Tuesday, March 8, 2022 AGENDA Page 1
AGENDA
BERKELEY CITY COUNCIL MEETING
Tuesday, March 8, 2022
6:00 PM
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – LORI DROSTE
PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED EXCLUSIVELY THROUGH
VIDEOCONFERENCE AND TELECONFERENCE
Pursuant to Government Code Section 54953(e) and the state declared emergency, this meeting of the City Council will be conducted exclusively through teleconference and Zoom videoconference. The COVID -19 state of emergency continues to directly impact the ability of the members to meet safely in person and presents immine nt risks to the health of attendees. Therefore, no physical meeting location will be available.
Live audio is available on KPFB Radio 89.3. Live captioned broadcasts of Council Meetings are available on Cable B -TV (Channel 33) and via internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx .
To access the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this URL https://us02web.zoom.us/j/82967064417
. If you do not wish for your name to appear on the screen, then use the drop down menu and click on "rename" to rename yourself to be anonymous. To request to speak, use the “raise hand” icon by rolling over the bottom of the screen.
To join by phone: Dial 1-669-900-9128 or 1-877-853-5257 (Toll Free) and enter Meeting ID: 829 6706 4417. If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.
Please be mindful that the teleconference will be recorded as any Council meeting is recorded, and all other rules of procedure and decorum will apply for Council meetings conducted by teleconference or videoconference.
To submit a written communication for the City Council’s consideration and inclusion in the public record, email [email protected]
.
This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981- 6900. The City Council may take action related to any subject listed on the Agenda. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.
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Preliminary Matters
Roll Call:
Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.
City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.
Public Comment on Non-Agenda Matters: Persons will be selected to address matters not on the Council agenda. If five or fewer persons wish to speak, each person selected will be allotted two minutes each. If more than five persons wish to speak, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda.
Consent Calendar
The Council will first determine whether to move items on the agenda for “Action” or “Information” to the “Consent Calendar”, or move “Consent Calendar” items to “Action.” Three members of the City Council must agree to pull an item from the Consent Calendar for it to move to Action. Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.
No additional items can be moved onto the Consent Calendar once public comment has commenced. At any time during, or immediately after, public comment on Information and Consent items, any Councilmember may move any Information or Consent item to “Action.” Following this, the Council will vote on the items remaining on the Consent Calendar in one motion.
For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may s peak again at the time the matter is taken up during the Action Calendar.
Public Comment on Consent Calendar and Information Items Only: The Council will take public comment on any items that are either on the amended Consent Calendar or the Information Calendar. Speakers will be entitled to two minutes each to speak in opposition to or support of Consent Calendar and Information Items. A speaker may only speak once during the period for public comment on Consent Calendar and Information items.
Additional information regarding public comment by City of Berkeley employees and interns: Employees and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such, the department in which they work and state whether they are speaking as an individual or in their official capacity when addressing the Council in open session or workshops.
2 Consent Calendar
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1. Amending Berkeley Municipal Code Chapter 4.38, Supplementary Retirement and Income Plan II, to Permit Participation of Berkeley Fire Fighters Association Local 1227 I.A.F.F.
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,800-N.S. to amend the Berkeley Municipal Code Chapter (BMC) 4.38, Supplementary Retirement and Income Plan II (SRIP II), to permit participation of Berkeley Fire Fighters Associations Local 1227 I.A.F.F (BFFA).
First Reading Vote: Ayes – Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent – Bartlett.
Financial Implications: See report.
Contact: Donald E. Ellison, Human Resources, (510) 981-6800
2. Resolution Adopting the Resolution of Intention of Amendment to the Miscellaneous CalPERS Contract Pursuant to California Government Code 20516; Adopt First Ordinance Reading authorizing an amendment to the contract between the City Council of the City of Berkeley and the Board of Administration of the California Public Employees’ Retirement System From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,801-N.S. amending the City’s contract with CalPERS to effectuate changes to the cost sharing agreement between the City and PEPRA members of Service Employee International Union, Local 1021 Maintenance and Clerical (SEIU MC), Public Employees Union Local 1 (Local 1), Community Services & Part-Time Recreation Leaders Associations Local 1021 (SEIU CSU/PTRLA), and the Unrepresented Employees Group.
First Reading Vote: Ayes – Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent – Bartlett.
Financial Implications: See report.
