, and implementing transportation improvements to be constructed in Oakland in order to mitigate future traffic impacts anticipated to occur as a result ofpossible future development at "Alameda Point". D. Oakland, OCCC and AHS recognize the long term importance of the redevelopment and reuse ofAlameda Point to the City ofAlameda, the region's economy and jobs for. Alameda and Oakland residents, the regional supply of market rate and affordable . housing, and the regional supply of public waterfront open space and recreational opportunities. E. The Oakland Chinatown community, Oakland, and Alameda must Work together more effectively to identify appropriate transportation improvements to benefit both communities and funding sources to fund those improvements. F. On May 20, 2003, Alameda certified the Alameda Point General Plan Amendment ETR, which found that future development at Alameda Point will significantly impact 322440 Page 1 Attachment #1 levels of service in Oakland at the 12th/Brush exit from 1 -980, the 66 /Jackson entrance to 1-880, the Posey Tube and the High Street entrance to 1-880. G. Oakland similarly has identified potential adverse environinental impacts at intersections identified in Recital F, above. 11. Alameda has adopted a Citywide Development Impact Fee, which includes assessments on all development in Alameda to collect a fair, share of the costs for certain improvements in Oakland including $275,000 for improvements at 56 and Broadway, $4.9 million of improvements at the 7th and.Hatrison/66 and Jackson/6th and Harrison • intersections, and $1.7 million for the 1-880 interchange at High Street. L Alameda has prepared a Transportation Demand Management program for Alameda Point to reduce residential vehicle trips by 10% and non-residential vehicle trips by 30% for future development in this area. J. The General Plan Amendment for Alameda.Point includes policies encouraging transit- oriented development at Alameda Point. • K. On December 24, 2003, the City of Oakland filed suit challenging the City of Alameda's EIR for the General Plan Amendment for Alameda Point in City of Oakland v. City of Alameda, Alameda County Superior Court Case No. (RG03133599) (the "Oakland suit"). L.•On January 9, 2004, Asian Health Services and Oakland Chinatown Chamber of Commerce filed suit challenging the City of Alameda's BIR for the General Plan Amendment for Alameda Point in Asian Health Services et al. v. City of Alameda, Alameda County Superior Court Case.No. (RG04135696) (the "AHS and OCCC suit"). 0. Alameda.maintains that the SIR for the Alameda Point General Plan Amendment . fully complies with the California Environmental Quality Act ("CEQA"), Public Resources Code section 21000.etse.q. M. Alameda wishes to work collaboratively with the Oakland Chinatown community for the planning, redevelopment and reuse of Alameda Point to the benefit of Alameda and the region, and to minimize impacts of that development on Chinatown and adjacent communities.. • THEREFORE, in consideration of the foregoing, the provisions of this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, OCCC, MIS, Oakland and Alameda agree as follows: 322440 Page 2 1. Cnijgbogiamilsatimmigoan 1.1.Oakland Chinatown Ad._daory C i . Within sixty date, , Alameda and Oakland shall establish and provides tstaff a (which shall be limited to scheduling and noticing Meetings, publishing support agendas and providing information, reports and recommendations) for an Oakland Chinatown Advisory Committee ( "OCAC"). The OCAC shall serve as an adhrisory committee tote Alameda City Council and Planning Board and the Oakland City Council and Planning Commission for the purpose ofproviding ongoing communication and feedback on Oakland Chinatown issues related.to , the future development and environmental review (CBQA) process for projects within Alameda Point and Downto'wn Oakland. The OCAC shall continue to meet as often as it determines necessary until all project level CBQA documents for build -out of development at Alameda Point under the Alameda Point General Plan Amendment have been certified or approved by the lead agency, until it votes to dissolve itself; or until this agreement is terminated by one of the parties under section 12 of this Agreement. Meetings of the OCAC will alternate between locations in Oakland and Alameda. All meetings of the OCAC shalibe subject to open meeting laws applicable to Oakland Boards and Commissions. 1.2. OCAC Participation. The OCAC shall be made up of four (4) representatives and one alternate representative from the Oakland Chinatown community to be selected by OCCC and ARS to represent the broad interests of the community, two (2) representatives and one alternate selected by the Oakland City Council,. and two (2) representatives and one alternate representative selected by the . Alameda City Council. Each representative will have equal voting rights. The OCAC shall, by vote of a plurality of all OCAC representatives, elect a chairperson from among the representatives selected by OCCC and ARS. The OCAC shall reach all other decisions by vote of a majority of all OCAC representatives. In case of a deadlock, the chairperson shall be entitled to cast an additional tie - breaking vote. 1.3. OCAC Role and Responsibilities. The OCAC will meet to review and make recommendations to the Alameda Planning Board and City Council and the Oakland Planing Commission and City Council regarding potentially significant environmental effects related to the potential_ implementation of Alameda Point and Downtown Oakland development projects on the Oakland Chinatown community. These recommendations may encompass cumulative impacts, and project impacts specifically including, but not limited to, transportation, air • quality, and pedestrian safety planning models, assumptions, projections, standards, improvements, appropriate contributions toward the implementation of mitigation measures for cumulative impacts, thresholds of significance, and methodologies: Specific issues for OCAC consideration and recommendation may include: 1) Scope of studies necessary to evaluate the potential traffic impacts of development at Alameda Point and Downtown Oakland, 2) • Alternatives to be considered in the environmental analysis, 3) Intersections•to be 322440 .. Page 3 analyzed in Alameda and Oakland including but not limited to the intersections within and adjoining Oakland Chinatown, 4) Both short term and long term mitigation measures to be considered to reduce or eliminate any significant impacts identified, including methods to re -route Webster/Posey Tube traffic around the Oakland Chinatown Community, 5) Mitigations to reduce or eliminate cumulative impacts on the Oakland Chinatown community from development in Oakland and Alameda, 6) Implementation of TSM/TDM programs in either Downtown Oakland or Alameda Point, and 7) any other issue related to the impacts of Alameda Point or Downtown Oakland development on Oakland Chinatown. The OCAC may recommend and request that Alameda and Oakland staff conduct studies OCAC deems necessary in the performance of its • responsibilities. However, neither Alameda nor Oakland shall be obligated to undertake such studies. Alameda and Oakland agree'tbat they will give • consideration to any written recommendations of the OCAC received before or•at a public hearing conducted by Oakland or Alameda on the matter that is the subject of the recommendation, and will provide a written explanation for any recommendation they reject. ' ' 1.3.1. OCAC Recommendations, OCAC recommendations shall be in writing; shall include recordation of the vote of the OCAC on the recommendation, and may include minority opinion reports if desired by any OCAC representative. ' 1.4. Information and Funding; in order to allow sufficient time for review, comment, and possible revisions Oakland and Alameda staff shall provide copies of all proj ect related documentation or documentation related to other matters specifically grithin the purview of the OCAC as stated in section 1.3 above, that is anticipated to be provided to the final decision making body, to. the OCAC members at the same time such information is provided to the decision making body and not less than two weeks prior to anypublic hearing at which any decision related to the substance of the niaterial would be made by the decision making body. Any additional studies recommended by the OCAC and agreed upon by Alameda or Oakland may be funded by Alameda or Oakland subject to their sole absolute discretion. Bach City shall have the sole right to select consultants for studies funded entirely bysuch City: Consultants involved in preparing OCAC- recommended studies funded jointly by any combination of Alameda, Oakland, and Caltrans (thiough its Revive Chinatown study) shall be • selected by agreement of all jurisdictions participating in the finding, after Alameda and Oakland have considered any timely recommendations of the OCAC. In addition, Alameda agrees that it shall provide $75,000 to OCCC and AHS solely for the purpose of fimdzng OCCC and .AHS 'staff support for their representatives on the OCAC and funding technical consultant services to OCCC and AHS representatives on the OCAC. Alameda's $75,000 contribution towards approved OCCC and ARS costs shall be subject to the teams as set forth in the memorandum attached to this Agreement as Exhibit A. Under no circumstances shall any handing provided by Alameda be used for attorney's fees 322440 Page 4 or to otherwise support litigation against a patty to this agreement except as specifically provided in this Agreement. Neither Alameda nor Oakland shall be obligated under any circumstances to provide any additional fiords to OCAC or to any party to this Agreement 1.4.1 Verification of Expenditure. OCCC and MIS shall provide written verification that expenditure of funds provided by Alameda pursuant to section 1.4 above has been made subject to the limitations set forth in that section and the terms set forth in Exhibit A. 1.4.2 Right to Challenge or Oppose. Except as set forth in section 2.5.3 below, on the OCAC shall not in any way prejudice OCCC or AHS's right to commence, prosecute, fiend or otherwise supportrtany legal or eve proceeding to challenge or oppose any plan or project located in Oakland or at . Alameda Point, including any Environmental Impact Statement, Environmental Impact Report, relating to anyproject or plan in Oakland or at Alameda Point. However, except as otherwise expressly specified in this Agreement, nothing herein shall be deemed to establish any legal or administrative claim or right to challenge or oppose any such plan or project, nor to permit the OCCC or the AHS to file any lawsuit or challenge related to the obligations set forth in this Agreement in a manner that is inconsistent with section 7.2, 7.3 or 8.1 below. 1.5. Discretion as Gdvemmemtal Agency. CEQA and the CEQA Guidelines require Alameda and Oakland as lead agencies to make certain CEQA decisions and determinations for projects- within each city's jurisdiction. Consistent with CEQA,-Alameda and Oakland reserve the discretion to make these determinations for projects within downtown Oakland and within Alameda Point and FISC following such consultation with the OCAC as is required by this Agreement. Nothing in this Agreement shall be construed as a delegation of police power by Alameda or Oakland nor shall this Agreement be construed to limit the discretion of Alameda or Oakland in any way, including without • limitation, to make determinations regarding environmental impacts or the • feasibility of mitigation measures or alternatives to projects under CBQA, to approve or deny any development application and/or adopt a statement of overriding considerations pursuant to Section 15093 of the State Guidelines for the Implementation of CBQA Guidelines), or decide what actions are in the best interests of the health, safety and welfare of the citizens of each jurisdiction. 2. California Environmental Quality Act (CEQA). • 2.1. Alameda Point Project Specific EIR. Alameda shall prepare at least one Project level EIR (`Project Specific EIR ") in compliance with CEQA for the Master Plan or any project to implement the Alameda. Point General Plan Amendment for the redevelopment of Alameda Point prior to the construction of any new permanent occupied buildings at Alameda Point. However, nothing in this Agreement shall 322440 Page.g • be construed to limit or restrict the leasing ofproperty at Alameda Point that is • otherwise permitted by -the Interim Lease Program in place prior to the preparation of the programmatic EIR already certified for the Alameda Point General Plan Amendment ("pBJR'), or to prohibit Alameda from adopting • zoning necessary to bring the zoning ordinance and zoning map into conformance with the Alameda Point General Plan Amendment, and/or other applicable provisions of the General Plan (e.g. Housing Element) without preparing a subsequent or supplemental ElR.unless Alameda determines that a subsequent or supplemental ERR or some other documentation under CEQA is required pursuant to the applicable provisions of CEQA and the A Guidelines, including but not limited to Public Resources Code §`21 1166 and Guidelines Sections 15162 ("Subsequent BIRs and Negative Declarations "), . 15163 (`Supplement to an EIR") and 15164 ("Addendum to an EIR or Negative Declaration"). Alameda relinquishes any authority it might otherwise have under section 15152 of the CEQA Guidelines to rely on the pBIR or any associated findings during the project-level environmental review of Alameda Point projects; except the Phase One Project (as defined in Section 2.5.3, below) and the Alameda Point Golf Course / Conference Hotel project, regarding their project level or cumulativetraffcc, pedestrian safety, or air quality impacts on Oakland Chinatown ("Chinatown Impacts'). Any Project Specific EIR for Alameda Point, except the Phase One Project EIR and the Alameda Point Golf Course/ConferenceHote1 EIR, shall include an updated and revised analysis of Chinatown Impacts. The data, analysis, conclusions, and any associated findings for Alameda Point projects (other than the Phase One Project the Alameda Point Golf Course/Conference hotel project, the rezoning or leasing activity referred to above) with respect to these issues will be prepared de novo, and any incorporation of or reference to prior analyses, recommendations, findings, conclusions, or determinations regarding Chinatown Impact in connection with the approval- of the Alameda Point General Plan Amendment or its pRIR, shall be considered as new information and shall not be given any deference based on its source. This analysis, and any associated conclusions or findings for project- level CEQA review for Alameda Point projects, shall be consistent with the - following requirements; 2.1.1. Chinatown Setting. The analysis of Chinatown Impacts in the Alameda Point Master Plan EIR or any Project Specific environmental review for . Alameda Point projects shall acknowledge and take into account the setting . of the Chinatown District as an intensive.pedestrian oriented retail/commercial area with a large populations of children. and seniors; 2.1.2. Utilization of Studies. Alameda shall use its best efforts to ensure that the ProjectSpecific environmental review utilize the information and consider the conclusions; and to the extent Alameda determines each is feasible, applicable to Alameda projects and either necessary to mitigate a significant impact or the most appropriate method of mitigating a significant impact, 322440 Page 6 322440 incorporate the mitigation measures contained within any studies conducted . pursuant to this Agreement; 2.1.3. Mifiggan Mom& The Project Specific environmental review will examine and discuss specific measures to mitigate Chinatown Impacts (to the extent they are determined by Alameda to be significant). The Project Specific environmental review will identify Alameda's determination regarding the feasibility or infeasibility of each measure as well as any significant secondary impacts resulting from each measure; 2.1.4. Range of lylitigation Measures Considered. The mitigation measures to be discussed in the Project Specific environmental review will include, at a - minimum, all measures that are identified in the studies conducted pursuant to this Agreement and all measures that are suggested in the scoping process for the BIR (including those recommended in the scoping process by the OCAC), to the extent Alameda.deteimines each such measure has a nexus with the project under revie* and is feasible. Such measures may include, so long as Alameda determines that such measures have a nexus and are feasible, measures to improve effectiveness ofpublic transit connections to Alameda (e.g., queue- jumping for public transit ffOV at the Webster and Posey tubes during peak comunute hours); any mitigation measures or improvements identified in the Caltrans "Revive Chinatown" study, measures designed to route through traffic (i.e., traffic that does not have Oakland Chinatown as its destination) around Oakland Chinatown, measures to encourage transit use at Alameda Point, (e.g., free and fiequent infra project shuttle service to /from AC Transit stops within commercial areas of project, promotes visibility of AC Transit stops and routes through signage, bus shelters, etc.), and measures to divert traffic from Alameda Point from the Webster andPoseytubes. 2.1.5. 1Vfitigation MonitorinnProgram. To the extent Alameda adopts mitigation • measures identified in the Project Specific-environmental review, the - Mitigation Monitoring or Reporting Program prepared-by Aiaineda pursuant to Public Resource Code section 21081.6 shall identify how each adopted mitigation measure shall be implemented, what entity is responsible for implementation, and how implementation will be funded, if funding is required. 2.1.6. 'Project Alternatives. All Alameda Point Project Specifio EIRs will include a detailed discussion of a transit - oriented Project Alternative, if recommended by the OCAC, which maintains the number of jobs and housing units included.in the project but proposes a higher density, more clustered, transit- oriented site plan than the proposed project. The EJR will also include a reduced intensity project alternative. The fact that an • Alternative would require an amendment to the City ofAlameda's Charter, zoning ordinance or general plan shall not be deemed grounds for screening Page 7 out that Alternative from detailed discussion or analysis, but Charter inconsistency may be grounds for finally determining that an Alternative is infeasible. 2.2. Definition of `Feasible." The word "feasible" or "feasibility" as used in this agreement shall have the definition set forth in Public Resources Code section • • 21061.1 as that section has been interpreted through published case law and the CEQA Guidelines. 2.3. Conditions of Approval. For development plans and projects within Alameda Point and Downtown Oakland, Alameda and Oakland respectively agree to commit to the following. 2.3.1. Bach jurisdiction will ensure that all mitigation measures that it determines are both feasible and effective, that are within that jurisdiction's sole control, and are found pursuant to Public Resources Code Section 21081 and/or • section 15091 of the CEQA Guidelines, to be necessary to avoid or substantially lessen the severity of a significant project - specific environmental impact, are incorporated into the project or adopted as . mandatory conditions of approval as appropriate. 2.3.2. Bach jurisdiction will ensure that those .mitigation measures which it determines are feasible and effective and are found, pursuant to Public Resources Code Section 21081 and/or section 15091 of the CBQA Guidelines, to be necessary to avoid or substantially lessen the project's contribution to an anticipated significant cumulative impact, and are only partial contributions to larger programs or improvements that require contributions from other projected development projects; shall be included in the Mitigation Monitoring Programs as required by Public Resource Code section 21081.6 and section 15097 of the CEQA Guidelines. The Mitigation Monitoring Programs shall include mechanisms to ensure that all required contributions from the project, or from each project phase ifthe project is constructed or developed in phases; are collected no later than the time of issuance of any building permit for any project orproject phase and are made available to fund the larger program or improvement prior to Commencement of said program or improvement 2.3.3. When either Oakland or Alameda is responsible for the implerentation of an identified feasible mitigation measure and has determined that it has received all funding required for the implementation of that mitigation measure, that jurisdiction shall undertake all activities it determines are required to commence the implementation of that mitigation measure in a timely fashion. Such measure's shall include performing all required planning and environmental review, seeking all necessary governmental approvals and, if applicable, the acquisition of any required right of way. All funding required, as used in this section, shall refer to all fiords that • .322440 Page 8 jurisdiction determines are required to complete all planning; .environmental review, engineering, site acquisition, permit issuance, contract approval and performance and construction or implementation of the improvement or mitigation measure. 2.3.4. Alameda shall not make a finding pursuant to Public Resources Code section 21081(a)(2) that Oakland "can and should" implement any mitigation measure identified in any future CEQA document for Alameda Point or FISC projects, if the implementation of that mitigation measure is within the.sole jurisdiction of Oakland and Oakland enters a comment into the record that such measure has been considered and rejected by Oakland Oakland shall not make a finding pursuant to Public Resources Code • section 21081(a)(2) that Alameda "can and should" implement a mitigation measure identified in a future CEQA document for any Downtown Oakland project, if the implementation of that mitigation measure is within the sole jurisdiction of Alameda and Alameda enters a comment into the record that such measure has been considered and rejected by Alameda. 2.4. `Pair Share" Contribution Towards Mitigation Measures for Cumulative Impacts: Oakland and Alameda agree that they will work cooperatively to agree, after considering any timely recommendations from the OCAC, upon a methodology or formula for determining each jurisdiction's and project proponent's fair share contributions toward mitigation measures or improvements in Alameda and Oakland to mitigate impacts from those projects upon Oakland and Alameda. Oakland and Alameda further agree that they will consider the methodologies used by Caltrans, the Alameda County Congestion Management Agency, or any other State or regional agency with appropriate jurisdiction, to calculate the appropriate contributions for improvements within those agencies' control or . jurisdiction. Oakland and Alameda further agree to consider in deteminini the appropriate methodology or formula, after considering any timely recommendations from the OCAC: 1) whe'her new and anticipated development should fund the total cost of the mitigation measmeimprovement or only a share of the cost, 2) whether the mitigation measure/improvement improves service or the condition over existing conditions or simply maintains existing conditions and 3) whether the impact is being caused primarily by Oakland and Alameda projects or a whether a significant portion of the impact is being generated by projects outside the jurisdiction of either Alameda or Oakland. 2.3. Mutual Covenants not to Challenge. 2.5.1. Alameda. Alanieda agrees not to commence, prosecute, fiend or otherwise support any legal proceeding to challenge or oppose the redevelopment projects listed in Exhibit 13, including but not limited to any entitlements, approvals, licenses, leases, Environmental Impact Statements, Environmental Impact Reports, or other environmental and/or regulatory documentation or determination made relating to these projects. 322440 Page 9 322440 . 2.5.2. Oakland. Within seven (7) days after the effective date of this • Agreement Oakland shall dismiss with prejudice all existing legal proceedings challenging the Alameda Point General Plan Amendment, including the Oakland suit and any and all existing legalchallenges to Alameda's compliance with CBQA with regard to said General Plan Amendment. Further, Oakland agrees not to commence, prosecute, fund or otherwise support any legal proceeding to challenge or oppose the reuse and redevelopment of Alameda Point and/or the former Fleet and Industrial Supply Center, Alameda Annex and Facility (` FI,SC'') including but not limited to any entitlements, approvals, licenses, leases, Environmental Impact Statements, Environmental Impact Reports or any other environmental and/or regulatory documentation or determination made relating to these projects: 2.5.3. OCCC and AHS. Within seven (7) days after the effective date of this Agreement, OCCC and ASS shall dismiss with prejudice all existing legal proceedings challenging the Alameda Point General Plan Amendment, including the AHS and OCCC suit and any and all existing legal challenges to Alameda's compliance with CEQA with regard to said General Plan Amendment.- Further, the OCCC and AHS agree not to commence, prosecute, fimd or otherwise support any legal proceeding to challenge or • oppose (i) the Alameda Point Golf Course project; (i) any zoning amendment to bring the zoning ordinance and zoning map into conformance with the Alameda Point General Plan Amendment and/or other applicable provisions of the GeneratPlan (e.g. Housing, Element); (iii) any new or on- going building leasing activity in conformance with the regulatory program adopted prior to the adoption of the Alameda Point General Plan Amendment (Interim Lease Program); (iv) any procedure, .determination, .interim leasing entitlement or other regulatory action undertaken as part of the approval process for the above listed projects or activities; or (v) the Oakland redevelopment projects listed in Exhibit B, including but not. limited to any entitlements, approvals, licenses, leases, Environmental Impact Statements, Environmental Impact Reports, or other environmental and/or regulatory documentation or determination made relating to these projects. Notwithstanding the foregoing in this section 2.5.3, OCCC's and AHS's obligations under this section 2.5.3 do not apply to any project or activity that Alameda cannot lawfully find is consistent with the adopted Alameda Point General Plan Amendment and/or the Interim Lease Program, In addition, OCCC and MIS agree not to commence, prosecute, fiord, or .otherwise support any legal or administrative proceeding to challenge or oppose any development entitlements for the Phase One Project at Alameda. Point, as defined in this section 2.5.3 below, including, but not limited to, any development plan, subdivision, CBQA documentation, Development Agreement or other development entitlement necessary for construction of an initial first phase development project. M defined herein, the Phase One Page 10 Project may include up to 1,000 single family /duplex units, 100 low and/or very low income multifamily units and 100,000 square feet of neighborhood commercial construction. Nothing in this covenantnot to challenge shall be deemed to bar the OCCC or AHS or any of its members from (i) making written or oral comments regarding any of the projects described in this Agreement to the Alameda Planning Board, the Alameda City Council, the • Oakland Planning Commission or the Oakland City Council; or (ii) appealing any decision of the Alameda Planning Board or the Oakland Planning Commission to such City's respective City Council. 2.6 Alameda Contribution to Chinatown Traffic acid kedestrian Improvements. 2.6.1 Chinatown Improvements. The OCCC and AHS have identified certain physical traffic and/or transportation improvements ("Oakland Chinatown Improvements"), an interim list of which is attached hereto as Exhibit B, that they believe will improve pedestrian safety and circulation in the Chinatown community following development at Alameda Point. The Oakland Chinatown Improvements are estimated to cost approximately $962,000. 2.62 Alameda Funding of Improvements. As a condition of approval of the Phase One Project, Alameda shall impose on all market rate Phase One Project units a per residential unit development impact fee sufficient to generate $500,000 ("Impact Fee"). The per unit Impact Fee shall be collected at the time of issuance of each of the Phase One Project building permits for the market rate residential units. Oakland, OCCC and AHS agree that the imposition and payment' of such Impact Fee shall and fly mitigate.all impacts of the Phase One Project on the Oakland Chinatown Community, 2.6.3 Oakland Administers Impact Fee Funds. Alameda shall transmit the Impact Fee proceeds to Oakland on a monthly basis as the proceeds accrue. Oakland and Alameda agree that the collection and expenditure of the Impact Fee is subject to the requirements of the Mitigation Fee Act (Government Code Section 66000 ex seq.) and that Oakland shall . • comply with the provisions of that statute. The Impact Fee proceeds shall be applied to construct the Oakland Chinatown Improvements, or other improvements ("Substitute Improvements') that the Oakland City Council finds, based upon substantial evidence in the record, improve pedestrian safety and circulation in Oakland Chinatown. Substitute Improvements located more than four blocks from the intersections of 7th Street and Webster Street or 7th Street and Harrison Street shall be ineligible to be considered as Substitute Improvements for purposes of this Agreement. 322440 Page 11 2.6.4 pakkgalillitinglinkh. Oakland shall contribute $462,000 ( "Oakland Contribution') towards the Oakland Chinatown Improvements or to the Substitute Improvements. Any fluids that Oakland has secured, provided or expended or will secure, provide or expend for Oakland Chinatown Improvements or Substitute Improvements will be credited toward the Oakland Contribution, and the balance of the Oakland Contribution payable hereunder shall be correspondingly reduced. For example (and not in limitation of the foregoing), currently pending before the Oakland • City Council is a resolution authorizing the City Manager to execute a finding agreement and to appropriate funds in the amount of $246,176.00 for installation of a traffic signal at the intersection of 7a' Street and Franklin Street and for other pedestrian safety improvements in the Chinatown area; provided that this item is approved and the subject funds are expended, then the outstanding balance of the Oakland - Contrlbution shall be reduced by the amount of such expenditure. Oakland shall pay out any balance afire Oaldand'Contrnibution (as such balance may have been reduced by credits described in this section 2.6.4) promptly upon its receipt of Alameda's dollar- for - dollar matching Impact Fee contribution. 2.6.5 Use of Funds. All parties to this agreement shall use their best efforts to ensure that the Oakland Chinatown Improvements, or, if applicable, Substitute Improvements, are fully implemented within three (3) years of the date when the full Impact Fee and Oakland Contribution have been deposited with Oakland If Oakland has not expended all of the Impact Fee within this time, then, if requested by Alameda, Oakland shall remit to Alameda any unexpended portion of the Impact Fee. Alameda shall segregate any such remitted funds and shall use such remitted Binds to fund mitigation measures adopted to mitigate impacts upon the Oakland Chinatown community caused by future phases of development at Alameda Point, if any such measures are adopted through the CEQA process. Any remitted Impact Fee funds that remain unexpended ten (10) years after the Ib l Impact Fee has been deposited with Oakland •shall revert to the Alameda General Fund. Nothing in this section 2.6.5 shall .be deemed to bar Alameda from (i) making written or oral comments regarding any of the Oakland Chinatown Improvements or, if applicable, Substitute Improvements to the Oakland Planning Commission or the Oakland City Council; or (ii) appealing any decision of the Oakland - Plaiining Commission to the Oakland City Council;' however, Alameda shall not commence, prosecute, fiord or otherwise support aay.legal proceeding to challenge or oppose any action by the City of Oakland to fund, approve or implement any of the Oakland Chinatown • Improvements or the Substitute Improvements. 2.6.6 Alameda Over-Payment. .If the fair share of the cost of measures to mitigate the impacts of the Phase One Project's pedestrian safety and • 322440 Page 12 traffic impacts in Chinatown is less than $250,000, then Alameda shall receive a credit for the additional $250,000 of impact Fee (`impact Fee Credit"), which ]impact Fee Credit shall be applied against Alameda's other obligations to fund traffic improvements in Oakland Chinatown or other parts of Oakland due to environmental impacts from future phases of development at Alameda Point. 2.6.6.1 Determination of impact Fee Credit. In conjunction with the environmental review of the next phase of development at Alameda Point following the Phase One Project, Alameda shall determine Oakland's and Alameda's fair shares of the cost of measures implemented by Oakland pursuant to this Section 2.6 to mitigate the Phase One Project's impacts in Oakland Chinatown. The analysis will use the fair share methodology developed pursuant to Section 2.4 of this Agreement If Alameda determines, pursuant to Section 2.6.5 that the Impact Fee Credit should be - applied to fitture phases, that determination and supporting - analysis shall be documented during the enviromnental review for such future phases. 2.6.7 Letter of Acknowledgement. Within thirty(30) days after the effective date of this Agreement, the OCCC and AHS agree to execute the letters attached as Exhibit C, acknowledging that the Impact Fee is sufficient to - mitigate the impacts of the Phase One Project on the Chinatown Community. 2.6.8 Oakland Acknowledgement of Full Mitigation. Oakland acknowledges and agrees that Alameda's performance under -this Agreement will fully mitigate any and all traffic, pedestrian safety, and localized air quality • impacts upon Oakland Chinatown generated by the Alameda Point Golf Course/Hotel project and Alameda Point Phase One Project. • 3. Planning Studies. Alameda and the OCCC/AHS shall endeavor to complete the studies set forth in this section after considering timely recommendations from the - OCAC and prior to publication ofthe Project Specific EIR for Alameda Point • contemplated in Section.2.2. Oakland and Alameda shall consider any available findings, conclusions, and recommendations of the studies set forth in this section, • and other studies which may be prepared pursuant to section 1.3 (so long as those • studies are completed prior to the preparation of the applicable Project Specific EIR for Alameda Point or Downtown Oakland project) when preparing draft - environmental documents for projects in Downtown Oakland, Alameda Point and FISC and as required by CEQA. The Planning Studies identified in paragraphs 3.1 through 3.5 shall include identification of specific improvement projects and the relative feasibility of those improvement projects, costs, funding strategies, and methods to collect fair'share contribution from all parties. 322440 Page 13 3.1. Broadway/Jackeon Phase ti Study. Alameda and Oakland shall establish a joint management team for completion of the Broadway /Jackson Phase II Study in a timely manner. Alameda shall use its best efforts to complete the technical portion of the Broadway /Jackson Phase II Study within one year of the date of this Agreement. 3.2. Alameda to Oakland .Alternative Transportation Corridor Feasibility Study, Alameda shall complete an Alameda to Oakland Alternative Transportation Corridor Feasibility Study prior to the Alameda Point Master Plan or project specific BIR approvals. The Study will include the approximate costs of each alternative Alameda determines may be appropriate to consider evaluating in a potential Major Investment Study or other similar study and the necessary impact fees or exactions to cover Alameda's local share of those costs. Alameda and Oakland agree to work cooperatively to evaluate the feasibility of an alternative estuary crossing that will reduce the projected future traffic volumes fn the Webster/Posey Tubes. 3.3. Transportation Alternatives for Alameda Point Alameda.shall complete a comprehensive study of the feasible transportation alternatives for Alameda Point prior to approval of the Alameda Point Master Plan or certification for any project specific BIR for an Alameda Point project ("Transportation Study"). The Transportation Study shall be conducted in collaboration with potential service providers and shall include costs and mode -shift benefits of supplemental_feay, shuttle, and transit connections from Alameda Point to Oakland. The intent of . this work is to identify specifically the type and scale of alternative transportation services that will be required to support the Alameda Point development and reduce or offset automobile traffic volumes resulting from Alameda Point development through the Webster and Posey tubes near Chinatown. The . Transportation Study will include the costs of each alternative and level of development impact fees, or exactions from development projects necessary to cover those. costs. • 3.4. I.tevive -Chinatown Study. Oakland, OCCC and AHS shall use their best efforts to complete the Revive Chinatown Study within one year of the date of this Agreement. The completed Study shall include a final list of specific physical • improvements to be constructed by Oakland in Chinatown and partially funded by the. Alameda finds desca' bed it1 section 2.6.2. However, no aspect of the processing of any project shall be contingent upon the progress or completion of the Revive Chinatown Study. .4. Development and Implementation of TSM/TDM Measures. Alameda shall continue to develop and implement Transportation System Management and Transportation Demand Management (TSM/TDM) measures to reduce the trips generated by new development at Alameda Point to a level less than significant if feasible. 322440 Page 14 4.1. TS M Alameda shall require all•new development at Alameda Point to fund and/or implement TSM/TDM measures designed to achieve a target reduction, below standard ITE trip generation rates, for each applicable land use of 30% in non-residential peak period vehicle traffic and 10% in residential peak. The Alameda Point Master Developer (or Alameda, if there is no Master Developer) shall conduct an annual commute mode survey at Alameda Point to determine the success of the TSM/TDM program in achieving these targets and if such reductions in trips generated are reflected in proportionate reductions in peak period vehicle trips utilizing the Webster and Posey Tubes. Surveys shall be conducted during a period of normal traffic generation; i.e., surveys periods will not include •vacation, weekend, or holiday periods. If Alameda, Point is approved in phases, and to the extent that Alameda determines that additional, feasible TSM/TDM measures exist that 1) have not aheady been implemented • and/or imposed upon AlamedaPoint development and 2) will reduce significant .impacts of Alameda Point development, Alameda will require implementation of - additional TSM/TDM measures on subsequent phases of Alameda Point development if Alameda determines through the monitoring program, that • TSM/TDM targets, including proportionate reductions in peak period vehicle • trips utilizing the Webster and Posey Tubes, are not achieved in the first phase. To the extent that Alameda determines that reducing residential. and non- residential peak hour vehicle traffic is not necessary to mitigate a significant environmental impact, Alameda shall not be required to impose TSM/TDM • measures-to achieve a level of trip reduction that Alameda determines exceeds_ the level required to mitigate a significant environmental impact. 5. Collaboration. Oakland and Alameda agree to collaborate to efficiently utilize the existing regional transportation system and to facilitate improvements to that system. 5.1. Joint advocacy. ,Alameda and Oakland shall coordinate advocacy efforts for regional transportation fiords for design, development and construction of improvements to the regional roadway system used by, and- of mutual benefit to, both cities. 5.2. •Jntefgovennmental communications. Alameda and Oakland shall establish a Transportation Improvement Team involving staff from both cities to meet regularly to coordinate and address joint transportation issues. The Transportation Improvement Team willtestablish a process for ongoing communication and feedback on transportation issues in addition to the environmental review (CEQA) process.: 6. Dispute Resolution Process. If there is a disagreement between the parties relating to this Agreement; the parties agree to attempt to resolve such disagreement as follows: 6.1 Notice by OCCC and/or MIS Prior to Litigation Challenging Project. Prior to taking any action to commence, prosecute, fiord or otherwise support any legal or • 322440 - Page 15 administrative proceeding to challenge or oppose any project at Alameda Point or Oakland on grounds other than grounds arising out of or relating to this Agreement, OCCC and AHS .shall provide the City of Alameda, or City of Oakland as applicable, advance written notice of their intent to commence such action either ten (10) days' or % the period provided by statute, or regulation as applicable, to file an action to challenge an approval of an Alameda Point project, whichever is less, before commencing such legal action. Within the advance notice period, OCCC and AHS shall meet with the City of Alameda, or the City of Oakland'if applicable, along with any real party in interest involved in the project to be challenged to attempt to settle any disputes raised by OCCC and/AHS. If the dispute cannot be'resolved within the advance notice period, . OCCC and AHS shall, if requested by Alameda or Oakland, as applicable, and all real parties in interest involved in the project to be challenged, agree to a tolling agreement to allow time to resolve the dispute without initiating the proposed legal proceeding. 62 Dispute Resolution over Terms of this Agreement. Any party seeking to resolve a disagreement over the interpretation or the alleged non- compliance or breach of the terms of this Agreement shall serve notice on the alleged offending ply in writing (by mail, fax or personal delivery) not later.than fifteen business days after receiving notice of the decision or action that the party intends to challenge. Failure to provide written notice as required under this subsection shall preclude the complaining partyirom bringing any legal action based upon .that alleged non - compliance or breach. . 6.3 Dispute Resolution over Terms of this Agreement between City of Oakland and City of Alameda. For five business days after the notification has been served, or ten days if service is by mail, implementation of the decision that is being disputed shall be stayed, unless earlier action is required by order of a • regulatory agency or by a threat to the public's health and safety. Within five business days of the above notification, the party whose decision. is being challenged may request that the disputing party meet and confer with it and attempt to resolve the dispute. Such meetings shall continue during a period of at least five business days following the request unless either party determines that further continuation would be &tile. Any such settlement efforts shall not prevent- the disputing party from undertaking legal or administrative action to challenge the disputed decision if necessary to satisfy any applicable time limitation. 7. Enforceability. The parties agree that the following remedies shall be the sole and • absolute remedies available to enforce, interpret, or seek remedies for claimed. breaches of the temas of this Agreement. 7.1. Any claim in which a party alleges that OCCC or AHS has failed to fulfill fully its obligations under this Agreement shall be filed and served: within 30 days of the date the cause of action arises. The obligations of OCCC and/or AHS may be 3 22440 Page 16 . enforced solely through the remedies of Specific Performance, preliminary injunction and/or permanent injunction. 7.2. Except for a dispute alleging a breach of Alameda's obligation to provide . funding to the OCCC and/or the ABS under section 1.4, which shall be resolved through binding arbitration, any claim in which a party alleges that Alameda or Oakland has failed to fulfill fully its obligations under this Agreement shall be brought solely as a writ petition challenging the agency's decision that it complied with this Agreement. Any such writ action shall be filed and served within the statutory period otherwise applicable to, and in conjunction with; any challenge to a land use approval of any future Alameda Point or Oakland project which shall be "evidenced by a Notice of Determination (NOD) filed with the County Clerk (or other applicable public notification if an NOD is not filed), and shall be subject only to the rules applicable to a mandate proceeding (including without limitation deference to the local agency's decision, rules regarding exclusion of evidence outside the record, and rules regarding the substantial evidence and arbitrary and capricious standard of review, as applicable). In the event that more than one statute of limitations may applyto any such challenge, the action shall be filed within the earlier of such limitations periods. The remedies in such action shall be limited to those available in a writ of mandate proceeding except that, to tbe extent that the remedy sought relates solely to the 'breach of an express tern of this Agreement that is not subject to judicial review under the standards and procedures for writ of mandate under Code of Civil Procedure §§ W85 or 1094.5 (as those sections maybe amended), then the remedy shall be limited to an order of specific performance and/or an injunction, which the parties agree shall operate in the same manner as a writ. Further, except as to enforcement -of section 2.6, as between Oakland and the OCCC and the AHS, the OCCC and the ABS shall have no cause of action for breach of this Agreement under any circumstance. 7.3. Monetary damages shall not be available as a remedy in any action relating to or arising out of this Agreement. Further, in no case shall any action relating to or arising out of this Agreement be deemed to bar, suspend, enjoin, or otherwise .preclude any governmental entity from undertaking any action or decision-in Processing or approving a project. 8. Attorneys Fees. 8.1 "h i. any action or proceeding at law or in equjty.between the parties to enforce or interpret ay provision of this Agreement, each party shall bear all of its own "costs, including attorneys fees and experts fees. • 8.2 Notwithstanding subsection 8.1 above, within thirty (30) days after the effective . date of this Agreement,.Alameda shall pay to OCCC and AHS their combined attorneys fees and costs in the amount of $3,000. Payment by Alameda of the • amount specified in this subsection 8.2 constitutes a full and final compromise, 321440 Page 17 release and settlement of any and all claims for attorneys fees and costs from all petitioners and each of them against Alameda through and including the litigation and settlement activities culminating in execution of this Agreement. Payment of attorney's fees and costs pursuant to this section shall be deducted from the $75,000 payable to the OCCC and AHS by Alameda for the reimbursement of certain future OCCC and AHS expenses set forth in section 1.4 above. The $75;000 available for such fitture reimbursement of OCCC and AHS expenses shall accordingly be reduced to $72,000 following the payment by Alameda for OCCC and ANS attorney's fees and costa. . 9. Partial Execution.. If this Agreement is executed by Alameda and Oakland, but not executed by both OCCC and MIS within ninety (90) days of execution by Alameda and Oakland, then this Agreement shall be binding between Alameda and Oakland, but neither OCCC nor AHS shall be considered a party to this Agreement. In such event, Sections 1 and 2.6 shall have no force and effect, and neither Alameda nor Oakland shall have any duty to OCCC or AHS regarding any aspect of this Agreement. Furthermore, neither OCCC nor MIS nor any other person or entity shall. be deemed to be an incidental or intended third party beneficiary of this Agreement. 10. No Admissions Made. This is an agreement of compromise. Accordingly, the parties agree that none of its provisions constitute, or shall be construed as, an admission or as evidence concerning the validity or adequacy of the Alameda Point General Plan Amendment or its EIR. - 11 'Effective Date of his Agreement. This Agreement shall be effective as of the date upon which all of the signatories have signed the agreement (the "effective date"). 12. Termination. This Agreementmay be terminated by any party, for any or no reason, ten (10) years after the Effective date of the Agreement Notice of termination must be made in writing and delivered to each of the other parties by U.S. Mail or personal .service. 13. No Third Party Beneficiaries. The mutual promises in this Agreement are intended only for the benefit of the parties. The parties agree that there are no intended or • incidental third party beneficiaries to this Agreement. 14. Notices. Any notice that maybe required under this Agreement shall be in writing,. shall be effective as of the date of service as indicated in a return receipt or statement from the U.S. Post Office, statement from a commercial delivery service, or - 'messenger's signed proof of service, and shall be given by personal service or by certified or registered mail, to the addresses set for the below: . If to Alameda: Planning Director City ofAlameda City Hall . . 322440 Page 18 2263 Santa Clara Avenue Alameda, CA 94501 If to Oakland: Planning Director City of Oakland 250 Frank Ogawa Plaza, Suite 300 Oakland, CA 94612 If to OCCC: Executive Director Oakland Chinatown Chamber of Commerce Pacific Renaissance Plaza 388 Ninth Street, Suite 258 Oakland, CA 94607 If to AHS• ChiefBxecutive Officer Asian Health Services Asian Medical Center 818 Webster Street Oakland, CA 94607 -4220 15. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California applicable to contracts made and to be performed in California. All references to California Code sections and CEQA Guidelines shall be construed to refer to the law or Guideline as it exists on the date the action subject to that law or Guideline occurred 16. Amendments. This Agreement may be amended only by written agreement executed by all of the parties. 17. Integration. This Agreement represents the entire agreement between Alameda, Oakland, the OCCC, and the AIDS with respect to its subject matter. No representations, warranties, inducements or oral agreements have been made by any party with respect to the subject matter of this Agreement except as expressly set forth in this Agreement. 18. Authority to Bind the Parties. The parties to this Agreement represent that the signatories below have the actual authority to bind their respective parties to the terms of this Agreement and acknowledge that each party to'this Agreement has relied upon that apparent authority in entering into this Agreement. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the signature dates below. Effective Date: 322440 Page 19 , CHINATOWN Oakland Chinatown Chamber of Commerce, a California non -profit corporation ' Acting through its Executive Director ALAMEDA City of Alameda, a municipal corpo • on Acting through ' + Co Asian Health Services A California non -profit corporation, Acting through its Chief Executive Officer AAA- Title: • ee0 — A tis Signature Date: // //mil /'D T Manager Dabs: -I'llI (oy APPROVED AS "TO FORM OAKLAND City of Oakland, a municipal corporation Acting through its City Council By: City Manager Signature Date: APPROVED AS TO FORM 322440. Page 21 Exhibit A: MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF ALAMEDA. AND OAKLAND CHINATOWN CHAMBER OF COMMERCE AND ASIAN HEALTH' SERVICES REGARDING FINANCIAL ASISSTANCE FOR COMMUNITY PARTICIPATION IN CHINATOWN IMPACT MITIGATION PLANNING THIS AGREEMENT, dated as of March _,, 2004 is by and between, the Oakland Chinatown Chamber of Commerce, ( "OCCC"), a California nonprofit corporation, Asian Health Services ( "AHS"), a California nonprofit corporation and the City ofAlameda ("Alameda "), a municipal corporation, acting by and through its City Council. • RECITALS • A. The Oakland Chinatown Chamber of Commerce ( "OCCC') and the Asian Health Services Ina. ( "AHS") have agreed with the City of Alameda to settle their dispute with the City of Alameda over the adequacy of the Alameda Point General Plan. Amendment BIR, and the parties have entered into an agreement between the City of Alameda, the City of Oakland, the Oakland Chinatown Chamber Of Commerce and Asian Health Services regarding cooperation to study and mitigate traffic and related impacts in Alameda, Oakland, and specifically in Oakland Chinatown (referred • herein as the "Chinatown Agreement"). . B. As part of that settlement, the OCCC and the AHS have agreed with the City of Alameda and the City of Oakland to form and participate in an advisory committee (".00AC) to the Alameda Planning Board and City Council and the Oakland Planning Commission and City Council to advise those bodies in particular and the Cities of Alameda and Oakland in general regarding impacts within the greater Chinatown neighborhood of Oakland from proposed projects in Oakland and/or Alameda Point, and their mitigation. C. As a further part of that settlement, the City of Alameda has agreed to provide funding, in an amount no less and no more than $75,000, to OCCC and MIS solely for the purpose of funding OCCC and AHS staff in support of OCCC and MIS representation on the OCAC and funding professional consultant services to OCCC and MIS representatives on the OCAC. THEREFORE, for the purpose of efficiently and effectively implementing the Chinatown Agreement, OCC, AHS and Alameda agree as follows: 1. ,Single Point of Contact. The OCCC and the MIS shall appoint a single individual to act as the Single Point of Contact between the City of Alameda and the OCCC and MIS for the purposes of providing fiinding and the accounting of expenditures under this Agreement and the Chinatown Agreement. The OCCGand the AHS agree that Single Point of Contact shall represent both entities and shall have fiduciary . 322440 • Page 22 responsibilities to both entities. The OCCC and MIS further agree that they shall hold the City of Alameda, its City Council and officers and employees harmless for any acts or omissions of the Single Point of Contact. The OCCC and MIS shall jointly notify the City of Alameda in writing of any change in the single point of contact at least five business days prior to the effective date of the change. 2. Disbursement of Funds, Alameda shall disburse fiords to the Single Point of Contact as set forth below. 2.1. Pre - approval of Recipients Prior. to any request for disbursement of fiords, the Single Point of Contact shall provide the City of Alameda with a) the names and billing rates for the OCCC and the MIS staffwho will be billing for their time spent attending or preparing for attendance at OCAC meetings, and/or performing other OCAC related activities, and b) a copy of the consultant contract and associated scope of service for any professional consultant for which the Single Point of Contact will be requesting funds, prior to any request for disbursement of funds. . 2.1.1.. The City of Alameda shall review and approve the OCCC or MIS staff members being fimded by Alameda. Said staffmembers will be deemed approved if no- objection is communicated in.writing to the single point of contact within 10 business days of receipt of the submittal. 2.1.2: The City of Alameda reserves the right to review and approve or reject any professional consultant or professional consultant scope of work based on its determination that the consultant and the scope of work.are in substantial compliance with the specifications attached hereto as Attachment 1. Said consultant/scope of work will be deemed approved it'll() objection is communicated in writing to 8ne single point of contact within ten business . days of receipt of the submittal. 2.2. Means of Requesting yunding.Disbunsements. The Single Point of Contact shall request a disbursement in writing to the City of Alameda. The request will document the number of hours worked by each OCCC/AHS staff member approved pursuant to Section 2.1.1 requesting disbursements: Requests for staff . disbursement shall take into' account any funds not spent from previous disbursements. Requests for disbursements for consultant services shall be accompanied by the pre - approved scope of services authorizedpursuant to 2.1.2. Along with the request for disbursement the Single Point of Contact shall provide• an accounting of the expenditure ofthe previous disbursement. The request for funding disbursements will be made on a monthly basis and will be paid to AHS and OCCC within 15 businesses days of receipt by the City of Alameda. 2.3. Grounds for denying all or part of a Disbursement Request. The City of Alameda shall grant the full amount of the Request for Disbursement unless any of the following circumstances exists: a) the request for disbursement is not 322440 • Page 23 consistent with the list of Pre- approved' Recipients or b) the request for disbursement does riot meet the requirements of Sections 2.2 above; or c) the accounting of the expenditure of the previous disbursement indicates that fluids were spent for a purpose which is not permitted under the Chinatown Agreement or funds were received by a person who has not been approved by the City of Alameda. The Disbursement Request* will be deemed approved if no objection is communicated in writing to the single point of contact within ten business days of receipt of the submittal. Any disputes regarding performance of this , agreement will be resolved through binding arbitration: IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the signature dates below. Effective Date: CHINATOWN Oakland Chinatown Chamber of Commerce, a California nonprofit corporation Acting through its Executive Director • ALAMEDA • Asian Health Services A California nonprofit corporation, Acting through its Chief Executive Officer Title: Signature Date: II/9/e) 1 322440 Page 24 APPROVED AS TO FORM Attachment 1: . Specifications for Consultant Service Scope of Work Prior to submittal of any request for disbursement of funds for consultant services, the OCCC/AHS Point of Contact shall submit a proposed consultant scope of work to be funded. The proposed consultant scope of work shall include adequate detail and information to enable the City of Alameda to determine that the scope of work is consistent with the following specifications and criteria: • • 1. The consultant must be a .professional with relevant experience for the work being completed The following consultants are pre- approved: • • 1.1. Dowling Associates (Transportation) 1.2. DSS Associates (Transportation) • 1.3. CHS Consulting (Transportation) 1.4. Fehr and Peers Associates (Transportation) 1.5. OMNI Means (Transportation) . 1.6. Lamphier- Gregory (General Environmental Services) '1.7. BSA Associates (General Environmental Services) 1.8. Baseline Environmental Consulting (General Environmental Services) 1.9. Borchard & Associates (General Environmental Services) 1.10. Jones and Stokes (General Environmental Services) 2. The consultant scope of work meets the following criteria: 2.1. The scope is well defined and specific. 