Agreement

Agreement between Beth El, LOCCNA and Co-Appellants

Presented to Berkeley City Council 9/13/01

AGREEMENT

Congregation Beth El, Live Oak Codornices Creek Neighborhood Association (LOCCNA), and the other organizations and individuals (Other Signatories) listed in Section VI (collectively, the Parties) enter into this Agreement to establish mutually agreeable conditions for the Use and Alteration Permits and related governmental approvals necessary to develop a synagogue and school facilities at 1301 Oxford Street in the City of Berkeley, and to provide for the continued cooperation of the Parties.

I. RECITALS 1. Beth El, a California non-profit religious corporation, owns the real property at 1301 Oxford Street, Berkeley (Property). It proposes to construct and operate a synagogue and school facilities (Project) there. Beth El applied to the City of Berkeley for permits, Application #99-10000079 (Application), for the Project.

2. Development of the Project requires: a use permit for the demolition of the existing on-site structures, pursuant to Berkeley Municipal Code (BMC) ¤23C.08.050; a use permit for the operation of the synagogue and school (BMC ¤23D.16.030); an administrative use permit for a height adjustment (BMC ¤23D.16.070C); and any further use permits described in paragraph 5 (collectively, Use Permits); and an alteration permit under the Berkeley Landmarks Preservation Ordinance (BMC ¤3.24.200) (Alteration Permit). This Agreement refers to these permits collectively as Use and Alteration Permits.

3. The Zoning Adjustments Board (ZAB) approved the Use Permits on March 8, 2001. ZAB's Notice of Decision, Conditions of Approval and Mitigation Monitoring Program is attached as Exhibit 1. The ZAB certified the Environmental Impact Report (Project EIR) on December 14, 2000. The Appellants listed in Exhibit 2 appealed the ZAB's approval of the Use Permits and EIR certification to the Berkeley City Council.

4. The Landmarks Preservation Commission (LPC) of the City of Berkeley denied the Alteration Permit on March 5, 2001. Beth El appealed the LPC's decision to the Berkeley City Council.

5. In May 2001 the Berkeley City Council instructed Beth El and the Appellants to engage in mediated negotiations, which negotiations resulted in a preliminary agreement regarding modifications of the Project Design (as defined in paragraph 8 below) and a Parking Management Plan. At its July 24, 2001 meeting, the Berkeley City Council unanimously adopted a sense-of-Council motion approving the Project Design and Parking Management Plan as so modified by the preliminary agreement. It instructed City staff to draft resolutions, findings, and any additional use permits necessary to support and effectuate such approval. The Conditions of Approval that City staff recommends in response (dated August 31, 2001) are attached as Exhibit 3.

6. WHEREFORE, the Parties to this Agreement resolve their remaining disputes regarding issuance of the Use and Alteration Permits and related governmental approvals necessary for development of the Project as provided herein. They agree to procedures intended to avoid and resolve future disputes that may arise regarding use of the Property.

II. USE AND ALTERATION PERMITS AND OTHER GOVERNMENTAL APPROVALS 7. The Parties respectfully request that the Berkeley City Council issue the Use and Alteration Permits to develop the Project pursuant to the Conditions of Approval (attached as Exhibit 1, as proposed to be amended by Exhibit 3), provided such conditions conform to paragraphs 7 through 12 of the Agreement without material modification. If the conditions are materially inconsistent, the Parties may exercise their respective rights under paragraph 22.

8. The plans submitted to the City of Berkeley by Beth El pursuant to the Conditions of Approval shall conform to the map (dated August 24, 2001) attached as Exhibit 4 (Project Design). The Project Design shows the size and placement of the buildings, the location of the driveway and parking spaces, the number of parking spaces, and the open space corridor (including Codornices Creek) consisting of the Property north of parking spaces 16 through 24 and the driveway.

9. The plans submitted to the City of Berkeley by Beth El pursuant to the Conditions of Approval shall reflect that the open space corridor is and shall remain free of any building or paving.

10. The bed and banks of the existing open portion of Codornices Creek shall be rehabilitated in a manner that (A) is consistent with the BMC Chapter 17.08 (Preservation and Restoration of Natural Watercourses) in effect as of the Effective Date and (B) does not materially reduce the feasibility for potential future restoration of the culverted portion of the creek (as described in Section III below).