Contact: Donald E. Ellison, Human Resources, (510) 981-6800
3. Resolution Making Required Findings Pursuant to the Government Code and Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
From: City Manager
Recommendation: Adopt a resolution making the required findings pursuant to Government Code Section 54953(e)(3) and determining that as a result of the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference, initially ratified by the City Council on September 28, 2021, and subsequently reviewed and ratified on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, and February 8, 2022.
Financial Implications: To be determined.
Contact: Farimah Brown, City Attorney, (510) 981-6950
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4. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on March 8, 2022
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.
Financial Implications: $7,470,316
Contact: Henry Oyekanmi, Finance, (510) 981-7300
5. Housing Consultant Contract Amendment (Contract # 32100126) – Anjanette Scott LLC
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to the City’s contract with Anjanette Scott LLC to add up to $50,000 for consulting services in a total amount not to exceed $100,000, with a contract end date of June 30, 2023.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
6. Contract No. 32100082 Amendment: Resource Development Associates to Facilitate Grant Writing for the Specialized Care Unit
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to amend a contract with Resource Development Associates (RDA) to add grant writing services for the Specialized Care Unit (SCU) and mental health system for a total contract limit of $245,000 for the period beginning January 1, 2021 and ending June 30, 2023. This amendment will add $60,000 in funding and one year to the contract term.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
7. Contract No. 319001221-1 Amendment: Rolling Orange, Inc. for Additional Website Redesign Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 319001221-1 with Rolling Orange, Inc. for the additional website redesign services, for an amount not-to-exceed $10,000 and a total contract value not-to-exceed $569,300 from March 1, 2019 to June 30, 2024.
Financial Implications: See report.
Contact: Michael Sinor, Information Technology, (510) 981-6500
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8. Measure T1 Contract: Western Water Features Inc. for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster, Tile, and Filter Replacement
From: City Manager
Recommendation: Adopt a Resolution: 1. Approving the plans and specifications for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project, Specification No. 22-11489-C; 2.
Accepting the bid of the lowest responsive and responsible bidder, Western Water Features, Inc.; and 3. Authorizing the City Manager to execute a contract and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specifications, with Western Water Features, Inc. for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project in an amount not to exceed $1,010,000, which includes a contract amount of $989,449 and a 10% contingency in the amount of $20,551.
Financial Implications: $1,010,000
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
9. Amendment to Contract No. 32000219 with Lind Marine - Removal of Derelict and Abandoned Vessels at the Berkeley Marina
From: City Manager
Recommendation: Adopt a resolution authorizing the City Manager to amend Contract No. 32000219 with Lind Marine to remove derelict and abandoned vessels at the Berkeley Marina by increasing the contract amount by $42,000; and authorizing additional contingency of $4,200 for a contract total not-to-exceed amount of $188,400; and contingency of $47,000; and extend the contract to September 30, 2023.
Financial Implications: $188,400.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
10. Lease Agreement with NFS Unlimited, LLC for Skates-on-the-Bay From: City Manager
Recommendation: Adopt first reading of an Ordinance authorizing the City Manager to execute the attached ground lease with NFS Unlimited, LLC, the owner/lessee of Skates-on-the-Bay at the Berkeley Waterfront for a 10-year term with 2 additional options to extend for 5 years each, effective from May 1, 2022.
Financial Implications: See report.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
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11. Updates to the Measure T1 Phase 1 Project List
From: City Manager
Recommendation: Adopt a resolution authorizing the following updates to the T1 Phase 1 list of approved projects:
1. Add the following project - Streets: West Street (adjacent to Strawbeery Creek Park) from Addison to End.
2. Change the phase of the following project - Parks: Aquatic Park Tide Tubes Cleanout, (add “Construction”).
3. Remove the following:
A. Projects added in October 2020: i.Streets: a. Arcade Avenue from Fairlawn Drive to Grizzly Peak Boulevard; b. Cedar Street from 6th Street to San Pablo Avenue; c.
Center Street from Martin Luther King Jr. Way to Shattuck Ave; d. Dohr Street from Ashby Avenue to Prince Street; e. Rose Street from Le Roy Avenue to La Loma Avenue; f. Santa Fe Avenue from Gilman Street to Cornell Avenue/Page St; g.