2.2. The scope is consistent with the consultant's area(s) of expertise and with the scope of issues for the OCAC, as set forth in the. Chinatown Agreement. Exhibit B: Oakland Projects. Jack London Square Redevelopment: up to 1.5 million net new square feet (mixture of entertainment, retail and offices) within the Jack London District as geographically delineated by the estuary, Clay, 2nd Street and Alice Street. Uptown Mixed Use Project 1,300 residential units, ('including 1,000 student beds) and 50,000 square feet of retail in the central downtown area bounded by20th Street (Thomas Berkeley Way), San Pablo Avenue, Telegraph Avenue and 18th Street Central Station: 25 acre site bounded by the frontage road, Wood Street, 14th Street and Grand Avenue, which includes the historic Union Pacific West . Oakland Rail Station. Development may include up to 1,200 residential units, up to 200,000 square feet of office and retail space and the restoration and reuse of the historic rail station. Broadway- Grannd Residential Development up to 500 • residential units in the 2 block area bounded rougbly by West Grand, Broadway, Valley and 24th Street. Chinatown Transportation/Pedestrian Safety Projects Countdown Signal WITHIN CORE OF.CHINATOWN Bulbouts and curb ramps on 8th and Webster Bulbouts and curb ramps on 9th and Webster Bulbouts and curb ramps on 10th and Webster Bulbouts and curb ramps on 11th and Webster Bulbouts and curb ramps on 12 and Webster Convert 10th Street to Two Way Webster to Madison Bulbouts 8th and Harrison Bulbouts 9th and Harrison Bulbouts 10th and Harrison Pedestrian Signals for all of the above intersections on Harrison and Webster at $3,000 each Countdown Ped Signal and 8th and Franklin Mast Heads on 8th and Webster and 9th and Webster . Total Chinatown Core ESTIMATED CO $100,000. $100,000, $75,000, $100,000. $100,000 $100,000. $100,000. $100;000 $100,000, $24,000.1 $3,000,1 $60,000.1 $982,000.1 Dear Mayor Johnson and Mayor Brown, • We are writing this letter on behalf of the Oakland Chinatown Chamber of Commerce (OCCC) and Asian Health Services (AHS) to express the position of the Boards of Directors of both organizations concerning resolution of transportation - related issues concerning the future development at Alameda Point. Both of our respective Boards considered this matter on . Both Boards agree that the terms of the settlement agreement between OCCC, AHS, City of Oakland and the City of Alameda ensure that sufficient funding for future transportation improvements in Oakland Chinatown will be provided with the development of Phase 1 of the Alameda Point project to adequately mitigate for any potential' transportation - related impact that may occur in connection with Phase I (Phase I contemplates up to 1100 dwelling units -and 100,000 square feet of neighborhood commercial development). As we understand the Agreement, it will: Commit Alameda to providing a $500,000.00 of funding toward transportation improvements in Chinatown pursuant to the specific terms of the Agreement; Commit Alameda and Oakland to a process that will provide for a final determination regarding Oakland and Alameda's "fair share" contribution toward funding such improvements in Oakland Chinatown while guaranteeing that $500,000.00 will be made available by Alameda and $462,000.00 from Oakland to fund transportation improvements if the initial phase of the Alameda Point project is approved for construction. Taken together with Alameda's funding commitments, we understand that this will result in $962,000.00 in funding for transportation improvements in Oakland Chinatown pursuant to the specific terms/limitations of the Agreement; Commit Alameda and Oakland to further study of transportation issues affecting Oakland Chinatown to identify mutually acceptable solutions to common transportation issues; Commit Alameda to preparing a new project level Environmental Impact Report to evaluate the phase following the initial phase of any proposed development at Alameda Point; . We understand that Alameda and Oakland have also agreed to establish an advisory committee to ensure that input from Oakland Chinatown representatives is received throughout the planning process for Alameda Point, and that Alameda will be providing OCCC and AHS with $75,000 for reimbursement of its prior legal fees and of its costs for participating in the advisory committee and funding technical assistance for the advisory committee pursuant to the terms of the Agreement. Both Boards have reviewed and accepted the settlement agreement, including in particular, the key terms noted above. Pursuant to both Boards believe that the settlement agreement ensures that transportation - related concerns from future development of Phase I of Alameda Point will be satisfactorily addressed and any impacts adequately mitigated. On behalf of both Boards, we appreciate the cooperation that has been extended by both Cities and look forward to working closely together in the future to implement necessary transportation improvements in our communities. Sincerely, Jennie Ong Executive Director OCCC AHS CITY OF ALAMEDA MEMORANDUM July 1, 2004 TO: Honorable Mayor and Councilmembers FROM: James M. Flint City Manager RE: Consideration of a City Recognition Honoring Former Acting Mayor Al DeWitt Background In January 2004, the Council received a request from Ms. Mosetta London to rename the Alameda Point Officers' Club in honor of the late Acting Mayor Albert H. "Al" DeWitt. Mrs. London explained that the location holds significant sentimental value for the DeWitt family having served as the location of former Acting Mayor DeWitt's retirement party, as well as a number of personal and professional events over the years. Last year the City Council discussed the merits of identifying a recognition in honor of Acting Mayor Al DeWitt. Discussion /Analysis The request from Ms. London was referred to the Recreation and Park Commission for their consideration. In June 1997, the City entered into a lease with the Navy to operate the Officers' Club. The site is currently being used for City and community meetings, recreational classes and workshops, corporate seminars and trainings, and banquets and receptions. Staff has consulted with the City Attorney's Office regarding the legality of renaming the Officers' Club under the lease with the Navy, and we have been advised that the City does have the authority to rename the site if it so desires. The Recreation and Park Commission is responsible for naming or renaming the City's recreational facilities. The current policy for the naming of such facilities is done according to the established City criteria: • A name which reflects the location of the facility by geographic area. • A name which reflects the history of a facility such as the family name of builder, developer, or person who donated the land. • A name which recognizes a significant contributor to the advancement of the City, such as a former Mayor, Councilmember, Board /Commission Member, officers or employees of the City (excluding those currently holding the position). • A name which is listed on the Street Naming Policy of the City of Alameda. "Dedicated to Excellence, Committed to Service" Report #5 -G 7 -6 -04 Honorable Mayor and Page -2- Councilmembers The Recreation and Park Commission placed the request on the agenda for review during their meeting of June 10, 2004. It was the Commission's opinion that former Acting Mayor DeWitt clearly met the guidelines required to have a City facility renamed in his honor. It was also noted that the Officers' Club had significant sentimental value to both former Acting Mayor DeWitt and his family, having been the site of many events throughout his life. The request to rename the site the Albert H. DeWitt Officers' Club was approved unanimously and is being forwarded to the Council for final approval. Budget Consideration /Financial Impact Approval of the request to rename the Alameda Point Officers' Club the Albert H. DeWitt Officers' Club in honor of former Acting Mayor Al DeWitt would result in no impact to the City's General Fund. The costs incurred in providing appropriate signage will be covered through revenues generated at the site. It should also be noted that the Queen's Club (a group of former military personnel) has offered to sponsor placement of a plaque inside the building to further identify the change. This generous offer would be referred to the Recreation and Park Commission for its review and approval. Recommendation The City Manager recommends that the Council consider a suitable City recognition for former Acting Mayor Al DeWitt that honors his accomplishments. The Recreation and Park Commission recommends that the Alameda Point Officers' Club be renamed the Albert H. DeWitt Officers' Club, in honor of former Acting Mayor Albert H. "Al" DeWitt. Council may wish to consider this recommendation as well as other suggestions from Councilmembers for this tribute. JMF:SO:bf Respectfully submitted, James M. Flint City Manager By: Y• Suzanne Ota, Director Recreation and Park Department "Dedicated to Excellence, Committed to Service" CITY OF ALAMEDA MEMORANDUM Date: June 30, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Public Hearing to Consider Adopting an Ordinance Amending the Alameda Municipal Code By Amending Section 21 -1 and Subsection 21 -20 -04 of Section 21 -20; Adding a New Subsection 21 -2 -7 to Section 21 -2; Adopting a Resolution Increasing Solid Waste, Recycling and Organic Collection Ceiling Rates for Alameda County Industries (ACI); and Authorizing the City Manager to Enter into Necessary Agreements Per Section 12.14 of the Franchise Agreement BACKGROUND On April 16, 2002, the City Council awarded a Solid Waste, Recycling and Organic (Integrated Waste Management) collection services contract to Alameda County Industries (ACI) and authorized the City Manager to negotiate and execute these agreements. On July 2, 2002, the Council introduced an Ordinance granting a franchise agreement to ACI for integrated waste management collection services. In accordance with the Franchise Agreement, Rate Period (RP) 1 (October 2002 to June 2003) and RP2 (July 2003 to June 2004) were fixed unless the Contractor could demonstrate an extraordinary or unanticipated event which materially affected the Contractor's compensation during that rate period. On December 30, 2003, ACI submitted their Application for Contractor's Compensation for RP3 (July 2004 to June 2005). In January 2004, Hilton, Farnkopf & Hobson (HFH), the City's consultant, met with ACI to discuss the rate application. ACI indicated that their operational costs far exceeded what was anticipated from the original Request for Proposal (RFP) issued in August 2001, and RP3 would require a significant adjustment to the rates. In addition, ACI requested consideration of an interim adjustment for RP1 and RP2 citing the following: • Increase in the number of accounts (approximately 4,200 customers) above those listed in the RFP in both solid waste and recycling collection; • Increase in residential recycling tonnage (approximately 20 %) requiring additional routing and staffing; • Increase in Health and Welfare payments (198 %); • Increase in overtime (567 %); • Employment of displaced Waste Management, Inc., employees with increased seniority and benefits; • Increase in worker's compensation (47% increase); Dedicated to Excellence, Committed to Service GlyofOlamala PublicWorks apartment PublicWode: We„is fix You! Re: Public Hearing, Introduction of Ordinance and Resolution #5 -H 7 -6 -04 Honorable Mayor and Councilmembers June 30, 2004 Page 2 • Increase associated with paying prevailing wages (5% increase); and • Increased costs associated with "me too" labor contract clause. To met the requested contractor's compensation, any combination of one or more of the following may be implemented: rates may be increased; existing programs and services may be reduced or eliminated; discounts may be reduced or eliminated; the Infrastructure Mitigation Fee (IMF) may be reduced or eliminated; the single family rebate may be reduced or eliminated, and ACI's operating ratio (profit) may be reduced to the extent it is possible to negotiate such a reduction in good -faith discussions with ACI. DISCUSSION /ANALYSIS Past Rate Increases: The last time City Council increased the collection rates associated with solid waste was in February 2001. At that time, the monthly rate for a 32- gallon can was $13.71 and a 20- gallon can was $6.02. The last rate increase for commingled recycling and yard trim collection occurred November 1, 2001, as follows: commingled recyclable materials by- weekly collection was $4.55 per month; and bi- weekly yard trim collection was $4.02 per month. In fact, single - family residents actually saw a decrease in rates in 2002 and 2003 because of a residential rebate authorized by City Council and a decrease in yard trim/recyclable materials collection rates. If the 2001 rates were adjusted by the Consumer Price Index for the Bay Area, monthly rates would be as follow: $14.55 for 32- gallon solid waste (currently $13.71 without rebate), $6.39 for 20 gallon solid waste (currently $6.02 without rebate), $4.75 for bi- weekly commingled recyclable (currently $4.23 for weekly pick -up) and $4.20 for bi- weekly yard trim collection (currently $3.60 for weekly pick -up) for a total integrated waste collection fee of $23.50 for a 32- gallon (currently $18.82 with residential rebate and $21.54 without residential rebate) and $15.34 for a 20- gallon (currently $11.33 with residential rebate and $13.85 without residential rebate). Incremental Analysis for Rate Increase: Because ACI cited the increase in customer base as a primary reason for the significant increase in costs and associated increase in service rates, HFH looked at the incremental increases in costs associated with ACI providing the necessary service to all customers. The incremental increase was then used to project a theoretical cost for RP3. Rate Year 3 Incremental Analysis The Company's Rate Year (RY) 3 Rate Application requested Company compensation of approximately $10,776,000, substantially higher than that proposed by the Company for both RY1 and RY2. The Company stated that this increase was due in large part to a significant difference in the workload (e.g., number of residential accounts, commercial bin lifts, roll -off pulls) specified in the Company's proposal, as well as the City's RFP, and the actual workload experienced by the Company. HF &H performed a review that supported the Company's contention that its workload is significantly higher than that reported in the City's RFP and assumed by the Company in its proposed RY1 and RY2 expenses. Dedicated to Excellence, Committed to Service �U �of Uepart rent Public Work; Wo, fw Km! Honorable Mayor and Councilmembers June 30, 2004 Page 3 To project the Company's RY3 expenses necessary to service the additional workload, an "Incremental Approach" was used. The Incremental Approach adjusted the Company's proposed RY1 expenses in proportion to the difference in the workload reported in the Company's proposal and the actual workload, as well as allowed consumer price index adjustments, with the following exceptions: • Labor expenses were adjusted from that projected by the Incremental Approach to reflect full time equivalent positions. • Labor expenses were increased to account for actual wage rates and benefits for the projected full time equivalent positions' 1 • Liability and Property Damage Insurance, Equipment Insurance and Rent were set to projected RY3 expenses. • Disposal and processing expenses were projected following the methodology specified in the franchise agreement. • There was no incremental adjustment for workload related to residential recycling, since that service had previously been provided by the Company. The Incremental Approach resulted in projected RY3 Company compensation of approximately $10,622,000, approximately 1.4% less than that requested in the Company's original RY3 Rate Application. This figure does not include City Fees. HF &H has confirmed the general reasonableness of the Incremental Approach. Also, HF &H confirmed the general basis for the Company's projected RY3 Company compensation, based on a high level review of various supporting documentation. In addition, while the Company's projection appears to fall within what may be considered a reasonable range, it is a calculated projection. Reasonable changes in certain of the underlying assumptions would have a material impact on the resulting calculation. As noted above, the Incremental Approach resulted in a projected RY3 Company compensation of approximately $10,622,000, not including City Fees. In addition, a number of changes were made to the Company's expenses for RY1 to account for both costs that were proposed but not incurred (e.g., rate period one citywide clean up event), and additional costs that were incurred, but not included in the Company's proposal (e.g., payments to Waste Management for collection services provided during the initial days of the franchise). These adjustments, as well as the impact of the required RY1 revenue balancing account, result in a onetime net expense reduction of approximately $284,000. This expense reduction has been amortized over RYs 3, 4 and 5 as part of the RY3 rate calculation ($95,000 per year) to eliminate what would have been an associated revenue shortfall in RYs 4 and 5 had the full amount been credited to RY3. In addition to the one -time expense adjustments noted above, the following potential ongoing expense reductions were also identified and quantified: • Reducing the Company's profit by 50 %; 1 The Company's reported RY 3 expenses included substantial overtime costs. As part of the Incremental Analysis the Company's allowed overtime expense was limited to the number of hours per position presented in its proposal applied to the allowed full time equivalent positions calculated using the Incremental Approach. Dedicated to Excellence, Committed to Service Gvo<dhwiwda PublicWoiks Department Public WMa Wraf Yo,d Honorable Mayor and Councilmembers • Eliminating the Annual Fall Clean-Up • Eliminating the Compost Give -Back • Rerouting the residential collection system; and, • Reducing the Company's expenses associated with 1.4 organic routes. 2 June 30, 2004 Page 4 The one -time and ongoing expense adjustments noted above result in a reduction of approximately $1,114,000 in RY3 expenses,, bringing the RY3 Company compensation to approximately $9,414,000, not including City fees (see Table 1). Rate Years 1 and 2 Incremental Analysis The City Manager also recommends that ACI be compensated for only the extraordinary and unanticipated events beyond ACI's control in RP1 and RP2. The Incremental Approach was also used to project the Company's expenses for RY1 and RY2, which were compared to the Company's proposed RY1 and RY2 expenses as stated in its proposal. The increase in the number of recycling customers and the higher recycling participation rates are not being compensated in these rate periods, and through the incremental the costs (including overtime) associated with these increases are not considered. That analysis calculated RY1 and RY2 revenue shortfalls of approximately $1,597,000 and $2,268,000 respectively. For the purpose of reaching a settlement for these two years, a proposal has been made to amortize the calculated shortfalls over the next 11 years. This equates to annual expenses of approximately $145,000 and $206,000 respectively, to compensate the Company for the calculated RY1 and RY2 revenue shortfalls. The current agreement has eight years remaining in its initial term. Should the Company not receive an extension beyond the initial term, a payment would be due the Company for the outstanding balance. Total Rate Year 3 Revenue Requirement Accounting for the calculated RY3 Company compensation, and: the impact of the noted potential expense adjustments; City fees; payment to the Company for the calculated RY1 and RY2 shortfalls; and elimination of the current residential rebates (approximately $455,000) results in a total RY3 revenue requirement of approximately $12,655,000. This equates to a revenue shortfall of approximately $2,550,316 (25.2 %), based on current rate revenues of $10,104,785. Additional rate revenues are required to cover this projected revenue shortfall. New Programs Included in Franchise Agreement: The franchise agreement granted to ACI included new programs and features not included in the previous franchise agreement with Waste Management. The community requested the additional programs during a 16 -month public information program initiated by the City through the Solid Waste Franchise Team (SWFT). They included: 2 The operating statistics in the Company's proposal for residential organic materials collection showed 5.0 routes per day; however, their cost proposal reflected 3.6 routes per day. Exhibit J of the Franchise Agreement specifies that the Company's cost proposal is to serve as the basis for the Company's compensation over the term of the agreement. Dedicated to Excellence, Committed to Service �lI �of� Uepartrnellt Public Wuia W frY ! Honorable Mayor and Councilmembers June 30, 2004 Page 5 ■ Adding food scrap recycling to the yard waste collection program for residential and commercial uses; • Increasing the organics (food scrap and yard waste) collection from bi- weekly to weekly; • Increasing the commingled recycling collection from bi- weekly to weekly; • Providing a local office in Alameda; • Two annual curbside pick -ups: one City -wide and one on -call within a 12 -month period; ■ Fifty percent (50 %) of the collection vehicle fleet to be clean fuel vehicles; ■ Compost give back program; ■ Education program/outreach to schools; • Expanded commingled recycling collection (empty aerosol cans, plastics 1 -7, bottle /tub type); • Push -pull to multi - family and commercial customers at no additional cost; • Abandoned waste collection; • Public education program on proper handling and disposing of Household Hazardous Waste; ■ Servicing up to 100 extra public litter containers; • 12 free special events collection service; • City parks collection services added to City Facilities collection; • Residential e -scrap and appliance collection at no additional charge to City; • Commercial e -scrap collection at no additional charge to City; • Household battery and latex paint collection at local Alameda office; • Restricting collection hours to begin no earlier than 7:00 a.m. to residential customers or any non - residential customer within 200 feet of a residence; • Company website; • Good faith effort to employ displaced Waste Management employees; and • Special rate programs /discounts. Infrastructure Impacts Mitigation Fee: Even though these new services were added, the proposed cost to provide the service to the City was approximately $1.2 million lower than the previous service. In recognition that the collection vehicles further exacerbate the deterioration of the City's infrastructure, the City Council established an Infrastructure Impacts Mitigation Fee (IIMF) to alleviate these impacts and fund infrastructure improvements such as street repairs and tree trimming. These revenues are placed in the General Fund. When the fee was established, Council approved Resolution No. 13482 and created a single - family residential rebate for the first rate period only (approximately $33 per year at the 32- gallon service level, a 13% savings). This Resolution stated that the rebate "shall be of no further force and effect as of July 1, 2003, unless this City Council adopts a further resolution prior to that time reinstating of extending the fee reduction." This has been extended by Council twice and expires on July 7, 2004, unless further extended. Each year the rebate continues, approximately $460,000 of General Fund revenues is not realized. The current revenues from the IIMF to the General Fund are approximately $665,000. Rate Structure: The franchise agreement also continued a rate structure unique to the City of Alameda that defines three types of residential premises: single - family residence, multiplex (2 to 4 units), and multi - family (5+ units). Owners of multiplex and multi- family complexes have the option to Dedicated to Excellence, Committed to Service Gtvofu. uubIICWo,ks eparhnent Public Wads Wo .frNut! Honorable Mayor and Councilmembers June 30, 2004 Page 6 have the individual tenants billed or to bill the property as a whole so that the bill is sent to one address and paid in full by the property owner. If the property owner pays the bills, they are entitled to 15% discount in service rates. In the event the property owner opts to bill the tenants individually, the property owner provides the tenant's name to ACI. However, if the tenant fails to pay for the service, the responsibility for payment reverts to the property owner. In addition, the rate structure and billing in most jurisdictions do not provide an individual rate for solid waste, recycling and organics, but instead have one rate for all services. To simplify the City's rate structure and for uniformity with other jurisdictions, the City Manager recommends that an Integrated Waste Collection rate be created for all service types. Discounts: Another unique feature of the current Franchise Agreement is the number of discounts available to customers. These include the following: • Senior (15% on all services and all bin sizes); ■ Low income (15% on all services and all bin sizes); ■ Resident composts on site (15% on organics only); ■ Premises has no or low landscaping (15% on organics only); • Resident uses landscape maintenance contractor (15% on organics only); • Group Billing — when property owner receives and pays for all tenants (15% on all services); • Centralized Billing — This rate applies to the large apartment complexes where the landlord pays the bill for commingled recyclable materials collection and organics materials collection is charged on a per unit basis; and • Shared Billing — This rate was created for the multi -plex sector. It is applied when the landlord pays for either commingled recyclable materials or organics materials collection and the tenants share the containers. The current rate structure allows for more than 1,200 billing possibilities, depending on cart size, type of residential development, and applicable discount. The rate structure, number and types of discounts used in Alameda are not applicable in other jurisdictions. Of the 18 jurisdictions we contacted, only six jurisdictions permit discounts to their rates. Besides Alameda, only Castro Valley allows a compost discount at 6.5 %. The discount is passed on to ratepayers in the form of a surcharge. Besides Alameda, only Albany and Fremont allow a senior discount. Oakland provides a discount for only seniors who meet low- income requirements. Four of these jurisdictions (Newark, Hayward, Castro Valley and Fremont) allow a discount for low- income residents. The latter discount is passed on to ratepayers in the form of a surcharge. Comparison of rates and programs among jurisdictions (32- gallon residential; Rate Year 2003): Staff conducted a telephone and web survey of 18 surrounding jurisdictions in and near Alameda County. The purpose of the survey was two -fold; (1) compare the City's current rate and services to other cities, and (2) assess program structure. Rates varied from a high of $33.40 /month (Piedmont) to a low of $10.00 /month (Livermore). Alameda's rate is $18.82 /month. A direct comparison among these cities is not possible because rates are affected Dedicated to Excellence, Committed to Service thyotuaned uublicWorks ?partinent PuNic WorIN Workvfir Yind Honorable Mayor and Councilmembers June 30, 2004 Page 7 by the number of different services offered and the proximity to transfer stations; however, Alameda has the most comprehensive service package available (see Attachment 2). Staff also compared Alameda's current 32- gallon rate to the four surrounding jurisdictions that have residential food waste collection (Albany, Castro Valley — unincorporated, Fremont, Oakland). Rates varied from a high of $23.18 /month (Oakland) to a low of $17.73 /month (Castro Valley) (see Attachment 3). Establishment of Integrated Waste Collection Ceiling Rates for Pate Period 3: Based on the incremental analysis, HFH determined that the contractor's compensation for Rate Period (RP) 3 should be $9,413,815. The total revenue requirement for Contractor and City fees is $12,655,101. This would require a 25.2% across the board increase. These numbers reflect discussions with ACI where they have agreed to reduce their operating ratio (profit) by 50% ($317,979) for the next three rate periods to reduce the required rate increase. In addition, based on the research of discounts available in other jurisdictions, the City Manager recommends that City Council eliminate the organics discounts (compost, hardscape and landscape contractor) as well as the group billed discount. Senior and Low income discounts would remain; however, senior discounts would not be applicable for anything above a 32- gallon solid waste container. In addition, the 10- gallon solid waste container will no longer available; only customers that current have this service will be allowed to continue it. Furthermore, the City Manager recommends that the annual Citywide Fall pick -up be discontinued. The on -call clean up will still remain. Additional service reductions recommended are: elimination of compost give -back; implement new recycling charge for businesses; return clean fuel vehicles savings to ACI for rate reduction; implement new push/pull charges; re- routing of residential collection to improve efficiencies; revise the start time for collection vehicles in residential areas to begin at 6:00 a.m.; revise the rate structure for multi -plex and multi - family units to be similar to costs for service and SF rates, including modifying the share and centralized discounts; and discontinuation of the IIMF residential rebate and apply to rate increase. Finally, the monthly rates for the 32- gallon and 20- gallon solid waste will be based on the same per gallon charge, and commercial front -end loader (FEL) bins will also be based on a standard rate per cubic yard Based on these reductions, the City Manager provides the following two options for integrated waste collection ceiling rate structure for RP3 (July 2004 to June 30, 2005) for Council's consideration. Option 1: Sets same $ /Gallon rate for 20- gallon and 32- gallon, Discontinues SF Rebate Program's Affected: Annual Fall Clean-Up eliminated, residential rerouting implemented, earlier start time, no new ten - gallon solid waste customers and eliminate compost giveback. Discounts Affected: Eliminate organics and group billed, increase costs by 15% (approximately $0.58 /month) for shared and centralized service. Senior discount not available for carts larger than 32- gallon. Single Family Residential Rebate Impact: Discontinued. Infrastructure Impact Fee (IIF): No reduction in revenues. Creation of New Revenues: Push/Pull charges (or partial), Weight Fees, increases 20- gallon solid waste rate to be the same $ /gallon rate as the 32- gallon rate, increases FEL rate to a fixed Dedicated to Excellence, Committed to Service Gtvillimeda QubIi(Works Department Pu6Ik Woda Worlsfw You! Honorable Mayor and Councilmembers June 30, 2004 Page 8 $88 /CY rate with a surcharge for multiple pick -ups per week (1% for each additional weekly pick -up). Others: Reduction of ACI's profit by 50 %. SF Residential Integrated Waste Rate Increase: Overall there is a 18% increase to this sector; however, the increase varies depending on size of cart. For example, • 20- gallon standard: $5.07 /month (44.8 %), this increase reflects the increased costs associated with bringing the 20- gallon cart to the same $ /gallon rate as 32- gallon. There are additional increases if discounts were previously received. • 32- gallon standard: $2.72 /month (14.5 %), additional increases if discount previously received. Multi- Family Integrated Waste Rate Increase: Overall there is a 17.9% increase to this sector; however, the increase varies depending on size of cart or FEL service. For example, • 20- gallon standard - $3.45 /month increase (26.6 %) this increase reflects costs associated with bringing the 20- gallon cart to the same $ /gallon rate as 32- gallon. Additional increases if discount previously received. • 32- gallon standard - $2.06 /month increase (10.6 %), additional increases if discount previously received. FEL Bins Rate Increase: Overall there is a 29.6% increase to this sector; however, the increase varies depending on size of bin and number of pick -ups per week. For example, once a week services would increase as follows: 10% for 1 CY, 17% for 2 CY, and 24% for 3 CY. There is a 1% surcharge for each additional pick -up per week and additional charges for push/pull charges (if applicable). Roll off Rate Increase: 25% increase, additional increase for plus push/pull charges and weight fees (if applicable). Under Option 1, the SF 20- gallon integrated waste cost would be $16.40 /month. This is higher than the previous 2001 rates adjusted for inflation ($15.34 /month.) The 20- gallon rate under Option 1 would be less than the rates currently paid by Piedmont ($26.28), Fremont ($21.95), Albany ($19.72), and Oakland ($17.28). Please note that approximately 26% of the 20- gallon customers are seniors and a portion of these seniors will be affected by the elimination of the organics discount (a $0.46 increase). The 32- gallon would rate under Option 1 would be $21.54 /month. By comparison, the 2001 rates adjusted for inflation would be $23.50. The proposed 32- gallon rate would be less than the rates currently paid by Piedmont ($33.40), Oakland ($21.95), Albany ($22.74), and Fremont ($22.41). Option 2: Program's Affected: Annual Fall Clean -Up eliminated, residential rerouting implemented, earlier start time, no new ten - gallon solid waste customers and eliminate compost giveback. Discounts Affected: Eliminate organics and group billed, increase costs by 25% (approximately $0.98 /month) for shared and centralized service. Senior discount not available for carts larger than 32- gallon. Single Family Residential Rebate Impact: Discontinued. Infrastructure Impact Fee (IIF): No reduction in revenues. Dedicated to Excellence, Committed to Service Giyofidaneda bbIICWorks part neat Public Wmin Work v f Y u! Honorable Mayor and Councilmembers June 30, 2004 Page 9 Creation of New Revenues: Push/Pull charges (or partial), Weight Fees, increases FEL rate to a fixed $86 /CY rate with a surcharge for multiple pick -ups per week (1% for each additional weekly pick -up). Others: Reduction of ACI's profit by 50 %. SF Residential Integrated Waste Rate Increase: Overall there is a 19.3% increase to this sector; however, the increase varies depending on size of cart. For example, • 20- gallon standard: $3.10 /month (27.4 %), (please note this retains a lower $ /gallon rate for 20- gallon bin - $0.33 /gallon than the 32- gallon - $0.47 gallon), additional increase if discount previously received. • 32- gallon standard: $3.89 /month (20.7 %), additional increases if discount previously received. Multi - Family Integrated Waste Rate Increase: Overall there is a 24.3% increase to this sector; however, the increase varies depending on size of cart or FEL service. For example, • 20- gallon standard - $1.48 /month increase (11.4 %), please note this retains a lower $ /gallon rate for 20- gallon bin. Additional increases if discount previously received. • 32- gallon standard - $3.23 /month increase (16.6 %), additional increases if discount previously received. Bins Rate Increase: Overall there is a 28.5% increase to this sector; however, the increase varies depending on size of bin and number of pick -ups per week. For example, once a week services would increase as follows: 7% for 1 CY, 14.5% for 2 CY, and 21.3% for 3 CY. There is a 1% surcharge for each additional pick -up per week and additional charges for push/pull charges (if applicable). Roll off Rate Increase: 25% increase, additional increase for plus push/pull charges and weight fees (if applicable). Under Option 2, the SF 20- gallon integrated waste cost would be $14.43 /month. By comparison, the 2001 rates adjusted for inflation would be $15.34 /month. The 20- gallon rate under Option 1 would be less than the rates currently paid by Piedmont ($26.28), Fremont ($21.95), Albany ($19.72), Oakland ($17.28) and San Leandro ($14.49). The 32- gallon would rate under Option 2 would be $22.71 /month. By comparison, the 2001 rates adjusted for inflation would be $23.50. The proposed 32- gallon rate would be less than the rates currently paid by Piedmont ($33.40), Oakland ($21.95) and Albany ($22.74). The City Manager recommends that Council approve the Ceiling Rates consistent with Option 2. Increases for Rate Periods 4 and 5: The Franchise Agreement requires the City to increase the Ceiling Rates by the applicable Consumer Price Indices for Rate Period (RP) 4 (July 1, 2005 to June 30, 2006) and RP5 (July 1, 2006 to June 30, 2007). Because of the increases associated with RP3, ACI has agreed to cap these increases so they shall not exceed more than 5% in each year. If the indices are lower that 5% the lower rate will be charged. Please note, this does not modify the Contractor's ability to request an Interim Compensation Adjustment for an extraordinary or unanticipated event as allowed in the Franchise Agreement. Dedicated to Excellence, Committed to Service fitpofAlmed' ubH cW0rks ?partl ent Public Wad. Wu-Wm-You! Honorable Mayor and Councilmembers June 30, 2004 Page 10 MUNICIPAL CODE CROSS REFERENCE The proposed Ordinance will amend Chapter 21 — Solid Waste and Recycling. The proposed amendments: provides a new definition for integrated waste; eliminates the existing compost, landscape contractor and hardscape discounts associated with organics; eliminates the group discounts; creates an integrated waste collection rate instead of the existing three different rates for solid waste, recycling and organics; and allows only for integrated waste exemptions. Individual exemptions for solid waste and/or recycling and/or organics will not be allowed. BUDGET CONSIDERATION/FINANCIAL IMPACT The City receives a 10% franchise fee, approximately $1.1 million from ACI on gross receipts. An increase in the rates will also result in an increase in the total amount of franchise fees received by the City, currently estimated at approximately $175,000. The IIF currently generates approximately $645,000 annually to the City's General Fund. The proposals do not reduce this amount. Elimination of the SF rebate will result in the loss of future general fund revenues of approximately $445,000. RECOMMENDATION The City Manager recommends that City Council take the following actions: 1) Open Public Hearing; 2) Adopt Ordinance amending Section 21 -1, Subsection 21 -20 -04 and adding a new Subsection 21 -2 -7 of the Alameda Municipal Code; 3) Adopt Resolution increasing Integrated Waste (solid waste, recycling and organic) collection ceiling rates for Alameda County Industries (ACI); and 4) Authorize the City Manager to enter into all necessary agreements per Section 12.14 of the Franchise Agreement. MTN:MFD:gc cc: Finance Director Program Specialist d ACI Attachments: Attachment 1: Table 1 — Revenue Requirement Summary Attachment 2: Comparison of Rates in 19 jurisdictions Attachment 3: Comparison of Rates in 4 jurisdictions Respe, ly submitted, Matthew T. Naclerio Public Works Director By: Maria F. DiMeglio L. G:\PUB WORKS\PWADMIN\ COUNCIL \2004 \070604\AClratesreport.doc Dedicated to Excellence, Committed to Service tublicWolks O( ofAhmeda Uepdrb cent Pak Works for Y, Table 1 RATE YEAR 3 REVENUE REQUIREMENT SUMMARY RY 3 COMPANY COMPENSATION (INCREMENTAL ANALYSIS) $10,622,450 One Time Expense Adjustments ($94,564) Potential Expense Adjustments Reduce Company's Profit by 50% (95% vs. 90% OR) ($317,979) Eliminate Annual Clean Up ($325,123) Rerouting Savings ($218,459) Organics Route Reduction ($207,311) Compost Give Back ($45,198) ($1,114,070) Subtotal $9,413,815 City Fees Waste Management Recycling Fee $350,000 Infrastructure Impact Mitigation Fee $671,784 Doolittle $175,000 City Parks $53,000 $1,249,784 Subtotal $10,663,599 Franchise Fees $1,184,844 Subtotal $11,848,444 Year 1 Revenue Shortfall $145,207 Year 2 Revenue Shortfall $206,146 Residential Rebates $455,304 TOTAL REVENUE REQUIREMENT $12,655,101 CURRENT RATE REVENUES $10,104,785 REVENUE SHORTFALL $2,550,316 Required Rate Increase 25.2% Potential New Revenues Push Charges $283,651 Debris Box $27,500 CNG Rebate $32,000 REVENUE SHORTFALL $2,207,165 Required Rate Increase 21.8% Note: Numbers may not add exactly clue to rounding. 7/1/2004 / 1:39 PM Table 1 062504 (updated) / Table 1 (reformated) ATTACHMENT 1 s To 0 0 G O O O O O l() M ER O O O fh 0 O N 0 0 0 0 O O O H} 0 O 0 0 O hart-All Monthly rat- City of Alameda Confidential C x Northem half of . Oakland only. Southern half has bi wnu4hi ccn Ane F..... Approved rate Increase on 5/18/04. Rates will go into effect 7 /1/04. Single stream recycling will begin 1/2005 Will begin food waste on 7/1/04. Residents will be charged for services beginning 7/1/04, but, programs may not begin until 4- 6 months later. Program to begin sometime in 2005 7/1/04 residents will begin paying for program. Program will come in mid -fiscal year (CY2005) x x x x x x x x x a Q x x x x x c palnpeyos xi, x x x x x unk x x Fremont x x x x x x CO 4 - Sep -03 x 2x by appt x x x x x x E a x x x x x x Oct -02 1 M O x 1 by appt 1 scheduled x x x x x x x x x x x x `Castro Valle) (unincorp.) x x x x x q 0 Z Mar -02 x lx by appt xxx unk U a, 07 ;O 0) O U. U Y.U.0 v 03 CO t a U 8 CO) 8 m , o, O O a V .-. V N C S cd� Q' pUj E y OCl ._ c -20_ 3 vp LLoL Irooa waste - Multi- family and restaurants Beginning Date of pilot food waste program Beginning date citywide food waste pickup Wheeled carts Annual Bulky Clean -Up events IClean air vehicles Micro can (10 -gal service) mm U 2 W - l0 m co C r U N i NC viscounts orrerea E -waste program Liquidated Damages Household battery dropoff Latex paint dropoff Used oil curbside pickup Local office cost Backyard svc available U N U8U a n City of Alameda Confidential 0 0 0 N c1 N CD m c -ow 0 0 V v m 0 0 0 Market test of services in comparable cities co s DI 0 SFR: 7.5% increase MFR: 3.49% increase Commercial: 1.57% increase 6:00 a.m. - 6:00 p.m. no restriction on commercial areas Compost 399,484 WM WM composting facility Semi - automated Semi - automated flat dollar rate, not % yes a a Renegotiated contract with WM. New contract went in effect 5/2004 M Compost 16,750 WM WM composting facility Manual Manual /Semi automated Fremont 6:00 AM Compost 203,413 BFI Newby Island 8 mi Automated Automated 10% residential 12% commercial yes Y Alameda 7:00 AM Compost 72,259 ACI Newby Island 20 mi Automated Automated 0 yes 'Castro Valle (unincorp.) Adjusted annually by CPI: All Urban Consumers, SF /Oakland Metro Area Compost 60,000 WM WM composting facility Automated Automated C unk U m Rate adjustment Collection start time C � m o - m o 5 n.: Location or Tara Waste/Organics Processing Site Recyclable Materials Collection Methodology Yara Waste/Orgamcs Collection Methodology Franchise fees c j Market test of services in comparable cities I ameda County Municipalities Rate Com • ariso 0 0 N A R 2 M arket test -Rates of corn • arable citi ) # ` }� City requested senior discount from BFI and negotiated them as pad of package of considerations offered • fora contract ! , ',| C!,!t_ § | q�(]f| I g!m«|!| |!2! , f k { | ) Discounts are subsidized enough 'or Tracy Swanbom 5/04 • . .! kf |� j|§ i!� 'er Tony Acosta 5/04 'er Jennfferaoleta 5104 ;lkk 1 o dk :2 'ila : t | !; 3g 1Per-Hoel--le Hadahom 5/04. Charges are all-Indusbe on bill Can have both law - Income 0od low green waste garleretar umcounb Under 15 units, no group bilking discount noHnn SW collection: Fully or semi - automated » \ . 2 . _L. 8 ! ;I ` ! Requirements . ki 2 Ili ` 2. Meet City requirements (Section 8 eligibility •uldellnes . 3. Properly b hardswped and generates no vegetation acceptable for collection, or landscaping service takes all vegetation to compost facility, or all material teco ••.tad on-site. 14. Biis are paid by one person or management company For arose people who compost lust about everything Ihey generate All mulllfamlly unite (15 and above) are paid by one ••r0on/mana•ernent -. • n 1. Heed of household seniors, age 70 -79 & proof of age \ 3. Proof of • -rtic1• :Son In PGE or Lifeline • m•ram 1. Only available to law- incorne seniors. Must be 60 years of age or older, eve In an owner-occupied single family dwelling, duplex, triplex, or /purples, and demonstrate that you receive aee4fance under PG&E'e CARE program. . . ( } 2 \ / . k / Polandble: liable to dewy or spoil or become Mold _ ),/ ; | �.� , § ; ; § | ;)■ vg %III ) ` ) ~ 3. Organic materials discount 4. Group billing of multiplex or ultlfeney Preper000 3 1. Low greenwaste generator ) / i ! © f 1 ) 2> } .- \ f0:i 1 IReleted to Income, not age NONE ili \ ) | \ | { { k / Fremont Oaldand } /! CITY OF ALAMEDA ORDINANCE NO. New Series AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING SECTION 21 -1 (DEFINITIONS) OF ARTICLE I (DEFINITIONS) AND SUBSECTION 21 -20 -04 (CHARGES FOR SERVICE) OF SECTION 21 -20 (FRANCHISE AGREEMENTS) OF ARTICLE III (FRANCHISE AGREEMENTS); AND ADDING A NEW SUBSECTION 21 -2 -7 (INTEGRATED WASTE COLLECTION REQUIRED) TO SECTION 21 -2 (COLLECTION AND REMOVAL) OF ARTICLE II (GENERAL REGULATIONS) OF CHAPTER XXI (SOLID WASTE AND RECYCLING) BE IT ORDAINED by the City Council of the City of Alameda that: Section 1. The Alameda Municipal Code is hereby amended by amending Subsection 21 -1 (Definitions) of Article I (Definitions), Chapter XXI (Solid Waste and Recycling) to read as follows: 21 -1 Definitions As used in this section: Appliances shall mean discarded household appliances such as refrigerators, stoves, clothing washers and dryers, water heaters, dishwashers, etc., and similar items discarded by occupants of residential \ . Z premises. Bin shall mean a container with capacity of one (1) to eight (8) cubic yards, with hinged lid and wheels. Bulky items shall mean discarded appliances, furniture, tires, carpets, mattresses, and similar large items that require special collection due to their size, but can be collected without the assistance of special i s- loading equipment (such as forklifts or cranes) and without violating vehicle load limits. Bulky items do �!= not include abandoned automobiles. C&D Applicant means any person that undertakes a Project subject to WMP requirements P ursuant to subsection 21 -24.1 of this chapter. Can shall mean a ten (10) gallon plastic container with a lid. Cart shall mean a recycled - plastic container with a hinged lid and wheels serviced by an automated or semi- automated loading truck with varying capacities of twenty (20), thirty -two (32), sixty -four (64) or ninety -six (96) gallons, or another size approved by the Public Works Director. City Manager shall mean the City Manager of the City of Alameda or his/her designated representative; Public Works Director shall mean the Public Works Director of the City of Alameda or his/her designated representative; Building Official shall mean the Building Official of the City of Alameda or his/her designee; Risk Manager shall mean the Risk Manager of the City of Alameda or his/her designee. Commercial shall mean of, from, or pertaining to any property upon which business activity is conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding businesses conducted upon residential property which are permitted under applicable zoning regulations and are not the primary use of the property. Compactor shall mean a mechanical apparatus that compresses materials. Compactors include two (2) to four (4) cubic yard bin compactors serviced by front -end loader collection trucks and six (6) to fifty (50) cubic yard debris boxes serviced by collection trucks. Introduction of Ordinance #5.-\ 7 -6 -04 Construction or construction and demolition shall mean construction, erection, enlargements, alteration, renovation, conversion, or movement of any building, structure, paving, or land and any other demolition attendant thereto. Construction and demolition debris or C&D debris shall mean used or discarded materials removed from residential, commercial, or industrial premises as a consequence of construction. Conversion Rate means a rate set forth in the standardized Conversion Rate Table approved by the Public Works Director pursuant to Section 21 -24 for use in estimating the volume or weight of materials identified in a Waste Management Plan. Container shall mean cans, bins, carts, compactors, and debris boxes. Curb (or curbside) shall mean the placement of a container for pick -up, where 'such container is placed within the public right of way but not within the public street, or sidewalk, in a manner that would obstruct vehicular, pedestrian, or bicycle travel. Where no curb exists, the container shall be placed in the location agreed upon by the City and the Franchisee in the franchise agreement. Customer shall mean the person to whom franchisee and/or permittee shall submit billing invoices and from whom it shall collect payment for collection services provided to a premises generating solid waste, recyclable materials, organic materials and receiving collection services from the franchisee and/or permittee. The customer may be the occupant or owner of the premises, provided that the owner of the premises shall be responsible for payment of collection services in the event an occupant of a premises, who is identified as the customer with respect to the owner' s premises, fails to make such payment. Debris box shall mean an open -top container with a capacity of six (6) to fifty (50) cubic yards that is serviced by a roll -off truck. Decibel (dB) shall mean a unit for measuring the amplitude of sounds, equal to twenty (20) times the logarithm to the base ten (10) of the ratio of the pressure of the sound measured to the reference pressure, which is twenty (20) micropascals. Disposal site shall mean a facility for ultimate disposal of solid waste. Diversion Requirement means the diversion of at least fifty percent (50 %) of the total construction and demolition debris generated by a project via reuse or recycling, unless a C &D Applicant has been granted an Infeasibility Exemption pursuant to Section 21 -24, in which case the Diversion Requirement shall be the maximum feasible diversion rate established by the Public Works Director for the project. E -scrap item or electronic scrap item shall mean discarded electronic equipment including, but not limited to, television sets, computer monitors, cathode ray tubes, central processing units (CPUs), laptop computers, external computer hard drives, computer keyboards, computer mice, computer printers, DVD players, CD players, stereos, radios, and VCRs. Food Waste shall mean solid food wastes that will decompose and/or putrefy and includes, but is not limited to, all kitchen and table food wastes and animal or vegetable waste that attends or results from the storage, preparation, cooking or handling of food stuffs, and paper wastes contaminated with food waste. Franchise Agreement means an agreement with a Franchisee as defined in subsection 21 -20.1 of this chapter. Franchisee shall mean the person to whom the City shall have granted a franchise to collect, receive, carry, haul or transport solid waste, recyclable materials, and organic materials within the City, and shall include the agents or employees of the Franchisee. Hazardous waste shall mean all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in future amendments to or recodifications of such statutes and all substances identified and listed as Hazardous Waste by the U.S. Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder Hazardous waste excludes minimal quantities of waste of a type and amount normally found in residential solid waste after implementation of programs for the safe collection, recycling, treatment and disposal of household hazardous waste in compliance with Sections 41500 and 41802 of the California Public Resources Code, as amended from time to time. Integrated Waste Management shall mean all materials defined as, including but not limited to all materials defined as solid waste, recyclable materials, organic materials, and food waste as defined in California Public Resources Code § 40191. Medical waste shall mean all materials defined as medical waste in the California Health and Safety Code Section 25023.2, excluding waste identified as not being medical waste in Section 25023.5 and 25023.8, or the regulations promulgated thereunder, as amended from time to time. Multi family shall mean any residential complex, with five (5) or more units used for residential purposes irrespective of whether residence therein is transient, temporary or permanent. Multi family premises includes yacht harbors and marinas where residents live aboard boats. Multi family premises include condominiums and cooperative apartments with five (5) or more units. Such premises shall have centralized solid waste, recyclable materials, and organic materials collection service for all units on the premises, which service shall be billed to one (1) customer at one (1) address. Multiplex shall mean any residential complex, with two (2) to four (4) units used for residential purposes irrespective of whether residence therein is transient, temporary or permanent. Multi-plex premises include condominiums and cooperative apartments with two (2) to four (4) units. Such premises shall have individual solid waste, recyclable materials, and organic materials collection service for each unit on the premises, but may be billed to one (1) customer at one (1) address or to each individual unit. Occupant shall mean a person who occupies a premises. Owner shall mean the person or persons holding record title to the premises as reflected in the latest property tax assessment roll made available by the Alameda County Assessor' s Office. Organic materials shall mean solid wastes originated from living organisms that will decompose and/or putrefy. Organic materials which have been approved for collection by the Public Works Director include both yard waste, and food waste such as, but not limited to, green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small wood pieces, other types of organic yard waste, vegetable waste, fruit waste, grain waste, dairy waste, meat waste, fish waste, facial tissue, paper contaminated with food waste or otherwise not accepted in the recyclable materials collection program, pieces of unpainted and untreated wood, and pieces of unpainted and untreated wallboard. No discarded material shall be considered to be organic materials, however, unless such material is separated from solid waste and recyclable materials. Organic materials such as, but not limited to, grass cuttings, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees may not exceed six (6 ") inches in diameter and four (4') feet in length. Organic materials are included within the term recyclable materials. Permittee shall mean any person authorized by a City permit to collect construction and demolition debris, recyclable materials, or organic materials pursuant to Article IV of this chapter. Person shall mean a person, firm, association, partnership, joint venture, corporation or any entity, public or private in nature. Premises shall mean any land or building in the City where solid waste, recyclable materials, or organic materials are generated or accumulated including each single - family unit, multi-plex unit, multi- family complex, and business establishment. Project means any activity involving construction that requires issuance of a permit under the zoning, building and other ordinances of the City. Recyclable materials shall mean non - hazardous residential, commercial or industrial materials or by- products which have been approved for collection by Public Works Director and which are set aside, handled, packaged, or offered for collection in a manner different than solid waste, for the purpose of being reused or processed and then returned to the economy in the form of commodities. Recyclable materials include, but are not limited to, newspaper (including inserts, coupons, and store advertisements), mixed paper (including office paper, computer paper, magazines, junk mail, catalogs, brown paper bags, brown paper, paperboard, paper egg cartons, phone books, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, cereal and other similar food boxes); chipboard; corrugated cardboard; paper milk cartons, glass containers (including brown, clear, and green glass bottles and jars); aluminum (including beverage containers, foil, food containers, small pieces of scrap metal); small pieces of scrap metal weighing less than ten (10) pounds and fitting into the recyclable materials collection container; steel, tin or bi -metal cans; plastic containers (nos. 1 to 7), aseptic beverage boxes; empty steel paint cans (previously used for latex paint), used motor oil, used oil filters, small appliances, and aerosol cans. Recycling shall mean the process of sorting, cleansing, treating, and reconstituting recyclable materials that would otherwise be disposed of at a disposal site and returning them to the economy in the form of raw materials for new, reused or reconstituted products. Residential shall mean of, from, or pertaining to a single - family premises, multi -plex premises, or multi - family premises. Reuse means further or repeated use of any material without reconstitution or treatment. Salvage means the controlled removal of Construction and Demolition Debris from a permitted construction site for the purpose of recycling or reuse. Single-family shall mean any detached house or residence designed or used for occupancy by one (1) household, provided that collection service can be and is provided to such premises as an independent unit. Solid waste shall mean and include all putrescible and non - putrescible solid, semisolid and liquid wastes, including garbage, trash, refuse, rubbish, ashes, industrial wastes, manure, vegetable or animal solid and semisolid wastes and other discarded solid and semisolid wastes as defined in California Public Resources Code § 40191 , as that section may be amended from time to time. Solid waste does not include abandoned vehicles and parts thereof, hazardous waste or low -level radioactive waste, medical waste, unacceptable wastes, construction and demolition debris, source separated recyclable materials or source separated organic materials. Source separated shall mean recyclable materials or organic materials that have been segregated from solid waste by or for the generator thereof, on the premises at which they were generated, for handling separate from solid waste. This does not require that different types of recyclable commodities be separated from each other, except organic materials shall be separated from recyclable materials. Specialty recyclable materials shall mean high - value, presorted recyclable materials generated by construction and demolition activities on residential or non - residential premises and by the operation of non - residential uses. Specialty recyclable materials include scrap metal, construction and demolition debris, high -grade paper (including office mixed paper), pallets, and plastic film and other segregated recyclable materials which the Public Works Director reasonably determines are meaningfully distinct from the mixed recyclable materials collected from residential premises in the City. Unacceptable waste shall mean any and all waste including, but not limited to, hazardous waste and medical waste, the acceptance and handling of which by franchisee or permittee would cause a violation of any permit condition, legal or regulatory requirement; substantial damage to franchisee' s or permittee' s equipment or facilities; or present a substantial danger to the health or safety of the public or franchisee' s or permittee' s employees. Waste Management Plan means a plan for compliance with Article N of this chapter, as approved or conditionally approved by the City. Yard Waste shall mean those discarded vegetation materials approved by the Public Works Director that will decompose and/or putrefy, including but not limited to, green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and other types of organic waste. Yard waste is a subset of organic materials. Section 2. The Alameda Municipal Code is hereby amended by adding a new Subsection 21 -2.7 (Integrated Waste Collection Required) to Section 21 -2 (Collection and Removal), Article II (General Regulations) of Chapter XXI (Solid Waste and Recycling) to read as follows: 21 -2 -7 Integrated Waste Collection Required. Unless the occupant of the premises demonstrates, as described below, that he or she qualifies for an integrated waste service exception, the owner of any premises in the City in, upon, or from which integrated waste is created, produced or accumulated, shall dispose of the integrated waste through the regular integrated waste collection service of the collector and shall pay, therefore, the rate or rates set by the .City. Arrangements with the collector shall be made by each such owner for the required collection of integrated waste, and such arrangements shall specify the location of the premises, integrated waste receptacle type and sizes, and the frequency of collection. Section 3. The Alameda Municipal Code is hereby amended by amending subsection 21 -20 -04 (Charges for Service) of Section 21 -20 (Franchise Agreements) of Article III (Franchise Agreements) of Chapter XXI (Solid Waste and Recycling) to read as follows: 21 -20 -4 Charges for Service a. Establishing Charges. The City shall establish rate - setting policies and rate ceilings through City Council resolution or through the franchise agreement. Prior to establishing rate policies or rate ceilings, the City Council shall hold a public hearing. b. Payment. Every person receiving integrated waste collection service for solid waste, and/or recyclable materials, and/or organic materials shall pay the rate for the service established by the franchisee in accordance with City- established policies, whether used in whole or in part. If an occupant of a premises fails to pay, the owner shall be responsible for payment to the franchisee. c. Special Rate Programs. 1. Low Income Residents and Senior Residents Discount. Franchisee shall provide low income and senior discounts for residents provided that a customer may not obtain both a low income resident and a senior resident discount. Franchisee shall determine that a customer qualifies for the low income discount by obtaining documentation that the customer's household qualifies as a very-low- income household under the Section 8 eligibility guidelines as determined by the federal Housing and Urban Development (HUD) formula. Franchisee shall determine that a customer qualifies for the senior resident discount by verifying that the head of household of the residential premises is sixty -five (65) years of age or older. Senior Discount shall not apply to any solid waste container greater than 32- gallons. d. Service Exemptions. 1. Continuation of Prior Exemptions. With the exception of the Special Rate Program established in 21 -20.4 and those customers who have prior approval for a 10- gallon solid waste container, all service exemptions granted by the City prior to the effective date of the ordinance that enacted this provision shall be terminated. 4. Integrated Waste Collection Exemption. A complete exemption from mandatory integrated waste collection shall be granted if the customer demonstrates to the reasonable satisfaction of the Public Works Director that no solid waste, recyclable materials and organic material of any kind is generated on the premises. The occupants of a residential structure may be completely exempted from mandatory integrated waste collection only upon proof that they are regularly self - hauling integrated waste generated on the property to a lawful disposal site, Department of Conservation approved Reclamation Center or transfer station by providing monthly receipts or other evidence satisfactory to the Public Works Director. 5. Vacancy Exemption. An owner of residential premises may receive a temporary exemption from the requirement to subscribe to and to pay for solid waste, recyclable materials, and organic materials collection services if he or she can demonstrate to the satisfaction of the Public Works Director that the premises are vacant for at least thirty (30) days. Evidence that either water or power was not consumed on the premises shall be sufficient evidence of vacancy. 6. Service Location Exemption for Disabled Persons. Franchisee shall collect containers from the backyard of a single - family or multi -plex premises occupied by an owner or occupant with a disability within the meaning of the American Disabilities Act at no additional cost. e. Application Process. 1. Filing of Application. A customer may file an application with the franchisee for a special rate or service exemption pursuant to subsections 21- 20 -4(c) and 21- 20 -4(d). The occupant must consent to an unscheduled on -site inspection by the City of Alameda Public Works Department and/or the franchisee of occupant' s integrated waste (solid waste, recyclable materials, and organic materials) in order to qualify for or any service exemption. 2. Review of Application. The franchisee shall inspect each applicant's property, and the applicant's integrated waste (solid waste, recyclable materials, and organic materials). Franchise shall complete this review within fifteen (15) business days of receipt of an application. 3. Notification of Acceptance or Denial of Application. Franchisee . shall notify an applicant of the acceptance or denial of his or her application within twenty (20) business days of receipt of that application. Upon approval of a special rate or service exception, the franchisee shall notify the Public Works Director in writing. 