11. Condition C.7 in Exhibit 3 shall be replaced by Exhibit 5, which describes the Parking Management Plan.

12. Condition A.3 in Exhibit 3 shall be amended to conform to Exhibit 6. The Parties acknowledge that Condition D.11 supersedes Conditions D.3 and D.7 (all in Exhibit 3) with respect to the hours of construction.

13. Beth El shall provide LOCCNA and the Other Signatories an opportunity to review all plans required by the Conditions of Approval, and any other plans or applications required for related governmental approvals, prior to Beth El submitting such plans to the City of Berkeley or other appropriate governmental agency. A Party shall determine whether such plan, application, or approval conforms, without material modification, to paragraphs 7 through 12 of this Agreement. In the event that a Party determines that such plan, application, or approval is materially inconsistent, it shall use the procedures established in Section IV herein to attempt to resolve the issue.

A. The Parties prefer non-structural methods for the rehabilitation of the open reach of Codornices Creek.

B. The Parties support the quiet use and enjoyment of their respective properties.

III. RESTORATION OF THE CULVERTED PORTION OF CODORNICES CREEK 14. Beth El acknowledges that LOCCNA and the Other Signatories support the future restoration of the culverted portion of Codornices Creek on the Property (Creek Daylighting). LOCCNA and the Other Signatories acknowledge that any Creek Daylighting that may occur in the future is not a part or phase of the Project, and that approval of the Project by the City of Berkeley is not conditioned upon any such Creek Daylighting actually coming to fruition.

15. Beth El shall support and cooperate in Creek Daylighting that may occur in the future as follows.

A. After Beth El has received a final, non-appealable occupancy permit from the City of Berkeley for the Project, Beth El shall consider design or implementation of Creek Daylighting as provided in (B).

B. Beth El's duty to support and cooperate is on the conditions that: (i) the other Parties hereby agree that this duty does not constitute a dedication of the Property or any portion thereof to a public use and does not confer upon any Party, governmental agency, or member of the public, any easement, right-of-way, license, or other interest in the Property; (ii) Beth El shall first approve any funding proposal or proposed design for Creek Daylighting before LOCCNA or any Other Signatory may seek funding, and before Beth El initiates the permitting process, for construction of such Creek Daylighting; (iii) Beth El shall not be required to contribute to or participate in any funding for the design or implementation of Creek Daylighting; (iv) Beth El shall not be expected to initiate or take the lead on Creek Daylighting; and (v) the Agreement has not been terminated pursuant to paragraph 22 or 25. Beth El agrees to be the applicant for a future Creek Daylighting if the foregoing conditions are met.

IV. PROCEDURES TO PREVENT AND RESOLVE FUTURE DISPUTES RELATED TO USE AND OCCUPANCY OF THE PROJECT 16. The Parties are committed to avoiding disputes and to resolving amicably and constructively all reasonable concerns regarding the Project, the interpretation or implementation of this Agreement, and Beth El's use of the Property.

17. Beth El and the Neighborhood Organization (as defined in paragraph 30 below) shall form a standing Codornices Creek Corridor Committee (Creek Committee).

A. The Creek Committee will discuss and seek to resolve: (i) issues regarding Beth El's management and use of the open portion of Codornices Creek on the Property, including its bed and banks; and (ii) in the future, issues regarding Creek Daylighting, including funding or planning or construction-related impacts, modifications in the direction, size and shape of the existing culvert under Spruce Street, reasonable access to the Property, the inconveniences to Beth El resulting from a subsequent construction project, or the potential, temporary loss of parking spaces on the Property.

B. Within two months of the Effective Date, Beth El and the Neighborhood Organization shall each appoint three members to the Creek Committee. Appointees of Beth El will be its own members. Appointees of the Neighborhood Organization may be its own members or members of Other Signatories that are organizations. A representative of an Appellant which is not a signatory may be appointed to this committee only with Beth El's approval. As a condition of appointment, all appointees shall state their affirmative intent to assist in the implementation of this Agreement. The Creek Committee will adopt such procedures and rules as it deems necessary to accomplish its purpose.

C. Through the Creek Committee, Beth El and the other Parties will meet and confer with respect to the issues listed above, before Beth El or any other Party takes a public action or makes a public comment regarding such issues.