Shasta Road from Grizzly Peak Boulevard to east City limit; and h. West Street from Bancroft Way to Dwight Way.
ii.Parks: James Kenney Park Play and Picnic Area
B. Projects added in July 2019: i. Green Infrastructure: a. Heinz Avenue near RR tracks; b. Jones Street between Fourth St and RR tracks; c. Ninth Street at Codornices Creek; d. Evaluation of Sacramento Street center median; and e.Tenth Street at Codornices Creek.
C.Projects from the original approved list: i. Streets: Bancroft from Shattuck to Milvia Financial Implications: See report.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
12. Donation: Memorial Bench at the Berkeley Marina in front of M-Dock in memory of Roger Garfinkle
From: City Manager
Recommendation: Adopt a Resolution accepting a cash donation in the amount of $3,400 for a memorial bench to be placed at the Berkeley Marina in front of M-Dock in memory of Roger Garfinkle, DragonMax Founder and Coach.
Financial Implications: $3,400 in revenue.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
13. Ratification of Police Accountability Board’s Standing Rules From: Police Accountability Board
Recommendation: Ratify Standing Rules of the Police Accountability Board, revised in consideration of Mayor Arreguin’s proposed amendments.
Financial Implications: None
Contact: Katherine Lee, Interim Director of Police Accountability, (510) 981-4950
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14. Support of SB 922
From: Mayor Arreguin (Author), Councilmember Taplin (Co-Sponsor), Councilmember Bartlett (Co-Sponsor), Councilmember Robinson (Co-Sponsor) Recommendation: Adopt a Resolution in support of SB 922 (Wiener), which would permanently exempt transportation-related projects from CEQA. Send a copy of the Resolution to Governor Gavin Newsom, State Senators Scott Wiener and Nancy Skinner, and Assemblymember Buffy Wicks.
Financial Implications: None
Contact: Jesse Arreguin, Mayor, (510) 981-7100
15. Opposition to the California Two-Thirds Legislative Vote and Voter Approval for Fee and Charge Increases Initiative
From: Mayor Arreguin (Author), Councilmember Harrison (Co-Sponsor) Recommendation: Adopt a Resolution to oppose Initiative 21-0042A1, the California Two-Thirds Legislative Vote and Voter Approval for Fee and Charge Increases Initiative. Send a copy of the Resolution to the League of California Cities.
Financial Implications: See report.
Contact: Jesse Arreguin, Mayor, (510) 981-7100
16. Referral to Implement State Law AB 43 for Reduced Speed Limits on High-Injury Commercial Corridors
From: Councilmember Kesarwani (Author), Councilmember Taplin (Author), Councilmember Robinson (Co-Sponsor), Councilmember Wengraf (Co- Sponsor)
Recommendation: Refer to the City Manager to implement state law AB 43 on:
- High-injury commercial corridors as identified in our Vision Zero Annual Report, 2020-2021 in order to allow a reduction in speed limits by 5 miles per hour; - Any other corridors covered by AB 43, as appropriate, in order to implement reduced prima facie speed limits and identify those corridors for future traffic studies where prima facie limits are presently unsafe.
Upon completion of this referral, we note that a budget allocation would be needed in the amount of $25,000 to $50,000 for new speed limit signage. Funding will be requested later (likely for the FY 2023-24 budget) in order to allow time for staff to determine the applicable streets for additional signage.
Financial Implications: See report
Contact: Rashi Kesarwani, Councilmember, District 1, (510) 981-7110
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17. Adopt a Resolution Supporting Relinquishment of Council Office Budget Funds to the General Fund and Grant of Such Funds for the Berkeley Commission on the Status of Women’s Annual Dues to the Association of California Commissions for Women
From: Councilmember Harrison (Author), Mayor Arreguin (Co-Sponsor), Councilmember Taplin (Co-Sponsor), Councilmember Wengraf (Co-Sponsor) Recommendation: Adopt a Resolution approving the expenditure of $100 each from Vice Mayor Harrison, Mayor Arreguín, and Councilmember Taplin’s office budgets to the Association of California Commissions for Women to cover the prorated 2021- 2022 annual membership dues and full dues for 2022-2023 for the Berkeley Commission on the Status of Women, with funds relinquished to the City’s general fund for this purpose from the discretionary Council Office Budgets of the aforementioned Mayor and Council office budgets, and providing for prospective “pre-approval” of such dues on an ongoing basis.