4. Duration of Special Rate or Service Exemption. Any special rate or service exemption shall be effective for one (1) year from approval, unless service is stopped and new service is started at the premises or the circumstances that justified the special rate or service exception change. The Public Works Director may extend a special rate or service exemption for additional periods of one (1) year without further application upon receipt of certification from Customer that the circumstances justifying the special rate or service exemption have not changed. If those circumstances change, it shall be the responsibility of the owner or occupant to notify franchisee of changed circumstance and to initiate regular solid waste, recyclable materials, or organic materials collection service in accordance with the provisions of subsection 21 -2.1. The Public Works Director or franchisee may review any special rate or service exemption upon receipt of evidence that such special rate or service exemption is no longer justified. In all cases where an exception is granted, the premises must at all times be kept in a sanitary condition which does not cause a nuisance to others. Upon a determination that the integrated waste service exception should be granted, the collector shall immediately notify the owner and the City of Alameda Public Works Department in writing. If the circumstances which allowed the exception should change, the owner or occupant shall then initiate regular integrated waste collection in accordance with the provisions of this section. The Public Works Department or the Collector may require reauthorization of such exception from time to time. Occupant must consent to on -site inspection of solid waste, recyclable materials and organic materials disposal facilities by the City of Alameda Public Works Department and/or the Collector in order to qualify for the integrated waste service exemption. 5. Appeals. An applicant may appeal a denial of a special rate or service exemption as described in subsections 21- 20.4(c) and 21- 20.4(d) by filing a notice of appeal with the City Clerk not later than ten (10) business days after the applicant was provided written notice of the decision. The notice of appeal shall be in a form prescribed by the. Public Works Director and shall state why the applicant believes the denial does not comply with this section. The Public Works Director shall decide the appeal within thirty (30) calendar days of its filing, unless he or she continues that decision for good cause. The Public Works Director shall notify the applicant in writing of his or her decision within three (3) business days. f. Violations. Violation of any provision of this section other than by the franchisee, the City or its employees, shall be punishable as an infraction pursuant to subsection 1 -5.1 of the Alameda Municipal Code. Section 4. This Ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage. Presiding Officer of the Council Attest: Lara Weisiger, City Clerk City of Alameda I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004 by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda Approved as to Form CITY OF ALAMEDA RESOLUTION NO. ESTABLISHING INTEGRATED WASTE (SOLID WASTE, RECYCLING AND ORGANICS) COLLECTION CEILING RATES AND FEES FOR RATE PERIOD 3 (JULY 2004 to JUNE 2005) WHEREAS, in 2002 the City of Alameda entered into a Franchise Agreement with Alameda County ,Industries (Contractor), for solid waste, recyclable materials and organics materials curbside collection for a 10 -year period; and WHEREAS, Contractor submitted a rate application covering rate years 1, 2 and rate year 3 projections; and WHEREAS, City of Alameda staff and their consultant, Hilton, Farnkopf & Hobson, LLC, evaluation the request for rate increase applications in accordance the existing Franchise Agreement with Contractor; and WHEREAS, it has been found that the revenue generated by the various surcharges continues to be needed to cover expenses; and WHEREAS, the City Council finds that the solid waste, recyclable materials and organic materials collection will be consolidated into one integrated waste management fee; and 'f om WHEREAS, the City Council finds that the integrated waste management rates approved `,• y this resolution provide Contractor with a reasonable rate of return; and WHEREAS, Ordinance No. 2476, passed by the City Council on February 20, 1990, states that all subsequent rates for collection, processing and delivery to the City specified disposal site of integrated solid waste shall be set by Resolution of the City Council; and WHEREAS, Ordinance No. 2629, passed by the City Council on May 4, 1993, states that all subsequent changes to the method of collection surcharges shall be set by Resolution of the City Council: NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Alameda that the Council accepts and approves the increase in collection rates and hereby establishes the integrated waste management collection ceiling rates, for Rate Period 3 (July 2004 to June 30, 2005) as shown on the attached table entitled "Integrated Waste Collection Ceiling Rates and Fees (July 2004 to June 30, 2005)." BE IT FURTHER RESOLVED, that the integrated waste management collection rates for Rate Period 4 (July 1, 2005 to June 30, 2006) and Rate Period 5 (July 1, 2006 to June 30, 2007) shall be increased as provided in the Franchise Agreement, but shall not exceed more than 5% in each year, excepting the Contractor's ability to request an Interim Compensation Adjustment for an extraordinary or unanticipated event. Resolution #5 -j 7 -6 -04 INTEGRATED WASTE COLLECTION CEILING RATES AND FEES July 2004 to June 30, 2005 Services Types PROPOSED MONTHLY CEILING RATE Solid Waste 4.43 6.60 14.88 30.08 45.12 96 gallon 6.60 14.88 30.08 45.12 Recycling 4.23 4.23 4.23 4.23 4.23 4.23 4.23 4.23 4.23 Organics 3.60 3.60 3.60 3.60 3.60 3.60 3.60 3.60 3.60 Integrated Waste 12.26 14.43 22.71 37.91 52.95 14.43 22.71 37.91 52.95 32 gallon 64 gallon 4.43 6.60 14.88 30.08 45.12 4.23 4.23 4.23 4.23 4.23 3.60 3.60 3.60 3.60 3.60 12.26 14.43 22.71 37.91 52.95 $ 6.60 14.88 30.08 45.12 2.94 2.94 2.94 2.94 1.95 1.95 1.95 1.95 11.49 19.77 34.97 50.01 20 gallon 6.60 14.56 31.24 47.91 2.94 2.94 2.94 2.94 1.95 1.95 1.95 1.95 11.49 19.45 36.13 52.80 64 gallon 2.94 2.94 2.94 1.95 1.95 1.95 4.89 4.89 4.89 64 gallon 96 gallon see FEL rate see FEL rate see FEL rate 2.94 2.94 2.94 $ 1.95 1.95 1.95 4.89 4.89 4.89 Page 1 INTEGRATED WASTE COLLECTION CEILING RATES AND FEES July 2004 to June 30, 2005 SERVICE TYPE 1 Cubic Yard 1.5 Cubic Yard 2 Cubic Yard 3 Cubic Yard 4 Cubic Yard 5 Cubic Yard 6 Cubic Yard 7 Cubic Yard PROPOSED MONTHLY RATE (per unit) $ 86.00 86.00 86.00 86.00 86.00 86.00 $ 86.00 86.00 Push & Pull 1 Cubic Yard 2 Cubic Yard 3 Cubic Yard 4 Cubic Yard 5 Cubic Yard 6 Cubic Yard 7 Cubic Yard $ 42.50 42.50 $ 42.50 $ 42.50 $ 42.50 $ 42.50 42.50 86.00 $ 129.00 $ 172.00 $ 258.00 $ 344.00 $ 430.00 $ 516.00 $ 602.00 • 1% 2% 3% 4% • 5% $0.09/LF $0.06/LF $0.15/LF 42.50 85.00 $ 127.50 $ 170.00 $ 212.50 $ 255.00 $ 297.50 42.50 1% for each $ 42.50 $ 172.00 Page 2 INTEGRATED WASTE COLLECTION CEILING RATES AND FEES July 2004 to June 30, 2005 SERVICE TYPE PROPOSED MONTHLY RATE (per unit) Concrete (0.6T /CY) $ 34.56 37.05 51.29 51.29 Flasher Charge Relocation Charge Demurra a Char e $ 72.86 36.50 $ 110.50 23.26 SERVICES PROPOSED FEES Overage stickers (each) Additional On -Call Clean Up (Up to Cubic Yards) (Cost per event) Add] On -Call cos per CY over 2C ( er event $ 18.34 64.89 $ 3.30 4.36 80.00 40.00 Page 3 I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda CITY OF ALAMEDA MEMORANDUM To: The Honorable Mayor and Members of the City Council From: James M. Flint City Manager Date: June 23, 2004 Re: Public Hearing to Consider a Recommendation to Amend the FY 2004 -05 CDBG Action Plan, Adopt Resolution to Apply for Section 108 Loan and BEDI Funds to Facilitate the Downtown Parking Structure and Revitalization Project, and Authorize the City Manager to Execute Related Documents and Agreements Background Community Development Block Grant (CDBG) funds from the federal Department of Housing and Urban Development (HUD) finance programs and activities that benefit low - and moderate - income persons and help prevent or eliminate slums and blight. In addition to CDBG funds, HUD provides other funding mechanisms to assist communities to undertake very large projects needed for economic revitalization. It is proposed that the City apply to HUD for a Section 108 Loan and a Brownfields Economic Development Initiatives (BEDI) grant and amend the Action Plan to reflect these actions. The draft CDBG amendment has been available for public review since June 6 and the applications for the Section 108 Loan and BEDI grant since June 29, 2004. All citizen participation requirements have been met. Discussion /Analysis Attachments A and B, respectively the Project Summary and Sources and Uses of Funds, describe the proposed Downtown Parking Structure and Revitalization Project. The full Section 108 and BEDI applications are on file in the City Clerk's office. The proposed CDBG FY 2004/05 Action Plan Amendment #1 appears as Attachment C. No comments have been received. Dedicated to Excellence, Committed to Service Re: Public Hearing, Report and Resolution #5 -I 7 -6 -04 The Honorable Mayor and Members of the City Council June 23, 2004 Page 2 Section 108, the loan guarantee provision of the CDBG program, is one of the most potent public investment tools that HUD offers to local governments. It allows a community to transform a small portion of their CDBG funds into federally guaranteed loans large enough to pursue physical and economic revitalization projects that can renew an entire downtown. Such public investment is often needed to stimulate private economic activity, providing the initial resources or the catalyst that private firms and individuals may need to invest in emerging areas of the community. By leveraging CDBG entitlements, a city can quickly and effectively mount large -scale "impact" projects that enhance the well -being of the entire community. Section 108 loan commitments are usually paired with a competitive grant such as the BEDI, which are targeted for the redevelopment of brownfields sites in economic development projects and the increase of economic opportunities for low -and moderate - income persons as part of the creation or retention of businesses, jobs and increases in the local tax base. HUD has recently announced that the July 15, 2004 deadline is the last round of BEDI grants and, likely, the last opportunity for Section 108 loans. Therefore, it is critical that Alameda compete in this round of funding to preserve its opportunity to use these dollars as a project resource. The application proposes to secure an $800,000 BEDI grant and $7 million in Section 108 loan funds. Section 108 funds are guaranteed by the City's future CDBG Entitlement allocations and by collateral in the proposed project. If implemented, it is contemplated that the City would receive the grant and Section 108 loan and then enter into an agreement with the CIC to use the funds. The CIC would then identify alternative debt service repayment sources for the Section 108 Loan to replace CDBG as the first line of collateral to the loan. This additional $7.8 million dollars could allow the City to use a greater range of financial resources to facilitate development of the parking structure in the Downtown Park Street district and the possible re- opening of the Alameda Theater (presently being studied for potential feasibility). If the entire project is implemented, it is projected to create up to 335 jobs, which will be available to low- and moderate - income Alameda residents. Fiscal Impact There is no direct impact on the General Fund. It is contemplated that the City would receive the BEDI Grant and the Section 108 loan proceeds and then enter into an agreement with the CIC to use the funds. The CIC would identify alternative sources of repayment including parking funds, lease revenues and tax increment. The direct line of guarantee for these funds is the City CDBG allocation. This means that if the CIC failed to make loan payments, the CDBG funds would be used for repayments. These proposed actions regarding the use of HUD funds will provide the City with $7 million dollars in Section 108 Loan funds and, if awarded, $800,000 in BEDI grant funds. Dedicated to Excellence, Committed to Service F: G:CD: SECT108 \2004Loan \Council Report\AgendaDraft.doC F: P: Downtown Parking Structure and Revitalization 04 -05 \General 30.1(a) 30.1(1) The Honorable Mayor and Members of the City Council Recommendation June 23, 2004 Page 3 The City Manager recommends that the City Council receive citizens' comments in a public hearing and then, by motion, amend the FY 2004/05 CDBG Action Plan, and adopt a resolution to apply for Section 108 Loan and BEDI Funds to facilitate the Downtown Parking Structure and Revitalization Project, and authorize the City Manager to execute related documents and agreements. Leslie A. Little Development Services Director By: Gail Patton Community Development Programs Manager LAL /GP:mlf Attachments cc: Business Development Manager Dedicated to Excellence, Committed to Service F: G:CD: SECT108\2004Loan \Council Report\AgendaDraft.doC F: P: Downtown Parking Structure and Revitalization 04 -05 \General 30.1(a) 30.1(1) ATTACHMENT A Downtown Parking Structure and Revitalization Project Summary Alameda's emphasis on revitalization of its Downtown, a National Register Historic District, which includes the Alameda Theater as a contributing structure, is part of a strategy to diversify and strengthen the City's economic base. When the 1996 closure of the Alameda Naval Air Station (NAS) occurred and impacted the city with the loss of 10,962 military personnel, 3,228 civilian workers and 1,800 persons indirectly employed from base activities, the Alameda community was forced to face a need to diversify its economy and begin the long process to identify a new economic engine to drive its growth and future fiscal development. The NAS site is huge, with 2,682 acres or one - third of the entire acreage of the City of Alameda. The efforts to reuse the NAS are underway, but the impact of the closure is still being felt. Planning efforts of the City emphasize the enhancement of its Central Business/Historic District and in particular Park Street (the Downtown). The Alameda Theater sits one -half block off Park Street on Central Avenue. This huge 2,250 -seat, grand, Art Deco single screen theater opened in 1932, as the "last great movie palace to be built in the Bay Area," but the theater closed in 1970. The underutilized Alameda Theater is a distracting influence in the Historic downtown. Much of the effort to encourage the rehabilitation of other key buildings in the downtown (some of which is happening) is held back by its largest and most important structure as a symbol of disinvestment in the downtown and by lack of off - street parking. It is time for this key building to be brought back to its original grandeur and put into productive, catalytic use, including the new parking structure. The project is specifically identified as a very high priority in every City study, including the Economic Development Strategy Plan, the Downtown Vision Plan and in the City's Redevelopment Plan. It is viewed as a legacy project for Alameda's Downtown Core. The City also recognizes that for the theater to be successful, it must be a multiplex. Therefore the plans call for building three screens within the existing theater and seven (all stadium state -of -the -art) theaters adjacent to the existing building, with the entrance through the beautiful foyer. To accommodate the theaters and planned retail on the site, adjacent land must be purchased and a parking structure constructed for the theater as well as to meet the parking deficiencies and unmet parking demands for expanding business of the Downtown. The beauty of a downtown parking structure is that it gets shared use. The construction of the parking structure addresses several items. The parking allows the theater renovation and the addition of the multiplex theaters, as they could not receive occupancy permits without the additional parking. In addition, the approximately 15,000 square feet of vacant shop space located near the parking structure will be in high demand, providing the incentive for additional building renovation. On the site where the multiplex theaters and, the parking structure will be constructed there are 11 underground storage tanks dating back to the 1950s when there was a gas station on the site. None have been removed, so there is the high probability of contamination that must be cleaned up. There is no question that the overall site is a brownfield. The City of Alameda's Redevelopment Agency, the Community Improvement Commission (CIC), is in discussions with the owner of the Alameda Theater to purchase the land and building. The CIC has entered into an Exclusive Negotiating Agreement (ENA) with MovieTECS regarding the development. MovieTECS has a valid option to purchase the balance of the site where the multiplex theater, retail space adjacent to the existing theater and the parking structure will be constructed. Therefore, all the land that makes up the project is optioned or will be secured by the CIC. The CIC is investigating ways that the City could own the Alameda Theater property. It should be noted that, even though none of the activity is described in this application, the City is also in negotiations with the Longs Drug Stores, which owns an adjacent parcel, to build them a new store in a reconfigured manner that would increase the efficiency of the parking structure and make even better use of the overall site or relocate them to another site nearby. To the extent those discussions are finalized after this application is submitted, it will just enhance the jobs and the private and public investment in the project. The $7,000,000 in Section 108 funds will be used to construct the new parking structure that serves the theaters, new retail on site, and other vacant or under- utilized space in the downtown central business district that are within two blocks of the new parking structure. The $800,000 in BEDI grant funds will pay the interest on the Section 108 loan during the initial years. Jobs will be created by the total of 10 movie screens (45 jobs), the 6,000 square feet in the four retail areas within the existing theater that will be primarily restaurants (18 jobs), 30,000 square feet of new retail/restaurant space (90 jobs), currently vacant 24,500 square feet of retail space within a block of the site (72 jobs) and 14,500 square feet of vacant office space (58 jobs). Those 283 jobs equate to $27,562 cost per job for the $7,800,000 in Section 108 and BEDI funds G: \SECT108\2004Loan \CouncilReport \BEDI ProjectSummary.doc 0 en 0 0 0 CO O 0 r 0 0. 0 0 0 co sze C 0, 0 0) W N N W N.) N N -, N o -a. c0 0D �I o (T P -a W N-, _-u O O Oo ...4 o N P (4 N All Other Public and Private Funds BED' Leveraging Ratio To Section 108 to BEDI Leveraging Ratio 'TOTAL FUNDS Section 108 Interest Payments Park Street Streetscape New Library Parking Structure New Retail /Restaurant Construction New Multiplex Theater Construction Theater Rehabilitation Other Land Acquisition (Theater Acquisition COMPONENT Sources and Uses for Brownfields Economic Development Initiative (BEDI) and Section 108 Funds CITY OF ALAMEDA D W 0) CO 00 b9 CO 0 0 °o $ 800,000 BEDI 'PUBLIC FUNDS -Eil 0 0 0 0 0 0 $ 7,000,000 Section 108 C D 1 E -CO 00 o o 0 0 o kil 00 0 0 0 0 0 Tax Credits Market Net New $ 500,000 $ 500,000 Tax Credits Historic Net 0 o o 0 o 0 0 0 o b 0 0 co 0 c. Local LIBRARY m 1 U1 b o o O O O 01 b O O b 0 0 Grant State 0 CO N O O O $ 921,000 Funds MTC TLC = G: \Sect108\2004Loan\Application \Sources &Uses3 N N co N N N -• N O (O -I. CO -a �I -a O -a C 1 -1.- W -i. N-1 -1. -1. O O O v O Cn ? W N 10,300,000 1 $ 1,000,000 1 $ 3,000,000 1 $ 3,800,000 $ 2,500,000 1 Bond Proceeds m K fA 7 0 _ J $ 500,000 $ 500,000 Funds Other Redev $ 45,821,000 EA CO O O 0 $ 2,421,000 ffi{-A{flf,AEflb9(A N (T O O O O s 0 O O O O . . Cn -L O O. O N In O O O FUNDS PUBLIC TOTAL r CO O 0 0 0 $ 300,000 $ 500,000 $ 850,000 Equity Developer PRIVATE FUN K 01 N Cn O O O 0 2,250,000 W b O O b O O Debt Developer NDS Z $ 6,900,000 {fl fa) i <i 9 . {fl • {r) N In (T O O O O 40 co In O O O O O (. 9 i {fl co Cn O O. O O {fl FUNDS PRIVATE TOTAL 0 -u $ 52,721,000 {{3 co O O 0 0 0 $ 2,421,000 {fl N Cn 0 o O 0 0 0 ft) O o 0 O 0 0 0 $ 2,550,000 ffl co in 0 O b 0 0 $ 5,100,000 $ 850,000 fA N in 0 O b 0 0 TOTAL p ATTACHMENT C CDBG FY 2004/05 Action Plan Summary Activity & Description LOCATION/ ELIGIBILITY OUT- COMES* CDBG FUNDING Implementing Agency PUBLIC FACILITIES AND IMPROVEMENTS Non - Profit /Public Facility Revolving Loan Fund Community -wide 570.201(c) or 570.202 570.208(a)(2) 1 -2 facilities $8,137 Financial and technical assistance to non - profit organizations and public agencies providing CDBG- eligible activities to acquire, install and /or improve facilities, including disabled access retrofit City Development Services Department West End Neighborhood Improvements Install and /or Census Tract 4276 570.201(c) 570.208(a)(1) 1 project $84,345 construct public improvements for area bounded by Webster / Lincoln / Main / Appezzato City Development Services Department Public Facilities and Improvements Program 570.201(c) 570.208(a)(2) $190,667 Delivery** PUBLIC SERVICES Alameda Continuum of Community Emergency and 451 Stardust Place 570.201(e) 570.208(a)(2) 1,000 households $71,800 Social Services (A.C.C.E.S.S) Case management, referrals, and direct services including limited -term housing assistance for individuals and families at risk of homelessness Alameda Red Cross Alameda Kids Coach Partnership for networked Community -wide 570.201(e) 570.208(a)(2) 40 households $2,500 shuttle to transport children to /from child care, childhood development and after - school programs and facilitate parents' workforce participation City Development Services Department Child Care Vouchers Community -wide 570.201(e) 570.208(a)(2) 23 children $50,000 Limited -term vouchers for children of working parents BANANAS, Inc. Family Violence Prevention Services Community -wide 570.201(e) 570.208(a)(2) 125 individuals $15,000 Enhanced prevention and information, referrals, legal counseling for victims of family violence Family Violence Law Center Food Bank Rent, Insurance and Utilities 1900 Thau Way & AP Bldg 92 570.201(e) 570.208(a)(2) 1,200 households $22,000 Rent, insurance and utility costs for facilities that house emergency food programs. Alameda Emergency Food, Inc. Four Bridges 1912 Central Ave. 570.201(e) 570.208(a)(2) 55 individuals $25,767 Support group for mentally and emotionally disabled adults Bay Area Community Services Housing Counseling Community -wide 570.201(e) 570.208(a)(2) 390 households $15,500 Tenant/Landlord counseling, mediation, information and referral Sentinel Fair Housing Projected annual outcomes also reflect prior years' CDBG funding for some activities. " Program Delivery also supports activities funded with prior years' CDBG funds. ATTACH Activity & Description LOCATION/ ELIGIBILITY OUT- COMES* CDBG FUNDING Implementing Agency Midway Shelter Confidential location 570.201(e) 570.208(a)(2) 8,200 bed nights $46,200 Service- enriched, 24 -hour emergency homeless shelter for women and children Building Futures with Women and Children RAP Program Scholarships Subsidies for youth to Community -wide 570.201(e) 570.208(a)(2) 10 -12 youths $6,000 participate in RAP after - school program City Recreation & Parks Department Senior Services Expansion of information and referrals 1155 Santa Clara 570.201(e) 570.208(a)(2) 200 individuals $7,500 and service coordination through Mastick Senior Center City Recreation & Parks Department West Alameda Teen Club/Esperanza Afterschool 401 Pacific Ave. Third & Brush 570.201(e) 570.208(a)(2) 100 youths $22,000 Program Youth recreation and leadership development Alameda Boys & Girls Club Woodchip After - School Program Woodstock & Chipman Schools 570.201(e) 570.208(a)(2) 160 youths $15,000 Extended day academic, arts and recreation program for low - performing and at -risk students Alameda Unified School District Public Service Program Delivery ** 570.201(e) 570.208(a)(2) $15,000 REHABILITATION Rental Rehabilitation Community -wide 570.202 570.208(a)(3) 10 units $5,000 Financial and technical assistance for rehabilitation of renter - occupied units City Development Services Department Substantial Rehabilitation Financial and technical Community -wide 570.202 570.208(a)(3) 2 -4 units $238,833 assistance to restore and /or create affordable rental units in existing vacant or underutilized structures City Development Services Department Rehabilitation Program Delivery ** 570.202 570.208(a)(1) $271,680 SUPPORT OF HOME- FUNDED ACTIVITIES Down Payment Assistance Program Management Community -wide 570.201(k) 570.208(a)(3) 1 -2 households $10,000 Housing counseling and loan processing for HOME- funded homeownership assistance activities City Development Services Department Security Deposit Assistance Program Management Community — wide 570.201(k) 570.208(a)(3) 75 households $10,000 Housing counseling and loan processing for HOME- funded tenant -based rental assistance activities Alameda Housing Authority EGON ,C DEVELOPME Downtown Parkins' Structure Revitalization Central / OakI Sair Clara / Park 70 703 ! 570.203 570 208(a)(4) 223 Jn1 s Section 108 $7,000,000 ® Ti UrseofSection 108 Loanzand m o le E onomie Development Initiative (i z gra 1 unds to t nonce .� a� ,ate vi 53 R nf� � the development andconstruetin a king rehabilitation of Alameda Beater &cili>f te,the r Ah ab Ci Development Services Depaxliuent * Projected annual outcomes also reflect prior years' CDBG funding for some activities. ** Program Delivery also supports activities funded with prior years' CDBG funds. Activity & Description LOCATION/ ELIGIBILITY OUT- COMES* CDBG FUNDING Implementing Agency SMALL BUSINESS ASSISTANCE Small Business Revolving Loan Fund Community-wide 570.201(o) 570.208(a)(2) 1-3 businesses $3,877 Financial assistance for low- income entrepreneurs City Development Services Department Small Business Program Delivery ** 570.201(o) 570.208(a)(2) $28,662 TECHNICAL ASSISTANCE Demand - Response Transportation Community-wide 570.201(p) 570.208(a)(2) Resident workforce participation $10,000 Assist community -based organizations to develop and implement public transit options to /from west Alameda, including Alameda Point City Development Services Department West End Family Resources Coordination Census Tracts 4274/4275/4276 570.201(p) 570.208(a)(1) Enhanced service delivery $20,000 Build community organizations' capacity to coordinate existing CDBG - eligible services and conduct outreach to enhance delivery of youth and family services. City Development Services Department West End Neighborhood Capacity Building Census Tract 4276 570.201(p) 570.208(a)(1) Neighbor- hood revitalization $25,000 Technical assistance to build residents' and community organizations' capacity to provide CDBG - eligible neighborhood revitalization activities, possibly leading to community -based development organization. City of Development Services Department Technical Assistance Program Delivery ** 570.201(p) 570.208(a)(1) $21,883 PLANNING AND ADMINISTRATION Continuum of Care Coordinator to develop funding Community-wide 570.206 Enhanced Federal /State homeless resources $3,077 resources for homeless providers on behalf of City of Alameda and other participating jurisdictions Alameda County Housing and Community Development Fair Housing Services Participate in proactive landlord Community-wide 570.206 25 households, 25 landlords $12,500 outreach and education and housing discrimination testing and counseling Sentinel Fair Housing General Administration 570.206 $334,026 FUNDS FOR COST OVERRUNS Funds for Cost Overruns $156,100 TOTAL FY 2004/05 CDBG FUNDS SECT / BED GRAN >b 1OAL $ 1,748,014 $7,000,000 000 $9,548,014 G:\ CDBG\ CONSPLAN\ AnnPlans \2004\Amendments\APSummaryAm# 1.doc 06/22/2004 * Projected annual outcomes also reflect prior years' CDBG funding for some activities. µµ Program Delivery also supports activities funded with prior years' CDBG funds. ilPF)FUVUU �� CITY OF ALAMEDA RESOLUTION NO. AUTHORIZING SUBMISSION OF A SECTION 108 LOAN GUARANTEE APPLICATION TO THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WHEREAS, the City of Alameda has determined that a high priority exists for economic development and job creation activities and that the proposed Downtown Parking Structure and Revitalization meet these priorities; and WHEREAS, the proposed project is included in the City's adopted One Year Action Plan of the Consolidated Plan: and WHEREAS, the Section 108 Loan Guarantee program, implemented by the United States Department of Housing and Urban Development (HUD), is designed to provide funds to assist with these types of projects; and WHEREAS, under the Section 108 Loan Guarantee program, the City can borrow up to five years worth of its annual Community Development Block Grant allocation, and can take up to twenty years to repay the principal and interest; and WHEREAS, the City is requesting a total of up to $7,000,000 in Section 108 Loan Guarantee funds to assist with the implementation of the improvements and related economic development activities on the Downtown Parking Structure and Revitalization project site; and WHEREAS, the City is concurrently applying to HUD for Brownfields Economic Development Initiative (BEDI) grant funds in the amount of $.800,000 to also assist with the economics of the project and which said (BEDI) funds cannot be expended without an approved Section 108; and WHEREAS, the City Manager is authorized to submit the Section 108 Loan Guarantee and BEDI applications and amendments thereto and all understandings and assurances contained therein, and to act in connection with the application to provide such additional information as may be required. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALAMEDA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. In accordance with Section 108 of the Housing and Community Development Act of 1974, as amended, (the Act) and with 24 CFR 570.704(b) the City certifies that: Resolution #5 -I 7 -6 -04 (a) The City posses the legal authority to submit for assistance under 24 CFR Part 570, subpart M and to use the guaranteed loan funds in accordance with the requirements of Subpart M. (b) The City's governing body has duly adopted or passed as an official act a resolution, motion or similar action authorizing the person identified as the official representative of the public entity to submit the application and amendments thereto and all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of the public entity to act in connection with the application to provide such additional information as may be required. SECTION 2. Before submission of its application to HUD the City has: (a) Furnished citizens with information required by Section 570.704(a) (2)(i) of Title 1 of the Housing and Community Development Act of 1974, as amended; (b) Held at least one public hearing, on July 6, 2004, to obtain the views of citizens on community development and housing needs; (c) Prepared its application in accordance with Section 570.704(a)(1)(iv) and made the application available to the public. SECTION 3. The City has followed a detailed citizen participation plan that meets the requirements described in Section 570.704(a)(2). SECTION 4. The City will affirmatively further fair housing, and the guaranteed loan funds will be administered in compliance with: (a) Title VI of the Civil Rights Act of 1964 (Public Law 88 -352, 42 U.S.C. 2000d et seq.); and (b) The Fair Housing Act (42 U.S.C. 3601 -20). SECTION 5. In the aggregate, at least 70 percent of all CDBG funds, as defined in Section 570.303(e), to be expanded during the one, two, or three consecutive years specified by the City for its CDBG program on activities which benefit low /moderate income persons, as described in criteria in Section 570.208(a). SECTION 6. The City will comply with the requirements governing displacement, relocation, real property acquisition, and the replacement of low and moderate income housing described in Section 570.606. SECTION 7. The City will comply with the requirements of 570.200 (c)(2) (if applicable) with regard to the use of special assessments to cover the capital costs activities assisted with guaranteed loan funds. SECTION 8. The City will comply with other provisions of the Act and with other applicable laws. SECTION 9. The City has Certifies regarding debarment, suspension, and other responsibility as follows: (a) The prospective recipients of the Section 108 Loan Guarantee funds and all of their contractors will certify to the best of their knowledge and belief, that they: 1). Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; 2). Have not within a three year period preceding approval of their application, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 3). Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)2 of this certification; and 4). Have not within a three year period preceding approval of their application, had one or more public transactions (Federal, State or local) terminated for cause or default. SECTION 10. The City hereby assures and certifies with respect to its application for a loan guarantee pursuant to Section 108 of the Housing and Community Development Act of 1974, as amended, that it has made efforts to obtain financing for the activities described herein without the use of such guarantee, that it will maintain documentation of such efforts for the term of the loan guarantee, and that it cannot complete such financing consistent with the timely execution of the program plans without such guarantee. SECTION 11. The City hereby certifies to the best of its knowledge and belief, the following: (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any or cooperative agreement, and the extension, continuation, renewal amendment, or modification of any /Federal contract, grant, loan or cooperative agreement; (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or any employee of grant, loan or cooperative agreement, it will complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions; and (c) It will require that the language of paragraph (a) of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. SECTION 12. Continue to maintain a drug -free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug -free awareness program to inform employees about the following: 1). The dangers of drug abuse in the workplace; 2). The grantee's policy of maintaining a drug -free workplace; 3). Any available drug counseling, rehabilitation, and employee assistance programs; and 4). The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace. (c) Making it a requirement that each employee engaged in grant activity be given a copy of the statement required by paragraph (a). (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will: 1). Abide by the terms of the statement; and 2). Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction. (e) Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph (d)2 from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position and title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant. (f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)2, with respect to any employee who is so convicted: 1). Taking appropriate personnel action against such employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended, and any other applicable federal and state laws; and 2). In appropriate circumstances, require an employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purpose by a Federal, State or local health, law enforcement, or other appropriate agency. SECTION 13. This Resolution shall be effective immediately upon its adoption. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the City Council of the City of Alameda in a regular meeting of the City Council on the 6th day of July, 2004, by the following vote to wit: AYES: NOES: ABSENT: ABSTENTIONS: IN WITNESSM WHEREOF, I have hereunto set my hand and affixed the official seal of said City this _ day of July, 2004. Lara Weisiger, City Clerk City of Alameda CITY OF ALAMEDA MEMORANDUM Date: June 28, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Recommendation to Award Contract for Operation of Alameda/Oakland Ferry Service to Blue & Gold Fleet, Authorize the City Manager to Negotiate and Execute the Agreement for Alameda/Oakland Ferry Service, and Allocate $548,000 in Measure B Funds for Alameda/Oakland Ferry Service Operations. BACKGROUND On November 4, 2003, Council approved a Request for Proposals (RFP) to ferry operators interested in operating one or both of the City's ferry services. RFP submissions were due January 20, 2004. Blue and Gold Fleet (B &GF), the only company to respond to the RFP, submitted three proposals: one for combined service, one for Alameda/Oakland Ferry Service (AOFS) and one for Alameda Harbor Bay Ferry (AHBF) operation. Harbor Bay Maritime (HBM), the current AHBF operator, did not respond to the RFP, but submitted a side letter stating its willingness to continue to operate the AHBF on the same terms and condition as in the current HBM operating agreement. On April 6, 2004, Council accepted staff's recommendation to: a) not accept B &GF's proposal for combined service, b) accept B &GF's proposal for operation of AOFS and commence negotiations; and c) not accept B &GF's proposal for operation of AHBF Service and to begin open market negotiations with HBM and B &GF for AHBF Service. Staff has competed successful negotiations with B &GF on terms and conditions for the "Agreement for Alameda/Oakland Ferry Service" (Agreement). DISCUSSION /ANALYSIS The Agreement is a Cost Plus Fixed Fee contract wherein the operator receives a fixed management fee while operational costs are passed through to the City to be paid in advance on a monthly basis. Costs include fuel, labor, vessel maintenance, insurance and a fixed administration fee. While the City only pays actual operating costs, some costs are capped and cannot exceed a predetermined yearly amount. B &GF will continue to collect farebox revenue though farebox revenue will be used to offset operating costs. The Agreement is on file in the City Clerk's Office. Dedicated to Excellence, Committed to Service CrlyafAlffliwda tublicWorks Department PublicWds Workrf YW Report #5 -J 7 -6 -04 Honorable Mayor and Councilmembers Principal Agreement terms are: Page 2 June 28, 2004 Duration: The RFP specified an initial 11 -month term with up to four additional one -year extensions with service to begin on August 1, 2004. To accommodate the RFP process, Council, in November 2004, extended the then current B &GF contract through July 31, 2004. However, funds for July 2004 were not allocated at that time. To clarify the budget and funding sources for both the new 11 -month operating agreement and for the remaining month (July) of the current agreement, the City Manager recommends that Council award the 11 -month contract and approve funding for 11- months plus the month of July 2004. Operational cost for July 2004 would be at the old rates contained in the FY 2003/04 budget. The current B &GF operating contract would then terminate on July 31, 2004, as envisioned by Council in November 2003. Operator Fixed Fees: For the initial 11 -month term of the new agreement (August 2004 through June 2005), B &GF would receive fixed management and administration overhead fees of $180,000 compared to $165,924 for the same period FY 2003/04. In addition, there is a performance incentive based on customer satisfaction survey results and on time performance. The available 11 -month performance based incentive would be $70,000 compared to $63,677 for the same period the prior year. Total fixed fee and performance based incentives for the 11- month term would be $250,000 compared to $229,600 for the same period the prior year. Fuel Prices: Because the proposals were received in January, the Pro Forma budget assumes an average fuel price of $1.10 per gallon. Recently, diesel fuel prices have reached historic highs. Based on this development, B &GF asked the California Public Utilities Commission (CPUC) to authorize a fuel surcharge. The CPUC is expected to approve this request on June 9, 2004. Excluding operator fees, fuel costs constitute 16.5% of the AOFS operating budget. Staff expects to bring Council a recommendation concerning the fuel surcharge on July 20. Contingency: Staff has identified contingency funds of $375,255 for FY 2004/05. The $375,255 constitutes 17% of B &GF operating cost excluding operator fixed fees. The $375,255 consists of an operating contingency of $275,255 and a vessel maintenance reserve of $100,000. Contingency accounts are funded from FY 2004/05 Alameda Ferries Measure B revenue. Service: The Agreement does not include any changes in service levels or schedules. The Encinal and the Peralta will alternate as primary service vessels. Security: B &GF will be required to comply with all applicable rules and regulations of the Maritime Security Act 2002. B &GF's Vessel Security Plan will include the Encinal and the Peralta as well as any vessels owned by B &GF operating as part of the AOFS. The Vessel Security Plan shall include provisions for security procedures at the Main Street terminal when a boat is loading or unloading passengers in Alameda. Dedicated to Excellence, Committed to Service GlyofAlmede P�ubli(Works epartment Puna Work W for You! Honorable Mayor and Councilmembers Page 3 June 28, 2004 Farebox Recovery Ratio: Farebox recovery ratio (FRR) for FY 2004/05 is projected to be 60% compared to an estimated FRR of 53% for 2003/04. The increase is due to projected ridership increases and an anticipated reduction in maintenance costs. Insurance Requirements: The proposed agreement is a Cost Pus Fixed Fee contract wherein cost of insurance premiums is passed through to the City. The proposed Agreement includes increased coverage limits for the AOFS operations. B &GF has recently received insurance estimates for this increased coverage that are substantially above anticipated costs. Staff is working with the City Attorney's Office to determine reasonable insurance requirements given the risk involved and the rapidly increasing cost of coverage in today's insurance market. The City Manager recommends that Council authorize negotiation of insurance coverage requirements. BUDGET CONSIDERATION/FINANCIAL ANALYSIS The AOFS is budgeted under CIP 621.20. There is no impact to the General Fund associated with AOFS operations. Funding for the 12- months of 2004/05 AOFS operations is: 1) $837,183 in Metropolitan Transportation Commission Regional Measure 1; 2) $548,000 in Regional Measure B; and c) $83,325 from the Port of Oakland. An additional $1,700,000 is projected in farebox revenue. The Pro Forma budget is included as Attachment 1. RECOMMENDATION The City Manager recommends that Council award the contract for the operation of AOFS to B &GF, authorize the City Manager to negotiate and execute the Agreement for AOFS in substantial conformity with the Agreement on file, and allocate $548,000 in Measure B funds for AOFS Operations. MTN:ES:gc Respectfjally submitted, Matthew T. Naclerio Public Works Director euy By: Ernest Sanchez 61 ° Ferry Manager Attachment 1 cc: Measure B Watchdog Committee G:\ PUBWORKS\ PWADMIN \COUNCIL\2004 \070604\B &GF contract award.doc Dedicated to Excellence, Committed to Service (Oaralerneda �UblicWorks Vepariment Public Woo ;Wafer You! Attachment 1 - AOFS Pro Forma Budget FY 2004/05 Ca Operator Expenses City Expenses Vessel Expenses: 12 -month July '04 11 -month no Wages $1,112,416 $102,564 $1,009,852 no Maintenance: City Admin $150,000 Facility Security Officer 15,180 Pier 9 $200,000 $16,700 $183,300 Office supplies Outside contractors $200,000 $16,700 $183,300 no Fuel $362,725 $32,285 $330,440 no Insurance $165,499 $13,791 $151,708 no Rental of Carrier boats $20,000 $5,000 $15,000 yes Other $5,500 $500 $5,000 Total Vessel $2,066,140 $187,540 $1,878,600 Non Vessel Expenses: yes Contract services $3,000 $250 $2,750 yes Professional fees $11,000 $1,000 $10,000 yes Customer Service /printing $21,000 $1,750 $19,250 yes Taxes/ licenses $14,400 $1,200 $13,200 no Insurance (facilities) $0 $0 $0 yes Othe4 $79,200 $6,600 $72,600 Subtotal Non Vessel $128,600 $10,800 $117,800 Operator Fees: yes Admin & Accounting fees $44,129 $2,542 $41,587 yes Management $150,955 $12,542 $138,413 yes Performance Bases Fee $75,789 $5,789 $70,000 Subtotal fees $270,873 $20,873 $250,000 Sub Total /Operator expenses $2,465,613 $219,213 $2,246,400 City Expense $327,640 $27,303 $300,337 Total (Operator + City) $2,793,253 $246,516 $2,546,737 Total Reserve Accounts $375,255 $31,271 $343,984 Total AOFS Budget $3,168,508 $277,787 $2,890,720 REVENUE $3,168,508 Balance $0 City Expenses Docking fees: $50,000 Ferry Bldg. $36,000 SBC 800 MUNI 18,000 Marketing 90,000 City Admin $150,000 Facility Security Officer 15,180 Utilities $5,000 Audit $4,000 Office supplies $2,660 Printer 0 Surveys $6,000 TOTAL $327,640 Reserve Accounts Long term vessel Reserve: Encinal $50,000 Peralta $50,000 Operations Contingency(4) $275,255 Barge Reserve $0 Total $375,255 Honorable Mayor and Councilmembers City Ferry Services FY 2004/05 REVENUE /operating (12- month) Total AHBF AOFS Farebox $2,170,000 $470,000 $1,700,000 MTC RM1 -5% $1,287,183 $450,000 $837,183 Measure B '04/05 revenue $714,000 $166,000 $548,000 Measure B reserve ('03/04) $0 $0 $0 Port of Oakland $133,325 $0 $83,325 TIF $186,900 $186,900 $0 HBBPA $0 $0 $0 HBIA $0 $0 $0 Concessions $43,100 $43,100 $0 Charter $50,000 $50,000 $0 Total $4,584,508 $1,366,000 $3,168,508 Dedicated to Excellence, Committed to Service Page 5 June 28, 2004 AOFS Source REVENUE Farebox $1,700,000 MTC RM 1 -5% $837,183 Measure B '04/05 $548,000 Port of Oakland $83,325 Total $3,168,508 Gtyof Alameda EtibiiCWorks eparlment Public WM. fir lime! CITY OF ALAMEDA MEMORANDUM Date: June 15, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Recommendation to Award Contract for Operation of Harbor Bay Maritime Ferry Service, Authorize the City Manager to Execute the Sixth Amended and Restated Operating Agreement for the East End Ferry Service, and allocate $166,000 in Measure B funds and $186,900 in Transportation Improvement Funds for Alameda Harbor Bay Ferry Operations BACKGROUND On March 16, 2004, Council approved open market negotiations with both Blue & Gold Fleet (B &GF) and Harbor Bay Maritime (HBM) for Alameda Harbor Bay Ferry (AHBF) Services. Subsequently, staff met with both contractors to clarify the terms and conditions under which each would provide the required services. After these meetings, B &GF determined that it could not reduce its operating expenses to be more competitive with the HBM offer. Based on that determination, staff concluded successful negotiations with HBM on the terms and conditions for the Sixth Amended and Restated Operating Agreement for the East End Ferry Service (Agreement). DISCUSSION /ANALYSIS The proposed Agreement is a modified fixed subsidy contract under which HBM receives a fixed subsidy and use of two city owned boats while the City allocates but withholds funds for marketing, MUNI transfers, docking fees and long term vessel maintenance expenses. The City pays these expenses directly (MUNI, docking fees) or reimburses HBM for approved expenditures (marketing, long term vessel maintenance). The Agreement is on file in the City Clerk's Office. Principal Agreement terms are: Duration: The initial term of the new agreement is 11 months beginning on August 1, 2004. The Agreement also provides for up to four additional one -year extensions subject to City and HBM agreement on fares, insurance requirements, service levels and subsidy. In November 2003, Council extended the then current HBM contract through July 31, 2004. To clarify the budget and funding sources for both the new 11 -month contract and for the remaining month of July of the current agreement, the City Manager recommends that Council award the 11 -month contract and approve funding for the 11 months plus the month of July 2004. Coofalamda uublicWorks apartment Public Works Works-for-You! Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers Page 2 June 2, 2004 Expenses: Projected 12 -month FY 2004/05 operator expenses are $1,145,294. In addition, there are City expenses of $160,120 and a reserve /contingency allocation of $60,586. The $60,586 reserve /contingency allocation is 6% of the operating budget excluding operator fees and operator contingency. The reserve /contingency allocation consists of an operating contingency of $20,586 and a vessel maintenance reserve of $40,000. Contingency accounts are funded from FY 2004/05 Alameda Ferries Measure B revenue. Therefore, total AHBF operating expenses are projected to be $1,366,000 compared to $1,330,000 budgeted in 2003/04. The change is due to labor and insurance increases. Fuel: Because the proposals were received in January, the Pro Forma Budget assumes an average price of $1.29 per gallon for diesel fuel. Recently, diesel fuel prices have reached historic highs. Based on this development, the California Public Utilities Commission (CPUC) is expected, on June 9, 2004, to take action that would give Council the option of implementing a fuel surcharge. Staff expects to bring Council a recommendation concerning the fuel surcharge in July. Subsidy: The 12 -month AHFS budget is $1,366,000, of which $802,900 is public subsidy. The 2003/04 public subsidy was $766,900. The public subsidy consists of: Metropolitan Transportation Commission Regional Measure 1 bridge tolls ($450,000), Regional Measure B ($166,000) and Transportation Improvement Funds ($186,900). Marketing: A marketing budget of $38,000 has been included. Of this, $30,000 is for commute service promotion and $8,000 is for charter marketing. Service: The Agreement does not include any changes in service levels or schedules. Service will continue with seven roundtrips per weekday. There is no service weekday mid -days or on weekends. The Bay Breeze will be the primary vessel with the Express II as back up. Security: HBM is required to comply with all applicable rules and regulations of the Maritime Security Act 2002. HBM's Vessel Security Plan will include the Bay Breeze and shall include provisions for security procedures at the terminal when HBM is loading or unloading passengers in Alameda. Farebox Recovery Ratio (FRR): FRR for FY 2004/05 is projected to be 36% compared to an estimated FRR of 32% for 2003 /04. Ridership is estimated to be 120,000 compared to 116,673 for the 12- months ending December 31, 2003. Dedicated to Excellence, Committed to Service GtvofAmeda �I1bIICWo ks U?partment Punrc works iy „i f r v,,,! Honorable Mayor and Councilmembers BUDGET CONSIDERATION/FINANCIAL ANALYSIS Page 3 June 2, 2004 This project is funded under CIP 621.20. There is no impact to the General Fund associated with AHBF operations. Revenue for FY 2004/05 is: a) $450,000 in MTC Regional Measure 1; b) $166,000 in Regional Measure B; c) $186,900 in Transportation Improvement Funds (TIP); and d) $93,100 in concessions and charter revenue. Farebox revenue is estimated at $470,000. The AHBF Pro Forma Budget is included as Attachment RECOMMENDATION The City Manager recommends that Council award contract for operation of Harbor Bay Maritime Ferry Service, authorize the City Manager to execute the Sixth Amended and Restated Operating Agreement for the East End Ferry Service, and allocate $166,000 in Measure B funds and $186,900 in Transportation Improvement Funds for Alameda Harbor Bay Ferry Operations. MTN/ES :gc Attachment cc: Measure B. Watchdog Committee Resp - tfully submitted, Matthew T. Naclerio Public Works Director By: Ernest Sanchez Ferry Manager G:\ PUBWORKS\ PWADMIN\COUNCIL\2004 \061504\HBM contract award.doc Dedicated to Excellence, Committed to Service GtyofNameda PublicWorks apartment Public Works 11fAv for Yip! Attachment 1 Proforma Budget Operator Expenses FY '04/05: Vessel Expenses 12 -Month 11 -Month Contract July 2004 Fuel (134,000 gals) $172,900 $158,492 $14,408 Labor: Wages, P/R taxes, Health, Pension $420,002 $385,002 $35,000 Insurance (Vessels) $145,400 $133,283 $12,117 Vessel Maintenance: $109,880 $100,723 $9,157 Total Vessel Expenses $848,182 $777,500 $70,682 Non Vessel Expenses Back Up boat $0 $0 $0 SF Pier 44 rent $12,000 $11,000 $1,000 Misc: $111,112 $101,853 $9,259 Admin Salaries $118,000 $108,167 $9,833 Total Non Vessel Expenses $241,112 $221,019 $20,093 Operator Fees: O/H & Profit $120,000 $110,000 $10,000 Operator Contingency $26,000 $23,833 $2,167 Gross Operator expenses $1,235,294 $1,132,353 $102,941 Less Operator Off set $90,000 $82,500 $7,500 Net Operator expenses $1,145,294 $1,049,853 $95,441 City Expense $160,120 $146,777 $13,343 Total (Operator + City) $1,305,414 $1,196,630 $108,785 Total Reserve Accounts $60,586 Total AHBF Budget $1,366,000 REVENUE $1,366,000 Balance so Farebox Recovery Ratio 36.00% AHBF Source REVENUE Farebox $470,000 MTC RM1 -5% $450,000 Measure B '04/05 revenue $166,000 TIF $186,900 Concesions $43,100 Charter $50,000 Total $1,366,000 City Expenses (12- month): Docking fees: Ferry Bldg. 23,000 Harbor Bay 21,600 MUNI 18,000 Marketing (excl charter) 30,000 City Admin $55,300 Facility Security Officer $7,820 Audit $2,000 Office supplies $1,600 Surveys $800 Total $160,120 Reserve Accounts Long term boat Reserve: Express II $20,000 Bay Breeze $20,000 Operations contingency $20,586 Total $60,586 CITY OF ALAMEDA MEMORANDUM Date: June 23, 2004 To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Re: Recommendation to Authorize City Manager to Execute the Ferry Service Agreement Between City of Alameda and Port of Oakland BACKGROUND In March 1990, the City and the Port of Oakland (Parties) entered into an "Agreement between the City of Alameda and the Port of Oakland (Ferry Service)" (Original Agreement). The Original Agreement established the Alameda/Oakland Ferry Service (AOFS) and the operational, funding, and administrative mechanisms by which the AOFS continues today. The City was the lead agency and was responsible for contracting with a ferry operator for services. Both Parties approval was required for operator contracts, service level modifications, and fare increases. Both Parties were required to make annual subsidy contributions to the ferry service. The Original Agreement was last amended in 1994 and, although not formally amended since, each Party continued to provide operations contributions for the AOFS. The proposed "Ferry Service Agreement Between City of Alameda and Port of Oakland" (Agreement) replaces and supersedes the Original Agreement with a "services contract" whereby the Port pays the City a specified sum for a specified amount of ferry service. Both parties will consider approval of the Agreement on June 15, 2004. A copy of the Agreement is on file in the City Clerks office. DISCUSSION /ANALYSIS The Agreement requires the Port to pay the City a fee for ferry service. For FY 2004/05 the Agreement established a fee range with a minimum payment of $83,325 to a maximum of $133,325. This is down from the $148,139 budgeted by the Port in FY 2003/04. The Port will determine the actual amount when it resolves its $12 million budget shortfall. The AOFS Pro Forma budget has been developed assuming the minimum Port fee of $83,325. The $50,000 difference between the minimum and maximum Port payment was accommodated through a $50,00 reduction in the AOFS operations contingency. The City will contract with the AOFS operator to provide ferry service to the Port at the same levels as currently provided. The Port will no longer be required to approve operator contracts or fare changes. The Port must approve operator insurance requirements. The City will not be responsible for failure of the AOFS carrier to meet the published schedule except if the failure arises solely from the City's noncompliance with applicable law. Dedicated to Excellence, Committed to Service Gtyofalameda yybIicWorks Department Public Works Worlafr You! Honorable Mayor and Councilmembers Principal Agreement terms: Page 2 June 23, 2004 Duration: The Agreement is for one year, beginning on July 1, 2004. The Agreement can be extended by the mutual consent of the Parties. The City Manager is authorized to extend the Agreement for the City. The City's Options Under Unforeseen Budget Shortfall: The Agreement provides for a contingency in the case where unforeseen increases in costs and /or decreases in revenue could make it impossible for the City to continue to provide ferry service to the Port. Under such circumstances, the Parties would meet to resolve the funding shortfall by: a) either or both Parties providing additional funding or procuring alternative funding sources; or b) reducing service; or c) determining alternative means to continue the Alameda/Oakland Ferry Service or failing the above; d) the City could terminate the Agreement. Disposition of Jointly Acquired Boats: Over the last 14 years, the Parties jointly acquired three boats: the Bay Breeze (1994), the Encinal (1997) and the Peralta (2001). Failure to extend or termination of the Agreement would raise questions concerning the a) the disposition of the three boats and b) the terms and conditions under which ferry service from Oakland or Alameda could continue using one or more of the boats. Under the Agreement, negotiations resolving these issues would begin no later that July 15, 2004. Bay Breeze: In 1994, the Parties jointly acquired the Bay Breeze for AOFS service. In 1997, the Parties, acknowledging that the Bay Breeze was too small for the AOFS, purchased the Encinal. The City then assigned the Bay Breeze to the Alameda Harbor Bay Ferry Service. The Port has pointed out that: a) the Port made a financial investment in the Bay Breeze; b) the Port has not received any direct benefit from the Bay Breeze since December 1997; and c) the boat has been providing a benefit to the Citizens of Alameda. The Agreement calls for the parties to fairly and equitable address the concerns of the Port and the City relating to the use of this boat. Assignment: The City has the right, after reasonable notice and written consent of the Port, to assign the AOFS operating contract to a public transit agency. BUDGET CONSIDERATION /FINANCIAL ANALYSIS There is no impact to the General Fund associated with AOFS operations. Under the Agreement the Port would pay a fee of not less than $83,325 but not more than $133,325 for AOFS ferry service. The Port will determine the fee it will pay pending its resolution of its budget shortfall. Dedicated to Excellence, Committed to Service Crivoralamem tubIicWorks Department Public %Tics iw„lfrNr! Honorable Mayor and Councilmembers RECOMMENDATION Page 3 June 23, 2004 The City Manager recommends that Council Authorize the City Manager to Execute the Ferry Service Agreement Between City of Alameda and Port of Oakland. Respectf ly submitted, Matthew T. Naclerio Public Works Director MTN/ES :gc cc: Julie Braun, Port of Oakland By: Ernest Sanchez Ferry Manager G:\ PUBWORKS\ PWADMIN\COUNCIL\2004 \070604\Port-City Ferry Agree.doc Dedicated to Excellence, Committed to Service avaraw iwea tubIkWorks ?partment PublicWods Walks-for Yam! CITY OF ALAMEDA Memorandum To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Date: June 28, 2004 Subject: Supplemental Staff Report Regarding Environmental Review for the Resolution of Necessity to Acquire Property for Library Parking at 2320- 2322 Lincoln Avenue BACKGROUND On June 14, 2004, Mr. Chris Buckley, Chair of the Preservation Action Committee of the Alameda Architectural Preservation Society, submitted a letter regarding the Focused Environmental Impact Report on the New Alameda Free Library Project - Property Acquisition for Parking ( "Focused EIR "). On June 15, 2004, the City Council certified the Focused EIR but continued action on the Resolution of Necessity. The Resolution of Necessity is the first action undertaken using this environmental document. Because this letter contained comments applicable to the Resolution of Necessity, a written response has been provided. DISCUSSION Mr. Buckley questions the following issues in his June 14, 2004 letter: 1. Destruction of a historical resource; 2. Consistency with the Downtown Vision Plan; 3. Consistency with the General Plan; 4. Removal of an existing business; 5. Cost implications; 6. State approval of a change to the parking arrangement; 7. Justifications for a surface lot; and 8. Alternatives analysis. As previously stated, the Focused EIR concludes that removal of the buildings at 2320 and 2322 Lincoln Avenue would constitute a significant and unavoidable impact and a significant and unavoidable cumulative impact. This finding was based on the evaluation conducted by Architectural Resources Group on behalf of the City, and information presented to the City by the Alameda Architectural Preservation Society. The Focused EIR also concludes the Main Library and associated parking is consistent with the City's Re: Resolution #5 -K Dedicated to Excellence, Committed to Service 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 28, 2004 General Plan. The Focused EIR further concludes the surface parking lot will be less expensive than the construction of a parking garage and provides justifications for the surface parking lot based on the May 20, 2004 letter from Scott Lewis, Oppenheim Lewis Inc., included in the Final Focused EIR. The project is also consistent with the Downtown Vision Plan actions to: • Manage parking availability Downtown • Keep the Main Library Downtown The property is not on Park Street nor is it located within the National Register - designated Park Street Historic District. A parking garage is no more pedestrian - friendly than a surface parking lot, given that the amount of parking provided is equivalent. In fact, a landscaped surface parking lot is more aesthetically pleasing to a pedestrian walking by than a parking garage. Mr. Buckley acknowledges in his letter that the handicapped spaces would be more accessible with the provision of a surface lot. Mr. Buckley disagrees to the extent that there are potential light and air impacts; he provides no evidence that there will not be shadowing of the courtyard. Further, his assertions regarding dimensions are incorrect as they were scaled from the proposed parking structure plan view and do not account for the east - facing sidewalk along the building. As Mr. Buckley acknowledges, the property owner would be compensated for the property. The amount, as well as whether or not the business relocates, are subject to negotiations between the City and the property owner and are not germane to the environmental review or project approvals. The State approval of a change to the City's application is also beyond the scope of this project; however, the State Office of Library Construction has been clear that any modification must be equivalent or better than the application that they have approved. Staff interprets this directive to mean that 66- spaces must be provided on -site and that a diminution of the number of on -site spaces would not be acceptable. Lastly, Mr. Buckley's letter clarifies the May 14, 2004 letter submitted on the Draft Focused EIR in which he requested analysis of four additional off -site locations for parking. The response to this letter within the Final Focused EIR contained a parking analysis of providing the 66- spaces of parking at each of the four additional locations. Mr. Buckley has stated that the analysis should only have been for the 17 -19 spaces that would be afforded by the demolition of 2320 and 2322 Lincoln Avenue. It should be noted that any off -site alternative, such as City Hall parking lot, the Elks parking lot or the service station would not meet the State directive nor the project objectives of providing a 66 -space on -site parking lot for the library. The alternative proposed for the Times Star site could be considered part of the library site if Times Way were abandoned; however, this location would continue to require the construction of a parking deck. As stated on Page 3 -26 of the Final Focused EIR, based upon the study completed by International Parking Design, "...the site would not be feasible for structured parking." At