18. In the interest of maintaining ongoing and open communication, Beth El shall meet, annually and at such other times as are appropriate, with the Neighborhood Organization. The first such meeting, which Beth El will initiate, will take place within two months after the Effective Date of this Agreement. Beth El's President and Executive Director will be among the Beth El representatives at the first meeting, the annual meeting each year thereafter, and at other times as appropriate. In addition, upon completion of construction of the Project, Beth El will use best efforts to distribute its Annual Master Calendar of Events, which is usually first available for distribution in June, monthly updates regarding the scheduling of events likely to be attended by more than 150 individuals (including identification of the parking plans associated with such events), to the Neighborhood Organization and near neighbors. Beth El's Executive Director, after consultation with the Neighborhood Organization, will determine the content of and the method of distribution for such material.

19. Beth El shall encourage its members and guests to comply with the terms of this Agreement. In addition, Beth El shall develop and administer sanctions reasonably calculated to deter violations by its members of the provisions of the Parking Management Plan. The Parties acknowledge that, notwithstanding such efforts, disputes may arise between Beth El and its neighbors regarding parking, traffic, noise, and other Project effects.

A. Beth El and the Neighborhood Organization shall form a standing Neighborhood Committee for the purpose of preventing or resolving such disputes (exclusive of those issues assigned to the Creek Committee). Within two months of the Effective Date, each of these Parties will appoint two members. Appointees of Beth El will be its own members. Appointees of the Neighborhood Organization may be its own members or members of Other Signatories that are organizations. A representative of an Appellant which is not a signatory may be appointed to this committee only with Beth El's approval. As a condition of appointment, all appointees shall state their affirmative intent to assist in the implementation of this Agreement. The Neighborhood Committee will adopt rules and procedures as it deems necessary and appropriate to accomplish its purpose.

B. Beth El and the Neighborhood Organization shall form a Mediation Committee on an ad hoc basis to attempt to resolve any dispute that the Neighborhood Committee refers to it. The Mediation Committee will be comprised of two members appointed by Beth El, two members appointed by the Neighborhood Organization, and a fifth member who is neither a member of Beth El nor a resident of the neighborhood. Appointees of Beth El will be its own members. Appointees of the Neighborhood Organization may be its own members or members of Other Signatories that are organizations. A representative of an Appellant which is not a signatory may be appointed to this committee only with Beth El's approval. The fifth member will be selected by a majority vote of the four Party representatives, unless the Neighborhood Committee establishes a different procedure for such selection. As a condition of appointment, all appointees shall state their affirmative intent to assist in the implementation of this Agreement. The Mediation Committee will undertake promptly and informally to assist in the resolution of disputes brought to it. The Mediation Committee will adopt such procedures and rules as it deems necessary and appropriate to accomplish its purpose.

20. The Parties shall act reasonably and in good faith in the exercise of their respective rights and duties under this Agreement.

V. LEGAL CONDITIONS 21. Effective Date. This Settlement Agreement shall be effective as of the date that the Berkeley City Council finally approves the Use and Alteration Permits and Conditions of Approval for the Project, provided that the Parties have executed this Agreement by not later than September 11, 2001.

22. Opt Out Procedure Related to City of Berkeley's Approval. Notwithstanding the provisions of paragraph 21, within seven (7) days after the Effective Date, either Beth El on the one hand, or LOCCNA and the Other Signatories (collectively) on the other hand, may declare this Agreement null and void on the ground that the Conditions of Approval are materially inconsistent with the provisions of paragraphs 7 through 12. In the event that LOCCNA and other Signatories do not collectively agree on such declaration, each Party who concludes that such Conditions of Approval are materially inconsistent may declare that it shall withdraw from the Agreement; and Beth El shall have the right, in its sole discretion, to determine whether the Agreement remains in effect. Beth El's determination shall be made within seven (7) days of service of Notice on Beth El. Notice of each such declaration shall be given in accordance with the provisions of paragraph 31. If no such notice is given within such seven (7) day period, then this Agreement shall thereafter remain in full force and effect.