Financial Implications: See report
Contact: Kate Harrison, Councilmember, District 4, (510) 981-7140
18. Adopt Resolutions Referring to the City Manager to Establish a Policy of Reducing or Waiving Park Fees for Free, Permitted Outdoor Theater, Arts Events, and Other Events Based on Objective Public Welfare Criteria and Relinquishing Council Funds to Support the San Francisco Mime Troupe’s Payment of Park Fees for Its 2022 Free Outdoor Performance Season From: Councilmember Harrison (Author)
Recommendation: Adopt Two Resolutions:
1. Establishing a policy and referring to the City Manager to create a process to reduce or waive City Park Fees for free and permitted outdoor theater, arts events, and other events as appropriate based on objective consideration of their benefits to the public welfare, including but not limited to educational content, non-profit status, and means.
2. Approving the expenditure of an amount not to exceed $500 per Councilmember including $500 from Vice Mayor Harrison, to the San Francisco Mime Troupe, the non-profit fiscal sponsor of 2022 Berkeley Park performances, with funds relinquished to the City’s general fund for this purpose from the discretionary Council Office Budgets of Vice Mayor Harrison and any other Councilmembers who would like to contribute.
Financial Implications: See report.
Contact: Kate Harrison, Councilmember, District 4, (510) 981-7140
19. Budget Referral: Grant Writing Services
From: Councilmember Hahn (Author), Councilmember Bartlett (Author), Councilmember Harrison (Co-Sponsor)
Recommendation: Refer $300,000 to the FY 2022-2023 budget process to expand the City’s capacity to seek and obtain grants and launch funded projects by hiring or contracting for writing and RFP/grant/program administration support.
Financial Implications: See report.
Contact: Sophie Hahn, Councilmember, District 5, (510) 981-7150 8 Council Consent Items
Tuesday, March 8, 2022 AGENDA Page 9
20. Support for AB 1713: Idaho Stop
From: Councilmember Robinson (Author)
Recommendation: Send a letter to Assemblymember Tasha Boerner Horvath, Senator Nancy Skinner, and Assemblymember Buffy Wicks in support of Assembly Bill 1713, which would allow adult bicyclists to proceed through stop signs after yielding the right-of-way to immediate hazards.
Financial Implications: None
Contact: Rigel Robinson, Councilmember, District 7, (510) 981-7170
Action Calendar
The public may comment on each item listed on the agenda for action as the item is taken up. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again at the time the matter is taken up during the Action Calendar.
The Presiding Officer will request that persons wishing to speak use the "raise hand" function to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.
Action items may be reordered at the discretion of the Chair with the consent of Council.
Action Calendar – Old Business
21. Update on the Implementation of Fair and Impartial Policing Task Force Recommendations (Continued from February 22, 2022)
From: City Manager
Contact: Jennifer Louis, Police, (510) 981-5900
22. 2021 Year End Crime and Collision Data (Continued from February 22, 2022) From: City Manager
Contact: Jennifer Louis, Police, (510) 981-5900
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Tuesday, March 8, 2022 AGENDA Page 10
23. Request to Adopt a Resolution Approving Exception to the 180-Day Waiting Period to Hire a CalPERS Retired Annuitant in Accordance with Government Code Sections 7522.56 And 21224
From: City Manager
Recommendation: Staff respectfully recommends that the City Council adopt a resolution approving an exception to the 180-day waiting period for hiring a retired annuitant as an extra-help employee in the Department of Health, Housing & Community Services, due to their specialized skills that are necessary to perform work of a limited duration, and to prevent stoppage of public business during the Covid emergency.
Financial Implications: See report.
Contact: Don Ellison, Human Resources, (510) 981-6807
Public Comment – Items Not Listed on the Agenda
Adjournment
NOTICE CONCERNING YOUR LEGAL RIGHTS : If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90- day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.
Live captioned broadcasts of Council Meetings are available on Cable B-TV (Channel 33), via internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx
and KPFB Radio 89.3.
Archived indexed video streams are available at http://www.cityofberkeley.info/citycouncil.
Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.
Communications to the City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service to the City Clerk Department at 2180 Milvia Street. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk Department for further information.
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be posted on the City's website at http://www.cityofberkeley.info .