this time, the City has no plans to abandon Times Way as it provides rear access to a number of structures along Park Street and Santa Clara Avenue. Additionally, a parking deck would also still be required for the City Hall parking lot in Honorable Mayor and Councilmembers Page 3 June 28, 2004 order to continue to provide necessary parking for the public as well as City and Police vehicles. All of these alternative locations would significantly slow down the completion and construction of the library. Except for the City Hall parking lot, negotiations and a new planning process would need to be instituted, including a Phase 1 and possibly Phase 2 environmental reports, particularly for the former gas station site (presently a smog check station) where hazards are likely to be present. RECOMMENDATION The City Manager continues to recommend that the City Council adopt the Resolution of Necessity to acquire property for Library parking at 2320 -2322 Lincoln Avenue. Respectfully submitted, Susan Hardie Library Director cc: Assistant City Manager Deputy City Attorney, Julie Harryman Library Project Manager, Bob Haun G:\PLANNING \CC\REPORTS\2004\m -July 06\Supplemental - RON.doc CITY OF ALAMEDA Memorandum To: Honorable Mayor and Councilmembers From: James M. Flint City Manager Date: June 3, 2004 Subject: Resolution of Necessity to Acquire Property for Library Parking at 2320 -2322 Lincoln Avenue BACKGROUND The City Council is asked to authorize the acquisition by eminent domain of the property at 2320 -2322 Lincoln Avenue, Alameda, for public library and public parking purposes. The property is intended to be used as part of the public parking lot for the Main Library project. The resolution includes findings that: (a) the public interest and necessity require the proposed project; (b) the proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; (c) that the property generally known as 2320 — 2322 Lincoln Avenue is necessary for the proposed project; (d) that the offer required by Government Code section 7267.2, together with the required disclosures, were made to the owners of record in accordance with law; (e) that all conditions and statutory requirements necessary to exercise the power of eminent domain to acquire the property have been complied with by the City of Alameda, including, but not limited to, relocation assistance requirements; (f) that the City of Alameda has fully complied with the California Environmental Quality Act, Public Resources Code section 21000 et seq. in regard to the proposed acquisition of the property, and has prepared an environmental impact report and will take all steps necessary under the California Environmental Quality Act necessary to adopt the resolution; (f) in addition to meeting all other requirements for the acquisition of this property for public use, the property is necessary to carry out and make effective the principal public purposes of the Main Library, and will protect and preserve the attractiveness, safety and usefulness of the Main Library project; and (g) that the City has authority under California law to acquire the property by eminent domain. The resolution also authorizes the City Attorney and Special Counsel to commence an action in Re: Resolution # 5 -K Re: solutipif #5 -I 7 -6 -04 6 -1 04 Honorable Mayor and Councilmembers Page 2 June 1, 2004 condemnation to acquire the property and to obtain an order of possession of the property in accordance with the Eminent Domain Law. The anticipated date of possession (the date the City would take possession of the property) would be approximately 90 to 120 days after the Eminent Domain action is filed. The resolution is effective only if it is adopted by an affirmative vote of two- thirds or more of the Council members. This means that approval requires a minimum of 4 affirmative votes. The issues of compensation for the property owners, relocation, and the exact timing of the City's taking of possession are not issues for the City Council at this time. The City is continuing to negotiate with the property owners on those topics, and has retained the services of a qualified relocation expert to assist with those efforts. If compensation is not resolved by negotiations, the Superior Court ultimately would be asked to determine the fair market value for the claims of the property owners. DISCUSSION The construction of the new Main Library has been a City priority for many years. In December 2002, the City was awarded a $15.5 million grant from the California Reading Improvement and Public Library Construction and Renovation Bond Act of 2000 for the construction of the Main Library. Those funds, together with a portion of the $10.6 million Measure 0 Bond approved by the voters of Alameda, will be used to construct the new library and the parking for the library. The library is to be constructed at the comer of Lincoln Ave. and Oak St., the former site of the Linoaks Motel. The City purchased the Linoaks several years ago for the Library project. Construction is to begin in Summer 2004. The Library project is required to include at least 66 parking spaces on the site, both under the 1990 Environmental Impact Report on the project and under the 2002 Addendum to the Final EIR. Nearby parking and street parking do not satisfy this mandatory requirement for on -site parking. The Main Library building will contain 47,470 square feet on two floors. The building footprint is approximately 24,340 square feet. The Linoaks site is approximately 40,186 square feet, which is inadequate to support the building footprint and the required parking spaces without building a costly and less efficient parking garage. The site is so small that the parking garage becomes awkward and difficult to use; one floor of the structure would be accessed only from Lincoln Avenue, the other floor only from Times Way. Traffic flow into and out of the structure, and use by persons with disabilities would be inconvenient and likely would discourage many persons from using the on -site parking. The parking structure presents visual and aesthetic problems as well; it would be unsightly, it would lack City - required landscaping, and would detract from the appearance, aesthetics, and enjoyment of the Main Library itself. City staff and the Library Building Team have carefully considered the options for the project, Dedicated to Excellence, Committed to Service Honorable Mayor and Page 3 Councilmembers June 1, 2004 and have agreed that the appearance and utility of the parking would be greatly improved if additional property could be acquired so that an at -grade (flat) parking lot could be constructed. A flat parking lot also would be more compatible with the Main Library building, and would remain in character with the surrounding properties and uses. The only property that is physically suitable for this use is the adjacent property at 2320 - 2322 Lincoln Avenue. That property is approximately 4,281 square feet, and adding it to the Main Library site would allow the City to meet its parking requirements in the most effective and efficient manner, and would assist in carrying out and making effective the Main Library project. It would protect and preserve the attractiveness, safety, and usefulness of the Main Library project by improving the traffic flow, improving the pedestrian access from the parking areas, and improving the attractiveness of the Main Library building. The property is currently being used for a take -out restaurant. It also includes a vacant residential structure that does not meet basic code requirements for occupancy and is in a deteriorated physical state. In August 2003, the City obtained an appraisal for the property. On September 30, 2003, the City made the required offer of just compensation for the full appraisal value, including equipment and fixtures. The offer met all legal conditions for such offers, and advised the property owners of their rights under the Eminent Domain Law, including rights of relocation assistance and goodwill. The property owners were given a full thirty days to respond to the offer. The offer was neither accepted nor rejected by the property owners. Over the past several months, the City has provided relocation information and has identified potential sites for relocation, and advised the owners and their representatives of such information. The City has offered to provide full relocation benefits as provided by law and regulation. These relocation efforts by the City have met or exceeded every applicable standard. Attached to the proposed Resolution of Necessity are maps showing the Main Library project and the location of the property proposed for acquisition. BUDGET CONSIDERATION/FINANCIAL IMPACT Constructing a flat lot rather than a parking structure would require the State Library to approve the change. It would be necessary for the City to provide the same number of spaces (66) on a flat lot as are proposed for the parking structure so that the project does not lost onsite parking spaces. The cost analysis by the Project Manager showed that the construction of the flat lot is anticipated to be less costly than building the structures. There should be no General Fund impact. Funds for this property, like other project expenses, would be taken from the Library Construction Fund. Contingency funds are available to acquire the property, as well as to provide for other contingencies not associated with the acquisition of the property. ENVIRONMENTAL REVIEW The vacant residence on the property is on the City's Historic Study List. The City commissioned a report by architectural historian Naomi Miroglio of Architectural Resources Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers Page 4 June 1, 2004 Group to evaluate historic significance of the structures on the property. The report submitted by Ms. Miroglio found that "the structures appear to be potentially eligible on a local level for inclusion on the California Register of Historical Resources." Because of the potential historic significance of the buildings, in March 2004, the City retained the consulting firm of Lamphier- Gregory to prepare a Draft Focused Environmental Impact Report (EIR). The EIR acknowledged the potential historic significance of the buildings, proposed mitigations for the proposed demolition, assessed altematives and ultimately found that impact from the demolition of the structures would be a significant and unavoidable impact. The public comment period on this EIR closed on May 14, 2004. Six comment letters were received and the comments were addressed in the Final Environmental Impact Report (FEIR). At the City Council meeting on June 15, 2004, the City Council will consider certifying the FEIR and adopting a Statement of Overriding Considerations regarding the demolition of the historic structures. The information provided to the City Council in regard to the CEQA issues is not repeated here, but is incorporated by reference into this Staff report for the proposed Resolution of Necessity. RECOMMENDATION The City Manager recommends that the City Council adopt the Resolution of Necessity to acquire property for Library parking at 2320 -2322 Lincoln Avenue. Respectfully submitted, Susan Hardie Library Director cc: Deputy City Attorney, Harryman Supervising Planning, Altschuler Dedicated to Excellence, Committed to Service Vivian MORAN - Gim's Chinese Restaurant From: Vivian MORAN To: City Council Date: 7/1/2004 1:32:55 PM Subject: Gim's Chinese Restaurant Pa • e Robert Santos phoned today re Gim's Chinese Kitchen. He wants that restaurant to stay where it is. Mr. Santos is handicapped. Gim's delivers food to his home three times each week, has done so for many years, and he depends upon them for healthy meals. He understands that, for what the City is offering Gim's, they will not be able to relocate. Please see that Gim's remains where it is. Re: Agenda Item # 5 -K 7 -6 -04 E: L 0 I 0 0 0- 0. Q CITY OF ALAMEDA RESOLUTION NO. RESOLUTION OF NECESSITY TO ACQUIRE PROPERTY BY EMINENT DOMAIN FOR PUBLIC USE (LIBRARY AND PUBLIC PARKING); AUTHORIZING COMMENCEMENT OF LITIGATION TO ACQUIRE PROPERTY AND FOR ORDER OF POSSESSION; FINDING AND DETERMINING THAT ALL REQUIREMENTS HAVE BEEN MET FOR CONSIDERATION OF ADOPTION OF RESOLUTION; CODE OF CIVIL PROCEDURE SECTION 1245.235 et seq.; ADOPTING FINDINGS AND A STATEMENT OF OVERRIDING CONSIDERATIONS, MITIGATION MEASURES, AND A MITIGATION MONITORING PROGRAM (2320 — 2322 LINCOLN AVENUE, ALAMEDA) The City Council of the City of Alameda, by vote of two- thirds or more of its members, FINDS, DETERMINES, DECLARES, AND RESOLVES the following: ,� 1. The City intends to construct a new Main Library, a public use, and in >._ connection therewith, acquire interests in certain real property for use in the public library project, including public parking uses. The parking uses will carry out and make e: effective the principal purposes of the Main Library and will also provide public benefits ...le in and of themselves by providing on -site parking for the public. The Main Library is a t‹ public use that will provide improved library services to the general public. ,>- 2. The City of Alameda is authorized to acquire the property described in ,+ --a Appendix A herein and exercise the power of eminent domain for the public use set N� forth herein in accordance with the California Constitution and the California Eminent \► Domain Law, Code of Civil Procedure section 1230.010 et seq. and pursuant to the California Government Code, including sections 37350.5 and 54031. 3. The property to be acquired is generally located at 2320 - 2322 Lincoln, Alameda. The property to be acquired is more particularly described in Appendix A, attached hereto and incorporated herein by this reference. Maps depicting the location of the public project and the location of the property are attached as Appendix B and incorporated herein by this reference. 4. On or before May 27, 2004, the City mailed a Notice of Hearing on the intent of the City Council to adopt a resolution of necessity for acquisition by eminent domain of the property described in this Resolution. The notice was provided to the owners of record of the subject property, along with all persons whose names appear on the last equalized County Assessment Roll as having an interest in the property described in Appendix A, and to the address appearing on said Roll. The Notice of Hearing advised such persons of their right to be heard on the matters referred to therein on the date and time and place stated therein. Resolution #5 -K 7 -6 -04 5. The hearing described in the Notice of Hearing was held on July 6, 2004 at the time and place stated therein, and all interested parties were given the opportunity to be heard and to present information and testimony. The hearing was closed, and the matter fully considered by the City Council in public session. Based upon the evidence presented, the City Council by vote of two- thirds or more of its members, further FINDS, DETERMINES, DECLARES, AND RESOLVES each of the following: A. The public interest and necessity require the proposed project; B. The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; C. The property described in the Resolution (and generally known as 2320 — 2322 Lincoln Avenue, Alameda, California) is necessary for the proposed project; D. The offer required by Government Code section 7267.2, together with the accompanying statement of and summary of the basis for the amount established as just compensation, was made to the owners of record, and the offer and accompanying statement and summary were in a form and contained all of the factual disclosures required by Government Code section 7267.2; E. All conditions and statutory requirements necessary to exercise the power of eminent domain to acquire the property have been complied with by the City of Alameda, including but not limited to relocation assistance requirements; F. The City of Alameda has fully complied with the California Environmental Quality Act, Public Resources Code section 21000 et seq., in regard to the proposed acquisition of the property; has prepared and certified the Final Focused Environmental Impact Report ( "Final Focused EIR ") for the New Alameda Free Library Project Property Acquisition for Parking (the `Project "), State Clearinghouse No. 2004 - 022 -105; and has take all steps necessary under the California Environmental Quality Act necessary to authorize the resolution; G. In addition to meeting all other requirements for the acquisition of this property for public use, the property is necessary to carry out and make effective the public purpose of the Main Library, and will protect and preserve the attractiveness, safety, and usefulness of the Main Library project; H. The City of Alameda has authority under California law to acquire the property by eminent domain; I. The City of Alameda, having independently considered the environmental effects of the project as shown in the certified Final Focused EIR: a. Adopts the Findings and Statement of Overriding Considerations, attached hereto as Exhibit "C," for the Project; b. Adopts and incorporates into the Project all of the mitigation measures that are identified in the Findings; and c. Adopts the Mitigation Monitoring Program, attached hereto as Exhibit "D." J. The City Attorney and Special Counsel are authorized and directed to acquire in the name of the City of Alameda the property described in this Resolution in accordance with the provisions of the California Eminent Domain Law, to commence an action in Eminent Domain, to deposit the probable amount of compensation, to apply to the Superior Court for an order permitting the City to take immediate possession of the property for public use, and to take all steps to acquire the property under the law. Order No. ' 804 -13337 Guarantee No. 2226 -13430 EXHIBIT "A" LEGAL DESCRIPTION A PORTION OP BLOCK 48, MAP OF LANDS ADJACENT TO THE TOWN OF ENCINAL, FILED MAY 28, 1867, MAP BOOK 19, PAGE 53, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHERN LINE OF LINCOLN. (FORMERLY RAILROAD) ' . AVENUE AS,SAID AVENUE IS SHOWN ON•THB MAP, DISTANT THEREON 150 FEET WESTERLY PROM THE WESTERN LINE OF PARK STREET, AS SAID PARK STREET NOW EXISTS: THENCE WESTERLY ALONG SAID LINE OF LINCOLN AVENUE $5 FEET; THENCE AT RIGHT ANGLES SOUTHERLY 90 FEET, 11 INCHES; THENCE AT RIGHT ANGLES EASTERLY 55 PEET; THENCE AT RIGHT ANGLES NORTHERLY 90 FEET, 11 INCHES TO THE POINT OF BEGINNING, EXCEPTNG THEREFROM THAT PORTION THEREOF CONVEYED TO CITY OF ALAMEDA BY DEED FROM • 'THERESA VOGT, RECORDED FEBRUARY 15,1912; LIBER 2054 OF DEEDS; PAGE 43; ALAMEDA COUNTS( RECORDS, FOR WIDENING LINCOLN AVENUE. APN: 071- 0202 -005 ) Pacific Ave. Service Station Lincoln Ave. • Alameda Police Dept. Alameda • City Hall 417 0 Santa Clara Ave. tiegionarLo cation Piolect Localic 2320 and 2322 Uncoln Avenue • . • • LIBRARY PROJECT SITE Servke. Station Office Building Times Way • • 71.7.121.11101 1101.711• • 75 3 50 Exhibit B Oage 1 of 2) . ,I.••■••••••••■• 1 .Tor cow Tow/? of'Encinc/oneMeLandose p%x�•vv� . (Sarveyoo'6y HoraceAyj /y , 6a?r ye7, epYiesa6eeitlfskei o r6 /oofr48 or//9 /fao y /naaV oining %ew/, 01159c/ria / rak 3 409• So%s /4 -d019" PVrs 220 IMPORTANT: Nagai* note e k mereiY furnished se owe* is knee ths land In relation to o gbiln_a Oita and oaf disiarei;, • ' g . Linco /.n 219 1L '118 .1 4.5 onfVC /orf? 11 10 203 i44 14 II fi 1441$ • �9'r�nvo III 0.0 • :p• Exhibit B (Page 2 of 2) i as /,/PN EXHIBIT "C" FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS FOR THE NEW ALAMEDA FREE LIBRARY PROJECT PROPERTY ACQUISITION FOR PARKING I. ENVIRONMENTAL REVIEW PROCESS A. CERTIFICATION OF FINAL EIR Pursuant to Public Resources Code section 21082.1 and California Code of Regulations, title 14, section 15090, on June 15, 2004, the City Council of the City of Alameda ( "City Council ") certified that the Final Focused Environmental Impact Report (May 2004) (State Clearinghouse No. 2004- 022 -105) ( "Final Focused EIR" or "EIR ") for the New Alameda Free Library Project - Property Acquisition for Parking (`Project') was completed in compliance with the California Environmental Quality Act ( "CEQA'), Public Resources Code section 21000 et seq. The City Council further certified that the Final Focused EIR was presented to the City Council and the City Council reviewed and considered the information contained in the Final Focused EIR, and that the Final Focused EIR reflects the independent judgment of the City of Alameda ( "City"). B. DESCRIPTION OF THE PROJECT The Project analyzed in the Final Focused EIR consists of the acquisition of approximately .083 acres of property at 2320 and 2322 Lincoln Avenue, the demolition of two structures and associated improvements, and the construction of a landscaped surface parking lot to serve the New Alameda Free Library Project ("Library Project'). The City approved the Library Project on February 11, 1991, following certification of the Final EIR for the New Alameda Free Library (December 1990) (State Clearinghouse No. 90030601) ( "Library Project EIR "). The Library Project as originally approved included a two -level parking structure with one level of below -grade parking. In an April 2002 Addendum/Initial Study to the Library Project EIR, the City evaluated a one -story parking structure. The Project analyzed in the Final Focused EIR would be constructed in lieu of a parking structure. The new surface parking lot would have 66 parking spaces (17 spaces on the 2320 and 2322 Lincoln Avenue properties, and 49 spaces on the adjacent Library Project site), landscaping and overhead lighting. C. PREPARATION OF THE EIR On February 17, 2004, the City issued a Notice of Preparation ( "NOP ") indicating that a Focused EIR would be prepared pursuant to CEQA. The NOP was circulated for public comment for 30 days, from February 17, 2004 to March 19, 2004. The City received two comment letters during that period. A Draft Focused EIR was published in March 2004, and made available to government agencies, interested individuals and organizations, and members of the public. The 45-day period for public comment on the Draft Focused EIR 1 began on March 30, 2004 and ended on May 14, 2004. Seven comment letters were received during that period. The Final Focused EIR was made available to the public on May 28, 2004. The Final Focused EIR includes, among other components, the Draft Focused EIR, supplemental materials that amplify and clarify the analyses in the Draft Focused EIR, the City's responses to comments, and the Findings set forth herein. The analysis and conclusions contained in the Final Focused EIR reflect the independent judgment of the City. The Final Focused EIR was certified by the City Council on June 15, 2004. The City hereby finds that it has considered the environmental effects of the Project as shown in the Final Focused EIR. II. SIGNIFICANT AND UNAVOIDABLE ADVERSE IMPACTS AND DISPOSITION OF RELATED MITIGATION MEASURES The Final Focused EIR identifies the following significant and unavoidable adverse impacts associated with the approval of the Project and identifies related mitigation measures. It is hereby determined that each of the following significant and unavoidable adverse impacts is deemed acceptable for the reasons specified below in the Statement of Overriding Considerations (Part VI, below). The impacts and mitigation measures identified below are presented in summary form. For a detailed description of these impacts and mitigation measures, please see the appropriate text in the Draft Focused EIR, as amended by the Final Focused EIR. A. Removal of Buildings at 2320 and 2322 Lincoln Avenue As more fully described on pages 4-10 to 4 -11 of the Draft Focused EIR, the Project will involve removal, either by demolition or relocation, of two buildings that appear to be locally eligible for inclusion in the California Register of Historical Resources. The buildings are described in detail on pages 4-2 to 4 -10 of the Draft Focused EIR. Mitigation Measure 4 -la (building documentation and memorialization), which is hereby adopted and incorporated into the Project, will not reduce the impact of demolition of the structures. Mitigation Measure 4 -lb (sale of buildings and relocation), which is hereby adopted and incorporated into the Project, may save the buildings from demolition, but they would lose their context as examples of early railroad development, and there is no guarantee that a buyer could be found or that relocation would be successful because of the state of deterioration and instability of the structure at 2320 Lincoln Avenue. Therefore, impacts to the buildings at 2320 and 2322 Lincoln Avenue would be considered significant and unavoidable. B. Cumulative Demolition As more fully described on pages 4 -12 to 4-13 of the Draft Focused EIR, demolition of the buildings at 2320 and 2322 Lincoln Avenue will result in demolition of the last vestiges of Alameda's "China Town" and railroad era development along this portion of Lincoln Avenue. Mitigation Measure 4 -3 (building relocation), which is hereby adopted and 2 incorporated into the Project, will not preserve the buildings in their original 'setting. Therefore, cumulative impacts to the existing collection of Pioneer buildings in Alameda would be considered significant and unavoidable. III. SIGNIFICANT IMPACTS IDENTIFIED IN THE EIR AND MITIGATION MEASURES INCORPORATED INTO THE PROJECT The Final Focused EIR identifies the following significant impacts associated with the Project. These impacts are reduced to a "less- than - significant" (or "not significant') level by mitigation measures identified in the EIR and incorporated into the Project. It is hereby determined that the significant environmental impacts which these mitigation measures address will be mitigated to a less- than - significant level or avoided by incorporation of the mitigation measures into the Project. To the extent these mitigation measures will not mitigate or avoid all significant effects on the environment, it is hereby determined that any remaining significant and adverse impacts are acceptable for the reasons specified in Part VI, below. The impacts and mitigation measures identified below are presented in swmnary form. For a detailed description of these impacts and mitigation measures, please see the appropriate text in the Draft Focused EIR, as amended by the Final Focused EIR. A. Archeological Artifacts As more fully described on page 4-12 of the Draft Focused E1R, prehistoric, historic or cultural artifacts may be discovered on the Project site during demolition. Mitigation Measure 4 -2 (evaluation of any artifacts found during site preparation, grading, excavation construction or other development activities by a qualified . archeologist and treatment of human remains in accordance with Health and Safety Code section 70505 and Public Resources Code section 5097.98), which is hereby adopted and incorporated into the Project, will reduce the impact to a less-than-significant level by treating any artifacts or remains discovered in the manner required pursuant to Public Resources Code section 21083.2 and California Code of Regulations, title 14, section 15064.5. B. Soil and Groundwater Contamination As more fully described on page 5 -3 of the Draft Focused EIR, activities associated with demolition of the buildings at 2320 and 2322 Lincoln Avenue, as well as excavation and grading of the Project site, may result in exposure of construction workers or the surrounding community to hazardous materials currently present in the soil. Mitigation Measure 5 -1 (conduct a Phase 2 Study, remove /remediate contamination as required, and implement worker health and safety measures), which is hereby adopted and incorporated into the Project, will reduce the impact to a less- than - significant level by performing site testing prior to beginning site work and taking appropriate precautions to protect human health and the environment. 3 C. Presence of Asbestos and Lead Based Paint As more fully described on page 5-4 of the Draft Focused EIR, activities associated with demolition of the buildings at 2320 and 2322 Lincoln Avenue could present a health risk associated with possible asbestos containing materials and lead based paint existing on and within the buildings. Mitigation Measure 5 -2 (use of a licensed asbestos contractor, perform lead paint and asbestos surveys, preparation of a Demolition Plan, compliances with California Code of Regulations, title 8, section 1532.1 and compliance with BAAQMD Rule 11 -2), which is hereby adopted and incorporated into the Project, will reduce the impact to a less- than - significant level by requiring asbestos containing materials and lead based paint to be handled and disposed in a manner that is protective of human health and the environment. D. Construction Activities (Air Quality) As more fully described on page 7 -10 of the Draft Focused EIR, construction activities such as site clearance, excavation and grading operations, construction vehicle traffic, and wind blowing over exposed earth would generate emissions of exhaust and fugitive particulate matter that would temporarily affect local air quality for adjacent land uses. Mitigation Measures 7 -la (implement dust abatement program), 7 -lb (implement Mitigation Measure 5 -1 regarding hazardous materials testing, remediation/removal of contamination, and implement worker health and safety measures) and 7 -lc (consultation with BAAQMD prior to commencing building demolition, use of site watering, and compliance with previously adopted mitigation measures related to hazardous materials and asbestos containing materials), which are hereby adopted and incorporated into the Project, will reduce the impact to a less- than - significant level by substantially.reducing.the level of construction related air emissions. IV. LESS- THAN - SIGNIFICANT IMPACTS FOR WHICH MITIGATION MEASURES ARE INCORPORATED INTO THE PROJECT TO FURTHER REDUCE THE IDENTIFIED IMPACTS The Final Focused EIR identifies the following less - than - significant impact for which a mitigation measure has been identified. This mitigation measure is not required by.CEQA to reduce the identified impact to a less-than-significant level, but has been included in the Project to further reduce the effect of this less-than-significant impact. The impact and mitigation measure identified below is presented in summary form. For a detailed description of this impact and mitigation measures please see the appropriate text in the Draft Focused EIR, as amended by the Final Focused EIR. A. Solid Waste As more fully described on page 8 -5 oldie Draft Focused EIR, the Project will produce a relatively small amount of solid waste as a consequence of demolishing the buildings at 2320 and 2322 Lincoln Avenue. This impact is less- than - significant. 4 Nevertheless, to further reduce this less -than- significant impact, Mitigation Measure 8 -3 (preparation of Waste Management Plan in accordance with Alameda Municipal Code section 24-24) is hereby adopted and incorporated into the Project. V. ALTERNATIVES The Final Focused EIR evaluated four alternatives to the Project. The feasibility of each is determined below. •A. No Project Alternative Under the No Project Alternative, which is more fully described in the Draft Focused EIR on page 9 -2 and in the Final Focused EIR on page 2 -3, the Library Project would be • implemented with a parking structure component instead of a surface parking lot partially located on 2320 and 2322 Lincoln Avenue. The Project site would remain as it is today, with the buildings at 2320 and 2322 Lincoln Avenue remaining in place. This alternative is considered infeasible because it would not achieve the beneficial parking configuration for the Library Project that would be provided by the Project's surface parking lot. Due to space constraints, library patrons would need to exit the parking structure onto' Lincoln Avenue if the first floor were full, and reenter on Times Way. The No Project Alternative also would provide far less landscaping due to space constraints, and the structure would reduce the amount of natural light within the Library building compared to the Project by casting a large shadow on the Library building. The No Project Alternative would not achieve the Project objective, nor would it help achieve the objectives of the Library Project as set forth in the Library Project EIR and listed again on page 3-4 of the Draft Focused EIR. Accordingly, this alternative is rejected as infeasible. B. 2320 AND 2322 LINCOLN AVENUE RELOCATION ALTERNATIVE Under the 2320 and 2322 Lincoln Avenue Relocation Alternative, which is more fully described in the Draft Focused EIR on pages 9 -2 to 9 -3, the property at 2320 and 2322 Lincoln Avenue would be acquired by the City and the City would move the buildings to another location. While this alternative would avoid demolition of the buildings, this alternative is considered infeasible because it is uncertain whether the buildings are physically capable of being moved due to their poor physical condition. If the buildings are capable of being moved, however, it would not be feasible for the City to relocate the buildings to City -owned property as no suitable parcels are available. In addition, the significant and unavoidable impact of the Project on historical resources would not be eliminated by this alternative because of the loss of context and historical integrity created by relocation of the structures on 2320 and 2322 Lincoln Avenue. Accordingly, this alternative is rejected as infeasible. C. PARTIAL ACQUISITION ALTERNATIVE Under the Partial Acquisition Alternative, which is more fully described in the Draft Focused EIR on page 9 -3 and in the Final Focused EIR on page 2 -3, the Project would involve acquisition of vacant yard area fronting Lincoln Avenue located between the unoccupied building at 2320 Lincoln Avenue and the LinOaks Motel building instead of removing the buildings on 2320 and 2322 Lincoln Avenue. This alternative is considered infeasible because use of this yard alone under this alternative would not permit an optimum parking configuration and vehicular circulation pattern, would not permit construction of 66 parldng spaces in a surface parking lot, and would not overcome the circulation issues associated with the parking structure. Accordingly, this alternative is rejected as infeasible. D. PARK STREET ALTERNATIVE Under the Park Street Alternative, which is more fully described in the Draft Focused EIR on pages 9 -3 to 9-4, the Project would be implemented without acquiring and using the 2320 and 2322 Lincoln Avenue properties. Instead, the City would acquire a portion of the Wienerschnitzel restaurant parking lot and, if necessary, the parking lot at the service station on the comer of Lincoln Avenue and Park Street fora portion of the Library Project parking. This alternative is considered infeasible because it would hinder either or both of the commercial establishments' ability to provide sufficient customer parking, would be contrary to General Plan policies to support and revitalize Park Street, and would increase the Park Street parking deficit identified in the General Plan. Accordingly, this alternative is rejected as infeasible. VI. STATEMENT OF OVERRIDING CONSIDERATIONS The City has balanced the benefits of the Project against its potential unavoidable adverse environmental effects in determining whether to approve the Project, and has determined that the benefits of the Project outweigh the potential unavoidable adverse environmental effects. The reasons set forth below are based on the Final Focused EIR and other information in the record, including, but not limited to, the Library Project EIR and the Findings and Statement of Overriding Consideration for the Library Project (Exhibit I to City of Alameda Resolution No. 12070, approved February 11, 1991). In the event that the Project may have a significant effect on the environment that is not reduced to a level of less - than- significant, the City makes the following Findings supporting approval of the Project despite the significant unavoidable adverse environmental effects that may occur: A. The Statement of Overriding Considerations adopted by the City in connection with its 1991 approval of the Library Project is equally relevant to, and is adopted, as updated below, as part of this Project: 1. The Library Project will adequately provide library services and programs for the Alameda community. 2. The Library Project will enhance the visual and functional character of the Alameda Civic Center by introducing a building that is consistent with the area's urban design and compatible with other land uses in the 6 area. The Library Project will also result in beneficial land use and visual quality impacts in the Civic Center associated with the demolition of the LinOaks Motel. 3. The Library Project represents infill development located in an urban area where adequate facilities and services exist. 4. The intensity of use of the Library Project is appropriate for the site and other properties located in the vicinity of the Civic Center. 5. The. Library Project represents an invaluable public resource that will serve a broad cross section of the community for many years to come. The design and location are essential for the facility to function in a manner that will satisfy the needs of the community. In addition to providing space and opportunities for research, study and recreational reading, for which vocal demands have been expressed in the Alameda community, the facility will provide critically needed public space for meetings and events in a convenient Civic Center location. B. Additional reasons for the approval of the Project despite the occurrence of significant unavoidable adverse impacts are as follows: 1. The grant from the State Library Board requires creation of 66 parking spaces. Acquisition of 2320 and 2322 Lincoln Avenue will allow the full 66 parking spaces required for the Library Project to be created adjacent to the Library building. 2. Acquisition of 2320 and 2322 Lincoln Avenue and constructing surface parking on the Project site will be less expensive than building a parking structure. Steel prices have increased dramatically making construction costs for a structure very expensive compared to a surface lot. 3. Money saved on the cost of providing parking can be on other aspects of construction of the Library. 4. Surface parking on the Project site will provide more convenient access to the Library for all library patrons and for disabled persons in particular. 5. The parking structure would involve separate parking levels that are not interconnected, thus creating confusing traffic patterns and requiring travel on City streets to change parking levels. Surface parking on the Project site would eliminate these inefficient circulation patterns. 6. A landscaped surface parking lot will increase natural light and air to the Library building, thereby enhancing the usability of the Library building. 7. A surface parking lot will not obstruct views of the Library building and, along with the landscaping, will enhance the appearance of the Library rather than competing with it visually. VII. INCORPORATION BY REFERENCE The Final Focused EIR is hereby incorporated into these Findings in its entirety. Without limitation, this incorporation is intended to elaborate on the scope and nature of the mitigation measures, the basis for determining the significance of impacts, the comparative analysis of alternatives, and the reasons for approving the Project in spite of the potential for associated significant unavoidable impacts. VIII. RECORD OF PROCEEDINGS Various documents and other materials constitute the record of proceedings upon which the City bases its findings and decisions herein. The record of proceedings is located at the Planning and Building Department, City of Alameda, 2263 Santa Clara Avenue, Room 190, Alameda, California 94501. The custodian for the record of proceedings is the Planning and Building Department of the City of Alameda. IX. SUMMARY A. Based on the foregoing Findings and the information contained in the record, the City has made one or more of the following findings with respect to each of the significant effects of the Project: 1. Changes or alterations have been required in, or incorporated into, the Project which mitigate or avoid the significant effects on the environment. 2. Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or should be, adopted by that other agency. 3. Specific economic, legal, social, technological, or other consideration, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report. B. Based on the foregoing Findings and the information contained in the record, it is determined that: 1. All significant effects on the environment due to approval of the Project have been eliminated or substantially lessened where feasible. 2. Any remaining significant effects on the environment found to be unavoidable are acceptable due to the factors described in the Statement of Overriding Considerations in Part VI, above. EXIDBIT D MTTIGATION MONITORING AND REPORTING PROGRAM Mitigation Measure Responsible Patty Timing of Implementation Reporting or Monitoring Method Midgadon Measure 4-1a: Building Documentation and Memorialization. Prior to demolidon of the buildings, the City of Alameda shall implement a mitigation process that documents the buildings in a manner similar to that required by the Historic American Buildings Survey (NABS). This documentation shall include written and photographic documentation that ordinarily goes beyond a historical evaluation survey such as the one that was completed by Architectural Resources Group for this Project This mitigation process shall be undertaken by qualified professionals in the field of historic resources documentation. The documentation shall be filed in the City's Main Library and shall also be provided to the Alameda Historical Museum. The existing buildings at 2320 and 2322 Lincoln Avenue would be memorialized after demolition through inclusion of a monument or plaque on the library grounds that explains the historical significance of these buildings. Mitigation Measure 4-1b: Sale of Buildings. If the City purchased the property at 2320 and 2322 Lincoln Avenue, the buildings would be offered for sale to a private party for a limited amount of time at a nominal price, provided that the buyer pays for relocation costs. The City will advertise the sale of the buildings in a local newspaper for thirty (30) days. Should no one desire the buildings, they would be demolished. Mitigation Measure 4-2: Evaluate Findings. Should any previously unidentified prehistoric or historic artifacts, or other indicators or examples of cultural resources be discovered during the course of site preparation, grading, excavation, construction or other development activities, all operations within 50 feet of the find shall cease until such time as a qualified archaeologist can be consulted to evaluate the finds and recommend appropriate action. Prehistoric materials can include flaked stone tools (e.g. projectile points, knives or choppers) or tool making debris of obsidian, chert, quartzite and other materials; culturally darkened soil (ie. midden, which often City of Alameda Prior to demolition of the buildings The documentation shall be filed in the City's Main Library and shall also be provided to the Alameda Isstorical Museum and a plaque or monument shall be placed on the binary grounds. City of Alameda Prior to demolition of the- buildings City of Alameda During construction Immediately after acquisition, the City will place an advertisement for the sale of the buildings in a local newspaper for thirty (30) days. If no interested buyers step forward, the buildings will be demolished. If a buyer does come forward, they will be given sixty (60) days to remove the buildings. The City shall retain a qualified archeologist who shall be on call in the event of a find. Mitigation Measure contains heat affected rock, ash and charcoal, shellfish remains, and cultural materials); and stone milling equipment such as mortars, pestles and hand stones. historic materials may include wood, stone, concrete or adobe footings, walls and other structural remains; debris filled wells or privies; and deposits of wood, metal, grass, ceramics and other refuse. In the event of discovery or recognition of any human remains on the project site, there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to ovetlie adjacent remains until the coroner of Alameda County has determined whether the remains are subject to the coroner's authority. This is in accordance with Section 7050.5 of the California Health and Safety Code. If the human remains are of Native American origin, the coroner must notify the Native American Heritage Commission within 24 hours of identification. Pursuant to Section 5097.98 of the Public Resource Code, the Native American Heritage Commission will identify a "Native American Most likely Descendent" to inspect the site and provide recommendations for the proper treatment of the remains and any associated grave goods. Responsible Party Timing of Implementation Reporting or Monitoring. Method Mitigation Measure 4-3: Building Relocation. Implementation of Mitigation Measure 4-lb would preserve these buildings, but would not preserve them in their original setting. Mitigation Measure 5 -1: Phase 2 Study. A Phase 2 study shall be undertaken by the City of Alameda The Phase 2 study would include actual sampling and laboratory analysis of the soil and groundwater on the Project site for hazardous materials to identify the nature and extent of these materials in soil and /or groundwater. The following process shall be undertaken by the City of Alameda in order to more fully identify and reduce potential impacts associated with the Project If the Phase 2 Study determines that the Project site is contaminated, the need for and method of remediation shall be determined under the oversight of the Alameda County Department of Environmental Health (ACDEH), which would be the responsible agency. The Regional Water Quality Control Board would act as the enforcement agency. If remediation is required, it shall be performed by the City of Alameda in coordination with construction activities, as appropriate and acceptable to ACDEH. City of Alameda City of Alameda Prior to demolition of the buildings Prior to demolition of the buildings Implement Mitigation Measure 4-1b. City to contract for the preparation of a Phase 2 study; City to hire a contractor to remediate the site, if necessary. The contractor shall prepare a Site Health and Safety Plan acceptable to the City and regulatory agencies and comply with its provisions. The City shall monitor compliance with the Health and Safety Plan and transportation requirements for affected soils. Mitigation Measure Responsible Party Timing of Implementation Reporting or Monitoring Method To the extent necessary after identification in the Phase 2 Study, and with consultation with appropriate agencies, any affected soil shall be removed, transported and disposed of in an appropriate manner in accordance with federal, state, and local regulations. Potential health and safety impacts associated with demolition and excavation within sites where a chemical release has occurred would be minimized by implementing legally required health and safety precautions. For hazardous waste workers, federal and California Occupational Safety and Health Administration (Cal /OSHA) regulations mandate an initial training course and subsequent annual training Site specific training may also be required for some workers. Preparation and implementation of a Site Health and Safety Plan and compliance with applicable federal, state, regional, and local regulations would minimize impacts to public health and the environment The plan would include identification of chemicals of concern, potential hazards, personal protection dothing and devices, and emergency response procedures as well as required fencing, dust control or other site control measures needed daring demolition and excavation. In protecting the workers, who would be dosest to potential sources of hazardous materials, the health and safety measures would also serve to protect others who live, work, or visit the area during the temporary demolition and construction period. Mitigation Measure 5-2: Protection Procedures. Asbestos related work must be performed by a licensed asbestos contractor if there is more than 100 square feet of asbestos involved. If less than 100 square feet is involved, the contractor is not legally required to have - the asbestos licensing. However, the contractor must have proper training and utilize the same engineering controls, protective equipment, exposure monitoring, etc that are required of a licensed asbestos contractor. For this reason, it is recommended that licensed asbestos contractors perform any asbestos related work regardless of the quantity. This is due to the fact that most of the non - asbestos contractors do not have trained asbestos workers or the specialized tools and . equipment required to perform asbestos related work. Lead and asbestos surveys should be reviewed /performed and a Demolition Plan for safe demolition of existing structures at the Project site should be prepared. All transportation of hazardous or contaminated materials from the site shall be performed in accordance with an approved Demolition Plan and Removal Action Workplan. The Demolition Plan City of Alameda During demolition of the buildings City shall hire a licensed asbestos contractor to remove asbestos. The City shall hire a demolition contractor to develop Demolition plan. City to monitor compliance with the Demolition plan. Mitigation Measure should address both on -site worker protection and of - site resident protection from both chemical and physical hazards. All contaminated building materials shall be disposed of at appropriate licensed landfill facilities. Prior to demolition, a written plan or notification of intent to demolish the buildings on site shall be provided to the appropriate Air Pollution Control Officer at least ten (10) working days prior to commencement of demolition, as required under the Bay Area Air Quality Management District's Rule 11 -2- 401.3 regarding asbestos control. Prior to whole -scale demolition, hazardous building materials such as peeling, chipping and friable lead -based paint and asbestos containing building materials should be removed in accordance with all applicable guidelines, laws and ordinances. The Demolition Plan should include a program of air monitoring for dust particulates and attached contaminants. Dust control and suspension of work during dry windy days should be addressed in the Demolition Plan. For the impact of flaking and peeling lead paint the requirements of Tide 8, California Code of Regulations, Section 1532.1 (T8 CCR 1532.1) must be followed. These requirements indude (but are not limited to) the following. Loose and peeling lead- containing paint should be removed prior to building demolition. Workers conducting removal of lead paint must receive training in accordance with TS CCR 1532.1. The lead paint removal project should be designed by a DHS certified lead project designer, project monitor or supervisor, Workers conducting removal of lead paint must be certified by DHS in accordance with T8 CCR 1532.1, Workers that may be exposed above the Action Level must have blood lead levels tested prior to commencement of lead work and at least quarterly thereafter for the duration of the project Workers that are terminated from the project should have their blood lead levels tested within 24 hours of termination, A written exposure assessment must be prepared in accordance with T8 CCR 1532.1, and Any amount of lead waste generated from painted building components must be characterized for proper disposal in accordance with Title 22, Section 66261.24. Responsible Party Timing of Implementation Reporting or Monitoring Method Mitigation Measure Responsible Patty Timing of Implementation Reporting or Monitoring Method Mitigation Measure 7 -1a: Dust Abatement Program. Construction contractors shall implement a dust abatement program that indudes the following measures: • Covering Trucks. All trucks hauling soil, sand and other loose materials shall be covered, or shall be required to maintain at least two feet of freeboard. • Watering. All unpaved construction staging areas' shall be either paved, watered three times each day, or be treated through the application of non -toxic soil stabilizers. Soil, sand and other loose materials hauled away from the project site shall be watered prior to covering. • Sweeping Access Road, Parking Areas and Staging Areas. All paved access roads, parking areas and staging areas shall be swept daily with water sweepers. • Sweeping Public Roadways. If visible soil material is carried onto adjacent public roadways, these roadways shall be swept daily with water sweepers. • Covering Stockpiles. Exposed stockpiles of dirt, sand, etc. shall be enclosed, covered or watered twice daily, or non -toxic soil binders shall be applied. Mitigation Measure 71b: The project proponents shall comply with Mitigation Measure 5 -1 in Chapter 5 of this document. Mitigation Measure 7 -1c Based upon the findings of a Phase 2 Study, the BAAQMD's Enforcement Division shall be consulted prior to commencing demolition of a building containing asbestos containing matPriai%in accordance with the limitations of District Regulation 11, Rule 2: Hazardous Materials; Asbestos Demolition, Removal and Manufacturing City of Alameda City of Alameda City of Alameda During construction Prior to demolition of the buildings Prior to demolition of the buildings City shall require the dust abatement program to be part of the contract specifications and shall monitor the contractor to ensure compliance. Implement Mitigation Measure 5-1. City shall consult with BAAQMD in the event asbestos is found in the Phase 2 study; City shall monitor contractor to ensure compliance with dust control watering. Mitigation Measure 8 -3: Waste Management Plan. The City shall prepare a Waste Management Plan for the demolition of the two buildings in accordance with the Alameda Municipal Code. City of Alameda Prior to- demolition of the buildings The demolition contractor shall prepare a plan to the satisfaction of the City's Public Works Department. The plan shall be made part of the Mitigation Measure Responsible p Patty T �° of Implementation Reporting or Monitoring Method contract for services. The City shall monitor compliance with the Plan during demolition. G:\ PLANNING \SPECPROJ \LIBRARY \MMRP.doc I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda City of Alameda Memorandum Date: June 29, 2004 To: Honorable Mayor and Councilmembers From: Re: James M. Flint, City Manager Public hearing to consider appeals of a Planning Board approval of a Use Permit to allow the conversion of a 15,840 square foot industrial building at 2515 Blanding Avenue into seven work/live studios with associated parking and landscaping. The site is located within the M -2, General Industrial Zoning District. Applicant: Janet Koike for Cal Vita LLC /Appellants: Ed Murphy and Pat Bail. BACKGROUND At the Council hearing of 14 June 2004 of the above referenced appeal, the attorney for Allied Engineering at 2421 Blanding Avenue raised questions regarding the appropriateness of the Categorical Exemption cited in a notice sent to his client. The notice stated that staff had determined that the project was Categorically Exempt from the California Environmental Quality Act (CEQA) Guidelines, section 15303 relating to new construction or conversion of small structures. Staff advised both the speaker and the Council that while the notice had cited a certain section of CEQA, the finding made by the Planning Board was that the project was actually categorically exempt pursuant to a different CEQA Guidelines section, specifically section 15332, in -fill projects. This memorandum explains the chronology of events. DISCUSSION /ANALYSIS The Use Permit for Work Live Studios at 2515 Blanding Avenue was originally agendized for the Planning Board hearing of 8 March 2004. To comply with the Council - implemented expanded noticing in effect at the time, staff carried out the following: 1. Sent a notice to property owners within 600 feet of subject property 30 days prior to the hearing. The notice was prepared on 2 February and mailed to 92 addresses on 6 February 2004. 2. A notice was published Alameda Journal on 6 February 2004. 3. Three notices were posted in neighborhood on 3 February 2004. The notice sent to the property owners included a section addressing the Environmental Determination for the project. The California Environmental Quality Act does not require that this Dedicated to Excellence, Committed to Service Re: Public Hearing 5 -L 7 -6 -04 Honorable Mayor and Councilmembers Page 2 June 29, 2004 information be included in the public notice. At the time the notice was written, staff had determined that the project was categorically exempt from CEQA Guidelines section 15303 which exempts the conversion of certain structures, including stores, offices, motels, restaurants and similar structures (please see attachment #1). During the trial period for the expanded noticing, staff reports and draft resolutions were typically not prepared and finalized until after the notice was mailed and published. This was mainly a consequence of attempting to comply with Council policy of both expanded noticing time (expanded to 30 days from the statutorily required 10 days) and providing timely processing of applications. Thus, in this instance between the time the notice was written and the staff report was prepared staff determined that categorical exemption under CEQA Guidelines section 15332, which exempts in -fill development, was more appropriate for this project. The staff report and the draft resolution prepared for the Planning Board hearing of 8 March 2004 contained that recommendation. The Planning Board approved the project as recommended. When the approval was appealed, the noticing process was repeated. At that time, staff should have updated the Environmental Determination Section to reflect the actual finding that the Planning Board made relative to environmental review. This was not done and, thus, the notice contained incorrect information with respect to the updated Environmental Determination. However, providing public notice for Categorical Exemption Determination is not required by City or state regulations. All other documents pertaining to the project, including the staff reports and Planning Board resolutions, contain the updated CEQA Guidelines reference. BUDGET CONSIDERATION/FINANCIAL IMPACT None. RECOMMENDATION This memorandum was prepared for informational purposes only. By: Respectfully submitted, Gregory Fuz Planning and Building Director Judith Altschuler Supervising Planner Dedicated to Excellence, Committed to Service Honorable Mayor and Councilmembers Attachments Page 3 June 29, 2004 1. Written Notice for Planning Board hearing of 8 March 2004 cc: Stuart Flashman, Esq. Lawrence R. Lanctot, Esq. Joseph Wood, Esq. G:\PLANNING \CC\REPORTS\2004\m -July 06\2worklivesupplemental.doc Dedicated to Excellence, Committed to Service HEARING DATE: �:ity of Alameda • California February 6, 2004 PLANNING BOARD NOTICE OF PUBLIC HEARING The Planning Board of the City of Alameda will hold a public hearing to consider the project described below at 7:00 p.m. on Monday, March 8, 2004 a t City Hall, 2263 Santa Clara Avenue, City Council Chambers, Third Floor. All interested parties are invited to attend and participate in the hearing. PROJECT DESCRIPTION: The applicant requests a Use Permit to allow the conversion of a 15,840 square foot industrial building into seven work/live studios and two retail/commercial spaces with associated parking and landscaping. The site is located at 2515 Blanding Avenue within the M -2, General Industrial Zoning District. Applicant: Cal Vita LLC. PERMITS REVIEWED BY THE PLANNING BOARD: • Use Permit (UP03- 0019), pursuant to AMC Section 30 -15 — Work/Live Studio. ENVIRONMENTAL DETERMINATION: Staff has determined that this project is Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 of the Guidelines which exempts conversions of small structures. REVIEW OF PROJECT INFORMATION: Planning & Building Department staff are available to assist you in reviewing this project prior to the public hearing. The Planning & Building Department staff member for this project is Judith Altschuler who may be contacted at 747 -6871 Monday through Thursday, by email at jaltschuAci.alameda.ca.us or by fax at 747 -6853. The file materials are available for your review at the City Planning & Building Department Office, Room 190, 2263 Santa Clara Avenue, Alameda CA 94501, between the hours of 8:00 a.m. and 4:30 p.m. Monday, Tuesday, Wednesday and Friday, and 8:00 a.m. to 3:30 p.m. on Thursday. Please contact Judith Altschuler if you would like to schedule an appointment to review the project file. The staff report and recommendation for this project will be available the Thursday prior to the Planning Board meeting. Planning and Building Department 2263 Santa Clara Avenue, Room 190 Alameda, CA 94501 510 748.4530 • Fax 510 748.4593 • TDD 510 522.7538 Attachment #1 Co Printed on Recycled Paper COMMENT ON THIS APPLICATION: Response to this notice can be made verbally at the Public Hearing and/or in writing before the hearing. Written comments can be made to the Board by letter (for mail or hand delivery) to: PLANNING DIVISION, CITY OF ALAMEDA, CITY HALL 2263 Santa Clara Street Rm. 190, Alameda, CA 94501 Phone (510) 747- 6850/FAX # (510) 747 -6853 Email: jaltschu @ci.alameda.ca.us To assure delivery to Board members prior to the Public Hearing, please submit any written comments before March 1, 2004. Letters received after this date will be delivered to the Board members at the Public Hearing. TWELVE COPIES of letters should be provided for submission at the time of the meeting. Any challenge of the proposed project in court may be limited to raising only those issues raised at "the public hearing described in this notice, or in written correspondence delivered to the Planning Board at, or prior, to the public hearing. (Government Code Section 65009(b)(2)). PUBLIC HEARING PROCESS: 1) The public hearing before the Planning Board is the first step in the hearing process. 2) If the Planning Board approves the project the applicant has been granted permission to establish the use and/or apply for a building permit for any project construction. 3) Planning Board decisions can be appealed to the City Council within 10 days by filing a form in the Planning and Building Department at City Hall and paying a $122 fee. Once an appeal is filed, a use cannot be established and a building permit cannot be issued until the City Council has conducted a public hearing and taken action on the appeal. Appeals shall be scheduled for public hearing by the City Council no later than the third regularly scheduled and held meeting following submittal of the appeal. 