23. Non-Opposition to Project Development. LOCCNA and Other Signatories shall not oppose the final issuance of Use and Alteration Permits and related governmental approvals required to develop the Project and shall not otherwise act to hinder or delay Beth El's efforts to develop the Project; provided that such approvals conform, without material modification, to paragraphs 7 through 12 of this Agreement.

A. A Party may make a public comment about any plan, application, or approval required to develop the Project. Such comment shall conform to paragraphs 7 through 12 of this Agreement. The Parties shall use the procedures established in paragraph 13 and Section IV before making such public comment.

B. A Party is not bound to accept a plan, application, or approval, if the plan, application or approval is materially inconsistent with paragraphs 7 through 12 and if the inconsistency is not resolved pursuant to the procedures of paragraph 13 and Section IV. LOCCNA and other Signatories shall make best efforts to establish a collective position regarding each such plan, application, or approval, in recognition of the risk that different positions may result in termination of the Agreement pursuant to paragraph 25.

24. Waiver and Covenant Not To Sue. LOCCNA and the Other Signatories (A) shall promptly dismiss their pending appeal of the ZAB's Conditions of Approval; (B) shall not thereafter bring, finance, participate in, or take any other action to support a challenge to the Use and Alteration Permits, the Conditions of Approval, the Project EIR, or any subsequent governmental approval necessary to develop the Project (including the City of Berkeley's approval of any plan submittal required by the Conditions of Approval), under any law, regulation, or procedure in any administrative or judicial forum; and (C) shall not otherwise take action to hinder or delay Beth El's efforts to develop the Project; subject to the exceptions stated in paragraph 23.

25. Termination of Agreement Following City of Berkeley's Final Approval. Following the period described in paragraph 22, if LOCCNA or Other Signatory makes a public comment about any plan, application or approval required to develop the Project or otherwise acts in material violation of paragraph 23 or 24, Beth El may declare that this Agreement is null and void. If Beth El makes a public comment or otherwise acts in material violation of paragraph 14 or 15, LOCCNA and Other Signatories collectively may declare that this Agreement is null and void. The Parties shall make best efforts to prevent such a result, given their mutual recognition that their interests are far better served by cooperation in the implementation of the Agreement.

26. Remedy for Breach of the Agreement. In any lawsuit based upon or arising out of the Agreement, the Parties expressly waive and relinquish any claims for damages, including claims for loss of use, diminution in value, or compensatory, special, consequential or punitive damages, and expressly agree that the exclusive remedy in such action shall be limited to equitable or declaratory relief, including specific performance or injunctive relief. The prevailing party in such lawsuit shall be entitled to recover, in addition to any other relief, its reasonable attorneys' fees and costs incurred in connection therewith, if the Court determines that the losing Party acted frivolously or otherwise in bad faith. However, under this Agreement, the liability of a Party that is an unincorporated association does not extend to a non-Signatory member of that Party or to a Signatory member who did not support the decision that resulted in the lawsuit.

27. Admissibility. The Parties hereto expressly agree that the Agreement shall be admissible in any action based upon or arising out of a breach of the Agreement.

28. Construction. This Agreement is the product of negotiation by and among the Parties. The Parties expressly agree that the Agreement shall not be deemed to have been negotiated or drafted by any Party and shall be interpreted accordingly. The Agreement shall be interpreted in accordance with and governed in all respects by the laws of the State of California applicable to agreements made and to be performed in California. The section headings are included for convenience of reference only and are not intended to affect the interpretation of the Agreement.

29. Mutual Release. Provided that the Agreement remains in effect following the opt-out period described in paragraph 22, the Parties hereto release one another and their respective officers, directors, employees or agents, members, and successors, from all liabilities, damages, or other claims that existed as of or arose prior to the Effective Date, and which relate to the Project. This mutual release expressly includes a waiver of Civil Code section 1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

30. Neighborhood Organization. LOCCNA is an unincorporated association whose members are residents in the vicinity of the Property and executes this Agreement in that capacity. At its sole discretion, the unincorporated neighborhood association may form a non-profit corporation to represent the interests of its members. Either LOCCNA or its successor is the Neighborhood Organization for the purpose of this Agreement. In the event that the Neighborhood Organization does incorporate, that successor shall promptly execute this Agreement.