4) The City Council may reverse or affirm, in whole or in part, or may modify the action of the Planning Board as deemed appropriate by the City Council. COMMUNICATIONS ACCESS: To r equest a meeting agenda in 1 arge print, Braille o r on audiocassette or tor equest a sign language interpreter for the meeting, call (510) 747 -6850 (voice) or (510) 522 -7538 (TDD): at least FIVE working days notice will ensure availability. Copies are available for review at all City libraries and posted on our website at: www.ci.alameda.ca.us, customarily by the Thursday prior to the meeting. Hearing impaired persons may reach City Hall staff at the Telecommunications for Deaf and Disabled persons number (510) 522 -7538. G: \ PLANNING\ NOTICE\NOTICE\2004 \UP03 - 0019- pb.doc City of Alameda Memorandum Date: 11 May 2004 To: Honorable Mayor and Councilrembers From: James M. Flint, City Manager Public hearing to consider appeals of a Planning Board approval of a Use Permit to allow the conversion of a 15,840 square foot industrial building at 2515 Blanding Avenue into seven workllive studios with associated parking and landscaping. The site is located within the M-2, General Industrial Zoning District. Applicant: Janet Koike for Cal Vita LLC/Appellants: Ed Murphy and Pat Bail. Re: • • BACKGROUND On 12 April 2004, the Planning Board unanimously approved a Use Permit for the first work/live studio project in Alameda. Janet Koike, the owner of 2515 Blanding Avenue (former Clamp - Swing Building), requested the permit to allow the conversion of the 15,840 square foot industrial building into seven work/live studios with associated parking and landscaping. The application is fully compliant with the Work/Live Ordinance approved.by the City Council in 1998 (Please see Attachment #3 for a detailed project description): On 15 April 2004, Edward J. Murphy appealed the approval and on 20 April 2004 a second appeal was filed by Patricia H. Bail. These appeals challenge the. City's interpretation of Measure A. DISCUSSION /ANALYSIS • • • ...... Mr. Murphy's basis for the appeal is that the use permit violates Article 26 of the Alameda City Charter. Ms. Bail's basis of appeal is that that project does not comply with Measure A due to multiple units when Measure A only allows two units per building to allow control of density; that the Council cannot pass an ordinance to supersede Measure A; and that the • Work/Live Ordinance is illegal. In March of 1973, the electorate voted to pass "Measure A." The measure was enacted and became Article XXVI of the Alameda City Charter and created section 26-1 and 26-2. Section 26 -1 states, "There shall be no multiple dwelling units built in the City of Alameda." (As explained in greater detail below, work/live studios are not regulated under • Measure A because they are not "dwelling units. ) Section 26-2 provided an Re: Resolution # 5 -L 7 -6 -04 Re: earing /solution #5 -H 5 -04 eicception for the replacement of Alameda Housing Authority units and the proposed . Senior Citizens low cost housing complex (i.e., Independence Plaza.) Immediately following the adoption of Article XXVI, on May . 29, 1973, the City Council adopted ordinance number 1693 for the purpose of interpreting and implementing section 26 -1 of the Charter. With this amendment, the Council clarified that duplexes would not be considered multiple dwelling units under section 26-1 of the Charter. AMC section 30 -51 -3 states: "Multiple dwelling units, construction of which is prohibited by this article and by Article XXVI of the Charter, shall not be deemed to mean or include: a) Dwelling, one - family; b) Dwelling, two - family... " In Marah of 1991, the electorate enacted a second Measure A and added Section 26-3 to the City charter. That section states that the maximum density for any residential development shall be one housing unit per 2,000 square feet of land. (This project is composed, of 7 work/live spaces on a 15,840 square foot lot.) In 1998, the City Council adopted the Work/Live ordinance (AMC section 30 -15). The Ordinance was adopted pursuant to and in accordance with Health and Safety Code section 17958.11. There the State Legislature found that older commercial and industrial property was an Untapped resource in the State. ' to utilize this resource, the Legislature. authorized the creation of work/live units -to make these units economically • viable. Significantly, the Legislature found that work/live space was primarily a place of work and' that all residential use of such space was only an accessory use. Tim .City's interpretation that work/live spaces do not constitute dwelling un#6 is based on the State Legislature's determination that work/live units are primarily a place of work, with residential use merely as an accessory function. In adopting the Work/Live ordinance, the Council found that "(t)he proposed zoning text. amendment [Work/Live Ordinance] contains appropriate restrictions, such as limitations . on the portion of the studio that may be used for dwelling purposes, the required integration of the work and live areas, and the regulation of work/live studios as a commercial use which will require a business license, to ensure that work/live development will be a commercial/industrial use." Section 30- 15.1(i) of the Work/Live . Ordinance further states: "(n)o portion of a work/live studio shall be considered a "dwelling" as that term is defined in section 30-2 (Definitions) and 30-513I(Multiple- Dwelling Units)." Thus, because work/live spaces are not dwelling units, .they do not conflict with 'Measure A since Measure A only prohibits multiple dwelling units. As for section 26 -3 of the Charter, even it Measure A did apply to work/live units, this project would be compliant as it contemplates 7 work/live units on a 15,840 square foot lot. In conclusion: * Work/live spaces are conrinercial in nature. * Work /live spaces are not dwelling units under Charter section XKVI. * AMC section 30 -15 is consistent with, and based upon, State law. * The work/live ordinance (AMC section 30-15) does not conflict with article XXVI of the Charter. * This work/live project complies with AMC section 30-15 and does not conflict with Article XXVI of the Charter. BUDGET CONSIDERATION/FINANCIAL IMPACT None. RECOMMENDATION The City Manager recommends that the City Council conduct the public hearing, review all pertinent testimony and information and then act to uphold the Planning Board approval of Use Permit, UP -03 -0019, as provided in the draift City Council Resolution. By Attachments: Respectfully submitted, Gregory Fuz Planning and Building Director 1. .Petition for Appeal by Edward J. Murphy _. 2. Petition for Appeal by Patricia H. Bail 3. Staff Report prepared for the Planning Board meeting of 12 April 2004 with attachments 4. 2/23/04 Memorandum from Judith Altschuler responding to the 2/17/04 e-mail from Ed Murphy 5. Minutes from the Planning Board meeting of 12 April 2004 6. Health and Safety Code Section 17958.11 Cc: 1. Edward J. Murphy 2. Patricia H. Bail 3. Janet Koike 4. Thomas Dolan G PL4NNINc COREPORTS120041J -May 18Wlanding worldlveeppcal 05- 13- 04.doc TO: CITY OF ALAMEDA City Hall 2 ;53 Santa Clara .Avenue #190 • A ameda CA 94501 • P This petition is hereby filed as an appeal of the decision ' of the. - . �.A MU i ltl& 13DAt t (Planning Director /Zoning. Administrator /Planning Board /Historical • Advisory •Board) . ' - . . • PETITION FOR APPEAL • <7,44-g Covet/ ! .. • . ( Planning Board or City Council) Which evAAIUrE V for U ©O 141 at 415 I5 BLW AVL1UEora (Application Number) (Street Address) • (Denied /Granted /Established Conditions) Design Review X Use Permit variance Subdivision Map., . Rezoning Planned Development Planned Development /Amendment -Other (Specify) on (Specify Date) The basis of the appeal .is: 1.h* USE gRM tr -1 UZATES AFfl t,t.E • 21, DP the • A LAM eipek • (If more space is needed,. continue additional sheets.) • abtQf .Q zy. MURp11 (Name) Y og 61 S JAIvt s el Rea . - (Address) •.A.LA M 644 el) 91/50/ (City /State). _ (For Office Use Only) . Received By: leaerA (AMt 51 Receipt No.:. ?SC/5 G: \PLANNING \FORMS \APPEAL0I.WPD on the reverse. side or attach (Telephone - Work) 510 5z1 � �it (Telephone• - Hate)pa V • Sit $2,57 Date Received Stamp •w . APR 1 5 2064 . City Cleric's Office. • Attachment # 1 Alameda City Council 2263 Santa Clara Avenue Re: Use Permit (UP03 -0019) Appeal miiECENED MAT 13 PERM IT CENTER ALAMEDA CA 94501 Please consider the following matters as they relate to the my appeal. 1. Section IIC. of the Planning Board's Staff Report contains the following sentences: No portion of any work/live studio is considered a dwelling unit as defined in the Alameda Municipal Code. The Work/Live Ordinance meets all City Charter (Measure A) requirements. The first sentence begs the question "Why not? The second sentence is false and misleading. (1 will substitute the term, ' work/live unit' for the term, 'work/live studio', in order to more easily make my point.) The work/live ordinance referred to (Ordinance 2784) was passed in 1998. The purpose for passing ordinance 2784 was to free work/live developments from the restrictions imposed by article 26 -1 of our charter. The 1998 city council, without legal power to do so, simply attempted to shorten the reach of 26 -1 so that work/live developments would be free to have more than two dwelling units in a building. If the people had voted in favor of the same shortening, the change would have been legal. But that's a big 'if. The people did not so vote, and the 1998 council was not legally empowered to change charters. As to the second sentence mentioned earlier in which current staff wrote that the work/live ordinance meets all City Charter (Measure A) requirements, 1 can only say that the sentence is misleading in grand 1 fashion. The Work/Live ordinance does not meet 26 -1 requirements. Rather the Work/Live Ordinance allows work/live units not to meet 26 -1 requirements. Let us turn now to reasons that the 1998 council should have considered work/live units to be dwelling units. City Attorney Korade, herself, is on record as advising us that both "housing units" and "residential units" are considered to be "dwelling units ". (See City Attorney's Impartial Analysis of Measure A on 1991 Ballot.) If we persist in arguing that work/live units are not dwelling units, we, following the City Attorney's advice, must also say that work/live units are not residential units, nor are they housing units. And, if they are none of the above, the question must be raised as to why work/live units are not beyond the reach of 26 -3 in addition to being beyond the reach of 26 -1. A refusal to consider work/live units as dwelling units leads to more problems that it solves even apart from legal considerations. Those legal considerations are very important, however, and I wish to emphasize that the reach of Measure A cannot be shortened or lengthened by any city council. A charter provision trumps a council ordinance. That's the law, the law each councilperson has sworn to uphold. The law is spelled out in the Constitution of California and interpreted by a vast amount of case law. 2. N of the staff report reveals that each work/live unit will have a kitchen, a bedroom, and a bathroom. (Item 6 in Altschuler'.s reply to Murphy, reveals that the kitchens may be full sized.) Whatever the size of the kitchens, people will be residing and therefore dwelling in such units. Ordinary language treats the words `dwelling' and `residing' as synonymous. Furthermore, our city council is not empowered to issue peremptory edicts which limit the reach of our Charter. What we have here is a flagrant usurpation of a power reserved to the people by the Constitution of California. 3. The Altschuler reply to Murphy in item 7 is most 2 revealing. There is an admission that the council carefully crafted the language of ordinance 2784 such that work/live units would comply with Measure A. (Emphasis added) By a stroke of orwellian genius, they chose the word comply in . order to shift attention from what was really going on. Namely, that work/live units would be placed beyond the reach of Measure A and therefore would not have to comply with Measure A at all. The truth is readily apparent. The council carefully crafted the language of the work/live ordinance in order to circumvent Measure A. Ordinance 2784 is an insult to the Alameda electorate. It should not stand. ‘140-04.09 Edward J. lVIuiphy 2618 Janis Circle 4. PETITION FOR .APPEAL TO: miff OF ALAMEDA City Hall (Planning Board or City Council) 2263 Santa Clara Avenue #190 Alameda CA.94501 TWiS petition is hereby filed as an appeal of the decision of the (Planning Director /Zoning Administrator /Planning Board /Historical Board) which 6\4 for •(Denied /Grante /Established Conditions) • V 1' n 03.: Dey goJ at t .J�« `� 1. for a (Ap$lication Nixmbdr) .(Street Address) J Design Review X Use Permit Subdivision Map 'Rezoning Planned Development /Amendment . on 1F-12-"01-- (Specify Date) The basis of, the appeal •is: �oes l or. Glom i . ( J4eswe. 4- Ue `b AA , tie, v v . -b — »ken. i rr-s o , A- j(ow6 wo (j A'S �e j v � o 4, �0 W - LO 4 d pS • c un cat C3H Ore4f kee -�ro S ).r a rced e. ehogg 1� tOt. W. le: ee (I'f more ace is nee d, conti%ue oa reverde side or attach additional sheets.) Advisory Variance Plannned Development Other (Specify) (Name) V r`ce'�ja.• Sac . ( dress) ilrkal)&1441 cam-. 9, . . (City /State) ****** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** (For Office Use Only) Received By: - Receipt No.: G: \PLANNING \FORMS \APPLALO1.WPD 0 klatw w -a W Ieleoldh3 - Work) cc'.7. r� p� d ble3 d& - Home) ,)(4472.77/47- * ** * * *+►+ Q : * * * * * * * * * * * * * ** e Iscei4c Stamp act Attachment #2 CITY OF ALAMEDA PLANNING AND BUILDING DEPARTMENT ITEM NO.: APPLICATION: GENERAL PLAN: ENVIRONMENTAL DETERMINATION: STAFF PLANNER: RECOMMENDATION: ACRONYMS: ATTACHMENTS: • STAFF REPORT 8 -B UP03 -0019 — Janet Koike for Cal Vita LLC — 2515 Blanding Avenue. The applicant requests a Use Permit to allow the conversion of 'a 15,840 square foot industrial building into seven work/live studios with associated parking and landscaping. The site is located within the M-2, General Industrial Zoning District. General Industry Categorically Exempt from State CEQA Guidelines, Section 15332 — In -fill Development Projects Judith Altschuler, Supervising Planner Approve with conditions AMC — Alameda Municipal Code 1. Draft Resolution 2. E-mail from Michael•Schiess in support of the project. 3. E-mail from Ed Cassel in support of the project. 4. E-mail from Melissa Harmon in support of the project. 5. Text of the Work/Live Ordinance 6. Draft Work/Live Permit 7. Survey of Property dated 6/8/2003 8. Plans prepared by the applicant. L PROPOSAL SUMMARY The applicant intends to convert the existing Clamp Swing building into seven work/live studios The studios would range from 1,273 square feet to 2,384 square feet. All studios would be two stories. The lower floors of all two level units would be devoted to "work" areas including a fully accessible toilet room and a sink/counter combination. Accessible toilet rooms would be available in the lobby area adjacent to the unit, The " live" areas of all units would consist of a small bedroom, bathroom and open kitchen area. A total of 16 off - street parking spaces would Alameda Planning Board Staff Report Meeting of 12 April 2004 Attachment # 3 be developed on site; 9 surface parking spaces in the existing parking lot; units #2, #3, #4, #5, • and #7 would have integrated garage spaces for one car; and unit $6 would have an integrated garage space for two cars. A six -foot fence would surround the parking area with a gate across the entry off Everett Street. Landscaped area would be installed adjacent to the fence. New roll- up doors, person doors and some new windows would be installed in the existing building. The roll-up doors in those spaces without garages would allow access for larger materials likely to be used by artists and craftspersons (canvases, stone, looms, pianos, etc.) All new windows would . be industrial sash windows . to match existing. Some existing openings would be filled in with brick to match existing. Marquee -style awnings would be installed above each of the entries to the wok/live studios. II. BACKGROUND A. Existing Site Conditions The existing two -story red brick industrial building was constructed in 1931. The building is L- shaped with a* small parking lot at the corner of the parcel adjacent to Blanding Avenue and Everett Street. B. Surrounding Land Use North — Industrial West- Commercial South- Residential/Industrial East- Stone Boat Yard C. Work/Live Ordinance In 1998 the City Council adopted the Work/Live Ordinance implementing a policy in the General Plan which promotes work/live uses as part of the redevelopment of the Northern Waterfront area. Work/live studios are conditionally permitted commercial/industrial facilities with a strictly regulated incidental residential component that meets basic habitability requirements. No portion of any work/live studio is considered a "dwelling unit" as defined in the Alameda Municipal Code. The Work/Live Ordinance meets all City Charter (Measure A) requirements. IA ENVIRONMENTAL REVIEW This proposal is Categorically Exempt from the CEQA Guidelines because the proposal involves the conversion of an existing structure with minimal exterior and interior modification. The project is consistent with the applicable General Plan designation and Zoning; the project is within the City limits on a site less than five acres and is surrounded by urban uses; the project site has no value as habitat as it is in a developed area; the project will have no significant effects Alameda Planning Board Staff Report Meeting of 12 April 2004 2 on traffic, noise, air quality or water quality; and the site can be adequately served by all required utilities and public services.. W. STAFF ANALYSIS This is the first application that the Planning Board will be considering for a Use Permit for work/live studios. This report will address each item of the development standards for work/live studios to show how this particular application meets these standards. Please note that the Ordinance language is in italics Staff's responses are in regular type below. See attachment #4 for the complete language of the Work/Live Ordinance. Building Work/live studios are only allowed in existing buildings. The proposal complies with this requirement. The application is for the conversion of an existing industrial building. Zoning: Work/live studios may only be developed in the following districts: C -M (Commercial - Manufacturing), M -1 (Intermediate Industrial (Manufacturing)), and M -2 (General Industrial (Manufacturing1) Zoning Districts. The proposal complies with this requirement. The site is located within the M -2 Zoning District. Geographical Area. Work/live studios may only be developed in the following area: On the west: Sherman Street as projected northerly to the Estuary; on the north: the Estuary; on the east: Tilden Way; on the south: Buena Vista Avenue. The proposal complies with this requirement. The subject site at the corner of Blanding Avenue and Everett Street which is within the geographical area where work/live studios may be developed. Minimum Floor Area. Each work/live studio shall include at least one thousand (1,000) square feet of gross ,tloor area. The proposal complies with this requirement. The proposal is for seven work/live studios ranging .. from 1,273 square feet to 2,384 square feet of floor area. Permitted Floor Area. Not more than thirty (30%) percent or four hundred (400) square feet, whichever is greater, of the work/live studio shall be reserved for living space which shall mean that portion of a work/live studio that is used for residential purposes including, but not limited to, a sleeping area, a food preparation area with reasonable work space, and a full bathroom including bathing and sanitary facilities which satisfy the provisions of applicable codes. The proposal complies with this requirement. Below is a table showing: the square footage of each unit; the "live" area; and a percentage of "live" area compared .to the total unit area. Please note that all units comply: units #1, #2, #6 and #7 have less than 300 square feet of "live" area Alameda Planning Board Staff Report Meeting of 12 April 2004 3 and the "live" area of units #3, #4 and #5 are less than 30% of the total square footage of the units. Unit # Unit area "Live " area % of total 1 1,857 346 18.6 2 1,436 346 18.6 3 1,273 452 25.7 4 . 1,273 452 25.7 5 1,299 452 _ 25.7 6 2,384 325 10.3 7 1,393 351 20.0 Each "live" area consists of a bedroom, a bathroom and. a small kitchen area on the second floor which also contains some "work" square footage, except unit #6 which has its "live" portion on the fast floor. Separation Required. Each work/live studio shall be separated, from other work/live studios or other uses in the building. Access to each work/live studio shall be provided from common access areas, common halls or corridors, or directly from the exterior of the building. The proposal complies with this requirement. Each work/live studio is a separate entity with access from the exterior of the building; two -story units have interior stairways to provide access to the second floor. The common area can be accessed via a staircase in the lobby which also contains two disabled accessible toilet rooms. Parking. Each work/live studio shall have at least one and one -half (1 1/2) parking spaces for up to one thousand (1,000) square feet of floor area plus one -half (112) additional spaces for every additional five hundred (500) square feet of floor area above the first one thousand (1,000) square feet subject to compliance with all other applicable requirements. The provided parking shall comply with the requirements of Section 30 -7. This parking requirement may be waived or modified if the following findings can be made in addition to any other findings required by the ordinance codified in this section 30 -15. 1. That the proposed parking will be adequate to meet the demand created by the project given the character of the proposed uses; and 2. That a waiver or modification of parking requirements will not, under the circumstances of the particular project,. either conflict with nor adversely affect commercial or industrial uses or adjacent residentially -zoned uses in the area where the project is proposed The proposal complies with this requirement. Please see the table below. The project requires a total of 13 on -site parking spaces and a total of 16 are proposed: 11 ground level spaces; 9 surface parking spaces in the existing parking lot; units #2, #3, #4, #5,. and #7 would have integrated garage spaces for one car; and unit $6 would have an integrated two -car garage. . Alameda Planning Board Staff Report Meeting of 12 April 2004 Unit # Square Footage • Parkingrequirement. 2 1 1,857 2 1,436 1.5 3 1,273 1.5 4 1,273 1.5 . 5 1,299 • 1.5 6 2,384 3.5 7 1,393 , 1.5 Total 13 Parcel Area: There shall not be less than two thousand (2,000) square feet of lot area for each work/live studio. The proposal complies with this requirement. The site contains 14,054 square feet. Thus seven work/live studios would be permitted on this site. Use Permit Required. Each building that contains work/live studios shall be subject ro a use permit, which shall include conditions of approval as required to assure adequate standards of health, safety, and welfare and .consistency with the purposes for work/live studios set forth in - this Chapter. Each work/live studio shall be subject to all conditions of approval for the building in which U exists unless the use permit states otherwise. 'The proposal complies with this requirement. The applicant has applied for a Use B&rmit. Conditions of approval are contained in the draft resolution and a deed restriction will be recorded with the County recorder containing these conditions prior to the issuance of any building permit for the conversion of this building to work/live units. WVork/Live Permit Required. Each tenant or owner of an individual work/live studio must obtain a work/live permit prior to. occupancy. Such pertnit shall be issued by the Planning Director based on a determination that the proposed occupancy is consistent with the approved use peanut and all applicable requirements of this section. Application for a work/live permit shall be made to the Planning Department in writing on a form approved by the Department and shall be accompanied by a fee as set by resolution of the City Council. - This requirement will need to be met by each tenant of this particular work/live project once the Planning Board has approved the Use Permit. Since this is the first work/live studio project, . there is no established process for applying for and issuing the work/live permit. Staff has. developed a draft form (attachment #5) to be provided to each wodc/live tenant by the owner to be filed with the business license required for each work/live studio under the Ordinance. Alameda Planning Board Staff Report Meeting of 12 April 2004 5 Design of Work/Live Studios. Subject to all applicdile building and fire code requirements. 1. Work/live studios shall be designed to accommodate commercial or industrial uses as evidenced by the provision of ventilation, interior storage, flooring, and other physical improvements of the type commonly found in exclusively commercial or industrial facilities used for the same Work activity; This is a condition contained in the draft resolution. The working drawings submitted for the building permit phase of this project will be reviewed by the Fire Prevention Bureau, the Building Official and the Planning and Building Director for conformance with this requirement. 2. Areas within a work/live studio that are designated as living space shall be an integral part of the work/live studio and not separated from the work space, except that mezzanines and lofts may be used as living space subject to compliance with other provisions of this Article. Examples of ways to integrate the work space and living space in compliance with this section` include, but are not limited to, the following: (a) Doors or solid walls between the work space and areas used for living space do not extend all the way to the ceiling, except for sanitary facilities and rooms used primarily for sleeping, (b) There is a single entrance to the work/live studio, (c) There are no walls separating the food preparation area from the work space, (d) Only the sanitary facilities and rooms designated for sleeping are enclosed and all other portions of the living area are not separated from the work space. Please note that each studio as proposed meets these requirements: there are no walls or doors in any studio except those for sleeping and sanitary facilities; there is only one single entry into each studio; there are no walls separating any food preparation area from other parts of the studio; the only walls proposed are those separating sanitary and sleeping facilities. Permitted Work Activity. The work activity in a building where work/live units are allowed shall be any use permitted by right or use permit in the zoning district, except that; in order to protect the health and safety of persons who reside in a work/live studio or in a building which contains one (1) or more work/live studios, no work activity shall be permitted nor shall any work/live studio be established on any site that contains those uses which the Planning Director when considering a work/live permit or the Planning Board when considering a use permit; finds would by virtue of size, intensity, number of employees or the nature of the operation, have the potential to create significant impacts by reason of dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration or other Impacts, or would be hazardous by way of materials, process, product or wastes including,' but not limited to: auto service/repair, vehicle sales or leasing, car washes, service stations, bars/lounges/night clubs, . adult businesses, marine engine repair /refueling facilities, animal kennels /grooming/pet shops, liquor stores, veterinary offices/hospitals, funeral parlorshnortuaries, outdoor storage as a primary use, crematories/columbaria, dismantling facilities/scrap yards, public utility structures and facilities, tire sales/service, truck stops/repair. Alameda Planning Board . Staff Report Meeting of 12 April 2004 6 No specific tenants have been proposed except for unit #6 which the applicant, Ms. Koike, will use as her dance/music studio. Ms. Koike has indicated to staff that she has had inquiries from other artists eager to lease one of these studios which include a jewelry .designer, a yoga instructor, a woodworker and a musician. As required, the Planning and Building Director will review each proposed use as part of the work/live studio permit. Because this is the first such use proposed, staff has included a condition in the draft resolution requiring staff to report back to the Planning Board on the specific use of each studio once all have been leased. Additions to Building Envelope. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (IO%) percent in any five (5) year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h). and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established. within the original building envelope shall be permitted and 'shall be considered as part of the existing floor area for purposes of this section. The proposal complies with this requirement. No expansion of the foot -print of the building is proposed. New windows and new openings for the roll -up doors will be installed. The interior of the building will be modified to develop the seven work/live studios, common area andlobby. Landscaping. Where a building to be converted to work/live use is adjacent to residentially - zoned land screening landscaping shall be provided and maintained as a bier between the work/live building and adjacent residentially -zoned land where feasible in light of building setbacks, existing and required parking and whether there is land available along the property boundary This project is not adjacent to any residentially zoned land. Landscaping is proposed along the parldng area as required and small landscaped areas are proposed along some of the entries to the individual studios for aesthetic purposes. All landscaping will be drought resistant as required by the Alameda Municipal Code. Hazardous/Toxic Materials. • A Phase 1 Environmental Assessment for a site proposed for work/live occupancy, including but not limited to an expanded site investigation to determine whether lead based paint and asbestos hazards exist, is required to be submitted as part of the application for a use permit. The purpose of this requirement is to assess whether there are any hazardous or toxic materials on the site that could pose a health risk. Where the Phase 1 shows that there are potential health risks, a Phase 2 Environmental Assessment shall be prepared and submitted to determine if remediation may be required A Phase I Environmental Assessment has been submitted and it shows that two on -site underground storage tanks are present which are recommended to be removed; that oil is present in the boiler room of the building which is recommended to be investigated for possible subsurface *impacts; and it is recommended that an asbestos survey be completed as well as a lead -based paint survey due to the age of the building. • Alameda Planning Board Staff Report Meeting of 12 April 2004 • 7 V. REQUIRED. FINDINGS In order to approve the requested use permit, the Planning Board shall make all of the following three findings and must determine that the proposed use favorably relates to the General Plan: 1. The location of the proposed is compatible with other land uses hi the general neighborhood area. This finding can be made. This project is surrounded by a variety of retail and industrial uses. Thus, the work/live studios used by artists and craftspersons would be compatible with the existing uses which includes a boat yard, electrical contractor and sail maker use. 2. The proposed use will be served by adequate transportation and service facilities. This finding can be made. The proposed use is in a fully serviced building. An AC Transit stop is one block east of the site. 3. The proposed use, if it complies with all conditions upon which approval is made contingent, will not adversely affect of the property in the vicinity. This finding can be made. Any noise or vibration associated with this use would not adversely affect property in the vicinity since the general neighborhood is commercial and industrial in nature including a boat yard and a number of contracting and vehicle repair facilities. 4. The proposed use relates favorable to the General Plan. This finding can bemade. Work/live studios are specifically mentioned as a use in the northern waterfront area in the General Plan. In addition to any other findings required by Section 30 -21.3, (findings 5, 6, 7, & 8) the approval of any use permit required under this Chapter shall require a finding that the proposed use is consistent with the purposes for work/live studios set forth in Section 30 -15.1 with respect to the circumstances and conditions of the subject property. The following additional findings must also be made: 1. The proposed or existing use of each work/live studio is a bona fide commercial or industrial activity consistent with Section 30- 15.5(d); This finding can be made. Any uses proposed will need to secure a Work/live Permit as well as a business license. Thus, the Staff will be able to review all uses to ensure that this condition is met. 2. The establishment of work/live studios will not under the circumstances conflict with nor inhibit industrial or commercial uses in the area where the .project is proposed; Alameda Planning Board Staff Report Meeting of 12 April 2004 8 t This finding can be made.- The area proposed for this work/live studio project is an eclectic commercial/industrial area Which includes: a boat yard, small shopping center, video store, sail maker, and automobile repair facility. The work/live use will not affect these uses or any future permitted uses in the area. 3. Any building containing work/live studios and each work/live studio within the building has been designed to ensure that they will function predominantly as work spaces with incidental residential accommodations meeting basic habitability requirements incompliance with applicable regulations; This finding can be made. Only small areas of each studio will be designed for "live" space: separate sleeting and sanitary facilities and kitchen areas integrated into the "work" areas which are similar to food preparation areas in modern offices or other commercial uses. There are no walls separating the work areas from each other within each studio and six of the studios have • roll up doors leading to workspaces to accommodate large equipment or materials. 4. Any changes proposed to the exterior appearance of the building win be compatible with adjacent commercial or industrial uses where all adjacent land is zoned for commercial or industrial uses. If there ! :: cent residentially -zoned land, then the proposed changes to the building shall make the commercial or industrial building being converted more compatible with the adjacent residential area. • This finding can be made. Exterior modification proposed for this conversion are minimal and take their design :from the existing industrial design of the building: metal roll up doors; industrial sash windows to match the existing and marquees which are typical of. the 1930's industrial architecture of the building. The building will continue to essentially appear as it looks today. CONCLUSION: All required findings for both the specific work/live Use Permit as well as those findings general to all Use Permits can be made. Further, the proposal complies with all requirements of the Work/live Ordinance. Staff does ask guidance from the Board regarding the parking layout and . any conditions of approval associated with this and any other element of the proposal. VL RECOMMENDATION The Planning & Building Director recommends that the Planning Board hold a public hearing, consider all pertinent testimony and information, then act to approve the Use Permit, based upon the findings and conditions contained in the attached Draft Resolution. G AP LANNINCRPB \RBPOR751200412515blanding2.doc • Alameda Planning Board Staff Report Meeting of 12 April 2004 or CITY OF ALAMEDA PLANNING BOARD RESOLUTION NO. PB - draft A RESOLUTION OF THE PLANNING BOARD OF THE CITY OFALAMEDA GRANTING USE PERMIT UP04 -0019, FOR THE CONVERSION OF AN EXISTING INDUSTRIAL BUILDING TO WORK/LIVE STUDIOS AT 2515 BLANDING AVENUE WHEREAS, an application was made on 12 November 2003 by Janet Koike for Cal Vita LLC, requesting, approval of a Use Permit to convert a 15,940 square foot industrial building into seven work/live studios with associated parking and landscaping; and WHEREAS, the application was deemed complete for processing on 4 December 2003; and WHEREAS, the subject property is designated General Industry on the General Plan Diagram; and WHEREAS, the subject property is in the M-2, General Industrial Zoning District; and WHEREAS, the Planning Board has found that the proposal is Categorically Exempt from review under the California Environmental Quality Act Guidelines Section 15332 — In -fill Development Projects; and WHEREAS, the Board held a public hearing on 12 April 2004 to consider this application, and examined pertinent maps, drawings, and documents; and WHEREAS, the Planning Board has made the following findings regarding the Use Permit application request 1. The location of the proposed is compatible with other land uses in the general neighborhood area. This finding can be made. This project is surrounded by a variety of retail and industrial uses.. Thus, the work/live studios used by artists and craftsperson would be compatible with the existing uses, which include a boat yard, electrical contractor and sail maker use. 2. The proposed use will be served by adequate transportation and service facilities. This finding can be made. The proposed use is in a fully serviced building. An AC Transit stop is one block east of the site. 3. The proposed use, if it complies with all conditions upon which approval is made contingent, will not adversely affect of the property in the vicinity. This finding can be made. Any noise or vibrationassociated with this use would not adversely affect 1 Attachment #1 property in the vicinity since the .general neighborhood is commercial and industrial in nature including a boat yard and a number of contracting and vehicle repair facilities. 4. The proposed use relates favorable to the General Plan. This finding can be made. Work/live studios are specifically mentioned as a use in the northern waterfront area in the General Plan. WHEREAS, the Planning Board has made the following findings specific to Work/Live Studios: 1. ' The proposed or existing use of each work/live studio is a bona fide commercial or industrial activity consistent with Section 30- 15.5(d); This finding can be made. Any uses proposed will need to secure a Work/live Permit as well as a business license. Thus, the Staff will be able to review all uses to ensure that this condition is met. 2. The establishment of work/live studios will not under the circumstances conflict with nor inhibit industrial or commercial uses in the area where the project is proposed; - ' This finding can be made. The area proposed for this work/live studio project is an eclectic commercial/industrial area, which includes: a boat yard, small shopping center, video store, sail maker, and automobile repair facility. The work/live use will not affect these uses or any future permitted uses in the area. 3. Any building containing work/live studios and each work/live studio within the building has been designed to ensure that they will function predominantly as work spaces with incidental residential accommodations meeting basic habitability requirements in compliance with applicable regulations; This finding can be made. Only small areas of each studio will be designed for "live" space: separate sleeting and sanitary facilities and kitchen areas integrated into the "wont" areas which are similar to food preparation areas in modern offices or other commercial uses. There are no walls separating the work areas from each -other within each studio and six of the studios have roll up doors leading to workspaces to accommodate large equipment or materials. 4: Any changes proposed to the exterior appearance of the building will be compatible with adjacent commercial or industrial uses where all adjacent land is zoned for commercial or industrial uses. If there is adjacent residentially zoned land, then the proposed changes to the building shall make the commercial or industrial building being converted more compatible with the adjacent residential area. This finding can be made. Exterior modification proposed for this conversion are minimal and take their design from the existing industrial design of the building: metal roll up doors; industrial sash windows to match the existing and marquees which are typical of the 1930's industrial architecture 2 of the building. The building will continue to essentially appear as it look$ today. THEREFORE BE 1T RESOLVED that the Planning Board of the City of Alameda approves Use Permit UP04 -0019, to permit the conversion of an industrial building to work/live studios subject to the following conditions: 1. APPROVED PLAN: The project shall be constructed in substantial compliance with the plans, titled "Blanding Avenue Work/Live ", revised through 5 April 2004, prepared by Thomas Dolan Architecture, marked Exhibit W, on file in the office of the City of Alameda Planning Department, except as modified by the conditions in this Resolution. • 2. VESTING: The Use Permit shall expire on 12 April 2005, unless the conversion of the building has commenced under valid permit. 3. DESIGN REVIEW: Prior to the issuance of any building permit, minor design review for the proposed exterior modifications shall be completed. 4. BU]LDING AND FIRE CODE: The conversion shall be subject to all applicable building and fire codes. 5. LIMITATION ON MODIFICATION: Areas within a work /live studio that are designated as living space shall be an integral part of the work/live studio and not separated from the work space, eitcept that mezzanines and lofts may be used as living space subject to compliance with other provisions of this Article. Examples of ways to integrate the work space and living space in compliance with this section include, but are not limited to, the following: (a) - Doors or solid walls between the work space and areas used for living space.do not extend all the way to the ceiling, except for sanitary facilities and rooms used primarily for sleeping, - (b) There is a single entrance to the work/live studio, (c) There are no walls separating the food preparation area from the work space, - (d) Only the sanitary facilities and rooms designated for sleeping are enclosed and all other portions of the living area are not separated from the workspace. 6. PERMITTED WORK ACTIVITY. The work activity in a building where work/live units are allowed shall be any use permitted by right or use permit in the zoning district, except that, in order to protect the health and safety of persons who reside in a work/live studio or in a building which contains one (1) or more work/live studios, no work activity shall be permitted nor shall any work/live studio be established on any site that contains those uses which the Planning Director when considering a work/live permit or the Planning Board when considering a use permit, finds would, by virtue of size, intensity, number of employees or the nature of the operation, have the potential to create significant impacts by reason of dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration or other impacts, or would be hazardous by way of materials, process, product or wastes including, but not limited to: auto service/repair, vehicle sales or leasing, car washes, service stations, bars/lounges/night clubs, adult businesses, marine engine repair/refueling facilities, animal 3 • ' ... kennels/grooming /pet shops, liquor stores, veterinary offices/hospitals, funeral parlors/mortuaries, outdoor storage as a primary use, crematories/columbaria , dismantling facilities /scrap yards, public utility structures and facilities, tire sales/service, truck stops/repair. . 7. ADDmONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than *ten (10%) percent in any five (5). year period outside the exterior walls or the outer surface of the roofof the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d).. New floors or mezzanines that are established within the original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 8. ' WORK/LIVE PERMIT REQUIRED Each tenant or owner of an individual work/live studio must obtain a work/live permit prior to occupancy. Such permit shall be issued by the Planning Director based on a determination that the proposed occupancy is consistent with the approved use permit and all applicable requirements of this section.. Application for a work/live permit shall be made to the Planning Department in writing on a form approved by the Department and shall be accompanied by a fee as set by resolution of the City Council. 9. NO SEPARATE SALE OR RENTAL OF PORTIONS OF UNIT. No portion of a work/live studio shall be separately rented or sold as a commercial space for a person or persons not living in the premises or as a residential space for a person or persons not working in the same studio. 10. BUSINESS LICENSE REQUIRED. At least one (1) occupant of each work/live studio shall maintain a current City of Alameda business license for a business located in that studio. 11. MIXED OCCUPANCIES: If a building contains mixed occupancies of work/live studios and other nonresidential uses, occupancies other than work/live shall meet all applicable requirements for those rises, and proper occupancy separations shall be provided between the work/live studios and other occupancies, as determined by the Building Official. 12. NOTICE TO OCCUPANTS REQUIRED. The owner or developer of any building containing work/live studios shall provide written notice to all work/live occupants and users that the surrounding area may be subject to levels of noise, dust, fumes, or other effects associated with commercial and industrial uses at higher levels than would be expected in residential areas. State and Federal health regulations notwithstanding, noise and other standards shall be those applicable to commercial or industrial properties in the district where the project is located. For purposes of noise control, work/live studios shall be classified as commercial property under Table 11 in Section 4 -10.4 of the Alameda Municipal Code. 4 t, . t. 13. CHANGE OF USE FROM WORK/LIVE STUDIO. No work/live studio shall be changed to exclusively residential use in any building where residential use is not permitted, where two (2) or more residential units already exist, or where the conversion would produce more than two (2) attached dwellings. The conversion of an existing work/live studio to exclusively nonresidential use is permitted when the conversion meets all other applicable zoning and building code requirements for the proposed use. Such a change shall be subject to all applicable requirements for the district where the proposed dwelling unit is located. 14.. INCREASE IN RESIDENTIAL USE. No work/live studio shall be changed to increase the floor area devoted to residential use without review and approval of the Planning Director. In no case shall the floor area devoted to residential use be increased to more.than four hundred (400) square feet or thirty (30%) percent of the gross floor area of the unit whichever is more. 15. ADDITIONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (1O%) percent in any five (5). year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established within the: original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 16. DEED RESTRICTION REQUIRED. The owner of each work/live studio or each:.building containing work/live rental studios shall record a notice on the property specifying the - limitations of use and operation included in the use permit. 17. ON- PREMISES SALES. On- premises sales of goods are limited to those produced within the work/live studio. Retail sales of goods produced within the work/live studio shall be incidental to the primary work use in any building used exclusively for work /live occupancy. These provisions shall permit participation in occasional open studio programs and gallery shows. 18. NON RESIDENT EMPLOYEES. Up to two (2) persons who do not reside in the work/live studio may work in the studio unless such employment is expressly prohibited or limited by the use permit because of potential detrimental effects on persons living or working in the . building or on commercial or industrial uses or residentially-zoned areas in the vicinity of the . subject property. The employment of three (3) or more persons who do not reside in the work/live studio may be permitted subject to a use permit based on additional findings that such employment will not adversely affect traffic and parking conditions in the area where the work/live studio is located The employment of any persons who do not reside in the . work/live studio shall be subject to all applicable Building Code requirements. 5 19. CLIENT AND CUSTOMER VISITS. Client and customer visits to work/live studios are permitted subject to any conditions that may be imposed by the use permit in order to ensure compatibility with adjacent commercial or industrial uses or adjacent residentially zoned areas. 20. HOLD HARMLESS:. Pursuant to California Government Code Section 66474.9(b), the City of Alameda requires as a. condition of this Use Permit approval that the applicant, or its successors in interest, defend, indemnify, and hold harmless the City of Alameda or its . agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, and employees to attack, set aside, void, or annul, an approval of the City concerning the subject property, which action is brought within the time period provided for in Government Code Section 66499.37. The City of Alameda shall promptly notify the applicant/project sponsor of any claim, action or proceeding and the City shall cooperate fully in the defense. If the City fails to promptly notify the applicant/project sponsor of any claim, action, or proceeding, or if the City fails to cooperate fully in the defense, the applicant/project sponsor shall not hereafter be responsible to defend, indemnify, or hold. harmless the City: . 21. .REVOCATION: This Use Permit may be modified or revoked by the City Council or Planning Board, should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 22. ACKNOWLEDGMENT OF CONDITIONS: The applicant shall acknowledge in writing all of the conditions of approval and must accept this permit subject to those conditions and with . full awareness of the applicable provisions of Chapter 30 of the Alameda Municipal Code in . order for this Use Permit to be exercised. 0:1PLANNINGrIARESO 2OO4‘2s1sn g2.aoc 6 ;.Judl�l�Ll'���1lJLER - 2612 �Iaritjding,Av� �� " �.. From: Michael Schiess <uJuju @comcast.neb To: <jaitschu @ci.alameda.ca.us> Date: 3/1/2004 8:37:19 PM Subject: 2512 Blanding Avenue To: Judith Altschuler Supervising Planner City of Alameda • Dear Judith, • I totally support work/live space in Alameda and am writing in support of developing 2512 Blanding Avenue Into work/live space. I have lived in Alameda for 20 years and own a beautiful Victorian here. l am very much in favor of preseMng Alameda's buildings and recycling them Into new uses. There are so many historical buildings that instead of being demolished; could be better used as a work/live space. It would also reduce the need for building new multi -unit homes that take away , from the flavor of this town. Another benefit would be to hopefully have more artists in the community, and nurture the arts h&c; vva.I local artists. I am an artist/landiord who works for the Exploratorium, Chabot Space and Science Center, The Crucible and Ned Kahn Studios. I also run the Lucky Ju Ju Pinball on Saturday nights in Alameda. www.ujuju.com -chttp://www.ujuju.com/> and you are always welcome to come by and play a game or two. Thanks for your time, Michaei:Schiess 1029 Central Avenue Alameda, CA 94501 -2305 (510)521 -7262 CC: Michael Schloss <ujuju @comcast.neb, <rhythmtk @earthlink.net> Attachment #2 Page 1 i �Jud�tli Ai, C II ER .work/llve•alamet = From: ed camel <edzkastle ®alamedanet.net> • To: <jaltechu ©ci.alameda.ca.us> Date: 3/2/2004 4:52:45 PM Subject: work/live alameda To whom this may concem, as a twenty year resident of Alameda, as well as a professional artist, rm delighted to loam that you're contemplating developing 2512 Blanding into worMve space.I happen to live near the site and have often wondered, while driving by, what would become of the property.How magnificent it would be to preserve the historic facade while implementing a resource to nurture creative arts activities.A win -win situation and an idea whose time has come. There seems to have been a dearth of work/ive on the island in the past; although I've worked on such grand projects as the restoration of the Oakland Main Museum murals and Feature Film set productions In hangars at Alameda Polnt,(ail the while an Alameda resident),there has not been much prospect of large studio space and arts community...until now. Alameda is a very special town.Supporting the arts through developing 2512 Blanding will be one more jewel in the Island City's crown. Sincerely, Ed Cassel Attachment #3 4 ...0 E 1-00 - .Develo ifnent of 25r landing In Alameda page 1 I From: Melissa Harmon <meiharmlessa @yahoo.com> To: <Jaltschu ®d.alameda.ca.us> Date: 3/2/200411:44:11 AM Subject: Development of 2512 Blanding In Alameda Dear Ms. Aitschuler, I'd like to support the development Of 2512 Blanding Avenue into work/Ilve space. I live here in Alameda with my husband in a Victorian house that has been authentically renovated. Having artists in the old industrial sector of Alameda Is a great asset to our city, and is a good way to recycle the buildings. I am a curator with recent shows in Berkeley and San Francisco. • Thanks very much! Sincerely, McNssa Hannon, 1029 Central Ave., Alameda Do you Yahoo!? Yahoo! Search - Find what you're looking for faster http:/ /search.yahoo.com . Attachment #4 t .l 80.14 ALAMEDA MUNICIPAL CODE 8045. WOR `/LVE ertnuot. 80.10.1 Purpose. . The intent of this section is to set forth molt - dons and standar d a for establishing rind operating work/live studios ' as a penury commer- cialfinduatriai use, in whch the proprietor would be allowed to reside as a secondary land use activ- ity. The purposes afthese provisions for wark/live studios are: a. To provide for and make feasible the reuse of =Wing commercial or industrial buildings and related sites in the NorthernWaterfrontand other • specified commercial, manufacturing, and Indus- trial zoning districts as proposed in the Alameda General Plan; • b. To provide alternative work space that will provide an incentive for entrepre- nears, business owners, artists, artisans, and - other individuals to continue to work in Alameda and cones to the City's economy; c. Toreduice traffic and assodatedadverseim- pacts on air quality, energy resources, and the quality of life in the City by reducing the number and length � k- related tips by employed Alameda d. To ate the preservation: and reuse of commercialorindustrialbmldings that contribute to the historic character of the community.in a manner that is consistent with other community goals and polities; • e. To allow activities that are compatible with and will not compromise or interfere with. existing and potential industrial or cominerdal uses in the districts where such workAive studios are estaib- Iished; - L To ensure that work/live studios will folia- tion predominantly as workspaces with intidentpl residential accommodations that meet basic habit- ability requhnments incomplianc withapplicable regnlataions. No pardon of any work/live studio shall be considered a "dwelling' as that term is defined in Sections 80.2 and 80 -51.1; 3072 g. To ensure that the exterior design of struc- tures converted to work/live use reflects the pre- dominant industrial or cornrnercial character of such buildings and will be compatible with adja- cent commercial or industrial uses; h. To ensurethat, where there is adjacentresi- dentialy zoned•land; changes to the exterior of structures converted to work/live are designed to mane the commercial or industrial building being converted more compatible with the adjacent resi- dential area. (Ord.' No. 2784 N.S. $6) ' . - 80.15.2 Applicability. Work/live studios are only allowed in existing buildings that have been converted subject to the approval of a use permit in the 0-11 (Commercial- Manufacturing), M-1 Untermediat a Industrial EManufactiningl), and M-2 (General Industrial [Manufacturing]) Zoning Districts within the area bounded as follows: On the west: Sherman Street as prgjected northerly to the Estuary; oil the north: the Estuary; on the east: Tilden Way; on the south: Buena Vista Avenue. (Ord. No. 2784 .N.S. §6) 80.15.5 Definitions. • The following definitions shall be applicable in this Article: a. Living spay shall mean that portion of a work/live studio that is used for residential pur- poses including, but not limited to, a sleeping area, a food preparation area with reasonable workspace, and a full bathroom including bathing . and sanitary facilities which satisfy the provisions of applicable codes. b. Work /live studio shall mean a commercial or industrial unit with incidental residential ac- commodations occupying one (1) or more rooms or floors in a building primly designed and used forindustsial or commercial occupancy and provid- ing: L Adequate warking space reserved for com- mercial or industrial use and regularly used for such purpose by one (1) or more persons residing in the studio; 2. Living space as defined in subsection 80- 15.8(a) and in accordance with the provisions of this section. c. A4Gacent shall mean that properties share a common property boundary or are directly across a street right-of -way. (Ord. NO. 2784 N.S. g6) Rev. Ord. Supp. 1/99 Attachment #5 30-15 ALAMEDA MUNICIPAL CODE • Work activity shall be permitted nor shall any. work/live studio be established on any site that contains throes uses which the Planning Director when considering a work/live permit or the Plan- ning Board when amEddering a use permit, finds would, by virtue of slze, intensity, number of em- ployees or the nature of the operation, have the potential to create significant impacts by reason of dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibratile or otherhnpacts, or would be hest:dons by way ofniaterials, process, product or wastes including, but not limited to: auto ser- vice/repair, vehicle sales or leasing, car washes, service stations, bars/lounges/night clubs, adult businesses; marine engine repairkefiieling &Gni ties, animal kennels/grooming/pet shops, liquor. stores, veterinary officesilioardtals, funeral par- lorahnortuaries, outdoor storage as a primary use, crematodes/colnunbaria, • dismantling fa tieslacraP *yards, public utility structures- and facilities, •tire sales/service, truck stops/repair. • Uses allowed under the foregoing paragraph that may, depending on how they we operated, also have the potentitd to generate impacts or would Constitute a change in occupancy under the building code shall not be appraised unless the Planning Director • finds that as proposed to be conducted, or as modified by conditions of use paindt, they would not conflict with or adversely affect existing work uses in the building and in the area where the work/live studio is located. NO . use shall be approved. Where, given the design at proposed design of the work/live studio, there would be the potential for adverse health impacts fram the proposed use on the people residing In the studio. An example of a potential health im- pact is the potential for food contaMination from uses which generate airborne particulates in a studio with an =enclosed Idtchen. - Retail activities must be accessory andimbordi- nate to any permitted commercial or industrial work activity in buildings used exclusively for workfiive studios. e. No Separate Sale or Rental of Portions of •Unit. No portion of a work/live studio may be • separately rented or sold as a commercial space for a person or persons not living in the Premises or as a residential space for a person or persons not working in the same studio. £ Busirsess.Licaise Required. At least one (1) occupant of each work/live studio shall maintain a current City of Alameda business license for a business located in that studio. • g. Mixed Occupancies. lf a building contains mixed occapandes of work/live studios and other nonresidential uses, occupancies other than work/live shall meet all applicable requkements for those uses, and proper occupancy separations shall be provided between the work/live studios and other occuPandee, as determined by the Building OffidaL h. Notice to Occupants Required. The owner or • developer of any building containing worWlive studies shall provide written notice to all work/live occupants and users that the surrounding -area may be subject to levels of noise, deist, fames, or other effects associated with commercial and in- dustrial uses at higher levels than would be ex- pected in residential areas. State and. Federal health regulations notwithstanding, noise and other standards shall be those applicable to com- mercial or industrial properties in the district the prided is located. For purposes ofneise control, Work/live studios shall be classified as commercial property under Table. if in Section 4-10.4 of the Alameda Municipal Ca.: 1. Change of thre Arm Work/Live Studio: No work/live studio shall be changed ifti exclusively residential Use in any Wilding where residential CM is not permitted, where two (2),ex more red- . dential units already exist., or where the conver- sion would produce more than two (21 attached dwelling. The conversion of an edirlintworkfilve studio to exclusively :nonresidential uses permit- • tedwhen the convervion meets ail other applicable zoning and building Code requirements for the proposed use.13udt a Change shall be subject taall • applicable requirements for the district where the proposed dwelling sulk is located. j. Increase in Residential gee. No work/live audio shall be changed to increase the floor area devbted to residential use without review and approval of the Planning Director. In no case shall. the floor area devoted to residential use be in- creased to more than four hundred (400) square feet or thirty (20%) percent of the gross floor area of the unit whichever is more. • k. Additions to Binding Envelope. No modifi- cattans shall be made to the exterior of a building proposed for or in current use as a work/live occu- pancy that would insult in a substantial increase in the blinding envelope resulting in an increase • 3072.2 Rev. Ord. Sapp. 1/99 30-15 • ALAMEDA MUNICIPAL CODE d. Any changes proposed to the exterior ap- pearance of the building will be compatible with adjacent commercial or industrial uses where all adjacent land is zoned for commercial or industrial uses. If there is adjacent residentially-zoned land, then the proposed changes to the building shall make the commercial or industrial, building being converted more compatible with the adjacent resi- dential area. (Ord. No. 2784 N.S. $8) 3072.4 Rev. Ord. Sapp. 99 Work/Live Permit (draft) 1. Name 2. Address 3. Telephone number 4. Use Permit number and date of approval • 5. Naive of property owner 6. Address of property owner 7. Telephone number of property owner 8. Detailed description of work activity 9. Does the activity include any retail sales 10. Detailed description of materials/tools used 11. Detailed description of materials produced, if any 12. Number of customers/students/participants 13. Number of employees 14. Hours of operation 15. Number and nature of special events, if any 16. Attach floor plan of all levels of the work/live studio including furniture/fixture placement drawn to '/e or' scale. GAPLANNI[ GWORMSIworldivepermitdraftdoc to A • &Yeti rr sr. .(40/ 1....66.-) • '3#1'24-1 e- jyrup/ru6 • /00, 00 3,0c f 5/5 3.05 Ai va$ Ix IV XEPIWPD NV B w, r1 OOPPEi rock &OVAL palLY 6, J Ir1•J(GS .? L.,a M t<nd ovIzVEY OP LOT* 10 4 N gcoalc 4 M f r v i . /4 ,4 -5 r 4 , A I-4 E' P.4 Go via Tv G4 c4, -o/? ! l A DATE `- 8-4003 SCALE 1 r+f'}D, CLIENT: J A w wr ko 1 1.E 2237 rn'wc.e sr. I:30,4 FtEr ANDREAS ORM< LICENSED LAND SURVEYOR 2114 SVGNA VISTA Ar6WC A;.A ARI A CA. 44301 PHONE' S6S.4ss9 sunvev DE 4k_ PLAT '4Wick. AM! 'Q -196 -ZZ Attachment 07 • j February 17, 2004 2618 Janis Cirele Alameda, CA 94501 510 -521 -7257 Planning Board Alameda City'Hall 2263 Santa Clara Avenue Dear President Piziali and Members of the Planning Board: Alameda Ordinance 2784 is inconsistent with Measure A: No use permit should be issued for the construction of multiple dwelling units at 2515 Blanding. Avenue. Please consider the following: 1. Measure A makes no exception for work/live units. Any such exception would require voter approval. 2. Measure A's implementing ordinance does not contain the term "food preparation area". The word, kitchen, is used. 3. Measure A was passed by an electorate opposed to higher residential density. A use permit for Blanding will be followed by work/live use permits elsewhere, a situation opposed by a majority of the Alameda electorate. 4. The Blanding units will be primary residences. 5. Those units will have all the amenities required for long term occupancy. 6. Those units will have what ordinary people call kitchens. 7. Section 30.15.1f of Ordinance 2784 warns that no portion of any work/live unit shall be considered a dwelling. By avoiding the words, `kitchen' and `dwelling', the work/live advocates hope to circumvent Measure A. Their strategy is to obfuscate rather than clarify. 8. Who were those advocates? Ask yourself who first proposed using the terra, `food preparation area', in a city ordinance. Who gave that person legal advice? . Aslc the City Attorney. If ordinance 2784 did not exist, would Measure A allow more than two work/live units in a building? The obvious answer is no. If Measure A did not exist, would ordinance 2784 allow more than two work/live units in a building? The obvious answer is yes. When ant ordinance passed by the City Council conflicts with a charter provision approvedby the people, the charter provision prevails. Respectfully, Q41u4rr Ed Murphy City of Alameda Interdepnrtment Memorandum Date: 23 :February 2004 To: Greg Fuz Planning and Building Director From: Judith Altschuler Supervising Planner RE: Work/Live Studio Proposal on Blanding You asked me to respond to an email dated February 17, 2003 to the Planning Board by Ed Murphy. Below is my response. An application for a Use Permit has been made by the owner of 2515 Blanding Avenue to convert the existing Clamp Swing Building into work/live studios. The owners, Cal Vita LLC, intend to create seven fully compliant work/live studios. They would range from 1,753 square feet (where the ordinance requires a minimum of 1,000 square feet) to 4,897 square feet with live spaces of between 213 square feet to 452 square feet. This would calculate to between 4.3% and 25.8% for the live spaces where the Ordinance permits 400 square feet not to exceed 30 %. A total of 14 parking spaces would be provided (6 in a park lift configuration) which is that total that the Ordinance requires. The tenants would consist of a variety of artists, artisans and musicians. This is the first Use Permit for a Work/Live use considered by the Planning Board. A plan set is attached. Mr. Murphy states that Alameda Ordinance No. 2784 N.S. Work/Live Studios is inconsistent with Measure A. He believes that no Use Permit should be issued for the "...construction; of multiple dwelling units a t 2515 Blanding Avenue." . Mr. Murphy ;mks the Board to consider the following: 1. Measure A makes no exception for work/live units. Any such exception would require voter approval. The text of Measure A does not make exceptions for work/live studios. However, work/live studios are not dwelling units. Section 30- 15.1(0 of the Work/Live Ordinance states that " (n)o portion of a work/live studio shall be considered a "dwelling" as that term is defined in section 30 -2 (Definitions) and 30- 51.1(Multiple- Dwelling Units)." Thus, work/live studios are not exceptions to Measure A, but are not regulated under Measure A since they are not dwelling units. Attachment #4 2. Measure A's implementing ordinance does not contain the term "food preparation area ". The word, kitchen, is used. Mr. Murphy is correct that section 30 -51.1 (Multiple - Dwelling Units) defines "dwelling unit" as "...a group of rooms, including one (1) kitchen, a bath and sleeping quarters.... ". The Work/Live Ordinance uses the words "food preparation area" in the definition of what constitutes the "living space" which is permitted to be part of any work/live studio. The use of this language is broader than the word "kitchen" and acknowledges that in a work/live studio an area may exist where food is prepared. 3. Measure A was passed by an electorate opposed to higher residential density. A use permit for Blanding will be followed by work/live use permits elsewhere, a situation opposed by a majority of the Alameda electorate. Contained within the Work/Live Ordinance is an Applicability Section (Section 30 -15.2) which states that "( w)ork/live studios are only allowed in existing buildings that have been converted subject to the approval of a use permit in the C-M (Commercial - Manufacturing), M-1 (Intermediate Industrial [Manufacturing]), and M-2 (General Industrial [Manufacturing]) Zoning Districts within the area bounded as follows: On the west: Sherman Street as projected northerly to the Estuary; on the north: the Estuary; on the east: Tilden Way; on the south: Buena Vista Avenue." Thus, the City Council in adopting the Ordinance, encouraged work/live studios to re -use exiting buildings in a specific geographic area. 4. The Blanding units will be primary residences. There is no prohibition against the tenant/owner from maintaining the work/live studio as his/her primary or only residence. The City Council intended work/live studios to "...reduce traffic and associated adverse impacts on air quality, energy resources, and the quality of life in the City by reducing the number and length of work-related trips by employed Alameda residents ". Thus it may be inferred that the Council intended the work /live studios to function as the sole residence in order to reduce traffic and other adverse affects of vehicular commuting between home and work. 5. Those units will have all the amenities required for long term occupancy. While there is no prohibition for long-term occupancy, the concept of "work/live studio" is essentially a commercial/industrial space with a small residential component as an accessory use. Some tenants/owners of work/live studios may opt to use the spaces on a long-term basis; others may work and live in a work/live studio to establish their business and then move to a more traditional home for their residence. One stated purpose of the Work/Live Ordinance is to provide "...cost-effective alternative work space(s) that will provide an incentive for entrepreneurs, business owners, artists, artisans, and other individuals to continue to work in Alameda and to contribute to the City's economy." 6. Those units will have what ordinary people call kitchens. The Work/Live Ordinance permits "food preparation areas" which would be considered as part of the accessory live, or residential, use. These areas could be similar to traditional kitchens containing the full range of contemporary kitchens including full - sized refrigerator, dishwasher, stove and cabinets. They could also have less formal food prep arrangements similar to those found in offices: under- the - counter refrigerators, bar sink, microwave oven and minimal storage spaces. There is no prohibition to install a full sized kitchen, but the area used as a kitchen would be counted toward the limited residential square footage allowed. 7. Section 30.15.1f of Ordinance 2784 warns that no portion of any work/live unit shall be considered a dwelling. By avoiding the words, `kitchen' and `dwelling', the work/live advocates hope to circumvent Measure A. Their strategy is to obfuscate rather than .clarify. The City Council in approving the Work /Live Ordinance carefully crafted the language such that the concept of work/live, ie an essentially commercial/industrial use with a limited residential accessory use would comply with Measure A. Rather than "avoiding" the use of -the words "kitchen" and "dwelling", the Council made a clear distinction between a work/live use and a residential use. 8. Who were those advocates? Ask yourself who first proposed using the term, `food preparation area', in a city ordinance. Who gave that person legal advice? Ask the City Attorney. The concept of " work/live" is contained in the General Plan as a possible use in the Mariner Square area and the Northern Waterfront which was adopted by the City Council in 1991. Adoption of Work/Live Ordinance by the City Council provided the regulations for such a use. Since the Blanding Avenue application is the first one to be considered by the Planning Board, I have asked support staff to retrieve all files relating to the adoption of the Work/Live Ordinance in case more research in necessary to respond to questions regarding the Ordinance. G :\PLANNIN6PB \CORRES12004\ nuiphyliveworkresponse.doc 1 PRELIMINARY DRAFT Subject to modification prior to approval by Planning Board UP03 -0019 — 2515 Blanding Avenue — Cal Vita LLC (JA). The applicant requests a Use Permit to allow the conversion of a 15,840 square foot industrial building into seven work/live studios and two retail/commercial spaces with associated parking and landscaping. The site is located within the M-2, COeneral Industrial Zoning District. (Continued from the meeting of March 22, 2004.) President Piziali advised that Ms. Mariani left the meeting during the break. Ms. Altschuler summarized the staff report, and noted that three new letters had been received and distributed to the Board members. She added that Mr. Murphy's letter and staff's response to that letter were also distributed to the Board. Staff recommended approval of this item. The public hearing was opened. Mr. Ed Murphy, 2618 Janis Circle, inquired whether staffs response to his letter had been sent to him. Ms. Altschuler indicated that she did not know. Mr. Murphy stated that he had never received a staff response. He inquired whether the project was as described on the agenda, or in the staff report; he did not believe they were described in the same way. • Ms. Altschuler advised that the project as described in the staff report was the current project Mr. Murphy noted that how the first live/work project is dealt with by the City would be critically . important He expressed concern the reasoning exercised by Planning and legal staff, as well as the Board, with respect to Measure A. Ms. Janet Koike, applicant, 2237 Prince Street, complimented staff on the completeness and accuracy of the staff report. She noted that she was an artist who was able to buy the subject building. She described her history with respect to work/live space in Oakland, and noted that she wished to contribute to•the artist community with a professionally - developed work/live space. She believed that this project would contribute to the vitality of the neighborhood. Planning Board Meeting Page 17 April 12, 2004 Attachment #5 • PRELIIINTARY DRAFT • Subject. to modification prior to approval by Planning Board Mr. Thomas Dolan, project architect, noted that the design more than complied with the ordinance, and added that they have expended great effort to be within both the letter and the spirit of the work/live ordinance. He appreciated that this .would be the first project of its kind in Alameda. He detailed his history in designing work/live spaces over the past 30 years, and had spoken and worked all over North America; helping cities write code for work/live spaces. He applauded the City's rigid definition of work/live space, and noted that they would not be lifestyle lofts. He noted that the work component of the spaces would be predominant over the living component. Mr. Michael Schiess, 1029 Central Avenue, spoke in support of this item, and believed that this was an important step for Alameda to take. He noted that he was in full support of Measure A, and added that this was not a new structure, but was rather ari existing building that would be recycled He did not wish for this building to deteriorate. .Mr. Dave Olson, owner, Stone Boat Yard, 2577 Blanding, noted that his site was immediately adjacent to the subject property, and added that he supported this project. He believed that this project would enhance the neighborhood and the City as a whole. Mr. Lee Smith, 391 Clifton Street, spoke in support of this item, and added that he was a potential occupant of the building. He noted that he had lived in warehouse space in Oakland for 25 years, and added that working artists contributed to the economy and tax base of Alameda. Ms. Carolyn West, 456 Centre Court, spoke in favor of this item. She noted that she was an attorney practicing in Oakland, and was a performing musician as well. She supported work/live space in Alameda, and noted that it enhanced the quality of life in the community. She noted that turning an empty building into a site for craftspeople energized the community. She believed the City needed to do more to encourage work/live space in Alameda. The public hearing was closed for Board discussion. Ms. Cook noted that she fully supported this project. Mr. Dolan advised that all of the conditions were acceptable to them. In response to an inquiry by Ms. Cook, Ms. Altschuler replied that there was an intervening property between this site and the Estuary. She added that because Stone Boatyard was a through property between the street and the Estuary, that if the Bay Trail were to be placed anywhere, it would be on the street. Planning Board Meeting Page 18 April 12, 2004 l PRELIMINARY DRAFT Subject to modification prior to approval by Planning Board In response to an inquiry by Ms. Cook with respect to the possibility of reducing the six -foot fence to a four -foot fence in order to increase visibility of the building, Mr. Dolan advised that he would be open to working with staff to refine that issue. He noted that artists often created tangible items of value, and that some security was necessary. In response to an inquiry by Mr. Cunningham whether this project came under the provisions of the public art ordinance, Ms. Altschuler replied that it would depend on the amount of money spent for improvements; $250,000 would qualify the project under the ordinance. Ms. Cook supported saving the paintings on the side of the building. Mr. Dolan advised that they planned to retain those paintings, and would waterproof them as well. Mr; Cunningham advised that the canopies were projecting into the fire lane circulation, and inquired whether they had consulted with the Fire Department. Mr. Dolan advised that they would meet with the Fire Department and make any required revisions. If any of the revisions impacted the appearance of the. building, they would consult with staff. They planned to use steel and glass for the canopies. In response to-an inquiry by Mr. Cunningham with respect to shading for the parking stalls as defined under the tree ordinance, Ms. Altschuler advised that with a. new parking lot, one tree must be provided for every four required parking spaces. Because this was an existing parking lot, it would be grandfathered in, and would not need to. have .trees installed. She noted that the applicant may install trees at their discretion. Mr. Lynch would support a minimum of three trees with open space, and would leave staff to develop the final details. Ms. Altschuler advised that staff wished to ensure that there was sufficient parking for both of the uses. The interior spaces generally functioned for the tenants, rather than customers or students. Staff suggested a plan to maximize the parking, from which the Board could reduce it. In response to an inquiry by Mr. Cunningham, Mr. Dolan advised that there would be some sort of controlled access to the parking, such as a keycard. He noted that there was generally one car per unit, but that couples will often have one car where they would have had two in a different living Planning Board Meeting Page 19 April 12, 2004 PRELIMINARY DRAFT Subject to modification prior to approval,by Planning Board situation. He noted that the car count in true work/live spaces were often quite low because of the zero- commute nature of the use. In response to an inquiry by Ms. McNamara, Ms. Koike replied that originally, she intended for all the units to be for sale as soon as the project was developed. Because of insurance restrictions, she later decided to rent them for ten years, and that they could be sold after that. A discussion of the commercial uses of live/work spaces ensued. Mr. Dolan advised that they would like to be relieved of the need to place the three parking spaces beyond the required spaces inside of the building. They would like to be able to provide street trees and vines on a fence or trellis. President Piziali did not believe that was what the Board had in mind, and would not want to reduce the parking spaces inside the building. Ms. Altschuler advised that when the parking spaces were removed, More parking would be M/S Cunningham/Cook and unanimous to adopt Planning Board Resolution No. PB-04 -25 to approve a Use Permit to allow the conversion of a 15,840 square foot industrial building into seven work/live studios and two retail/commercial spaces with associated parking and landscaping. The following condition would be added The parking requirement would be limited to 13 spaces. the additional three spaces currently provided external to the building would be removed, and landscaping would be added with the intent of providing a minimum of three trees along Blanding Avenue. AYES — 5 (Bard, Marian absent); NOES — 0; ABSTAIN — 0 9. WRITTEN COMMUNICATIONS: None. 10. BOARD COMMUNICATION: a. Oral Status Report regarding the Alameda Point Advisory Committee APAC (Vice President Bard). Planning Board Meeting Page 20 April 12, 2004 17958.11. Alternative building regalations; joint living and work' • • • • . • quarters; geographic areas • • (a) Any' city or county may adopt alternative building re ., Iations• fo'r the conversion of eonnnercial' or industrial buildings,' or orljons• thereof, . to joint living and work quarters. As used in this section, "joint living and work quarters" means residential occupancy by a family maintaining a common household, or by net more than four unrelated persons, of one • or more rooms or floors in a building oil i : designed of r industrial or commercial occupancy ;which include 1) cooking space and sanitary facilities in conformance with local buil • standards' adopted pursuant to Section 17958 or 17958.5 and (2) adequate working space reserved for, and regularly. used' by, one or more persons residing therein. ' :The alternative building regulations adopter) pursuant to this section . shall be applicable in those geographic areas specifically designated for such occupancy, or as expressly permitted by a redevelopment plan with respect to a redevelopment project area.. The alternative building ran- . Iataons need not impose the same requirements as regulations adopted pursuant to Section X7922, except as otherwise provided in this section, but in permitting repairs, alterations, and additions necessary to seem - •modate joint living and work quarters, the' alternative bud ng reguIa • tions shall impose sueli requirements as will, in the determination of the , local governing body, protect the public health; safety, and welfare. . (b). The Legislature hereby finis and declares that a etibstantIal num- ber of manufacturing and commercial buildings n.urban areas love lost . manufactuiting, and commercial tenants to more modern man and commercial premises, : and. diet the untenanted portions of . ' buildings constitute a. potential resource capable, *hen appropriately, altered, of accommodating joint living and work quarters which would be - phymcally and economically suitable particularly for use by artists, artisans, and simfarly$ititated individuals. The Legislature further . finds that the public will benefit by making such buildings 'available for joint living and work quarters for artists, artisans, and-similarly-situated: individuals because (1) conversion of space to joint living and work quarters. provides a new use for such buildings contributing to the . revitalization of central city areas, (2) such conversion results in building improvements and rehabilitation, and (8) the cultural•life of cities and of the state as a whole is enhanr by the residence in such cities of !urge numbers of persons regularly engaged in the arts. • • • (c) The Legislature further finds and declares that (1) persons re fir° engaged in the arts ' ' require larger amounts of spaae.for the pursuit of eir artistic endeavors and for the of anateriais therefor, and of • the products .thereof, than are regularly found in dwellings, (2)• he . financial remunerations to be obtained from a career in the arts • are • generally small, (3) persons regularly engaged in the arts generally find it financially difficult to maintain quarters for their artistic endeavors separate and apart from their places of .residence, (4)' high. property values and resulting rental costs make it particularly diffcuIt for per-... sons regularly •engaged in the arts to obtain the use •of.the amount of • space required for their.work, and (5) the residential use of such space is - accessory to the primary• use of such spat as a place of work: It is the intent of the Legislature that local governments have discfe- . tion to define geographic areas which may be utilized for joint living and • work quarters and to establish standards for such occupancy, wWstent with the needs and conditions peculiar to the local +environmedt. The Legislature recognizes that building code regulations applicable to red-. • . dential housing may have to be relaxed to provide s 't and••w , • quarters in buildings previouslydbed for comm N or industrial pur. • • pOses• . • . • (Added. by 83tats.1979, a. 484, p. 1557, 8 ILO Attachment #6 5 WHEREAS, the City Council finds that the proposal is Categorically Exempt from review CITY OF ALAMEDA RESOLUTION NO. DENYING THE APPEAL AND UPHOLDING THE PLANNING BOARD'S APPROVAL OF A USE PERMIT UP04 -0019, FOR THE CONVERSION OF AN EXISTING INDUSTRIAL BUILDING TO WORK/LIVE STUDIOS AT 2515 BLANDING AVENUE WHEREAS, an application was made on 12 November 2003 by Janet Koike for Cal Vita LLC, requesting, approval of a Use Permit to convert a 15,940 square foot industrial building into seven work/live studios with associated parking and landscaping; and WHEREAS, the application was deemed complete for processing on 4 December 2003; and WHEREAS, the subject property is designated General Industry on the General Plan Diagram; and I WHEREAS, the subject property is in the M-2, General Industrial Zoning District; and CC under the California Environmental Quality Act Guidelines Section 15332 In-fill tl.___7_p___ 0 Projects; and Q WHEREAS, the Planning Board held a public hearing on April 12, 2004 and acted to approve Use Permit, UP04 -0019; and 0 WHEREAS, on 15 April 2004, Edward J. Murphy filed an appeal of the Planning Board's decision to the City Council; and WHEREAS, on 20 April 2004, Patricia H. Bail filed an appeal of the Planning Board's decision to the City Council; and WHEREAS, the City Council interprets Article XXVI as not applying to work/live spaces; and WHEREAS, the City Council considered responses to the bases of the appellants' appeal and finds that there are no merits in the bases of appeal; and WHEREAS, the City Council makes the following findings with respect to the appellants' bases of appeal and relative to the Use Permit application: 1. The proposal is consistent with the City Charter. Work/live studios are not dwelling units under the City Charter, State Law or Alameda Municipal Code section 30 -15. 1 Resolution #5 -H 6 -15 -04 2. The location of the proposed use is compatible with other land uses in the general neighborhood area because this project is surrounded by a variety of retail and industrial uses. Thus, the work/live studios used by artists and craftsperson would be compatible with the existing uses, which include a boat yard, electrical contractor and sail maker use. 3. The proposed use will be served by adequate transportation and service facilities because the proposed use is in a fully serviced building. An AC Transit stop is one block east of the site. 4. The proposed use,. if it complies with all conditions upon which approval is made contingent, will not adversely affect the property in the vicinity because any noise or vibration associated with this use would not adversely affect property in the vicinity since the general neighborhood is commercial and industrial in nature including a boat yard and a number of contracting and vehicle repair facilities. 5. The proposed use relates favorably to the General Plan because Work/live studios are specifically mentioned as a use in the northern waterfront area in the General Plan. WHEREAS, the City Council has made the following findings specific to Work/Live Studios: 1. The proposed or existing use of each work/live studio is a bona fide commercial or industrial activity consistent with Section 30- 15.5(d) because any uses proposed will need to secure a Work/live Permit as well as a business license. Thus, the Planning and Building Director will be able to review all uses to ensure that this condition is met. 2. The establishment of work/live studios will not under the circumstances conflict with nor inhibit industrial or commercial uses in the area where the project is proposed because the area proposed for this work/live studio project is an eclectic commercial/industrial area, which includes: a boat yard, small shopping center, video store, sail maker, and automobile repair facility. The work/live use will not affect these uses or any future permitted uses in the area. 3. Any building containing work/live studios and each work/live studio within the building has been designed to ensure that they will function predominantly as work spaces with incidental residential accommodations meeting basic habitability requirements in compliance with applicable regulations because only small areas of each studio will be designed for "live" space: separate sleeping and sanitary facilities and kitchen areas integrated into the "work" areas which are similar to food preparation areas in modem offices or other commercial uses. There are no walls separating the work areas from each other within each studio and six of the studios have roll up doors leading to workspaces to accommodate large equipment or materials. 2 4. Any changes proposed to the exterior appearance of the building will be compatible with adjacent commercial or industrial uses where all adjacent land is zoned for commercial or industrial uses. Exterior modifications proposed for this conversion are minimal and take their design from the existing industrial design of the building: metal roll up doors; industrial sash windows to match the existing and marquees which are typical of the 1930's industrial architecture of the building. The building will continue to essentially appear as it looks today. THEREFORE BE IT RESOLVED that the City Council of the City of Alameda upholds the Planning Board's approval of Use Permit UP04 -0019, to permit the conversion of an industrial building to work/live studios subject to the following conditions: 1. APPROVED PLAN: The project shall be constructed in substantial compliance with the plans, titled "Blanding Avenue Work/Live", revised through 5 April 2004, prepared by Thomas Dolan Architecture, marked Exhibit "A ", on file in the office of the City of Alameda Planning Department, except as modified by the conditions in this Resolution. 2. VESTING: The Use Permit shall expire on May 18, 2005, unless the conversion of the building has commenced under valid permit. 3. DESIGN REVIEW: Prior to the issuance of any building permit, minor design review for the proposed exterior modifications shall be completed. 4. BUILDING AND FIRE CODE: The conversion shall be subject to all applicable building and fire codes. 5: LIMITATION ON MODIFICATION: Areas within a work/live studio that are designated as living space shall be an integral part of the work/live studio and not separated from the work space, except that mezzanines and lofts may be used as living space subject to compliance with other provisions of this Article. Examples ofways to integrate the work space and living space in compliance with this section include, but are not limited to, the following: (a) Doors or solid walls between the work space and areas used for living space do not extend all the way to the ceiling, except for sanitary facilities and rooms used primarily for sleeping, (b) There is a single entrance to the work/live studio, (c) There are no walls separating the food preparation area from the work space, (d) Only the sanitary facilities and rooms designated for sleeping are enclosed and all other portions of the living area are not separated from the workspace. 6. PERMITTED WORK ACTIVITY. The work activity in a building where work/live units are allowed shall be any use permitted by right or use permit in the zoning district, except that, in order to protect the health and safety of persons who reside in a work/live studio or in a building which contains one (1) or more work/live studios, no work activity shall be permitted nor shall any work/live studio be established on any site that contains those uses 3 which the Planning and Building Director when considering a work/live permit or the Planning Board when considering a use permit, finds would, by virtue of size, intensity, number of employees or the nature of the operation, have the potential to create significant impacts by reason of dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration or other impacts, or would be hazardous by way of materials, process, product or wastes including, but not limited to: auto service /repair, vehicle sales or leasing, car washes, service stations, bars/lounges/night clubs, adult businesses, marine engine repair /refueling facilities, animal kennels/grooming/pet shops, liquor stores, veterinary offices/hospitals, funeral parlors /mortuaries, outdoor storage as a primary use, crematories /columbaria, dismantling facilities/scrap yards, public utility structures and facilities, tire sales/service, truck stops /repair. 7. ADDITIONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (10 %) percent in any five (5) year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established within the original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 8. WORK/LIVE PERMIT REQUIRED Each tenant or owner of an individual work/live studio must obtain a work/live permit prior to occupancy. Such permit shall be issued by the Planning and Building Director based on a determination that the proposed occupancy is consistent with the approved use permit and all applicable requirements of this section. Application for a work/live permit shall be made to the Planning and Building Department in writing on a form approved by the Department and shall be accompanied by a fee as set by resolution of the City Council. 9. NO SEPARATE SALE OR RENTAL OF PORTIONS OF UNIT. No portion of a work/live studio shall be separately rented or sold as a commercial space for a person or persons not living in the premises or as a residential space for a person or persons not working in the same studio. 10. BUSINESS LICENSE REQUIRED. At least one (1) occupant of each work/live studio shall maintain a current City of Alameda business license for a business located in that studio. 11. MIXED OCCUPANCIES. If a building contains mixed occupancies ofwork/live studios and other nonresidential uses, occupancies other than work/live shall meet all applicable requirements for those uses, and proper occupancy separations shall be provided between the work/live studios and other occupancies, as determined by the Building Official. 4 12. NOTICE TO OCCUPANTS REQUIRED. The owner or developer of any building containing work/live studios shall provide written notice to all work/live occupants and users that the surrounding area may be subject to levels of noise, dust, fumes, or other effects associated with commercial and industrial uses at higher levels than would be expected in residential areas. State and Federal health regulations notwithstanding, noise and other standards shall be those applicable to commercial or industrial properties in the district where the project is located. For purposes of noise control, work/live studios shall be classified as commercial property under Table lI in Section 4 -10.4 of the Alameda Municipal Code. 13. CHANGE OF USE FROM WORK/LIVE STUDIO. No work/live studio shall be changed to' exclusively residential use in any building where residential use is not permitted, where two (2) or more residential units already exist, or where the conversion would produce more than two (2) attached dwellings. The conversion of an existing work/live studio to exclusively nonresidential use is permitted when the conversion meets all other applicable zoning and building code requirements for the proposed use. Such a change shall be subject to all applicable requirements for the district where the proposed dwelling unit is located. 14. INCREASE IN RESIDENTIAL USE. No work/live studio shall be changed to increase the floor area devoted to residential use without review and approval of the Planning and Building Director. In no case shall the floor area devoted to residential use be increased to more than four hundred (400) square feet or thirty (30 %) percent of the gross floor area of the unit whichever is more. 15. ADDITIONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (10 %) percent in any five (5) year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established within the original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 16. DEED RESTRICTION REQUIRED. The owner of each work/live studio or each building containing work/live rental studios shall record a notice on the property specifying the limitations of use and operation included in the use permit. 17. ON- PREMISES SALES. On- premises sales of goods are limited to those produced within the work/live studio. Retail sales of goods produced within the work/live studio shall be incidental to the primary work use in any building used exclusively for work/live occupancy. These provisions shall permit participation in occasional open studio programs and gallery shows. 5 18. NON RESIDENT EMPLOYEES. Up to two (2) persons who do not reside in the work/live studio may work in the studio unless such employment is expressly prohibited or limited by the use permit because of potential detrimental effects on persons living or working in the building or on commercial or industrial uses or residentially -zoned areas in the vicinity of the subject property. The employment of three (3) or more persons who do not reside in the work/live studio may be permitted subject to a use permit based on additional findings that such employment will not adversely affect traffic and parking conditions in the area where the work/live studio is located. The employment of any persons who do not reside in the work/live studio shall be subject to all applicable Building Code requirements. 19. CLIENT AND CUSTOMER VISITS. Client and customer visits to work/live studios are permitted subject to any conditions that maybe imposed by the use permit in order to ensure compatibility with adjacent commercial or industrial uses or adjacent residentially zoned areas. 20. SITE PLAN REVISIONS: Prior to the issuance of any building permit, the site plan shall be revised to remove up to three unenclosed parlcing spaces and show the installation of a minimum of three parking lot trees to the satisfaction of the Planning and Building Director. 21. HOLD HARMLESS: Pursuant to California Government Code Section 66474.9(b), the City of Alameda requires as a condition of this Use Permit approval that the applicant, or its successors in interest, defend, indemnify, and hold harmless the City of Alameda or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, and employees to attack, set aside, void, or annul, an approval of the City concerning the subject property, which action is brought within the time period provided for in Govemment Code Section 66499.37. The City of Alameda shall promptly notify the applicant/project sponsor of any claim, action or proceeding and the City shall cooperate in the defense. If the City fails to promptly notify the applicant/project sponsor of any claim, action, or proceeding, or if the City fails to cooperate n the defense, the applicant/project sponsor shall not hereafter be responsible to defend, indemnify, or hold harmless the City. 22 REVOCATION: This Use Permit may be modified or revoked by the City Council or Planning Board, should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 23. ACKNOWLEDGMENT OF CONDITIONS: The applicant shall acknowledge in writing all of the conditions of approval and must accept this permit subject to those conditions and with full awareness of the applicable provisions of Chapter 30 of the Alameda Municipal Code in order for this Use Permit to be exercised. 6 I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda f'I 04 J ',1 -3 ,` !g: 19 June 3, 2004 2618 Janis Circle Alameda City Council 2263 Santa Clara AveiiiW..- Re: Use Permit (UP03 -0019) Appeal Please make the following comments part of the written record of my appeal. On page one of the City Manager's memorandum dated 11 May 2004, under a heading of Discussion/Analysis there appears the following statement: "As explained in greater detail below, work/live studios are not regulated under Measure A because they are not `dwelling units'." (Emphasis added.) Please allow me to substitute the word `banned' for the word `regulated'. In all the years that I have studied Measure A, I have neither seen nor heard the word `regulated' used in connection with it. I am unsure as to what the word means in relation to 26 -1. I am not convinced that the City Manager is clear about its meaning either. We all have heard the word `banned' used in relation to 26 -1, and there is no confusion as to its meaning. It is obvious that the City Manager believes that work/live units are not dwelling units. I believe, on the other hand, that work/live units are dwelling units. We both should agree that more important than what we believe is what a court determines work/live units to be. I am on record as having asked members of the planning board on several occasions by what reasoning they come to views about what work/live units are and are not. Re: Agenda Item# 5 -11 6 -15 -04 The only response I received was one of stony silence. Furthermore, no planning board member has ever asked me to explain why I think such units are dwelling units. There is apparent indifference as to what an ordinary citizen thinks on the subject much less how he justifies his thoughts to others. I assume that if we go to court, the judge will be interested to hear reasons why both the plaintiff and defendant believe as they do. Immediately after the above quotation there begins a sentence about Section 26 -2. I request that 26 -2 be cited in its entirety because that section is central to the work/live issue, and the City Manager's description is misleading and shockingly incomplete. The City Manager mentions two exceptions and I suppose he thought the public would know, without being told, that they were exceptions to the ban on multiple dwelling units imposed by 26 -1. Then he mentions one exception as being for the replacement of Alameda Housing Authority units. Before going further allow me to cite 26 -2 in its entirety for the reader's convenience: "Exception being the Alameda Housing Authority replacement of existing low cost housing units and the proposed Senior Citizens low cost housing complex, pursuant to Article XXV Charter of the City of Alameda." (Emphasis Added) Why did the City Manager omit the word `existing' and the phrase `low cost' which appears twice? Does he not understand the importance of each word in a charter provision? Was 26 -2 of such length that it could not be presented in its entirety? I don't think so. Article 26 -2 is only 31 words and three Roman numerals long. I believe that the City Manager did not and does not want people to be inquisitive about 26 -2. I believe that that is the case for the following reason. Independence Plaza was built in multiple dwelling unit form 2 If the units in Independence Plaza were all low cost units that replaced low cost units which existed on March 13, 1973, then the Independence Plaza units would be covered by Article 26 -2 and, therefore, would be exceptions to the 26 -1 ban. However, since more than 50 Independence Plaza units were of the market rate variety, the 26 -1 ban was applicable to them and forbid their being built. The City Manager does not want citizens asking for him to explain why. Before leaving the City Manager's words about 26 -2, it should be noted that he infers the senior complex referred to in 26 -2 is Independence Plaza. That's an error. The complex referred to is the Anne Diament Senior Complex on the northeast corner of Park Street and Otis Drive. It opened for use in 1975 and had been in the planning/building stage when Measure A became part of the charter in May of 1973. The construction of Independence Plaza did not begin until October of 1989. I would now like to present a description of events that will provide background for my appeal to be heard on 6 /15/04. I wish to take you back to the fall of 1972 because that is when it became clear that a density control charter amendment might gain the necessary signatures to qualify for the March 1973 ballot. The then constituted City Council, to a man thought that the charter amendment was flawed. However, the amendment had met all the requirements of the Constitution of the State of California. Each council member had no choice but to support that constitution. They had taken individual oaths to do so as a prerequisite for holding office. The council included Mayor Terry La Croix, councilmen James Fore, Gustave Levy, Malcolm Longaker, and Bill McCall. The charter amendment was identified on the ballot as Measure A. Also on the ballot, in accordance with state law, was one 3 argument for Measure A, written by Inez Kapellas, Chairman of the Committee of Concerned Citizens, a leading force in getting the charter amendment on the ballot, and one argument against Measure A, written by Mayor La Croix. The Mayor's argument was presented, by unanimous vote of the council, to reflect the views of the entire council. Fore, Longaker, and Levy were all at the end of their respective terms of office. All three sought another term and entered the race to be decided by the March 13, 1973 election, the same election that would decide the fate of Measure A. La Croix and McCall would be on the new council, but they needed one more opponent of Measure A with them to control the council. In toto, there were 13 candidates running for three council seats. When the votes were counted, Measure A had won by a wide margin, along with three brand new councilmen, one was passionately in favor of Measure A, Chuck Corica, and two, George Beckam and Lloyd Hurwitz, were in favor, but more calmly so. The Council would change from one with 5 council members opposed to Measure A to one with 3 in favor and 2 opposed. But the power shift would have to wait until April 17, 1973, the date for the newly elected councilmen to be sworn into office. "There shall be no multiple dwelling units built in the City of Alameda." Those 13 words would become Section 26 -1 of the Alameda City Charter. The Mayor's ballot argument against Measure A had warned, in part, that: "No one knows what is intended by the term "multiple dwelling units." 4 1 believe that most people understood the term to mean buildings that contained two or more living units. That interpretation rests on the common meaning of the word, "multiple ". That same ballot argument against Measure A had also warned: "By prohibiting new and replacement construction, it would raise taxes on all existing properties." The prohibition of replacement construction was to prove an extremely important factor in the Measure A story. The widespread effect of that prohibition came to be understood as the Tahoe Apartments became the focus of our community's attention. My description of events continues with the destruction of the Tahoe Apartments, located on the south side of Central Avenue between Union and Lafayette Streets, located, that is, until 8:13 PM on Wednesday, February 7, 1973. The 27 unit Tahoe Apartments had the address 1814 Central Avenue. You will not fmd that address there today. The Tahoe Apartments were destroyed by the crash of a naval aircraft. (The Alameda Library has a separate file on the Tahoe destruction for those who are interested.) The destruction was a horrendous event which included great loss of life. One house adjacent to Tahoe toward the west was destroyed. Another adjacent to the east had its interior destroyed. The ballot for the election of March 13 was already in final form on the night of the crash and could not be changed. Measure A, containing its sweeping ban that there shall be no multiple dwelling units built in the City of Alameda, meant 5 that replacement of the Tahoe was forbidden. Perhaps, if the Tahoe owners had gotten a building permit approved before the March 13 vote, had spent some money, and had put a shovel in the ground, they could have continued their replacement effort after the vote, as a matter of law. But because they did not immediately focus on the legal niceties in time, the opportunity to avoid the ban imposed by charter section 26 -1 was lost. Between March 13 and April 17 of 1973, there were several council meetings. (A record of those meeting is available at the City Clerk's Office.) The old council was still in power, but the people had just spoken. The people had denied three council members their request for another term. The people had passed a charter change in spite of the current council's advice. Should the lame duck council do little but wait for the next city council to be constituted? It was not easy to do little when other property owners heard that the Tahoe owners could not rebuild. The 26 -1 ban extended to multiple dwelling units not only destroyed by crashing planes but also by earthquakes, fires, floods, civil insurrection, and the like. It was difficult for the lame duck council to do little when townhouse, apartment house, duplex, and condominium owners found out that they, too, could not rebuild their homes because each home was a multiple dwelling unit. It is important to note that Measure A contains no exception for duplexes and, before May 29, 1973, there was nothing in writing that excluded duplexes from the set of all multiple dwelling units. It must also be noted that the lame duck council could well have acted in a manner that was less forgiving than the manner in which it did act. The council could have argued that "We told you not to vote for Measure A! You dug your own hole. Now get yourself out of it." 6 Instead, the council committed itself to finding a remedy for the problems it considered Measure A to be causing. Then the council was faced with an insurance issue. Whether true or not, apartment house owners, townhouse owners, condominium owners, and duplex owners heard stories that insurance companies were notifying owners that they would not insure buildings that could not be replaced and that policies would be cancelled. Citizens were understandably worried, and they looked to the council for help. They found Mayor La Croix with Bill McCall, both with two years to serve, and three council members who had been rejected by the voters, Jim Fore, Gus Levy, and Malcom Longaker. That existing council passed ordinance 1689 which prohibited and suspended building permits for the construction of multiple dwelling units. Ordinance 1689 was emergency legislation effective immediately. The council passed it even though the Mayor had acknowledged "that Measure A would not become law until such time as the State Legislature, both Assembly and Senate, had ratified the action and returned it to the City as the law of the community. Without 1689 the Tahoe owners would have had time to get a permit, start work, spend money, and thereby be under construction before the 26 -1 ban became effective law? The Mayor voted for 1689. Only Jim Fore opposed it. The Mayor "said it was his feeling the Council had a moral obligation to the electorate to not allow any building permits in the interim" presumably referring to the days between March 13 and the day Measure A came back from the state all approved. The Mayor surely did not want to appear as an obstacle in the path of what the voters had approved. Surely, he did not wish to be confrontational with the Measure A supporters who would be sworn in within 2 weeks and would have the votes to control the council. In addition, however, the Mayor had a plan to change Measure A in a manner that would allow the Tahoe replacement and deal with other features of Measure A as well, features that he, considered draconian. He was aware that he might need one more vote to win council support for the plan. His support and vote in favor of ordinance 1689 was an attempt to ingratiate himself to the Measure A proponents on the council in order to get needed support for his own plan to substantially change Measure A. Once Measure A was changed to the extent the Mayor had planned, the need for 1689's freeze on building permits would be obviated. As it turned out, the Mayor ended up having a unanimous council in support of his change to Measure A, a change that can be fairly described as sweeping. The plan was to have Measure A mean what ever the council said it meant. The plan involved passing an ordinance to inform the electorate what the electorate had intended when it passed Measure A. Terry La Croix was the only member of the council with leadership qualities up to the task of facing the perceived threat to public peace, health, or safety allegedly caused by the passage of Measure A. Mayor La Croix was the only member of council so widely respected that he could convince even the supporters of Measure A both to believe that, in fact, there was an emergency and also to trust that he would take Alameda through it properly. La Croix cited Section 3 -12 of the city charter to demonstrate that his planned action was in accordance with Alameda law. The planned action was to pass ordinance 1693. That was accomplished by a unanimous vote of the council on May 29, 1973. Section 3 -12 requires that there be a statement constituting the necessity and urgency of the ordinance. That statement 8 is included in 1693 and deserves careful study by anyone attempting to understand the history of Measure A. I will return to that statement shortly. Section 3 -12 also authorizes that ordinances, like 1693, which deal with great emergencies, urgencies, and /or necessities may be introduced and passed at one and the same meeting. And although not directly stated, section 3 -12 infers that such ordinances may become effective immediately. To recapitulate in ordinary language, within 90 days of Measure A being approved by the voters, an emergency was declared by a council led by a person who opposed Measure A from the start. That person, the Mayor, and four council members introduced and passed an ordinance concerning Measure A in one evening. Furthermore, the ordinance becomes effective immediately. Where were the bold defenders of Measure A? Wasn't Chuck Corica there at the meeting? He, reputably the greatest defender of Measure A our city has ever known, voted for ordinance 1693. Inez Kapellas, the Chairman of the Committee of Concerned Citizens, the driving force responsible for getting Measure A on the ballot and author of the Argument For Measure A that appeared on the ballot, who had run for council and lost in the March 13 vote, expressed her support for 1693, but it is important to note that she did make an interesting suggestion. "She suggested, because of the many concerns with underlying problems, that the City Attorney be requested to draft a Charter amendment to amend Article XXVI to clear up existing ambiguities." This suggestion may indicate some awareness, on her part, of state law. Regardless, she did not elaborate, and the council did not respond to her remarks. Below are the words of Mayor La Croix, words that do not 9 reveal, in a forthright manner, what he intended to do as a remedy for the problems he attributed to the passage of Measure A: "...by clarifying existing uncertainties and ambiguities as to the meaning of the phrase, `multiple dwelling units' and the permit requirements on existing or pending structures or projects." As to Mayor La Croix's words concerning the definition of the phrase , `multiple dwelling units', one must say he made the same point in his ballot argument, where he wrote that no one knows what is intended by the term "multiple dwelling units ". It should be assumed that the voters read the Mayor's ballot argument. Judging from the results, the majority simply did not agree with their Mayor. That majority was made up of voters who thought they knew what the term, `multiple dwelling units' meant. It meant, they argued, a building containing two or more units. That meant that 26 -1 allowed only single family detached dwellings. Is not that what most Alamedans want to be the law in 2004? Is it beyond reason that the voters had the same view in 1973? All words mean what people agree they mean. How many Alamedans would agree with Mayor La Croix that the week after Measure A passed was a time of great `necessity' and `urgency. There are many people who would question the Mayor's use of the words `urgency' and `necessity' in describing that period. People were not rioting in the streets. No one was being beaten. People, in general, were getting enough to eat. Mayor La Croix could have asked the council to put a new Charter amendment on the ballot to accomplish all that was accomplished by 1693, but he did not want to risk the amendment being rejected by the electorate. Duplexes may have remained as multiple dwelling units. The replacement 10 of destroyed multiple dwelling units would have been forbidden. Quasi apartment houses of the Extended Stay America variety would not have been constructed. As to using ordinance 1693 to clarify existing uncertainties and ambiguities about permit requirements effected by the the passage of Measure A, my first words must be "What uncertainties and what ambiguities? The Mayor argued vociferously in March and April of 1973 that is was perfectly clear that the Tahoe Apartment could not be rebuilt because Measure A clearly forbid multiple dwelling unit replacement construction. The Mayor's own argument • was presented with conviction, and it was not ambiguous. The verbatim transcripts of council meetings from February 1972 through May 1973 will show that the Mayor was adamant in his view that the Tahoe Apartments could not be replaced. Furthermore, the Mayor's ballot argument contained the following sentence: "By prohibiting new and replacement construction, it would raise taxes on all existing properties." (Emphasis Added) The people knew about the charter amendment's effect of prohibiting replacement construction, and they voted for the charter amendment anyway. They approved Measure A as it was presented. The Mayor's declaration of a state of emergency was a smokescreen to conceal his attempt to substitute his own Measure A in place of the one that had been approved by the people, to substitute a different Measure A that was passed by the City Council for what was passed by the voters in the March 13, 1973 election. Those who had collected signatures for Measure A, those who got the vote out for Measure A, and those who campaigned for 11 Chuck Corica to put a Measure A supporter on the council simply let down their guard. Mayor La Croix supported councilman Corica's desire to have townhouses considered multiple dwelling units. He supported Corica's desire that planned development projects not be exempt from 26 -1, a proposal by George Beckam which indicated that the three new council members had differences, one with another. Corica surely recognized that if Beckam allied himself with the Mayor and McCall, his own view of Measure A would be less likely to prevail. The entire new council wanted to get on the same page and present a united front. Compromises were made. There was give and take, and there was much discussion. But there was nothing in the record that the council discussed the California Constitution which provides no city council, even a council that votes unanimously, has the power to change a charter provision. My view is that, at the very least, La Croix knew. McCall knew. And the City Attorney, Fred Cunningham, knew. The latter was always on the lookout for lawsuits. That included lawsuits from apartment house, townhouse, duplex, and condominium owners. Those people had to be accommodated. Both the Mayor and the City Attorney counted on Alamedans being Alamedans first and Californians second. I believe that the supporters of Measure A would have been better off if they had been Californians first. Had that been the case, Alamedans would have been more inclined to use the strong legal argument, namely, councils can not change charters, to keep the Measure A that had been approved by the voters. That constitutional argument, in abbreviated form, follows: All members of the council are required by Article XX, Section 3, of the Constitution of the State of California to support that constitution. Each member of the Alameda 12 City Council as constituted on May 29, 1973 had taken an oath to do so. The California constitution requires that our city charter be changed only by a court or by a vote of the Alameda electorate. As said earlier, the council, in 1973, did not have the legal power to change what the voters had approved. Furthermore, each council member violated his oath of office in attempting to change a charter by a council vote. With the able assistance of City Attorney, Fred Cunningham, and others, the Mayor and council members conspired to violate the California Constitution, and fashion a Measure A that was much closer to what they wanted than it was to what the voters had approved. Once a decision is made to violate the law, whether in a Watergate burglary, an Enron boardroom, or a closed session of a City Council, impulses to cover -up, to deceive, to obfuscate, and to stonewall are given full rein. In 1973 councilmen joined in a conspiracy. One person, alone, could not pull off such a feat. Success required that participants not break ranks. They had to keep secrets. They had to be beware of whistleblowers. In addition, a strong leader was required. Terry La Croix was a fine figure of a man, an eloquent speaker, and an experienced political negotiator. He was well suited to the task he had set for himself. Allow me to return, at this point, to a portion of City Manager Flint's memorandum. "Immediately following the adoption of Article XXVI, on May 29, 1973, the City Council adopted ordinance 1693 for the purpose of interpreting and implementing section 26 -1 of the Charter." (Emphasis added) 13 The courts do not allow unreasonable interpretations of a charter. The courts do not allow the improper implementation of charter provisions. An implementation which provides for the selective enforcement of 26 -1 is improper on its face. The courts are well aware that the Fourteenth Amendment of the Constitution of the United States guarantees all citizens the equal protection of the laws. I believe that the city council has, in the past, enforced 26 -1 selectively. I believe that if the city council allows more than two units in the 2515 Blanding project, it will once again be failing to enforce 26 -1. My family was not allowed to build a triplex on Santa Clara Avenue because the council enforced 26 -1. By what reasoning is the council justified in allowing the Janet Koike family to build a sevenplex on Blanding Avenue? I turn now to a later portion of the City Manager's memorandum. That portion follows: "With this amendment, the City Council clarified that duplexes would not be considered multiple dwelling units under section 26 -1 of the Charter. AMC section 30 -51 -3 states: "Multiple dwelling units, construction of which is prohibited by this article and by Article XXVI of the Charter, shall not be deemed to mean or include: a) Dwelling, one - family; b) Dwelling, two- family... ' (Emphasis Added) The previous portion of the memorandum pertained to Ordinance 1693. This portion begins with the words `With this amendment'. What is being referred to as this amendment? Let us be clear. We are talking about Ordinance 1693 which changed the Alameda Municipal Code and changed Measure A as well. The courts will decide whether or not the changes are legal. Let them also decide if the words `changed' and `clarified' are synonymous. 