31. Notices. All notices under this Agreement (including a proposed plan or application pursuant to paragraph 13, an opt-out notice pursuant to paragraph 22, any notice related to a proposed Amendment pursuant to paragraph 32, or an assignment pursuant to paragraph 33) shall be written and delivered by first-class United States mail (return receipt requested) or by other equally reliable method. Within five days of the Effective Date, each Party shall designate a representative with authority to receive and act on such notices, and each Party shall thereafter amend that designation as appropriate. If a timely designation or appropriate amendment is not made by a Party, that Party shall be deemed to have waived the right to notice pursuant to this paragraph.

32. Amendments. Only a written instrument signed by Beth El and either (i) the representative of the Neighborhood Organization designated pursuant to paragraph 30, as long as the Neighborhood Organization remains an unincorporated association, (ii) an individual designated by the individual Signatories who signed on behalf of the Neighborhood Organization, if that organization no longer exists and provided such individual representative is a resident of the City of Berkeley at the time of such amendment, or (iii) the Neighborhood Organization, if incorporated and then in existence, may amend this Agreement.

33. Assignments. A Signatory for a Party that is an unincorporated association may assign his or her interest to another Signatory for the same Party or may otherwise terminate that interest, when the assigning Signatory terminates membership in that Party or otherwise has no continuing interest in the Project. Further, a Party other than Beth El may assign its interest to another such Party, when the assigning Party has no continuing interest in the Project. With those exceptions and the further exception of the Neighborhood Organization's decision to incorporate pursuant to paragraph 30, assignment of interest under this Agreement without Beth El's prior written approval is prohibited.

34. Binding Agreement. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors.

35. Entire Agreement. This Agreement, including the Exhibits and signature pages attached hereto, constitutes the entire understanding between and among the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or discussions between the Parties or their representatives.

36. Term of Agreement. The term of this Agreement shall be 15 years from the Effective Date. Beth El, the Neighborhood Organization, and any other Parties with continuing interest in the Project, shall renew the Agreement on mutually agreeable terms to continue or improve the dispute resolution procedures established in paragraph 13 and Section IV.

VI. SIGNATURES 37. Authority. Each Signatory who signs this Agreement on behalf of a Party represents that he or she has the express authority to bind the Party to the Agreement.

38. Counterparts. This Agreement may be executed in one or more original, photocopied or facsimile counterparts, and all counterparts so executed shall constitute the Agreement.

Congregation Beth El

____________________________

Paul L. Warner

President

____________________________

Martin Dodd

First Vice-President

____________________________

Harry Pollack

Co-Chair, Permit Committee

____________________________

Michael Fajans

Co-Chair, Permit Committee

Live Oak Codornices Creek Neighborhood Association

Alan Gould; David Dempster; Elizabeth Shaughnessy; Steve Shaughnessy; Norie Clarke; Richard Roos-Collins; Fred Bauman; Phil Price; Carole Norris; Nancy Levin; Juliet Lamont; Diane Tokugawa

Other Signatories

Karl Linn--Berkeley EcoHouse

Beebo Turman--Berkeley Community Garden Collaborative

Lisa Viani--Urban Creeks Council of California

Gail Greenlees--Berkeley EcoHouse Garden

Janet Cobb--California Oaks Foundation

Carla Coop--Friends of Five Creeks

Jacqui Smalley--Golden Gate Audubon Society

LIST OF EXHIBITS Exhibit 1 City of Berkeley Zoning Adjustment Board, Conditions of Approval as included in "Notice of Decision, Conditions of Approval and Mitigation Monitoring Program (March 8, 2001)

Exhibit 2 Appellants of Conditions of Approval

Exhibit 3 Conditions of Approval (Staff Review Document) (August 31, 2001)

Exhibit 4 "Use Permit Application for New Synagogue and School, Congregation Beth El, 1301 Oxford Street, Berkeley CA Supplement #11, submitted 8/24/01, Site and Roof Plan, Page A2.0"

Exhibit 5 Proposed Substitute for Condition of Approval C.7

Exhibit 6 Proposed Amendment to Condition of Approval A.3

EXHIBIT 1 Notice of Decision by Zoning Adjustsments Board, March 8, 2001

EXHIBIT 2 Appellants of ZAB's Conditions of Approval The Alameda Creeks Alliance

Berkeley Community Gardening Collaborative

Berkeley Eco-House and California Oaks Foundation

Center for Biological Diversity

Eco-City Builders

Friends of Five Creeks

Golden Gate Audubon Society (Conservation Committee)