14 Please think about what former city councils have not done. They have not enforced 26 -1 with regard to duplexes. They have not enforced 26 -1 with regard to destroyed buildings. They have not enforced 26 -1 with regard to hotels, motels, and hybrids like Stay America. They have not enforced 26 -1 with regard to senior citizen market rate units, such as those at Independence Plaza. Yet they have enforced 26 -1 with regard to my petition to build a triplex on the same land they had approved my building two duplexes. If you are happy with that, God help us all. I do agree that there are `in extremis' situations when elected officials should protect the people rather than protect the law, but this is no such situation. If work/live projects are essential to Alameda's welfare, the council should ask the people to add an exception for work/live units to the charter. The council does not have the power to add an exception itself. What illegal acts, by past councils, are protected by statutes of limitation has to be investigated. Perhaps "what is done is done and can not be undone." But if the current council violates the state constitution on this occasion concerning work/live units on Blanding, I will litigate. I would much prefer the council elect to follow the proper procedure. Grant my appeal. Rescind Ordinance 2784. Put a charter amendment on the ballot to change 26 -2 by adding a work/live exception. Respectfully submitted, O9 )2740.f. Edward J. Murphy 15 Law Offices of Stuart M. ll'Iashman 5626 Ocean View Drive Oakland, CA 94618 -1533 (510) 652 -5373 (voice & FAX) e -mail: stuflash@aol.com DELIVERY BY MAIL, E -MAIL. AND FAX June 4, 2004 Mayor and City Council Members Alameda City Hall 2263 Santa Clara Ave. Alameda, CA 94501 RE: Appeals of Use Permit UP03 -0019 for 2515 Blanding Avenue Work -Live Studio Project. Dear Mayor and Council Members, I am writing on behalf of my client, Ms. Janet Koike, the applicant for the above - referenced project, to support the project and oppose the above - referenced appeals. The use permit for Ms. Koike's project has been appealed on the basis that it is inconsistent with Measure A, Article 26 of the Alameda City Charter. These appeals are without merit. Ms. Koike's project fully complies with Measure A and the City's Work - Live Ordinance. Consequently, the appeals should be denied and the use permit for Ms. Koike's project should be allowed to stand. Mr. Murphy and Ms. Bail, the appellants, have not challenged the Project's compliance with the provisions of the City's Work -Live Ordinance. That is not surprising, because this project fully complies with all of the ordinance's requirements. Indeed, it goes well beyond the ordinance's minimum requirements in sizing the units, providing street trees and amenities and preserving the historic aspects of the building 1.2. What the appellants clearly object to is the Work -Live Ordinance itself. The validity of the Work -Live Ordinance, however, is no longer subject to challenge. The Work -Live Ordinance was enacted by the City in 1998. The Work -Live Ordinance includes requirements that work/live studies be used primarily for commercial/industrial uses, with residential accommodations allowed only incidentally. (§30-15.6(c).) Indeed residential uses are strictly limited to no more than 400 sq. ft. or 30% of the floor area of each studio. ( §30- 15.4(b); §30 -15.5Q).) Further, while the Work -Live Ordinance does, as required by state law, provide for cooking areas and sanitary facilities, those also are strictly limited to assure that the commercial/industrial uses will be primary. ( §30- 15.5(c).) Indeed, in order to assure compliance with Measure A, the Work -Live Ordinance specifically prohibits converting any more than two units within a live -work structure to exclusive residential use. ( §30- 15.5(1).) Based on these requirements, the work -Live Ordinance determined that work -live units would not be considered "dwellings ". ( §30.15.1(f).) Mr. Murphy's and Ms. Bail's appeals are apparently challenges to this provision. Ms. Koike will be applying to the City for a permit to allow her to preserve the historic signs on the side of the building. A permit is required because the signs, despite their historic significance, do not comply with the City's sign ordinance. 2 As noted by the Planning Department, the Project is exempt from CEQA review under CEQA Guideline §15332, In -Fill Development Projects. Re: Agenda Item# 5 -11 6 -15 -04 Mayor and City Council Members Appeal of UP03 -0019 6/4/2004 Page 2 By state law, any challengge to the Work -Live Ordinance had to be filed within the applicable statute of limitations. It is now 2004, not 1998, and the statute of limitations for challenging the validity of the Work -Live Ordinance has long since expired. Yet Mr. Murphy's and Ms. Bail's appeals are no more and no less than a challenge to the validity of the Work -Live Ordinance. As such, they are improper and the appeals should be denied on that basis alone. To the extent that the appeals challenge the project itself as being inconsistent with Measure A, consistency must be measured using the benchmarks of the Work -Live Ordinance and its provisions. Under the Work -Live Ordinance, work-live uses are only allowed in commerciaUndustrial zoned areas of the City. Further, as noted, the Work - Live Ordinance requires that any residential accommodations within a work -live project be only incidental to the primary commercial/industrial use. As such, a compliant work - live project is, under the Work -Live Ordinance, not considered a dwelling. Since Measure A only regulates residential dwellings, this project is, by definition, compliant and consistent with Measure A. CONCLUSION Ms. Koike has met all the standards for approval under the City's work -live ordinance and the time for challenging that ordinance is long past. There is no basis for not approving her use permit. If the City now has second thoughts about its work -live ordinance, it may wish to address them by amending the ordinance, but that cannot affect the validity of Ms. Koike's permit. The appeals must therefore be denied. Most sincerely, Stuart M. Flashman Attorney for Applicant Janet Koike 3 The statute of limitations on adoption or amendment of a zoning ordinance is 90 days, and runs from the date the ordinance or amendment is adopted. (Government Code 5009(c).) The Work -Live. Ordinance is part of Section 30, Article I of the Alameda Municipal Code, the City's zoning ordinance. PATRICIA H. BAIL 825 Paru Street Alameda, Ca. 94501 RECEIVED JUN - 9 2004 CITY OF AVEDA MAYOR'S OFFICE Mayor Johnson City Council Members. RE: 2515 Blanding project 1 would like to bring to your attention the enclosed letters from Allied Engineering concerning the 2515 Blanding project. Not only does this project not qualify under Measure A, it does not qualify under California Environmental Quality Act. Based on these two facts the Use Permit should be denied. Re: Agenda Item# 5 -11 6 -15 -04 w• a-,v eWR 1 LU• a I tun I .xa• • 1-171,... E u i 4.1=r .7 £ J16./ 141:1473 ROOCwT t. 1.446-TOT .AW*ENGE A. LANCTOT MlcWweL J 'TEC11ER caw*RO J. WATSON T110111i5 p RLCO JR. JON J*NCS 'WATSON & LANCTOT LLP ATTORNEYS AT LAW 44 NOuTOOMERV SYREET. SUM uses SAM re wRC1$C0. Camel:myµ 84104 rAC9/M144C: 14161 2O24744 C -Mw1L. info! votlaniew.coal Taix.40NC: 1418► 366-O9aO May 13, 2004 Vl FA AC,SIMH.E & a CERTIbJLD TURN RH(.'EIPT REl7UESTED City Clerk's Office, City of Alameda, City Hall 2263 Santa Clara Avenue, Room 380 Alameda, California 94501 Re: Conversion of 2515 Blanding Avenue, Alameda, Califorziia Comment on Application for Use Permit by Cal Vita LLC Public Hearing: Tuesday, May 1.8, 2004 at 7:30 p.m. Dear Sir/Madam: n.). &eta IMU EUGENE 641111461.6 caw. N. Nocu1C or couwsrL This flan represents Allied Engineering & Production Corp. ("Allied") located at 2421 Branding Avenue Alameda, California. Allied is located in close proximity to 2515 Blanding Avenue, the site of the planed conversion of a industrial building to seven work /live studios. As set forth in the letter of Robert B. Miller, President of AUied, dated March 1, 2004, a copy of which is enclosed, Allied has concerns regarding the impact the planned conversion of 2515 Blanding Avenue will have on its surrounding environment Allied respectfully requests that its concerns barnacle part of the record of the public hearing scheduled for May IS, 2004 at 7:30 p.m. Allied's ins are (1) whether the area is suitable for residences due to the high level of noise in the area and (2) whether the area is suitable for the increased traffic and whether it has suitable parking to accommodate the residents orate work/live loft and their guests and customers. As explained below in more detail, Allied believes the proposed conversion will have a negative impact on the surrounding environment. The area of Blanding Avenue surrounding the cite of the proposed conversion is an industrial area with a high noise volume. Allied is a machine shop with a number of large machines running from 5 am. to midnight, and often later, Monday through Friday. On Saturdays, Allied's machines are operating from 5 am. to 1 p.m., and when needed, the same . time on Sundays. In addition to the large machines, Allied has heavy tracks coming and going rain its facilities at various tines throughout the day and night. In addition to the noise generated by Allied's regular and customary operations, Allied's V:%CasestSLN\ALL NCLOrtsattice-cootent.Ltr.wpd Re: Agenda Item #5-A 05 -18-04 11Er11tr• w..•w■•.•.. --- • City Clerk's Office, City of Alameda, City Hall May 13, 2004 Page 2 iw.eoi wow neighbors also generate noise. A large boat anchored just off the shore in the Estuary, Which is not associated with Allied, operates a generator throughout the day. The noise from the generator has akeady lead to complaints from residents of new housing located across the Estuary from the boat. Allied believes that because of the noise level in the su accosting environment of the proposed conversion the area is not suitable for residential luring The noise will have a negative impact on the tenants of the work/live studios and will interfere with their enjoyment of their property. This has in fact already occurred in a neighboring housing area located farther away from Allied and its neighbors than the proposed conversion. • Allied's second concern is the impact on the proposed conversion will have on the traffic and parking on Blaidding Avenue. As noted above, Allied has heavy truck deliveries to its facilities d ougbout the day and night. The nearby nursing home also has frequent visitors traveling down Blending Avenue through out the day. Finally, there is the traffic from the employees and patrons of the other business located on Blanding Avenue. Allied is concerned that the increase in traffic caused by the rests of the work/live lofts and their guests and customers will have a negative impact on the environment surrounding the proposed conversion. Parking on Blending Avenue is also in short supply. Allied has a private parking lot for its employers, and not the public, located at the coma of Everett Street and Bhunling Avenue. Allied already has frequent problems with visitors of the nearby nursing home, the two automotive body shops and odd nearby business parking in its lot. Allied is concealed that the proposed conversion does not have sufficient parking to accommodate its residents of the work /live lofts and their guests and antomers, and that the overflow parking will have negative impact on the environment sturewcling the proposed conversion. Allied proposes that the Planning Board undertake an itritial study to determine the impacts the proposed conversion will have on the surrounding environment. The Planning Board's delannittstion that the proposed conversion is categorically exempt from the California Environmental Quality Act ("CEQA") under section 15303 is in error. Section 15303 exempts fronn CEQA regulations the conversion of existing small strums from one use to another where only minor modifications are made to the exterior of the structure. The number of structures converted is limited to the maximum number allowable on any legal parcel. Section 15303 sets out examples of the exemption, two of whch die Planning Board bas appeared to rely upon. Those examples are (1)15303(b). which allows the conversion of an existing structure to six apartment units, or similar &tincture, in utbanized areas and 015303(e), M: castsNSU u► AIMelecksortset- commeet.btr.lpa City Clerk's Office, City of Alameda, City Hall May 13, 2004 Page 3 which allows the conversion of an existing structure into 10,000 square feet of store, motel office, restaurant or sinew structure space in urbanized areas. Section 15303(b) is inapplicable here as the proposed conversion will bave seven units and not six as set forth in the example. Section 15303(c) is inapplicable because (1) the proposed conversion does not appear to be for stores, motel, office space, but rather studios and (2) the proposed conversion is 15,480 square feet, which ready exceeds the 10,000 square foot mzumunt set forth in the section. The purpose of Section 15303 is to provide an objective standard for determining what structures qualify as small (Pairbank y. City of Mil Vallev,15 Cal. App. 4' 1243,1254 (1" Dist. 1999). The number of units and she size of the proposed conversion exceeds this objective standard and is not categorically exempt from CEQA regulations and requirements. Furthermore, the Planning Board cannot sepasatc the square footage of the work spy in the units from the live space so that the work space falls under the 10,000 square foot maximums set forth in Section 15303. Section 15303 makes clear that the exemption applies to the conversion farm one use to a new use. Here, 2515 Blaring Avenue is being converted from its former use as an industrial building housing a label manufacturer to its new use as work/live studios and not two separate uses. The work portion of the studios cannot be apportioned from the live portion. The studios must be considered as whole, and as such they exceed the 10,000 square foot maximum set forth in Section 15303. Finally, for the reasons explained above, there is a reasonable possibility that the proposed conversion will have a significant effect on the s rrouadhig environment due to the particular circumstances associated with this area of Blanding Avenue. Basal on the foregoing, Allied respectfully requests that the City Council reverse the Planning Board's determination that proposed conversion is exempt from CEQA under Section 15303 and requite that an initial study be done by the Planning Board to determine the impacts which the proposed conversion will have on its surrounding environment. Veit' truly yam, WATSON & LANCTOT 1.LP 44. .C= LAWRF346 LANCTOT ends. N e \ CSSesN51 .N\Ai.L=ED\Cleris0li2Ce-C At _ LCr .wpd March 1, 2004 2421 BLANDING AVE. (P.O. BOX 1230), ALAMEDA, CA 94501 • (510) 522 -1500, FAX (510) 522 -2861 Planning Division, City of Alameda., City Hall 2263 Santa Clara Street, Room 190 Alameda, CA 94501 Reference: Conversion of 2515 Blanding Avenue, Alameda, CA 94501 As the owner of Allied Engineering I would like to address my concerns in regard to the above noted address being converted to "work/live studios and retail/commercial spaces". Allied Engineering is located just across Everett Street from the project location. Following are some drawbacks associated with placing a living and retail project in an industrial area that I would lie to point out 1. Noise • Monday through Friday we operate a day shift (5 a.m. to 3:30 p.m.) and a night shift (3:30 p.m. to midnight, frequently later). • Saturday shift (5 a.m. to 1 p.m.), and when needed, a Sunday shift • As a machine shop we have large machines running at all times during our work shifts. • Heavy truck deliveries and shipping out at various times throughout the day and night • New housing across the Estuary complain of noise level (a generator) from the boat that is anchored just off the shore. This. is not a situation we have any control over as this person is not on Allied Engineering property or associated with our business. 2. Parking • Parking — the lot on the comer of Everett Street and Blanding Avenue is private parking for the employees of Allied Engineering and is'not available for public parking however we frequently have problems with visitors of the nursing home, the two body shops, and other nearby -businesses parking in our lot Concern that the project location would not be able to provide an adequate amount of parking, which would result in parking in the Allied Engineering lot I ask that you consider long and hard before granting a Use Permit allowing the conversion of the property. This is an industrial zone and not best suited to living and retail space. With Regards, Robert E. Miller President ur ar cucr, All. L. I wni-own .rvt..iu; a.t.r 0 LJLVI...inu J./ City Clerk's Office, City of Alameda, City Hall May 13, 2004 Page 4 Bcc: Mr. Robert E. Miller, President Mr. Michael Naha► Allied Engineering & Production Corp. prACa3e3\5LMALIARD\Cl9iks0:lace- C0wMent •Lee. upd From: Thomas Dolan +dd.ardieli Fe- wurkoorr> Subject: Cal -vita Studios Date: June 9, 2004 11 3850 AM PDT To: Judith ALTSCHULER <JALTSCHU@dalameda:ca.usa Cc: Janet Koike arhythmix@earthlinknei> I am writing to express my continuing support for the above-referenced project as it undergoes its appeal bearing at City Council on is June. I svill not, unfortunately, be able to be present, Cal Vita studios, as you know, has been designed to be entirely in compliance with Alameda's Work/Live Ordinance. Twenty fouryears ago, the State of California's legislature, in response to a) the existence ofa large number of vacant and under atiliaed buildings in urban areas in the state, and a) strong lobbying efforts by artists groups whose occupancy ofsuch buildings was the only viable use for such buildings at the time (still true), adopted legislation enabling the conversion of such existing commercial and industrial buildings to "Joint Living and Working Quarters," a newly - created commercial use to which residential is accessory. Cal -Vita Studios will embody the ideals, the intent and the goals of the state legislation and the city ordinance, while enabling the the re- use of a vacant industrial buik8ng for Work/Live. Every effort will be made to fill the building with working artists, not unblxe the owner who is an artist herselfand who will be occupying a portion of the bantling. Cal -Pita Studios will help to add energyto a relatively diainvested area of Alameda. Conversely, the working artists who occupy the bolding, being makers of objects and small business people themselves, will be sensitive to the nature of the industrial district in which they are locating. While 'Imported NDMBIES" those who immediately begin to complain about the longstanding and bonafide business and industrial activities of their neighbors —have been a problem is some cities such as San Francisco, our experience has been that real working people in real Work/Live spaces rarely if ever complain, because they identify dosely with the commercial nature oftheir neighbors' wort Please feel free to contact me ifyou have further questions, and [ invite you to visit ourwebsiee listed below, which indudes apruner on Work/Live. sincerely, Thomas Dolan, President & CEO Thomas Dolan Architecture Embarcadero West 173 Filbert Street Oakland, CA 94607 tel. (510) 839 nod fax (5m) 839 7208 td.arrh @Gve- work.com http://www.live-work.com A California Corporation Re: Agenda Item# 5 -11 6 -15-04 Subject: Here's the Letter- Good Luck Frain: K.C. Rosenberg Date: Sun, 6 Jun 20041939:14 -0700 To: chythmix @earthlink.net CC: ajletters @cctimes.com To the Alameda Journal, And To whom it May concern, please print this in the Opinions section Iliank You. K.C. Rosenberg 510 - 864 -0854 Sunday, June 6, 2004 We write this letter in support of art, aztists and the 2515 Blanding studio project; the renovation and reuse of he Camp Building. It is necessary for people to come down and walk through, stand and experience how depleted of human warmth the North East region of Blanding Ave is. It's dirty and neglected and the few who ire here, know seedier illegal activities occur often. Is this what we want to continue? It will take more than the Bridge Side Center project to turn this side of town around. Stone Boat Yard's leaving„ Allied engineer is %v/wiring, so if businesses aren't interested, this is a group of people who are. 3ere is an Artist and a community ready to do as the chain of survival in the arts has repeatedly done over and wer. If you let artists flourish in down trodden areas the rest of the city will benefit through beautification and adfu raI enrichment, some would argue gentrification, (we'll save this debate for those who aren't trying to =over economically.) There is a small spying of artists in this mixed -use region. Some are in the warehouses and some occupy the Victorians. All have an interest in cohabitating with their work that most in he depth of our bedroom community couldn't tolerate, due to possible noises that push residential decibels. kinet Koike is here to put her money and sweat equity into her building and into the City of Alameda. I know *tom experience, being an artist who has spent 3 years to get my own studio afloat here, this community needs o welcome artists not find more reasons why they shouldn't occupy places where other's have depleted the esouroes. This project not only will support the artists in the work /live space, making it unnecessary for them o commute to their workspaces. Further, as all building projects must when above the table in this city, it will rave parking, will contribute to city taxes and to the public art fund rase who fed they must be litigious and cost the city further monies over this issue in interpretation of aeasure A, you could find better uses for your watchdog committee , (like reporting people who do illegal making) Lay off people who are trying their best to work within the printed ordinance. Elastic clauses exist in many parts of our lives as Americans. Interpret as you will, but I say support the beneficial. The Planning Ward has shown positive actions in their approval of this project, This is a restoration and re -use project and n additive element to the North East side. Janet, good luck and welcome to the neighborhood. lrturo Ramos- R Studio nd K.C. Rosenberg Kerber of the City of Alameda's Public Arts Advisory Committee McGrath's Irish Pa h, 1539 Lincoln Avenue, Alameda, CA 94501 510 - 522-6263. 510 - 915 -0654 (Cell) fiyinhigl( artilinLnet June 8th, 2004. Mayor Johnson and Members of The Alameda City Council 1 write this letter in support of the proposed development at 2515 Blending Avenue in Alameda As 1 am sure you are aware, McGrath's Pub has become a primary source of acoustic music promotions and presentations in Northern California and as a business owner, an active member of Ala,neda Rotary and a staunch supporter of the Arts, 1 consider this proposed development to be an essential and very welcome addition to The Alameda Conummity. Additionally, dry own residence on Cement Avenue is within one block of the noted property and I welcome the opportunity to begin revitalization of this neighborhood in a positive fashion! sincerely, Peter M. Barnato mail box:l // Macintosh% 2OHD /Docmment4Mozilla/Pmf les/Janet% Subject: Janet Koike development at 2515 Blanding Avenue From: Charlene Milgrim crhaliierrulgrim@sbcglobal.net> Date: Mon, 15 Mar WO4 23:41:57 -0800 (PST) - To: jaltschu@ ialamedacaus Dear Ms Altschuler, I am writing this letter in high support of Janet Koike's plan to develop the industrial building at 2515 Blanding Avenue into an artist work/live space. I have been teaching in Alameda for the past 28 years and have taught Art at Alameda High School for the past eleven years. I am an artist myself and understand the needfor. artists. to have decent spaces. to -work • and live. I also welcome the good, creative energy that is- fostered by having a place like this in•our community. I have a lot ofrespect for a community that values the architectural integrity of their neighborhoods. There have been many unsightly apartment buildings and retail developments that have slipped into Alameda over the years. After knowing Janet Koike for the past 25 years and seeing the care and dedication to which she approaches everything, including her own beautiful home renovations and clothing design business, I know this project will reflect those same meticulous standards. I feel Alameda is very lucky that Janet Kodce is developing this property in our town rather than some large corporate developer. Janet is respectful of the values of our community, and her project will reflect those values and be a cultural asset. Thank you, Charlene Mllgrim Art Instructor Alameda High School 3116104105' .e: Blanding Street Work/Live file : / / /Macintosh%2OHDI Cal %20Vita%20ehange%20a!%2Unse%20 Subject: Re: Blanding Street Work/Live From: Russ & Barb <krummelb@alamedanetneb Date: Thu, 04 Mar 200419:14:27 -0800 To: <rhydunix @eatthlink.net> The work/live spaces proposed by Janet Koike for the building at 2512 Blanding Ave. will be a welcome addition to Alameda. I know Janet has the inspiration and commitment to transform this empty and run down industrial site into a vibrant new part of our city. As the parent of two school-age children, 1 am excited about the potential growth in our arts community that this work/live space will allow. My children attend Edison Elementary Oust a few blocks from the Blanding Ave. building) and Lincoln &fiddle School. They benefit on a regular basis from artists who contribute time in individual classroom instruction as well as performances before the entire school. I feel strongly that development which provides a place for artists to create, is a good growth direction for Alameda. Sincerely, Barbara Krummel 3258 Liberty Ave. , Alameda 68 Parkman St., #3 Brookline, MA 02446 March 20, 2004 The City of Alameda Planning Department Re: Change of use permit for 2512 Blanding Avenue To Whom It May Concern: I am writing to enthusiastically support and endorse Ms. Janet Koike's request to you for a change of use permit for 2512 Blanding Avenue. I am an artist and administrator currently living in Boston. My husband who is a lawyer and 1 intend to move into this space should this plan materialize. I believe her interest in developing this space into a work/live space will benefit Alameda and its.residents for a variety of reasons: • It offers a space for the arts to flourish, which can bring more financial resources into Alameda In the New England region, it has been demonstrated that the arts bring in more economic dollars than the resident sports team. It has been shown that the arts are a critical component in the revitalization of a community. • It is an excellent way to refurbish, recyde and extend the useful life of old industrial buildings. 1 hope you will approve this change of use permit. Sincerely, Elaine Fong Artistic Director Odaiko New England fife: // /Macituosh%2OHD/ Cal %20Vila%2Uchange%204%20use%2 Subject: Development of 2512 Blandiag in Alameda From: Melissa Harmon <meihannlessa ryahoo.com> Date: Tue, 2 Mar 2004 11:44:02 -0800 (PST) To: jaltschu@ci.alameda.caus Dear MA. Alt schulex, T`d like to support the development of 2512 Blanding Avenue into'sork/7ive space. I live here in Alameda with my husband in a Victorian house that has been authentically renovated. Having artists in the old industrial sector of Alameda is a great asset to our city, and is a good way to recycle the buildings. I am a curator with recent shows in Berkeley and San Francisco. Thanks very much! Sincerely, Melissa Harmon, 1029 Central Ave , Alameda Do you Yahoo!? Yahoo! search - Find what youAe°re looking for faster httD: / /search.vahoo.ccn Judith ALTSCHULER - 2512 Blanding Avenue Page From: Michael Schiess <ujuju @comcast.net> To: <jaltschu @ci.alameda.ca.us> Date: 3/1/2004 8:37:19 PM Subject: 2512 Blanding Avenue To: Judith Altschuler Supervising Planner City of Alameda Dear Judith, 1 totally support work/live space in Alameda and am writing in support of developing 2512 Blanding Avenue into work/live space. I have lived in Alameda for 20 years and own a beautiful Victorian here. I am very much in favor of preserving Alameda's buildings and recycling them into new uses. There are so many historical buildings that instead of being demolished; could be better used as a work/live space. it would also reduce the need for building new multi -unit homes that take away from the flavor of this town. Another benefit would be to hopefully have more artists in the community, and nurture the arts here with local artists. I am an artist/landlord who works for the Exploratorium, Chabot Space and Science Center, The Crucible and Ned Kahn Studios. I also run the Lucky Ju Ju Pinball on Saturday nights in Alameda. www.ujuju.com chttp: / /www.ujuju.com/> and you are always welcome to come by and play a game or two. Thanks for your time, Michael Schiess 1029 Central Avenue Alameda, CA 94501 -2305 (510)521 -7262 CC: Michael Schiess <ujuju@comcast.net>, <rhythmix @earthlink.net> Judith ALTSCHULER - work/live alameda Page From: ed cassel <edzkastleCalamedanet.net> To: <jaltschu @ ci.alameda.ca.us> Date: 3/2/2004 4:52:45 PM Subject: work/live alameda To whom this may concern, as a twenty year resident of Alameda, as well as a professional artist, I'm delighted to learn that you're contemplating developing 2512 Blanding into work/live space.I happen to live near the site and have often wondered, while driving by, what would become of the property.How magnificent it would be to preserve the historic facade while implementing a resource to nurture creative arts activities.A.win -win situation and an idea whose time has come. There seems to have been a dearth of work/live on the island in the past; although I've worked on such grand projects as the restoration of the Oakland Main Museum murals and Feature Film set productions in hangars at Alameda Point,(alI the while an Alameda resident),there has not been much prospect of large studio space and arts community...until now. Alameda is a very special town.Supporting the arts through developing 2512 Blanding will be one more jewel in the Island City's crown. Sincerely, Ed Cassel Attachment #3 amok Siu ' lte updated Thu Apr IS 16:11 Plc Ar`.'A. >i•EY:r's�z:t� iOCSJ 1?f.•.z {'t'ir 4C ":nG'Gyt riL•2: ,A lamb Loony Orated. Commainitr 0Matsd 411610 Thursday, April 15, 2004 y Fie i4tantn for sirens zs,varif Endorses. R potkv,Ytra �.f'6►ve U it: kisland Architecture Past Board Endorses Retail Policy, Work /Live Units By Ed Moser The Alameda Planning Board, at their regular meeting last Monday, made small steps towards new business in Alameda, approving the construction of seven work/live units and giving their endorsement to the Citywide Retail Policy, intended to provide a framework for the filture of business on the Island. The Board unanimously approved an endorsement of the retail policy, which attempts to modernize the city's General Phan in fght of several new developments taking place in Alameda. The 89-page document was put together by the s Economic Development Commission (EDC) after arnducting a series of projects. community engagement forums to gauge the public's stance on new Doug Defiaan, chairman for the EDC, said at Monday's meeting "The blessing we have with this is that we've had time to work on it and pro have started while we've been working on it The Citywide Retail i'o is a good example of taking everything and looking at it as a whole.' The city hopes to "strengthen retail recruitment efforts" and lure new businesses to the city. Marc Fontes, business development division manager for the city's Development beers dealt with earlier. t said some of the issues In the One of the different types of retailers that the policy describes is one -stop, or b -box, retailers like Target. The Board seemed to generally agree with the idea ofbig-box, if it were bulk tastefully into the character of the neighborhood. Board member Anne Cook said she would be relieved not to have to drive to Walnut Creek to shop at Target. Though Board President John Piziali said, '"We have-to be careful what we wish for. If ou bring (big -box retail) into Alameda then we will have more traffic, and we all know how we feel about traffic." ' • The city approved for the first time work/live studios to be built on the Island. The plan presented at Monday's meeting calls for the studios to be built Into the existing Clamp Swing building on Blandhio Avenue, built in 1931 along the Northern Waterfront The board hopes the studios will help foster the artistic community in Alameda Mile at the same time preventing the destruction of buildings with historic ties. The City Council approved an ordinance in 1998 that allows work/live units, with conditions. WorWilve units must have at least 1,000 square feet of working sm�a ce, of which 0ipe t can be dedicated living space, and be placed in Contact Ed Moser at edmoserralamedesun.com. Horne > 2004, Alameda Sun. All rights reserved. nseaU041544/ea4.hue k Pr,eQtalre -Tor Bike to N Eta > News Briefs >The Sun Shines Evervw) i tnal Borne Alarm for Slrl Left My Head 11 -> a, Say. Can You g• : = :as=r• rousing Commission Seeks Aou& >`uo ': $:, w; ^,:•1 Delicious Cheesecake in a New Y9t Muhl Urash Den ;;sEar:.1s r4. Virginia frtect rj Cunningham ':"e..tvr ag'r " 41,72 Tfie Mai of the jetedulator Team% Foamiest �E 61 °F Partly Cloud Like: Mad: W at 16 mph attar exyldp Cainrtara4 Brenta This 1 h: yeti.' : news j �: •� ^a Cijv Meeting CaJsndar sra ws:<_'1.ir1Fr /ef,if Heouenings .,, nc r : school 0rief•1 Alameda harts City of Alameda AC Transit Alameda /Oakland Fen More Ararf£ecla links r. ERAL MANAGER •: SHAREEF DAMN' EDITOR Y CIDIDA'RYAi Kttsoavo. t :n ,e ii igat[iitie, 'i +b die.L.slotiwas ed:onthe. tfegenera%dbythe•for. ' it :useeby a iser'at.' • e.`�Y.rn eUSPIQfoira .par c tai iattoiti;baf::r wvorts/Iive'at.:: :: "•thinktheeame. rincipie =:dointa: **ul ;; t. wilt:::.: and e Im- • •: Wog too be at' east a; :: againa t seven we$91 :: iox iive shOuld.: -•r mmu n& and .**. . te.to sayt a ttuhteer no gtve � Wit. e ttatevbat*a Stit'eeti:lhtch:+ tely needs the;busl :` • • • • .From 1979,88.-1. tiv'ed In :a:' rork/tive = space acmes the::estuary.gn:tbe t7aldand : ;`` wateitrantl hat si 11: ii cloft ert :', a. wood sh ;, iriiioh:is e.oniy vvay.i.:: tiffaidbalillaint and wod J; spent many. anioya ::i oiira avatking.. :on ereatirie:projects, fl baitiinga:.. ;. coati na wall as Ong tkOhop. far busi- Some fatka` prefer.: a workbench . ....• :.4ftil4rit.Ot�b11 ' 4 ec is nt;awtter ? .. wittx tke cleat':'.` �: ;;' • 'ation that.: Wameila.VO.0il e*illni ce would al- : lour for: ilanieda Journa lo. 33 • Newsstand 25 cents TheAlamedaJournal.com • Friday, April 2 LETTERS TO THE EDITOR Thank heaven for Helen In her weekly Alameda Journal col- umn, "Senior Solutions," Helen Moyes covers a wide range of elderly experiences. The questions and answers in her columns are a sample of the queries that she gds each day at her office at the Ma- stick Senior Center in Alameda. lb count- less Alameda seniors, Moyes is the helping hand they need. The ward has gotten around that there is a lady at the senior center who will listen to you and help if she can. Among the most frequently asked questions she gets are those on our health car system, and in particular; prescrip- rugs. Elders require more prescription drugs per person than do any other age group. At the same time, because they are on a fixed income, they are the hardest hit by the high cost of prescription drugs. In their search for affordable drugs, the elderly, espedally those with chronic illnesses, try many sources: local pharmacies, discount cards, other providers, and then hear about an unexpected source, Canada, To critics of Americans who buy their medications from there, the reason could be a revelation. In Canada the govern- ment buys bulk supplies of drugs from American pharmaceutical companies at a reduced cost. The Canadian govern- ment passes to citizens by reducing the dru g P ri�cc orditgly. Maybe we can learn something from our Canadian neighbors. Someday we might say, as Canada's Prime Minister Paul Martin said, "our national health plan which cares for our citizens from birth to death is one of Canada's .great- est accomplishments." Will L,ahaie Dry docked 1 was very disappointed to read the ar- ticle about the dry docking of the water tavi My family and T hewn hams wan* nn,3 You can participate in Alameda's Re- lay by forming a team, beco • a mem- ber of a team or donating to a or relative who is a member of a team. We always need volunteers before and dur- ing the relay and encourage cancer sur- vivors to join us on this special day Also, to help Sponsor our event, dq! nate it prize, help publicize or assist ip} any other way, we would love to have you get in touch with us. An enthusiastic group of volunteers has come together to create a magcal, fun -fined day of entertainment, food, friendship, and hope. We hope you will support this effort and join the fun on June 26 and 27. Details: 510- 452 -5229, Ext. 313 or ooryreding@cancecorg Jennifer Clark, volunteer chair Moveable feast In response to Rod Lima's letter lag a replacement restaurant for the Maya Picente, Mllae Lano suggested a Fresh Choice franchise. I would like to offer my own suggestion of encouraging one of the local establishments to move up into a set- ting befitting their excellent cuisine. The Alameda "Taqueria has been pro- viding the best Mexican food in the East Bay for years. Perhaps with encourage- ment from fellow Alamedans, we could fet them to consider moving or expand:. mg. I can think of nothing better than en- joying some of their chile verde and rel- lenos while the sun sets over the Bay. This also keeps in tune with the phi losophy of keeping Alameda a unique town with local businesses instead of faceless corporate franchises. How about it, Minnie? Michael Schiess Needled by story The April 13 Page 1 article featuring Tuscany Yams was a pleasant surprise. As one of Alameda's many knitters, it is own way to any yarn store in the area, fo- aming on one to the exclusion of the other may deprive a new or budding knitter of the opportunity for choice and diversity. Hopefully, what seemed to be an unfortu- nate snub was not deliberately intended. Patricia J. Blair It's legal, let her be Imagine if each time you went to buy food.at the market, you were challenged as to the legality of such a simple busi- ness activity. Why would the apparently conforming and legal application by Janet Koike to build a project within the work -live ordi- nance merit.a front-page lead artiste in the Journal? Why should such a law - abiding act be subject to challenge? If this is the business she chooses to enter; what would possess any of us to take it upon ourselves to harass her? Does she have any legal protection against such harassment? It seems only fitting when one seeks to make another's life miserable that something be risked In return. May I suggest that when_Murpby loses his challenge, he gallantly pays Koike triple her curls and for her time at an agreed -upon hourly rate? I've never met Ms. Koilre, I'm just concerned when innocent people get dragged over drips on shoulders. Darrel DeBoer What a town Recently, our 8- year -old daughter An- nie faced a life- threatening illness. We are blessed that she survived and Is al- most fully recovered. Annie's miraculous recovery is due, in large part, to the out- standing medical care that she received at the Alameda Hospital Emergency Room and at UCSF Children's Hospital. We are very fortunate to. have a hos- pital on the Island, and we are thankful to all of you who. voted to keep it open. ThP trnmendmin nntnnurina of nun- .�'•; °�C;t: +iiu. F.� �z 4�.�ipzt >i;;�fi' �,ui.''it: x;`�j'y;Y Us r.: Il • +Y 9�ii >yr:y . x ddi�n% {b h „ 3+,,i ta1,3(i �, ,..f �,,q. (• '� fix' ` AA X16 's,.�'�. .. u�Fµ� "1 ft'i�ydyu''P silNiia f A is FACSIMILE (415) 421 -1815 HENNEFER C WOOD'• Ty r! ATTORNEYS AT LAW i • , 425 CALIFORNIA STREET F ' NINETEENTH FLOOR ., SAN �ANcxsco, CALIFORNIA 94111 _ Iri P:1 1' :1 June 10, 2004 DELIVERED BY HAND The Mayor and Members of the City Council City of Alameda City Hall, Room 120 2263 Santa Clara Alameda, CA 94501 TELEPHONE i red e' '4 •fit (4151421 -6100 . Re: Public hearing to consider appeals of a Planing Board approval of a Use Permit to allow the conversion of a 15,840 square foot industrial building at 2525 Blanding Avenue into seven work/live studios with associated parking and landscaping. Use Permit No. UP03 -0019; Hearing Date June 15, 2004 Dear Mr. Mayor and Members of the City Council: This letter is submitted by Matthew Murphy, a resident of the city of Alameda, in support of the appeal of Patricia H. Bail from the April 12, 2004 decision of the Planning Board granting the application of Janet Koike for the above - referenced use permit. Ms. Bail points out, in her appeal, that the use permit would allow construction of multiple dwelling units and would thus create a violation of Measure A of the City Charter. Ms. Bail also points out that the work -live ordinance under which the use permit has been granted is illegal. In considering those points, the. Council should take into account the following information: 1. The City of Alameda (the "City ") is, and at all times relevant to this complaint has been, a duly authorized municipal corporation existing under the constitution and laws of the State of California and under the Charter of the City of Alameda, California (the "Charter "). The Charter was adopted on or about April 29, 1937 and was approved on or about May 5, 1937. Re: Agenda Item# 5 -H 6 -15 -04 The Mayor and Members of the City Council June 10, 2004 Page 2 2. On or about March 13, 1973, a ballot initiative entitled "Measure A" ( "Measure A ") was duly voted upon and adopted by the electorate of and for the City. On its effective date, Measure A was added as Article XXVI to the Charter. Measure A provided: "Sec. 26 -1. There shall be no multiple dwelling units built in the City of Alameda. [¶] Sec. 26 -2. Exception being the Alameda Housing Authority replacement of existing low cost housing units and the proposed Senior Citizens low cost housing complex, pursuant to Article XXV of the Charter of the City of Alameda." 3. On or about March 5, 1991, the electorate of the City, by ballot initiative, added the following provision to Measure A: Sec. 26 -3. The maximum density for any residential development within the City of Alameda shall be one housing unit per 2000 square feet of land. This limitation shall not apply to the repair or replacement of existing residential units, whether single - family or multiple -unit, which are damaged or destroyed by fire or other disaster; provided that the total number of residential units on any lot may not be increased. This limitation shall also apply to replacement units under Section 26- 2." 4. In or about. June, 1973, the Council of the City of Alameda (the "Council ") passed an ordinance (originally denominated Alameda Municipal Code Section 11.421 and presently denominated Alameda Municipal Code Section 30 -51.1) setting forth the following definitions which, pursuant to the ordinance, were and are intended by the Council and the City to apply to the interpretation of Measure A: "Dwelling shall mean a building or a portion thereof designed exclusively for residential occupancy, but not including hotels, motels, boarding houses, lodging houses, or house trailers, if the latter five (5) entities are located in approved districts or zones." "Dwelling unit shall mean a group of rooms, including one (1) kitchen, a bath and sleeping quarters designed for and not occupied by more than one (1) family." "Multiple dwelling units shall mean a residential building, whether a single structure or consisting of attached or semiattached structures, designed, intended or used to house, or for occupancy by, three (3) or more families, or living groups, living independently of each other, located in districts or zones authorized therefor. Each such family or group is deemed to occupy one (1) dwelling unit." The Mayor and Members of the City Council June 10, 2004 Page 3 5. From and after March 13, 1973, and continuing through November 17, 1998, the City consistently took the position, in dealing with residents, . taxpayers, and property owners in the City of Alameda, that Measure A precluded the construction of multiple units in which persons or families resided, even if portions of those units were used for business, artistic, or other non - residential purposes. 6. On or about November 17, 1998, the Council heard the application of the City to amend the Alameda Municipal Code, by amending section 30 -2.b. thereof and by adding new section 30 -15 thereto, in order to allow for construction in the City of Alameda of so- called "work/live studios." Pursuant to the proposed amendments and additions to the Alameda Municipal Code, those units, although required to have a "portion" thereof reserved and used exclusively for "residential purposes ", and although required to have a "food preparation area ", a "sleeping area ", and a "full bathroom ", would nevertheless be deemed outside the definition of "dwelling units" and thus exempt from the "There shall be no multiple dwelling units built in the City of Alameda" requirement of Measure A. 7. Two persons similarly situated with Matthew Murphy and sharing a community of interest with Matthew Murphy submitted to the Council, prior to the November 17, 1998 hearing, written objections to the abovementioned application by the City to amend the Alameda Municipal Code. Those written objections included the following language: Article XXVI of the Alameda City Charter, passed by a vote of the electorate in 1973, expressly precludes construction of "multiple dwelling units" in the City. Article XXVI contains no language suggesting that its reach and effect are limited only to some dwelling units and, in particular, contains no language suggesting that its reach and effect do not extend to dwelling units that are also being used for purposes other than dwelling, e.g., for certain business or artistic activities. The proposed amendment would therefore alter or contravene Article XXVI of the Alameda City Charter without a vote of the electorate providing for, or sanctioning, such alteration or contravention. [¶] California Constitution, Article XI, § 3, provides, in pertinent part: [¶] "(a) For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question. The charter is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same The Mayor and Members of the City Council June 10, 2004 Page 4 manner." [I] California Constitution, Article XI, § 5, provides, in pertinent part: [J] "(a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters . .." [¶] Citizens for Responsible Behavior v. Superior Court, 1 Cal. App. 4th 1013, 1034 (1991), holds: [j] "The City of Riverside is a charter city, and a charter bears the same relationship to ordinances that the state Constitution does to statute. [Citation omitted.] While a city charter may be amended by a majority vote of the electorate (Cal. Const., art. XI, § 3), an ordinance cannot alter or limit a provision of a city charter. [Citation omitted.]" [¶] Brown v. City of Berkeley, 57 Cal App. 3d 223, 230 -231 (1976), holds: [¶] "Ordinances are invalid if they conflict with the charter. [Citation omitted.] ... [1] ... An ordinance can no more change or limit the effect of the charter than a statute can modify or supersede a provision of the state Constitution. [Citation omitted.]" Balff v. Civil Service Commission of the City of Oakland, 43 Cal. App. 2d 211, 215 (1941), holds: [1] "[I]t is a fundamental principle of municipal law that the rule making power vested by a city charter in a municipal agency must be exercised in conformity with all charter provisions, and that any rule adopted by such agency which has the effect of opening the way to circumvent or nullify charter provisions is, to that extent, inoperative and void." [I] The constitutional and judicial authorities cited above make plain that a charter provision cannot legally be alters or contravened absent a vote of the electorate expressly providing for, or sanctioning, such alteration or contravention. The proposed amendment to the Alameda Municipal Code is for this reason illegal on its face and should be rejected by the Council. 8. The objections set forth above were also presented orally to the Council by a representative of two persons similarly situated with Matthew Murphy and sharing a community of interest with Matthew Murphy, and were discussed by the Council, at the November 17, 1998 hearing. Following that presentation and discussion, the Council approved the application of the City to amend section 30 -2.b. of the Alameda Municipal Code and to add new section 30 -15 to the Alameda Municipal Code, as set forth above. On or about December 1, 1998, the abovementioned amendments and additions were The Mayor and Members of the City Council June 10, 2004 Page 5 enacted by the Council as City of Alameda Ordinance No. 2784, pursuant to which the presently contested use permit was granted. 9. The abovementioned actions, prior to and at the November 17, 1998 hearing, of persons similarly situated with Matthew Murphy and sharing a community of interest with Matthew Murphy, satisfy the requirement of exhaustion of administrative remedies in connection with the abovementioned amendments and additions to the Alameda Municipal Code. 10. In a series of written agreements, the City agreed to toll and waive the 90- day statute of limitations set forth in Government Code § 65009, or other statute of limitations set forth in any other applicable statutes, as to any petition for writ of mandate, action for declaratory relief, or other request for judicial review; that Matthew Murphy might wish to file in connection with the November 17, 1998 decision of the Council approving the application of the City to amend section 30 -2.b. of the Alameda Municipal Code and to add new section 30 -15 to the Alameda Municipal Code, as set forth above, and further agreed that any such petition for writ of mandate, action for declaratory relief, or other request for judicial review would be timely if filed with the court and served on the City within ninety days of a written request, by FAX transmission from the City to Matthew. Murphy's counsel, that the abovementioned tolling and waiver be terminated. No such written request has been made by the City. On June 10, 2004, Matthew Murphy filed an action in the Alameda County Superior Court seeking a judicial declaration that the November 17, 1998 decision of the Council approving the application of the City to amend section 30 -2.b. of the Alameda Municipal Code and to add new section 30 -15 to the Alameda Municipal Code (now Ordinance No. 2784), as set forth above, constituted an unconstitutional and illegal modification, amendment, circumvention, and/or nullification of Measure A and was to that extent facially inoperative and void. Because of the operation of the abovementioned tolling and waiver agreements by the City, that action is timely. 11. The City does not contest the fact that the so- called "work- live" units proposed by Ms. Koike will meet all the requirements for a legal residence in California and will be the sole and/or primary residences of their occupants. Whether or not work activities may also take place at those units, the units will plainly serve as the dwelling units of the occupants and must be deemed within the scope of Measure A. The multiple units contemplated by Ms. Koike would thus violate Measure A. Further, the City cannot justify approval of the presently contested use permit on the basis of Ordinance No. 2784, since that ordinance is the subject of a pending action to determine its validity. The Mayor and Members of the City Council June 10, 2004 Page 6 For all of the reasons stated herein, Matthew Murphy respectfully requests that the appeal of Patricia H. Bail be granted and that the proposed construction of multiple "work/live" dwelling units not be allowed to proceed. Very truly yours, HE■NEFER & WOOD Joseph Wood Attorneys for Matthew Murphy June 9, 2004 � qq �t pp f" , 1 C IA .. ! Y F'[ tP•'KS '1 ('I-i• i0I HECEIYED 04 JUN ! 0 Pf 4: 2 1 Pat Colburn 1340 Park Avenue Alameda, CA 94501 510- 865 -3460 Honorable Mayor and City Council; I am writing in support of Janet Koike's proposed work/live studios in the old Clamp -Swing building. I have been a resident of Alameda for over 24 years and have seen many changes in the town I have come to call my home. Although the objections to her conversion of this building are predicated on a presumed wholesale modification of Measure A, it should not even be connected with Measure A. This conversion fits neatly in the work/live ordinance passed by Council. Recent housing developments, while adhering to the intent of Measure A, are in my opinion, quite awful, and do not blend with the character of Alameda. Ms Koike's conversion will not only blend with the neighborhood, the neighborhood will also be greatly enhanced. The Clamp -Swing building is unique. As it is unlikely that any manufacturing company will again occupy what has become a derelict building, the only conceivable use today can be work / live. As with the Stone Boatyard, Alameda's waterfront, light industrial base is becoming history. As a realtor and one who is also very involved in Alameda's art community, I am seeing increasing numbers of people seeking extra space for their own "cottage" industry. One of my clients, a speech pathologist, seeks a separate office space in a home in which to see clients. Time and again, I am meeting people who either work from their home or are seeking a home that will provide this extra work space. Our Craftsman, Victorian, Bungalows or Contemporary cannot easily provide adequate space for today's entrepreneur. Her proposed conversion adheres to the requirements of the work / live ordinance. Please do not let alarmist confuse this with Measure A. Thank you. daLAitt.v. Pat Colburn Re: Agenda Item #5 -H 6 -15 -04 E 0 dxm CITY OF ALAMEDA RESOLUTION NO. DENYING THE APPEAL AND UPHOLDING THE PLANNING BOARD'S APPROVAL OF A USE PERMIT UP04 -0019, FOR THE CONVERSION OF AN EXISTING INDUSTRIAL BUILDING TO WORK/LIVE STUDIOS AT 2515 BLANDING AVENUE WHEREAS, an application was made on 12 November 2003 by Janet Koike for Cal Vita LLC, requesting, approval of a Use Permit to convert a 15,940 square foot industrial building into seven work/live studios with associated parking and landscaping; and WHEREAS, the application was deemed complete for processing on 4 December 2003; and WHEREAS, the subject property is designated General Industry on the General Plan Diagram; and WHEREAS, the subject property is in the M -2, General Industrial Zoning District; and WHEREAS, the City Council finds that the proposal is Categorically Exempt from review cc under the California Environmental Quality Act Guidelines Section 15332 — In -fill Development 2 Projects; and >" approve Use Permit, UP04 -0019; and 0 WHEREAS, the Planning Board held a public hearing on April 12, 2004 and acted to WHEREAS, on 15 April 2004, Edward J. Murphy filed an appeal of the Planning Board's decision to the City Council; and WHEREAS, on 20 April 2004, Patricia H. Bail filed an appeal of the Planning Board's decision to the City Council; and WHEREAS, the City Council interprets Article XXVI as not applying to work/live spaces; and WHEREAS, the City Council considered responses to the bases of the appellants' appeal and finds that there are no merits in the bases of appeal; and WHEREAS, the City Council makes the following findings with respect to the appellants' bases of appeal and relative to the Use Permit application: 1. The proposal is consistent with the City Charter. Work/live studios are not dwelling units under the City Charter, State Law or Alameda Municipal Code section 30 -15. 1 Resolution #5 4. 7 -6 -04 2. The location of the proposed use is compatible with other land uses in the general neighborhood area because this project is surrounded by a variety of retail and industrial uses. Thus, the work/live studios used by artists and craftspersons would be compatible with the existing uses, which include a boat yard, electrical contractor and sail maker use. 3. The proposed use will be served by adequate transportation and service facilities because the proposed use is in a fully serviced building. An AC Transit stop is one block east of the site. 4. The proposed use, if it complies with all conditions upon which approval is made contingent, will not adversely affect the property in the vicinity because any noise or vibration associated with this use would not adversely affect property in the vicinity since the general neighborhood is commercial and industrial in nature including a boat yard and a number of contracting and vehicle repair facilities. 5. The proposed use relates favorably to the General Plan because Work/live studios are specifically mentioned as a use in the northern waterfront area in the General Plan. WHEREAS, the City Council has made the following findings specific to Work/Live Studios: 1. The proposed or existing use of each work/live studio is a bona fide commercial or industrial activity consistent with Section 30- 15.5(d) because any uses proposed will need to secure a Work/live Permit as well as a business license. Thus, the Planning and Building Director will be able to review all uses to ensure that this condition is met. 2. The establishment of work/live studios will not under the circumstances conflict with nor inhibit industrial or commercial uses in the area where the project is proposed because the area proposed for this work/live studio project is an eclectic commercial/industrial area, which includes: a boat yard, small shopping center, video store, sail maker, and automobile repair facility. The work/live use will not affect these uses or any future permitted uses in the area. 3. Any building containing work/live studios and each work/live studio within the building has been designed to ensure that they will function predominantly as work spaces with incidental residential accommodations meeting basic habitability requirements in compliance with applicable regulations because only small areas of each studio will be designed for "live" space: separate sleeping and sanitary facilities and kitchen areas integrated into the `work" areas which are similar to food preparation areas in modern offices or other commercial uses. There are no walls separating the work areas from each other within each studio and six of the studios have roll up doors leading to workspaces to accommodate large equipment or materials. 2 4. Any changes proposed to the exterior appearance of the building will be compatible with adjacent commercial or industrial uses where all adjacent land is zoned for commercial or industrial uses. Exterior modifications proposed for this conversion are minimal and take their design from the existing industrial design of the building: metal roll up doors; industrial sash windows to match the existing and marquees which are typical of the 1930's industrial architecture of the building. The building will continue to essentially appear as it looks today. THEREFORE BE IT RESOLVED that the City Council of the City of Alameda upholds the Planning Board's approval of Use Permit UP04 -0019, to permit the conversion of an industrial building to work/live studios subject to the following conditions: 1. APPROVED PLAN: The project shall be constructed in substantial compliance with the plans, titled "Blanding Avenue Work/Live", revised through 5 April 2004, prepared by Thomas Dolan Architecture, marked Exhibit "A ", on file in the office of the City of Alameda Planning Department, except as modified by the conditions in this Resolution. 2. VESTING: The Use Permit shall expire on May 18, 2005, unless the conversion of the building has commenced under valid permit. 3. DESIGN REVIEW: Prior to the issuance of any building permit, minor design review for the proposed exterior modifications shall be completed. 4. BUILDING AND FIRE CODE: The conversion shall be subject to all applicable building and fire codes. 5. LIMITATION ON MODIFICATION: Areas within a work/live studio that are designated as living space shall be an integral part of the work/live studio and not separated from the work space, except that mezzanines and lofts may be used as living space subject to compliance with other provisions of this Article. Examples of ways to integrate the work space and living space in compliance with this section include, but are not limited to, the following: (a) Doors or solid walls between the work space and areas used for living space do not extend all the way to the ceiling, except for sanitary facilities and rooms used primarily for sleeping, (b) There is a single entrance to the work/live studio, (c) There are no walls separating the food preparation area from the work space, (d) Only the sanitary facilities and rooms designated for sleeping are enclosed and all other portions of the living area are not separated from the workspace. 6. PERMITTED WORK ACTIVITY. The work activity in a building where work/live units are allowed shall be any use permitted by right or use permit in the zoning district, except that, in order to protect the health and safety of persons who reside in a work/live studio or in a building which contains one (1) or more work/live studios, no work activity shall be permitted nor shall any work/live studio be established on any site that contains those uses 3 which the Planning and Building Director when considering a work/live permit or the Planning Board when considering a use permit, finds would, by virtue of size, intensity, number of employees or the nature of the operation, have the potential to create significant impacts by reason of dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration or other impacts, or would be hazardous by way of materials, process, product or wastes including, but not limited to: auto service /repair, vehicle sales or leasing, car washes, service stations, bars /lounges /night clubs, adult businesses, marine engine repair /refueling facilities, animal kennels /grooming/pet shops, liquor stores, veterinary offices/hospitals, funeral parlors /mortuaries, outdoor storage as a primary use, crematories /columbaria, dismantling facilities /scrap yards, public utility structures and facilities, tire sales /service, truck stops /repair. 7. ADDITIONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (10 %) percent in any five (5) year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established within the original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 8. WORK/LIVE PERMIT REQUIRED. Each tenant or owner of an individual work/live studio must obtain a work/live permit prior to occupancy. Such permit shall be issued by the Planning and Building Director based on a determination that the proposed occupancy is consistent with the approved use permit and all applicable requirements of this section. Application for a work/live permit shall be made to the Planning and Building Department in writing on a form approved by the Department and shall be accompanied by a fee as set by resolution of the City Council. 9. NO SEPARATE SALE OR RENTAL OF PORTIONS OF UNIT. No portion of a work/live studio shall be separately rented or sold as a commercial space for a person or persons not living in the premises or as a residential space for a person or persons not working in the same studio. 10. BUSINESS LICENSE REQUIRED. At least one (1) occupant of each work/live studio shall maintain a current City of Alameda business license for a business located in that studio. 11. MIXED OCCUPANCIES. If a building contains mixed occupancies of work/live studios and other nonresidential uses, occupancies other than work/live shall meet all applicable requirements for those uses, and proper occupancy separations shall be provided between the work/live studios and other occupancies, as determined by the Building Official. 4 12. NOTICE TO OCCUPANTS REQUIRED. The owner or developer of any building containing work/live studios shall provide written notice to all work/live occupants and users that the surrounding area may be subject to levels of noise, dust, fumes, or other effects associated with commercial and industrial uses at higher levels than would be expected in residential areas. State and Federal health regulations notwithstanding, noise and other standards shall be those applicable to commercial or industrial properties in the district where the project is located. For purposes of noise control, work/live studios shall be classified as commercial property under Table II in Section 4 -10.4 of the Alameda Municipal Code. 13. CHANGE OF USE FROM WORK/LIVE STUDIO. No work/live studio shall be changed to exclusively residential use in any building where residential use is not permitted, where two (2) or more residential units already exist, or where the conversion would produce more than two (2) attached dwellings. The conversion of an existing work/live studio to exclusively nonresidential use is permitted when the conversion meets all other applicable zoning and building code requirements for the proposed use. Such a change shall be subject to all applicable requirements for the district where the proposed dwelling unit is located. 