International Rivers Network

Live Oak Codornices Creek Neighborhood Association

Sierra Club, San Francisco Bay Chapter

Urban Creeks Council

EXHIBIT 3

Permit Conditions (Not completed as of 9/13/01)

EXHIBIT 4 Site Plan as of 8/24/01

EXHIBIT 5 Parking Management Plan [Substitute for Condition C.7] The applicant shall develop, submit to the City of Berkeley, and upon approval implement, a Parking Management Plan whose purpose is to minimize adverse impacts on the availability of parking spaces on public streets in the neighborhood, and to promote respectful parking practices by Beth El members and guests.

Prior to the issuance of an occupancy permit, the applicant shall submit the Parking Management Plan for review and approval of the City of Berkeley's Zoning Officer. The applicant will develop and complete the plan in consultation with the neighborhood residents and the City's Traffic Engineer. The applicant will present the plan to a scheduled meeting of the neighborhood residents for review and comment, and the applicant will consider such comments before submittal to the City of Berkeley. The applicant will implement the plan within one month of occupancy of the new facility.

After one year of operation and not less than every three years thereafter, the applicant will assess and report on the effectiveness of the Parking Plan in consultation with the neighborhood residents and City's Traffic Engineer. Beth El may propose or the City may on its own initiative consider appropriate modifications to the Parking Plan in order to achieve the stated purpose or improve the efficiency of implementation.

The Parking Plan shall include:

. Purpose and Objective

. Impact Thresholds

. Event Sizes and Parking Procedures

. Community Liaison, Monitoring, and Reporting Procedures

. Resolution of Grievances.

The Parking Plan shall consist of a range of different parking management techniques for different size events. At a minimum, the Plan shall specify such techniques for all events of 150 people or more. The Parking Plan shall employ: (i) on-site valet parking and (ii) satellite parking or other effective techniques. Applicant may also use event invitation inserts to inform guests how parking management techniques will be used at such an event.

EXHIBIT 6 Amendment to Condition A.3 Permit Condition. Other than certain below described exceptions, the facility's operations may only occur between the following hours:

Monday through Thursday 7 am to 7 pm

Friday 7 am to 10 pm

Saturday 8 am to 11 pm

Sunday 8 am to 7:30 pm

Exceptions: The following activities are exempt from the above hours of operation limitations:

- Religious holidays and observances.
- Religious classes.
- Overnights, for two nights during the summer, for young school children and their caretakers, as part of the use's summer camp program (Camp Kee Tov) and for one night during the school year,
- Other congregational activities, such as committee, board or other meetings, classes, etc. involving a total attendance not to exceed 75 persons at any one time, may extend the above hours until 10 p.m. Monday through Thursday, except that twice per month, the hours may be so extended until 11 p.m. [To be permit condition 3.]

Joint Statement of the Coalition and Beth El -- July 24, 2001

Presented to the Berkeley City Council, July 24, 2001

Presented by the following two parties: Congregation Beth El Synagogue; and Coalition of Neighborhood and Environmental Groups

Mediator: Peter Bluhon, Bluhon Planning Group

After 8 weeks of diligent, hard work on the part of all parties, the mediation has successfully yielded an agreement on the site plan and many other important elements. The Parties jointly urge the Council to approve tonight Beth ElÕs application as modified by:

1. The drawing page A2.0, Supplement #7, dated July 23, 2001; and
2. To replace permit condition #C-7 with the alternate text recommended jointly by the Parties, which addresses parking.

The Parties will continue discussions toward the goal of reaching a comprehensive settlement agreement. Among the issues are:

a. Beth El's cooperation regarding the future of Codornices Creek on the site;

b. Beth El's protection from future suits and challenges regarding the project.

Signed by:

Harry Pollack, Beth El

Nancy Levin, Coalition

Michael Fajans, Beth El

Martin Dodd, Beth El

Fran Layton, Beth El

Phillip Price, Coalition

Anne Jennings, Coalition

Linda Gerson, Beth El

Alan Gould, Coalition

Mark Aaronson, Beth El