14. INCREASE IN RESIDENTIAL USE. No work/live studio shall be changed to increase the floor area devoted to residential use without review and approval of the Planning and Building Director. In no case shall the floor area devoted to residential use be increased to more than four hundred (400) square feet or thirty (30 %) percent of the gross floor area of the unit whichever is more. 15. ADDITIONS TO BUILDING ENVELOPE. No modifications shall be made to the exterior of a building proposed for or in current use as a work/live occupancy that would result in a substantial increase in the building envelope resulting in an increase in the existing gross floor area of more than ten (10 %) percent in any five (5) year period outside the exterior walls or the outer surface of the roof of the building as it existed at the time of conversion to work/live studios. All changes to the exterior of work/live structures shall comply with the purposes set out in subsections 30- 15.1(g) and (h) and with the required finding set out in subsection 30- 15.6(d). New floors or mezzanines that are established within the original building envelope shall be permitted and shall be considered as part of the existing floor area for purposes of this section. 16. DEED RESTRICTION REQUIRED. The owner of each work/live studio or each building containing work/live rental studios shall record a notice on the property specifying the limitations of use and operation included in the use permit. 17. ON- PREMISES SALES. On- premises sales of goods are limited to those produced within the work/live studio. Retail sales of goods produced within the work/live studio shall be incidental to the primary work use in any building used exclusively for work/live occupancy. These provisions shall permit participation in occasional open studio programs and gallery shows. 5 18. NON RESIDENT EMPLOYEES. Up to two (2) persons who do not reside in the work/live studio may work in the studio unless such employment is expressly prohibited or limited by the use permit because of potential detrimental effects on persons living or working in the building or on commercial or industrial uses or residentially -zoned areas in the vicinity of the subject property. The employment of three (3) or more persons who do not reside in the work/live studio may be permitted subject to a use permit based on additional findings that such employment will not adversely affect traffic and parking conditions in the area where the work/live studio is located. The employment of any persons who do not reside in the work/live studio shall be subject to all applicable Building Code requirements. 19. CLIENT AND CUSTOMER VISITS. Client and customer visits to work/live studios are permitted subject to any conditions that may be imposed by the use permit in order to ensure compatibility with adjacent commercial or industrial uses or adjacent residentially zoned areas. 20. SITE PLAN REVISIONS: Prior to the issuance of any building permit, the site plan shall be revised to remove up to three unenclosed parking spaces and show the installation of a minimum of three parking lot trees to the satisfaction of the Planning and Building Director. 21. HOLD HARMLESS: Pursuant to California Government Code Section 66474.9(b), the City of Alameda requires as a condition of this Use Permit approval that the applicant, or its successors in interest, defend, indemnify, and hold harmless the City of Alameda or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, and employees to attack, set aside, void, or annul, an approval of the City concerning the subject property, which action is brought within the time period provided for in Government Code Section 66499.37. The City of Alameda shall promptly notify the applicant/project sponsor of any claim, action or proceeding and the City shall cooperate in the defense. If the City fails to promptly notify the applicant/project sponsor of any claim, action, or proceeding, or if the City fails to cooperate n the defense, the applicant /project sponsor shall not hereafter be responsible to defend, indemnify, or hold harmless the City. 22. REVOCATION: This Use Permit may be modified or revoked by the City Council or Planning Board, should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 23. ACKNOWLEDGMENT OF CONDITIONS: The applicant shall acknowledge in writing all of the conditions of approval and must accept this permit subject to those conditions and with full awareness of the applicable provisions of Chapter 30 of the Alameda Municipal Code in order for this Use Permit to be exercised. 6 I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of , 2004, by the following vote to wit: AYES NOES: ABSENT: ABSTENTIONS: IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the seal of said City this day of , 2004. Lara Weisiger, City Clerk City of Alameda I OF AL CITY OF ALAMED�► R ~ ; .i VEf t ri. MEMORANDUM 04 JUN _0 PM. 2; SO To Honorable Mayor an _. ...' • Councilmembers 'y From: James M. Flint City Manager Off Agenda Date: June 7, 2004 Re: Update on Suzy Q's Bar - 1207 Lincoln Avenue BACKGROUND On February 17, 2004 Councilmembers received an "Off Agenda" report regarding Suzy Q's` Bar, located at 1207 Lincoln. Avenue. That report, a copy of which is attached, detailed the circumstances surrounding complaints received from neighbors regarding Suzy Q's, and the subsequent Problem Oriented Policing (POP) project initiated by the Police Department in response to those complaints. This report has been constructed to update Councilmembers as to the current statics of Suzy Q's POP project, and the efforts of both the Police Department and the State Alcoholic Beverage Control to address the problems associated with . the bar. DISCUSSION /ANALYSIS Officer Jeremiah Harrison has coordinated the Suzy Q's POP project for the Police Department, working closely with District Administrators Everest Robillard and Andrew Gomez of the State Alcohol Beverage Control, responding to complaints and documenting alleged violations as reported by neighbors of the bar. As a direct result of this coordinated effort, Suzy Q's owner, Hai Tang, received a 60 -day liquor license suspension which went into effect on March 25, 2004. 20 days of the suspension were probationary, resulting in a 40 -day closure. Mr. Tang had advised Officer Harrison that he would utilize time during the suspension to search for another location for his bar in a neighboring community, Re: Council Communication #7 -A Dedicated to Excellence, Committed to Service 7 -6 -04 Honorable Mayor and . June 7, 2004 . Councilmembers • , Page 2 of 3 however according to Tang, he was unable to locate a suitable location and decided to re -open the bar at the conclusion of the suspension. Suzy Q's did in fact re -open on May 4, 2004. . For the period of January 1., through May 31, 2004, the Police. Department received an average of 2.5 calls for service per month in the vicinity of Suzy Q's bar. Each of these calls for service involved a "disturbance of the peace" report. All indications are that these disturbance reports are the result of bar patrons socializing in front of the bar while smoking. State Law requires patrons of these types of establishments to smoke outside the premises. The "disturbance" calls are an unfortunate result of this law and its impact on "neighborhood" bars. As part of the POP project, patrol personnel have been entering and inspecting the bar on a regular basis and have reported observing no unusual or illegal activity. Additionally, the Police Department's Special Duty Unit has been conducting surveillance at Suzy Q's, utilizing videotape in an attempt to provide evidence of violations for ABC in an effort to obtain a permanent suspension of Tang's liquor license. No violations have been observed to date. However, the surveillance operation is ongoing. On May .16, 2004,. Mr. Neil Daskal of 121.3 Lincoln Avenue was videotaping bar patrons leaving Suzy Q's at closing time. Daskal was outside his residence and was attempting to document behavior which would be considered a violation by the State ABC. One of the exiting patrons observed Daskal's activity and confronted him. A physical altercation ensued to which two of Mr. Daskal's neighbors responded, : one of whom had : armed himself with a metal pipe. This "weapon" was taken away and used against one of the residents by one-of the bar patrons. The bar patrons fled the scene prior to the arrival of responding patrol units. Sergeant Joe Dwyer of the Violent Crimes Unit conducted a follow-up investigation and quickly identified the bar patrons involved in the altercation. After conducting interviews and. .completing his investigation, Sergeant Dwyer prepared a report for the District Attorney's Office in which he requested assault charges be filed against the bar patrons.. This case is currently awaiting review and a decision by the District Attorney. According to ABC, other then the lone physical altercation, the problems associated with the bar appear to be "quality of life" issues as opposed to public safety issues. Although "quality of life" issues are extremely important to those affected by the littering and loud .. patrons, they are not as easily utilized as criminal violations in attempting to permanently suspend liquor license privileges. Dedicated to Excellence, Committed to Service )O• Honorable Mayor and June 7; 2004 6ouncilmembers Page 3 of 3 ABC District Administrators Robillard and Gomez indicate that based on their investigation, and repeated contact with Suzy Q's owner Hai Tang, they are of the opinion that Tang lacks the experience necessary to effectively run a business. The Alameda Police Department and ABC are continuing to actively monitor Suzy Q's, and will aggressively pursue appropriate legal action should future violations arise. Officer Harrison continues to receive assistance on his POP project from patrol and SDU personnel, and neighbors have been equipped with the knowledge and tools (citizen complaint Togs) necessary to assist the departments. FISCAL IMPACT No additional budget appropriation is needed at this time. RECOMMENDATION No action'is required. This report is for informational purposes only. Respectfully submitted, James M. Flint er -,- By: B umham . M Chief of Police BEM:CLO /fl ClDacumen'ts and Seuings1My DocumentslO,(jAgenda Suzy Q's Cc: City Manager Assistant City Manager Public Reference Binder Attachments: Off-Agenda Council Report / 02 -17 -04 ABC Letter to Tang / 09 -19 -03 ABC License Suspension / 03 -11 -04 Dedicated to Excellence, Committed to Service CITY OF ALAMEDA MEMORANDUM OffAsenda To: Honorable Mayor and Councilmembers From James M. Flint City Manager Date:. February 17, 2004. Re: Suzy Q's Bar —.1207 Lincoln Avenue Background: Suzy Q's Bar, located at 1207 Lincoln Avenue, has been the subject of an on-going Problem Oriented Policing (POP) project due to frequent calls for police service and numerous complaints from the neighbors. Between January and August of 2003, there were an average of four calls for service per month for disturbing the peace complaints. The majority of the complaints were related to loud groups loitering in front of the bar and leaving trash on the sidewalk. Discussion: The POP project for Suzy Q's bar was initiated after the Police Department received a copy of a letter of complaint, dated 08/20/03, and addressed to the Mayor and City Council Members. The letter was signed by approximately 26 neighbors of the bar, including several business owners. The chief complaint was that the recent re- opening of Suzy Q's, under new ownership, had brought about consistent disturbances of the peace, roaming and loitering, harassment, petty crime, and suspicions of gambling and prostitution. The author of the letter expressed disappointment with a perceived slow response time by the police, and a lack of documentation of the on: going problem. According to the letter, the neighbors had already been in contact with Alcohol Beverage Control (ABC), the City ofAlameda Planning Department, the City Attorney's Office, and the Alameda County District Attorney's Office. Shortly after the Police Department's receipt of the aforementioned letter, Officer Jeremiah Harrison was assigned to handle the POP project, as Suzy Q's bar is located within his assigned Community Policing Beat. Officer Harrison contacted many of the neighbors in the area and determined that the main problem appeared to be loud groups loitering in front of the bar and leaving trash on the sidewalk. By this time, however, the bar had been temporarily shut down, effective 09/03/03, by the Alameda County Health Department for several health violations including bathrooms that did not have hot water, flooring in the bathrooms and behind the bar that needed to be replaced, several holes in the walls that needed to be sealed, and several refrigerators and an ice machine that needed to be replaced. Dedicated to Excellence, Committed to Service Honorable Mayor February 17, 2004 and Councilmembers Page 2 Officer Harrison also spoke with Mr. Everest Robillard of the Alcohol. Beverage Control, Oakland office. Mr. Robillard confirmed that he had already been contacted by some of the neighbors and had opened up a case on the bar pursuant to Business and Professions Code, Section 24200 — Objectionable Conditions. The owner of the bar, Mr. Tang, was placed on formal notice on 09/19/03, that after a period of 20 days, five or more documented incidents of objectionable activity (including loitering for at least 20 minutes or loud noise) would result in a suspension of the bar's liquor license. In addition to these activities, any arrests for public intoxication, citations for littering, public urination, or Health and Safety Code violations, would be included in the investigation... On- November. ..:11-,..2003,- . Suzy _Q's- Bar. - reopened.: for. business after-passing a health inspection. Officer Harrison contacted Mr. Tang on that same day. Mr. Tang said that he was aware of the complaints by the neighbors and that he planned to take steps to keep his patrons inside and quiet. • Officer Harrison also made a request via the Police Department Daily Bulletin, that patrol officers provide extra beat attention to the bar and surrounding neighborhood. By the end of November, the neighbors had already documented four incidents of "objectionable conditions" at the bar. The neighbors, headed by Neil Daska1 who lives in an apartment just east of the bar, used video cameras and tape recorders to document the loitering and loud noise violations. The incidents were then summarized in written reports that had been forwarded to the ABC office in Oakland. During the month. of December, the neighbors documented the fifth incident of "objectionable conditions" required by ABC to suspend the liquor license for Suzy Q's. Although, this information could have been simply mailed to the ABC office, there was a delay because of the fact that Neil Daskal, the neighbor who documented the incident, wished to meet with Mr. Robillard in person. They set up a meeting date of January 5, 2004. Officer Harrison reported that during the month of December, patrol officers who had conducted bar checks at Suzy Q's in response to his request for extra beat attention, observed several card games being played as well as electronic gaining machines on the bar. Although no money was seen exchanging hands, the officers suspected that bar patrons might have been gambling. Officer Harrison passed on the information regarding possible gambling activity to Mr. Robillard at ABC, and he agreed to open up an additional case. At that time, Mr. Robillard suggested that he pl nned to send in several agents in plain clothes to investigate further. Also in December, the Police Department received another letter from the neighbors regarding the situation at Suzy Q's. This letter, which was dated 12/10/03, was addressed to the Mayor and City Council Members. The letter had a much more positive Dedicated to Excellence, Committed to Service Honorable Mayor February. 17, 2004 • and Councihnembers - . • Page 3 tone, and praised the response from Councilmember Matarrese, the Police Department, and Alcohol Beverage. Control. Mr. Daskil, who was the apparent author of the letter, seemed to feel confident that the plans worked out with Officer Harrison would be successful in eliminating the disturbances Unfortunately, Mr. ltobillard ofABC took several weeks of vacationtinie in January 2004, resulting in a delayof the liquOr license suspension process. Officer Harrison did contact Mr..Robillard at the end of the month and confirmed that he had received all of the required documentation. Mr. Robillard confirmed that he had, in fact, filed for a 30-day suspension that he •anticipated would be finalized sometime in February. The Police Department received a third letter from the neighbors of Suzy Q's at the end ofJanuary. 'This-letter, addressed to Mayor Johnson, was dated 01/22/04. The tone of this letter was markedly different than the. previous one of Deceniber 10, 2003, as it stated that. the response from the Police Department was "uncoordinated, lacking in resolve, and ineffective," and that "this appears to be more a failure of communication and efficient resource allocation within the Alameda Police Department rather than a matter of disregard or lack of concern on the part of the officer assigned to this problem." Three signatures appeared on the letter: Mr. Daskal, Laurie Castile, and John Rabat (the building owner). The receipt of the aforementioned letter came as a surprise to Officer Harrison who had'spent a great deal of time and effort addressing the issue. Officer Harrison had provided Mr. Daskal and several of the neighbors with his cell phone number so that they could call him directly, however, he had never been contacted. • Officer Harrison had also spoken to a majority of the people in the.neighborhood, who all seemed to agree that the .noise level had been reduced noticeably. During the month of January, Officer Harrison made a point of doing a bar check at Suzy Q's nearly every night that he worked (Friday, Saturday, Sunday, and Monday). He also made a habit of driving past the bar 10-12 times between the hours of midnight to 2:00 am, yet rarely saw anyone out on the sidewalks. Officer Harrison has also continued to issue citations for littering, parking violations, and traffic violations to bar patrons whenever appropriate. Officer Harrison has remained in contact with Mr. Tang, who appears to be willing to cooperate in trying to reduce the noise and littering complaints Mr. Tang has agreed to provide ashtrays for his patrons who go outside of the business to smoke, and is planning on working with the building owner to providean open air smoking area at the rear of the bar. Officer Harrison also submitted another Daily Bulletin request for continued beat attention and walk-throughs of the bar by patrol personnel. The letter signed by Mr. Daskal, Ms. Castile, and Mr. Rabat, was brought to the attention of Lieutenant David Boersma, who is the Community Policing Coordinator for the Police Department. Lieutenant Boersma has contacted .all three of Dedicated to Excelknce, Committed to Service CD )o. Honorable. Mayor February 17, 2004 and Cou ncilmembers Page 4 these individuals, and has explained the steps that the Police Department is taking to alleviate the noise problems that they are experiencing. Lieutenant Boersma has also provided the neighbors with his direct extension and cell.phone numbers, so that they can notify him regarding any additional problems, and has given Mr. Daskal information about making citizen's arrests for disturbing the peace, if appropriate. Mr, Daskal, Ms. Castile, and Mr. Rabat were not aware of the fact that the liquor license suspension process had been delayed due to =Mr. Robillard's vacation. They all seemed to be in agreement, that once the suspension was finalized, the noise problems would no longer occur. . . At this time, the Police Department is actively monitoring the activities at and around Suzy Q's Bar. Patrol officers are being reminded on a nightly basis to provide extra beat attention to this area, and Officer Harrison continues to give this problem his full attention. Officer Harrison will continue to be a liaison between the bar owner, the neighbors, and Alcohol Beverage Control, until such time that the license suspension is served. Should any problems continue after the 30 -day suspension, Mr. Robillard has assured OfBcer'Harrison that, with proper dociimentation, he will seek a permanent license revocation. Budget Consideration: None. Fiscal Impact: No additional budget appropriation is required Recommendation: This report is for informational purposes only. By: Burnham E Matthews Chief of Police BEM:dbb cc: City Manager Assistant City Manager Public Reference Binder Dedicated to Excellence, Committed to Service • STATE OF CALIFORNIA — BUSINESS, TRANSPORTATION AND.HOUSING AGENCY DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Oakland District Office 1515 day Street, Suite 2208 Oakland, CA 94612 (510) 622-4970 September 19, 2003 TANG, Thoung Dba: Susie Q 1207 Lincoln Avenue Alameda, CA 94501 Dear Mr. Tang: GRAY DAVIS, G vemor File: 48- 398672 Recently, ABC's Oakland District Office has received numerous complaints from citizens that reside near your licensed premises. These complaints include: Patrons loitering in front of your premises, in'areas within-your responsibility. Patrons appearing to be drunk in public. Patrons causing excessively loud noises. Patrons consuming alcoholic beverages outside in front of your premises. Patrons causing or being responsible for disturbances. Patrons being involved in physical fights in and about your licensed premises. Patrons possessing controlled substances. Patrons selling and/or distributing controlled substances, outside your premises. Patrons gathering into large and sometimes, unruly crowds which require Police Officers from the Alameda Police Department to disperse. This type of activity indicates your premise is permitting "Objectionable Conditions" and is operating in a disorderly fashion . You are being notified about the following sections of ABC law: Objectionable Conditions Business and Profession Code § 24200: (e) Failure to take reasonable steps to correct objectionable conditions on the licensed premises, including the immediately adjacent area that is owned, leased, or rented by the licensee, that constitute a nuisance, within a reasonable time after receipt of notice to make • those corrections from a district attorney, city attorney, county counsel, or the department, under Section 373a of the Penal Code. For the purpose of this subdivision only, "property or premises" as used in Section 373a of the Penal Code includes the area immediately adjacent to the licensed premises that is owned, leased, or rented by the licensee. TANG; Thoung Dba: • Susie Q 24200(e)(f) BP Warning Letter September 19, 2003 • . Page - 2 (- (f) Failure to take reasonable steps to correct objectionable conditions that occur during business hours on any public sidewalk abutting a licensed 'premises and constitute a nuisance, within a reasonable time after receipt of notice to correct those conditions from the department. This subdivision shall apply to a licensee only upon written notice to the licensee from the department. The department shall issue this written notice upon its own determination, or upon .a request from the local law enforcement agency in whose jurisdiction the premises are located, that is supported by , substantial evidence that persistent objectionable conditions are occurring on the public sidewalk abutting the licensed premises. _ For purposes of this subdivision: , (1) "Any public sidewalk abutting a licensed premises means the publicly owned, pedestrian- traveled way, not more than 20 feet from the premises, that is located between a licensed premises, including any immediately adjacent area that is owned, leased, or rented by the licensee, and a public street. (2) "Objectionable conditions that constitute a nuisance" means disturbance of the peace, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, loitering, public urination, lewd conduct, drug trafficking, or excessive loud noise. (3) "Reasonable steps" means all of the following: (A) Calling the local law enforcement agency. Timely calls to the local law enforcement agency that are placed by the licensee, or his or her agents or employees, shall not be construed by the department as evidence of objectionable conditions that constitute a nuisance. (B) Requesting those persons engaging in activities causing objectionable conditions to cease those activities, unless the licensee, or his or her agents or employees, feel that ^` ) their personal safety would be threatened in making that request. (C) Making good faith efforts to remove items that facilitate loitering, such as furniture, except those structures approved or permitted by the local jurisdiction: The licensee shall not be liable for the removal of those items that facilitate loitering. (4) When determining what constitutes "reasonable steps," the department shall consider site configuration constraints related to the unique circumstances of the nature of the business. Permitting a Disorderly House Business and Profession Code .§ 25601 Every licensee, or agent or employee of a licensee, who keeps, permits to be used, or suffers to be used, in conjunction with a licensed premises, any disorderly house or place in which people abide or to which people resort, to the disturbance of the neighborhood, or in which people abide or to which people resort for purposes which are injurious to the public morals; health, convenience, or safety, is guilty of a misdemeanor. •9 TANG; Thoung Dba: Susie Q 24200(e)(f) BP Warning Letter September 19, 2003 Page - 3 Maintaining a Premises for Controlled Substances Health and Safety •Code § .11366.5 . (a) Any$person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than-one year, or in the state prison. (b) Any person .who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylarnide and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment in the state prison for two, three, or four years. Sales to Obviously Intoxicated :Patrons Business and Profession Code § 25602: (a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor. Official Notice: This letter is an official notice that failure to take reasonable steps to correct the objectionable conditions and the disorderly activity within the next 20 calendar days will place you in violation and could result informal disciplinary action being taken against your alcoholic beverage license, including a suspension and/or revocation. We request that you acknowledge receipt of this notice by signing and returning the attached acknowledgment. This letter should be considered by you as an official notice, a copy of which has been placed in your permanent record. Sincerely, Eve st Robillard District Administrator Oakland District Office ' TANG; Thoung D6a ' Susie Q 24200(e)(fl BP Warning Letter September 19, 2003 • Page - 4 ) (� cc: Alameda Police Department Licensee's acknowledgment: Licensee's Comments: f. ��Q e;ei-e;‘ , ic.v bitt_ bAt .r • • • r — •> r-r."- ..dye!■ BEFORE THE • DEPARTMENT OF ALCOHOLIC . BEVERAGE CONTROL. OF THE STATE OF CALIFORNIA RECEIVED ) () IN THE MATTER OF THE ACCUSATION AGAINST:. J Thuong Tang Susie Q 1207 Lincoln Avenue Alameda, CA 94501 ON -SALE GENERAL PUBLIC PREMISES LICENSE Respondent(s)/Licensee(s) under the Alcoholic Beverage Control Act. MAR 1.1 2004 Dept. ol'Alcoholic Beverage Conn Oaldand Office FILE 48- 398672 REG.: 04056799 DECISION The above - entitled matter having regularly come before the Department for decision; and it appearing to the Department that the respondent(s) has-filed 'a stipulation and waiver in connection with the accusation herein in which respondent(s) waives right to hearing, reconsideration and appeal; and good cause appearing therefor, the Department now finds as follows: That cause for disciplinary action has been established. Determination of issues presented: That respondent(s) violated or permitted violation of Business & Professions Code Section(s) 24200(e)(f) and 25601. ) • Grounds. for suspension or revocation have been established under Article XX, Section 22 of the State Constitution and Business and Professions Code Section 24200(a &b). Wherefore,. it is hereby ordered that the license(s) issued to resp.ondent(s) at the above - mentioned premises be suspended for a period of 60 days and that execution of 20 days of said suspension be stayed upon the condition that no subsequent final determination be made; after hearing or upon stipulation and waiver, that cause for disciplinary action occurred within two years from the effective date of this decision; that should such determination be made the Director of the Department of Alcoholic Beverage Control may, in his discretion and without further hearing, vacate this stay order and reimpose the stayed portion of the penalty; and that should no such determination be made, the stay shall become permanent. ME SUSPENSION IMPOSED SHALL BECOME at ECTIVE BEGINNING UPON. SERVICE OF NOTICE: CER'1'1t41CATE OF DECISION It is hereby certified that on March 10, 2004 the Department of Alcoholic Beverage Control adopted the foregoing as its decision in the proceeding therein described effective immediately. Sacramento, California Dated: March. 10, 2004 By j ABC-130 (8/02) Rheba Chastain Supervisor, Hearing & Legal Unit BEFORE THE DEPARTivi,ENT OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE OF CALIFORNIA In the Matter of the Accusation Against: TANG, Thoung D.b.a.: Susie Q PREMISES: 1207 Lincoln Avenue Alameda, CA, 94580 ALCOHOLIC BEVERAGE CONTROL LICENSE: On -Sale General Public Premise License I hereby complain and accuse the above respondent, holding following statement of FILED MAR 0 1 2004 . File: 48- 398672 Rept4056� V 99 ACCUSATION UNDER ALCOHOLIC BEVERAGE CONTROL ACT AND STATE CONSTITUTION the above license,, based on the facts: Count I On September 19, 2003, the Department provided the respondent-licensee with written notice to the provisions of Section 24200(e)(f) of the Business and Professions Code. The respondent - licensee has failed to take reasonable steps to correct objectionable conditions on the licensed premises, to -wit: • permitting patrons'of the premises, as well as members of the .public, to loiter, drinking alcoholic beverages in public, creating excessively loud noises, and causing a disturbance of the neighborhood, on the public sidewalk abutting the licensed premises or in an area under control of the licensee(s): A reasonable time has elapsed since the respondent- licensee(s) received notice to correct said objectionable conditions from the Department of Alcoholic Beverage Control. It is now alleged: Subcount (a) On or about November 20, 2003, from approximately 12:20 A.M., through 2:10 A.M., the respondent - licensee permitted patrons, .varying from 2 to 11 or more persons, to :loiter on the public sidewalk abutting the licensed premises and were creating excessively -loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s). Subcount (b) On or about November 25, 2003, from approximately 1:00 A.M., through 2:05 A.M., the _ respondent - licensee permitted patrons, varying from 2 to 6 or more.persons, to loiter_ on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s). Subcount (c) On or about November 27, 2003, from approximately 12:00 A.M., through 2:00. A.M., the respondent - licensee perrnitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s). RECEIVED MAR 1 1 2004 Dept. ofAlco Oakland holic Bev Control ce 48- 398672 ' '''TANG; Thoung Page 2 Subcount (d) . n or about November 30, 2003, from approximately 12:52 A.M., through 2:06 A.M., the respondent- licensee permitted patrons, varying from .2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the ' licensee(s). Subcount (e) ' On or about December 3, 2003, from approximately 12:30 A.M., through 2:00 A:M. , the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing.a disturbance of the neighborhood, in an area under the control of the licensee(s). Subcount (f) On or about December 6, 2003, from approximately 12:00 A.M., through 2:00 A.M., the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing .a disturbance of the neighborhood, in an area under the control of the licensee(s). Subcount (e) or about December 17, 2003, from approximately 12:50 A.M., through 2:04 A.M., 'respondent-licensee permitted patrons, varying from 2 to 3 or more persons, to loit on the public sidewalk abutting the licensed premises and were creating excessively loud noises and / or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s). Count II From. September through December 2003, respondent - licensee kept or permitted, in conjunction with the above -names licensed premises, a disorderly house, or to which people resort, to the disturbance of the neighborhood or in which people abide or resort which is injurious to the public morals, health, convenience or safety, in violation of Business and Professions Code § 25601. It is now alleged: Subcount (a) On or about November 20, 2003, from approximately 12:20 A.M., through 2:10 A.M. the respondent - licensee permitted patrons, varying from 2 to 11 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). . 48,308672 'TANG, Thoung Page 3 Subcount (b) On or about November 25, 2003, from approximately 1:00 A.M., through 2:05 A.M., the respondent - licensee permitted patrons, varying from 2 to 6 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (c) On or about November 27, 2003, from approximately 12:00AM., through 2:00. A.M. ; the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing 'a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (d) On or about November 30, 2003, from approximately 12:52 A.M., through 2:06 A.M., the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter-on the ' public sidewalk abutting the licensed premises and were creating excessively" loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (e) On or about December 3, 2003, from approximately 12:30 A.M., through 2:00 A.M., the respondent - licensee permitted patrons, varying. from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing. a .disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (f) On or about December 6, 2003, from approximately 12 :00 A.M., through 2:00 A.M., the . respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code .§ 415(2). Subcount (e) On or about December 17, 2003, from approximately 12:50 A.M., through 2:04 A.M., the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and / or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). . 48- 3.98672 ' "TANG; Thoung Page 4 Count III y reason of the following facts, there is cause for suspension or revocation of the licenses in . accordance with Section 24200, and Sections 24200(a) and. (b). of the Business and ()• Professions Code. It is further alleged that the continuance of the license would be contrary to public welfare and/or morals, as set forth in Article XX, Section 22 of the California State Constitution, and Sections 24200(a) and (b) of the Business and Professions Code. The facts which constitute the basis for suspension or revocation by the Department are as follows: Subcount (a) On or about November 20, 2003, from approximately 12:20 A.M., through 2:10 A.M., the respondent - licensee permitted patrons, varying from 2 to 11 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises _ and/or were causing a disturbance of the . neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (b) On or about November 25, 2003; from approximately 1:00 A.M., through 2:05 A.M., the respondent - licensee permitted patrons, varying from 2 to 6 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively_ loud noises and/or were. causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (c) --On or about November 27, 2003, from approximately 12:00 A.M., through 2:00 A.M: the respondent=licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (d) On or about November. 30, 2003, from approximately .12:52 A.M., through 2 :06 A.M. the respondent- licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the controls of the licensee(s), in violation of Penal Code § 415(2). Subcount (e) On or about December 3; 2003, from approximately 12:30 A.M., through 2:00 A.M. the respondent - licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating .excessively loud noises and/or were causing-a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). 48-398672 TANG, Thoung Page 5 Subcount (f) On or about December 6, 2003, from approximately 12:00 A.M., through 2:00 A.M., the '- respondent-licensee permitted patrons, varying from 2 to 3 or more persons, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing a disturbance of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). Subcount (e) On or about December 17, 2003, from approximately 12:50 A.M., through 2:04 A.M., the respondent-licensee permitted patrons, varying from 2 to 3 or more person, to loiter on the public sidewalk abutting the licensed premises and were creating excessively loud noises and/or were causing-a disturbance-of the neighborhood, in an area under the control of the licensee(s), in violation of Penal Code § 415(2). • Licensee Previous Record: Licensed as above since .August 4, 2003, with no record of disciplinary action. (1) That by reason of the foregoing facts, grounds for suspension or revocation of such license exist and the continuance of such license would be contrary to public welfare and morals, as set forth in Article XX, Section 22, State Constitution, and Section(s) 24200 (a) and (b) of the Business and Professions Code; WHEREFORE, I recommend that a hearing be held on this wells Dated this v)-1-1 day of '/ 20 bq. Reviewed: District Administrator Department of Alcoholic. Beverage Control Pursuant to Government Code Section 11507.6 discovery is requested to be provided to: Dept. of Alcoholic Beverage Control, Legal Unit, 3810 Rosin Court, Suite 150, Sacramento, CA 95834 (916) 263-6904 STATEMENT TO RESPONDENT(S) • Unless a written request for a hearing, signed by you, or on your behalf, is delivered, or mailed, to the Department of Alcoholic Beverage Control within fifteen (15) clays after the foregoing accusation was personally served on you or mailed to you, the Department of Alcoholic Beverage Control may proceed upon the accusation without a hearing to take action thereon as provided by law. The request for a hearing may be made by delivering or mailing the enclosed form entitled: "Notice of Defense"; or by delivering or mailing a Notice of Defense to the • Department of Alcoholic Beverage Control, 3810 Rosin Court, Suite 150, Sacramento, California 95834, as provided by Section 11506 of the Government Code. The "Notice of Defense" forwarded herewith; if signed and returned to the Department of Alcoholic Beverage Control, shall be deemed a specific denial of all parts of the accusation, but you will not be permitted to raise any objection to the form of the accusation, unless you file a further Notice of Defense as provided, in .Section 11506 of the Government Code within said 15 days after service of said accusation upon you. At any or all stages of these proceedings, you have the right to be represented by counsel at your own expense or to represent yourself without legal counsel. You are not entitled to the appointment of an attorney to representyou. The hearing may be postponed for good cause. If you have good cause, you are obliged to notify this agency within 10 working days.after you discover the good cause. Failure to notify this agency within 10 days will deprive you of a postponement. ABC-300 (2/00) Director Department of Alcoholic Beverage Control 3810 Rosin Court, Suite 150 Sacramento, CA 95834 TANG, Thuong • } FILE , 48- 398672 Susie Q } 1207 Lincoln Ave.. Alameda, CA 94501 } } } This is to acknowledge that on against my license. I have been advised of the following: 2004, . I was served an accusation 1. That I may, but need not, be represented by counsel at any or all stages of these proceedings. 2. The basic facts in the case against me and my rights of discovery. 3.. My rights to a hearing, the appeal procedure, and the offer in compromise process. 4. The stipulation and waiver process. 5. That a decision did not have to be made at this time. With all this in mind, it is my wish to settle this matter as soon as possible, and I am sending a signed Stipulation and Waiver for your consideration. I understand that this Stipulation and Waiver is not binding right to withdraw the offer at any time prior to the operativ date of the Department's 'decision. the Signature BEFORE THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE • OF CALIFORNIA In the Matter of the Accusation Against: • TANG, Thuong Susie Q 1207 Lincoln Ave. Alameda, CA 94501 Respondent(s) Licensee(s) under the Alcoholic Beverage. Control Act OAKLAND File: 48- 398672 Reg: STIPULATION AND WAIVER The above -named respondent(s) does hereby: (1) Acknowledge . receipt of the accusation (with printed statement to respondent) and forms for notice of defense and stipulation and waiver in the above - entitled action. (2) Stipulate that disciplinary action may be taken on the accusation and that such discipline may . be determined on the basis of the facts contained in the investigative reports on file with the Department. (3) Waive all rights to a hearing, reconsideration and appeal, and any and all other rights which may be accorded pursuant to the Alcoholic Beverage Control Act or the Administrative Procedure Act. (4) Acknowledge that the licensee(s). understand(s) that by waiving said rights the Director of the Department of Alcoholic Beverage Control may, without further notice, enter an order . suspending the On Sale General Public Premises License(s) at the above- mentioned premises for a period of 60 days, the effective date to be set by further order of the Director of the Department of Alcoholic Beverage Control, with execution of 20 days of said suspension stayed upon the condition that no subsequent final determination be made, after hearing or upon stipulation and waiver, that cause for disciplinary action occurred within two years from the effective date of this decision; that should such determination be made the Director of the Department of Alcoholic Beverage Control may, in his discretion and without further hearing, vacate this stay order and reimpose the stayed .portion of the penalty; and that should no such determination be made, the stay shall become permanent. .. Signed this day of NA " / Address \ ,7/ x'11 yeer /C$7 ) g/ -/ V / ., (If licensee is an individual, he /she must sign. - If licensee is a partnership, at least one general partner must sign. If licensee is a corporation, an executive officer must sign showing his/her title and affixing the corporate seal.) ABC -315 (2/00) 20 ?« Department of Alcoholic Beverage Con, . • INVESTIGATION REPORT 1. REPORT NUMBER 04 -22 -014 State of California 2. ASSIGNMENT NUMBER 4. CODE SECTIONS INVESTIGATED (Seddon number and title) •24200(e) &(f) B.P. Objectionable Conditions . 25601 B.P. Permitting a Disorderly House. "To the Disturbance of the Neighborhood." 24200(a) B.P. and 415(2) P.C. Disturbing the Peace. 5. DAY/DATE/11ME OF INCIDENT LOCATION OF INCIDENT Nov. 20, . 25, 27; 30, & Dec 3, 6, 17, 2003 16. 1207 Lincoln Avenue, Alameda, 94501 . CODE: L - Licensee; E - Employee; V - Victim; W - Witness; S - Suspect;_ O - Other 7. CODE 8. NAME (Last, first, middle) TELEPHONE NUMBER Licensee (TANG, Hai Thuong AKA: TANG, Thuong I9. (510 865 -4323 10. HOME ADDRESS 11. OTHER ADDRESS ) 15968 Wagner Street, San.• Lorenzo, 94520 1207 Lincoln Avenue, Alameda, 94501 12. RACE SIX 14. BIRTHDATE 15. AGE 18. APPARENT AGE HAIR EYES HEIGHT WEIGHT Other 113. male 04-09-76 27. n/a 117. Blk 118. Brn 119. 8-May 200 21. OPERATOR'S LICENSE NUMBER y 120. 3. PAGE 1 of 10 B4339267 23. MISCELLANEOUS INFORMATION 22. CLOTHING DESCRIPTION • Thuong Tang is the licensee of the licensed premises (Dba: Susie Q.). 7. CODE I6. NAME (Last, first, middle) 10. HOME ADDRESS 12. RACE 13. SIX L.~ ERATOR'S LICENSE NUMBER 23. MISCELLANEOUS INFORMATION VEHICLE 24. LICENSE 14. BIRTHDATE I15. AGE 22. CLOTHING DESCRIPTION 11. OTHER ADDRESS I9. TELEPHONE NUMBER 16. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20: WEIGHT Not Applicable 30. REGISTERED OWNER I . n/a 25. STATE n/a 28. YEAR n/a 27. MAIDS n/a 31. ADDRESS 28. MODEL n/a 29. COLOR n/a 32. SUMMARY OF REPORT On September 19, 2003, licensee Thuong Tang was put on Official Written Notice about Objectionable Conditions that were occurring at his licensed premises. Tang was advised his premises was causing a disturbance for the neighborhood: Tang indicated he would take corrective steps to stop the violations. On numerous occasions, during November and December 2003, Tang operated his licensed premises and permitted his patrons to disturb the-peace, permit his patrons to unlawfully loiter in front of his premises, use • excessively loud noises, use profanity and other offensive words, all of which resulted in the disturbance of the • neighborhood. ABC USE ONLY 33. LICENSEE NAME TANG, Thuong 85. PREMISES ADDRESS 1207 Lincoln Avenue, Alameda, 94501 38. INVESTIGATORAD F ". rest Robillard #58 _NATURE ABC -333 (1/02) 34. DBA Susie Q 36. LICENSE NUMBER 48- 398672 39. OFFICE/UNIT Oakland 43. DATE 40. SUPERVISOR/ID 37. BUSINESS PHONE NUMBER (510) 865 -4323 41. DATE 44. ROUTING • Department of Alcoholic Beverage Con, INVESTIGATION REPORT State of California 3. PAGE 2 1. REPORT NUMBER ' 04-22 -014 2. ASSIGNMENT NUMBER 0 ADDITIONAL PERSONS INVOLVED: CODE: L - Licensee; E - Employee; V - Victim; W - Witness; S - Suspect; O - Other 7. CODE . Victim 8. NAME (Last, that, middle) DASKEL, Neal H. 9. TELEPHONE NUMBER (510) 987 -3262 • 10. HOME ADDRESS 1213 Lincoln Avenue, No. B, Alameda 11. OTHER ADDRESS 12. RACE Caucasian 13. SEX . Male 14. BIRTHDATE 06 -02 -54 16. AGE 49 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT. 20. WEIGHT 21. OPERATOR'S LICENSE NUMBER 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION Neal Daskel is a Rule 61.4 resident near the licensed premises. 7. CODE . Victim 8. NAME (Last, first, middle) CASTILE, Laurie Ann 9. TELEPHONE NUMBER (510) 238 -1027 10. HOME ADDRESS 1213 Lincoln Avenue, No. B, Alameda - 11. OTHER ADDRESS 12. RACE Caucasian 13. SEX Female 14. BIRTHDATE 06 -23 -58 15. AGE 45 18. APPARENT AGE 17. HAIR . 18. EYES 19. HEIGHT 20. WEIGHT 21. OPERATORS UCENSE NUMBER 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION Laurie Castile : is a Rule 61.4 resident near the licensed premises. 7. CODE Victim 8. NAME (Last, first, middle) BRYANT, David T. 9. TELEPHONE NUMBER (510) 618 -2274 10. HOME ADDRESS 1213 Lincoln Avenue, No. A, Alameda 11. OTHER ADDRESS 12. RACE • Black 13. SEX Male 14. BIRTHDATE 05 -09 -67 16. AGE • 36 APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 21. OPERATORS LICENSE NUMBER 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION David Bryant is a Rule 61.4 resident near the licensed premises. 7. CODE Victim 8. NAME (Last, first, middle) WEST, Jean E. 9. TELEPHONE NUMBER (510) 814 -0225 10. HOME ADDRESS 1211 Lincoln Avenue, No. B, Alameda . 11. OTHER ADDRESS 12. RACE Caucasian 13. SEX . Female ..08 14. BIRTHDATE -08 -55 15. AGE 48 18. APPARENT AGE 17, HAIR 18. EYES 19. HEIGHT 20. WEIGHT 21. OPERATOR'S LICENSE NUMBER 22. CLOTHING DESCRIPTION 29 MISCELLANEOUS INFORMATION . Jean West is a Rule 61.4. resident near the licensed premises. 7. CODE Victim 8. NAME (last, first, mlddie) BRYANT, Stephanie R. 9. TELEPHONE NUMBER (510) 618 -2274 10. HOME ADDRESS 1213 Lincoln Avenue, No. A, Alameda 11. OTHER ADDRESS 12. RACE 'Caucasian 13 SEX Female 14. BIRTHDATE 04 -20 -64 16: AGE ' 39 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 21. OPERATORS UCENSE NUMBER 22. CLOTHING DESCRIPTION . MISCELIANEOUS INFORMATION Stephanie Bryant is a Rule 61.4 resident near the licensed premises. ABC -333 (1/02) DepEptment of Alcoholic Beverage Con. . INVESTIGATION REPORT State of California • 3. PAGE 3. 1. REPORT NUMBER . 2. ASSIGNMENT NUMBER CODE:. L - Licensee; E - Employee;_V - Victim; W - Witness; S - Suspect; .0 - Other CODE 8. NAME (Last, first, middle) ictim PESTA, Paul 10. HOME ADDRESS .1128 Lincoln Avenue, Alameda 12. RACE Caucasian 13. SEX Male 11. OTHER ADDRESS 9. TELEPHONE NUMBER (510) 769 -7523 21. OPERATOR'S UCENSE NUMBER 14. BIRTHDATE •15. AGE 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION Paul Pesta is a Rule 61.4 resident near the licensed premises. 7. CODE 8. NAME (Last, first, middle) Witness Police Officer Jeremiah Harrison #57 10. HOME ADDRESS 12. RACE 9. TELEPHONE NUMBER (510) 331 -9464 13. SEX 21. OPERATOR'S UCENSE NUMBER 23 MISCELLANEOUS. INFORMATION Officer Harrison was assigned to investigate the community complaints. 8. NAME (Last, first, middle) Councilmember Frank Matarrese 14. BIRTHDATE 15. AGE 11, OTHER ADDRESS c/o.Alameda Police Department 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 22. CLOTHING DESCRIPTION 7. CODE Other 10. HOME ADDRESS 12. RAGE 13.- -SEX 11. OTHER ADDRESS Alameda. City Hall 9. TELEPHONE NUMBER (510) 748 -4526 1- - PERATOR'S LICENSE NUMBER r_ 14. BIRTHDATE 15. AGE 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION 1COuncilmember Matarrese has been meeting with the victims about the community complaints. 7. CODE 8. NAME (Lest, first, middle) 9. TELEPHONE NUMBER 10. HOME ADDRESS 12. RACE 13. SEX 11. OTHER ADDRESS 21. OPERATOR'S LICENSE NUMBER 14. BIRTHDATE 15. AGE 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT 23. MISCELLANEOUS INFORMATION 7. CODE • 10. HOME ADDRESS 12. RACE 22. CLOTHING DESCRIPTION 8. NAME (Lest, first, middle) 9. TELEPHONE NUMBER 13. SEX 11. OTHER ADDRESS 14. BIRTHDATE 15. AGE 21. OPERATOR'S LICENSE NUMBER 22. CLOTHING DESCRIPTION 23. MISCELLANEOUS INFORMATION 18. APPARENT AGE 17. HAIR 18. EYES 19. HEIGHT 20. WEIGHT ABC -333 (1/02) .INVESTIGATION REPOR EVIDENCE / EXHIBITS: 1. Acknowledgment of ABC Laws, Rules, and/or Regulations, form ABC -203, signed by Thuong Tang, dated May 2, 2003. Letter from Thuong Tang, received on March 19, 2003, explaining how his operation of the premises would not interfere with the neighborhood. Photocopy of a letter, dated August 20, 2003,. addressed to the Mayor and City Council Members for the City of Alameda. 4. The Official Written Notice provided to licensee Tang on September 19, 2003. 5. Letters (statements) from the victims which documented violations that occurred on: November 20, 2003; November 25, 2003; November 27, 2003; November 30, 2003; December 3, 2003; December 6, 2003; and December 17, 2003; 6. Surveillance (VHS) video tapes for violations that occurred on: November 20, 2003; November 25, 2003; November 27, .2003; December 3, 2003; December 6, 2003; and December 17, 2003; BACKGROUND: On March 20, 2003, Thuong Tang applied for a person -to- person transfer of an On -Sale General Public Premises license at 1207 Lincoln Avenue, Alameda, 94501, D.b.a.: "Susie Q". • On March 20, 2003, Tang applied for and was issued a Type -30 temporary license to begin operation while his formal application was being investigated. • On April 17, 2003, the Oakland District Office received an anonymous complaint from a neighbor that the premises was permitting it's patrons to loiter, make loud noises, littering, and even vomiting. • On May 2, 2003, Thuong Tang received and sign an "Acknowledgment of ABC Laws, Rules, and/or Regulations," form ABC -203, which included notice for "Objectionable Conditions" per Business and Professions Code §§ 24200(e)(f). Refer to Exhibit 1. ,I.NVESTIG,ATION REPOR. On. May 19, 2003, the Oakland District Office received a letter from Thuong Tang explaining how his operation of the premises would not interfere with the neighborhood. • Refer to Exhibit 2. On May 27, 2003, the Oakland District Office received another anonymous complaint from a neighbor that the premises was permitting it's patrons to cause excessively loud noises. • On August 4, 2003, Thuong Tang was issued an On -Sale General Public Premises license at 1207. Lincoln Avenue, Alameda, Doing Business As: "Susie Q ". PREMISES DESCRIPTION: Tang's premises is approximately 60 feet in length and. 44 feet in width. The premises has an approximate capacity for 55 patrons. The premises does not have any off - street parking. The front of the premises' borders . the city sidewalk. There is parallel parking on the street, directly in front of the premises, available for the patrons. The operating hours for the premises are 6:00 -P.M. to 2:00 A.M. each night of the week. THE COMPLAINT: On September 8, 2003, ABC's Oakland District Office received a photocopy of a letter that was essed to the Mayor and the City Council Members of the City of Alameda. The letter omplained about on -going problems occurring at Susie Q. The letter contained complaints that the licensed premises was the source of repeated disturbances, loitering, and was interfering with the quiet enjoyment of the property of the near -by residents. The letter was signed by numerous members of the neighborhood. Refer to Exhibit No. 3 for further details". On September 12, 2003, I held a meeting with residents (victims) Neal Daskel, Lori Castile, and Jean West in the Oakland District Office. I. listened to their complaints about how the operation of the licensed premises was causing a significant disturbance to the residential neighborhood. The residents reported the premises was the source of late night disturbances, loitering, yelling, profanities, etc: During this meeting, I instructed the residents how to properly document future violations that occurred at the premises. The residents were advised about the specific elements of Objectionable Conditions, how to document the violations, and that video surveillance evidence would be beneficial. . I advised the residents that the licensee should first be put on etten notice of the problems and be given the. opportunity to correct the objectionable ditions. The residents indicated they understood od the reasons why a licensee should first be put on notice of a problem before formal action could be taken. INVESTIGATION REPOR OFFICIAL WARNING: I did not want to just send the licensee a written warning by mail. I wanted to give the licensee the added benefit of a face -to -face discussion in order to explain the problems in greater detail, to give advice on how to correct the problems, and to allow the licensee the opportunity to ask questions and be given feed back. This could not be accomplished by sending a warning letter by mail. On September 19, 2003;1 held a meeting in the Oakland District Office with licensee Hai "Thuong" Tang. During this meeting I explained (in detail) about the complaints from the residents near his premises. I showed Tang a copy of the complaint letter that was mailed to the Alameda City Council. I explained to Tang about Objectionable Conditions per 24200(e) &(f) BP, Permitting a Disorderly House per 25601 BP, Sales and/or Service of Alcoholic Beverages to Obviously Intoxicated Patrons per 25602 BP, and other sections of ABC Laws, Rules, and .Regulations. I strongly suggested to Tang that he and his employees attend a L.E:A.D, or other Responsible Beverage Server (R.B.S.) training class. I provided Tang with a copy of an Official Written Notice about the complaints and the violations. I requested that Licensee Tang sign an "acknowledgment" for receiving the Official Warning Notice, which he did. Tang provided comments that he intended on hiring a security guard and would attempt to obtain approval from the Alameda. County Health Department to have a smoking room within the bar. Tang indicated these steps would "stop the nuisance" outside the bar. Refer to Exhibit No. 4. Interview with Alameda Police Officer Jeremiah Harrison: In approximately late September or early October 2003, I met with Officer Harrison of the Alameda Police Department. We discussed the neighborhood complaints about the premises. Officer Harrison explained he had been assigned to investigate the complaints for the City of Alameda. I advised Officer Harrison about ABC's investigation into such complaints, the Official Written Notice to licensee Tang, and how the residents were instructed to document future violations. At this time, Officer Harrison explained that a recent inspection was conducted with the Alameda County Environmental Health Department at the premises. Officer Harrison said that Susie Q was temporarily closed down for health code violations. Officer Harrison and I agreed to collectively monitor the situation at the premises. INVESTIGATION REPOR'; TIGATION OF THE VIOLATIONS: Sometime in mid- November 2003, I received a telephone call from resident Neal Daskel. He advised that the Alameda County Environmental Health Department. allowed Susie Q to reopen. Daskel advised that soon after re- opening Susie Q resumed the same pattern of problems with patrons being allowed to disturb the neighborhood. I requested Daskel to document the violations. Refer to Exhibits No. 5. Thursday, November 20, 2003: From 12:20 A.M., through 2:10 A.M., residents David Bryant, Neal Daskel, and Jean West observed numerous individuals, varying from two patrons and up to eleven patrons, loitering in front of Susie Q, talking loudly, and creating a disturbance for the neighbors. This activity continued until 2:10 A.M. when the premises closed for the night. Portions of this night's violations were recorded on video. Tuesday, November 25, 2003: om 1:00 A.M., through 2:05 A.M., residents Laurie Castile, David Bryant, and Neal Daskel served numerous individuals, varying from two patrons and up to six or more patrons, loitering in the front of Susie Q creating excessively loud noises, with laughing, singing, yelling, etc. This activity continued until 2:05 A.M. when the premises closed for the night. Portions of this night's violations were recorded on video. Sunday, November 30, 2003: From 12:52 A.M., through 2:06 A.M., residents David Bryant, Neal Daskel, and Jean West observed numerous individuals, varying from two to three patrons, loitering in front of Susie Q creating excessively loud noises, combined with coughing, vomiting, talking, laughing, shouting, etc. This activity continued until 2:20 A.M. when the premises closed for the night. Wednesday, December 3, 2003: From 12:30 A.M., through 2:00 A.M., residents Laurie Castile and Neal Daskel observed individuals, varying from two to three patrons, loitering in front of Susie Q, creating excessively loud noises, combined with people shouting and patrons who were preparing to leave the premises, revving their car engines. The vehicles were parked directly in front of the premises. 's activity continued until 2:00 A.M. when the premises closed for the night. Portions of this ht's violations were recorded on video. ,INVESTIGATION REPOR Saturday, December 6, 2003: From 12 :00 A.M., through 2:00 A.M., .residents David Bryant, Laurie Castile, Neal Daskel, and Jean. West observed individuals, varying from two to three patrons, loitering in front of Susie Q, creating excessively loud noises, with loud outbursts, laughing, etc. (The next morning; the residents observed empty beer .bottles on the sidewalk, outside Susie Q.) This activity continued until 2:00 A.M. when the premises closed for the. night. Portions of this night's violations were recorded on video. Wednesday, December 17, 2003: From 12:50 A.M., through 2:04 A.M.,. residents David Bryant, Laurie Castile, . and Neal Daskel observed individuals, varying from two to four patrons, loitering in front of Susie Q, creating excessively loud noises, with loud outbursts, laughing, etc. (The next morning, the residents observed empty beer bottles on the sidewalk, outside Susie Q.) This activity continued until 2:00 A.M. when the premises closed for the night. Portions of this night's violations were recorded on video. FOLLOW -UP INVESTIGATION: On the evening of February 13, 2004, I met with Lauire Castile, David Bryant, Jean West, Stephanie Bryant,. and Neal Daskel in Alameda to review their statements. They advised me about two weeks prior, they had a meeting with Alameda City Council Member Frank Matarrese to address the on -going problems occurring at Susie Q. I reviewed .various segments of the surveillance video tapes that documented the residents' statements. My review of the video surveillance tapes confirm and support the resident's written statements. Resident Stephanie Bryant added that she has two children (7 & 9 years old). Ms. Bryant said that, on numerous occasions, while the patrons from Susie Q were loitering in front of the premises, they often created loud noises and yell out profanities such as "nigger." Although Ms. Bryant is Caucasian, her husband, David Bryant, is. an African American. Ms. Bryant said that her children are often awakened at 12:00 A.M., 1:00 A.M. and well pass 2:00 A.M., when the patrons that are loitering out in front of Susie Q yelling out the profanity "nigger." INVESTIGATION RE1'0R ,• ) ()easonable Steps" Per Business and Professions Code § 24200(f)(3)(A)&(B): .I asked r6sidents Lauire Castile, David Bryant, Jean West, Stephanie Bryant, and Neal Daskel if, • at any time during any of the violations, they observed licensee Thuong Tang, or any of his • employees, or security guards, ever go outside to request the patrons cease their loitering, or to stop creating a disturbance. They all advised they never observed anyone from the premises • take any action to stop the disturbing activity. They advised they never observed any security guard working at Susie Q. I contacted Alameda Police Officer Harrison to request that he check the police department's "call for service" records. Specifically, I asked him to check if at any time during the violations dates, whether licensee Tang, or anyone from Susie Q ever called the police department in order to request assistance. Officer Harrison advised that there were no calls for service from Susie Q for any of the specific violation dates. Department of Alcoholic Beverage • drol EVIDENCE/PROPERTY RECEIPT/REPORT • 0 Seizure CI Found ' 0 Purchase .SpeposiVSafekeeping 0 Search Warrant (PC 1535) State of California Page /0 of. /0. 1. REPORT NUMBER 01.4 0 /Li 2. DATE EVIDENCE/PROPERTY RECEIVED Code: S=Sus eat, 0-Owner, F=FInder, V=VictIm L=Licensee Ot=Other 3. CODE 4. NAME (Last, first, middle) - 5. DATE OF BIRTH 8. SECT1ON(8) INVESTIGATED 7. Criminal Administrative 3. CODE 4. NAME (Last, firsl, middle) 5. DATE OFBIFITH 8. SECTION(S) INVESTIGATED 7. Criminal . Administrative 8. ITEM NUMBER , RerPogr 9. QU 10. INVENTORY DESCRIPTIO tze, sank nurnber. color, markings, open/unopened, etc.) u 1 61t- 0 0 /4 (>1 .5 ue Lic - I L ( ANC g-i- -7-Ps1) 1.' S. , H A N t \ ifif-twer-R c r . 7b kiC:).git_ t . P . . 4 ) . P A . ( 1 t 8 itsicer t . • . . , . 11. ABC LICENSEE NAME *T fX N (5 I 11--T C'il ° N t''''' 12. DBA ,S, LI S I (1 3-0-7 L N rOLN c‘t.)te I i\tiNtoc-flYA 14. ABC LICENSE NUMBER This is a true and complete inventory of material. 15. SEIZEE OR DEPOSITOR SIGNATURE (If applicable) 18. CABIN RECEIPT DATE 17. CABIN RECEIPT NUMBER 18. INVESTIGATOR'S NAME (Print) f off 4-/- 19. ID NUMBER 5 et 20. OFFICE/UNIT op, e L. thN il 21. INVE GAT 1G - 1 ,_,. fry / Id. k .......00- 22. DATE SIGNED a., ,.. f . o'-1 23. ABC-308 (PC335a) I 1--- Posted t•-q-it\ 24. EVID E CUSTODIAN'S SIGNATURE 25. DATE SIGNED 28. EVIDENCE STORAGE LOCATION WHITE - Report