Agendas and agenda reports may be accessed via the Internet at http://www.cityofberkeley.info/citycouncil
COMMUNICATION ACCESS INFORMATION:
To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at (510) 981-6418 (V) or (510) 981-6347 (TDD) at least three business days before the meeting date.
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Captioning services are provided at the meeting, on B-TV, and on the Internet. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the agenda for this meeting of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on February 24, 2022.
Mark Numainville, City Clerk
Communications
Council rules limit action on Communications to referral to the City Manager and/or Boards and Commissions for investigation and/or recommendations. All communications submitted to Council are public record. Copies of individual communications are available for viewing through Records Online .
Item #18: Adopt Resolutions Referring to the City Manager to Establish a Policy of Reducing or Waiving Park Fees for Free, Permitted Outdoor Theater, Arts Events, and Other Events Based on Objective Public Welfare Criteria and Relinquishing Council Funds to Support the San Francisco Mime Troupe’s Payment of Park Fees for Its 2022 Free Outdoor Performance Season
1. Rachel Davis
2. Thuan Tran
3. Mary Engle
4. Mary Rose
Energy Commission Transportation Priorities for the Fiscal Year 2023-2024 Budget
5. Berkeley Energy Commission
Proposed Policy 351, Public Safety Fixed Video Surveillance Cameras
6. Michael Chang, Chairperson, Police Accountability Board
Union Contract Wage Theft by City Management
7. Mike Uberti
8. Nathan Dahl
9. Glenn Ingersoll
10. Barbara Gilbert (2)
11. Julia P
Parking Garage at 2215 4
th Street
12. Anne Burns
13. Mary Scott
Verizon Wireless Tower
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14. Anna Pisarello
Implications of Lost Property Tax Revenue
15. Alex Sharenko (2)
Tenant Opportunity to Purchase Act (TOPA)
16. Eric Friedman
17. Akshit Dewan
18. Mirelle Linquist
Parking Tickets
19. Michelle Milam
Climate Change
20. Christopher La Combe
21. Thomas Lord (2)
Plastic Bag Ordinance
22. Sofia Avila
Eden I&R February
23. Eden I&R
Removal of Vines in the Berkeley Hills
24. Senior Advocates & Associates
Grizzly Peak Blvd.
25. Bruce Brody
Redistricting
26. Sheila Goldmacher
BART Redistricting
27. BART
Shellmound
28. Laura Callen
29. AJ Pluss
30. Gail Susan Gordon
31. Bettemie Prins
32. Jane Perry
33. Sheri Prud’homme
Housing
34. Avran Gur Arye (14)
35. Photoano@
12 Tuesday, March 8, 2022 AGENDA Page 13
36. Ashvin Nair
COVID/Masks/Pandemic
37. Thomas Lord (2)
38. Vicki Sommer (2)
39. David Lerman
40. Jane Fink
Reimagining Public Safety
41. Amol Rao
42. Diana Bohn
Solar and Wind Powering Berkeley Homes in March
43. Kathleen Giustino
Brown Act Viewpoint
44. Thomas Lord
Supplemental Communications and Reports
Items received by the deadlines for submission will be compiled and distributed as follows. If no items are received by the deadline, no supplemental packet will be compiled for said deadline.
• Supplemental Communications and Reports 1
Available by 5:00 p.m. five days prior to the meeting.
• Supplemental Communications and Reports 2
Available by 5:00 p.m. the day before the meeting.
• Supplemental Communications and Reports 3
Available by 5:00 p.m. two days following the meeting.
13 14
Ordinance No. 7,800-N.S. Page 1 of 2
ORDINANCE NO. 7,800-N.S.
AMENDING BERKELEY MUNICIPAL CODE CHAPTER 4.38, SUPPLEMENTARY
RETIREMENT AND INCOME PLAN II, TO PERMIT PARTICIPATION OF BERKELEY FIRE FIGHTERS ASSOCIATION LOCAL 1227 I.AF.F.
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That pursuant to the Memorandum of Understanding between the City of Berkeley and Berkeley Fire Fighters Association Local 1227 I.A.F.F. of July 1, 2021 - June 30, 2023, Section 4.38.106 of the Berkeley Municipal Code is amended to read in its entirety as follows:
“4.38.106
Employee.
‘Employee’ shall mean any person who is:
1. Employed by the City and covered under its miscellaneous employees contract with the Administration of the State of California Public Employees Retirement System (a CalPERS miscellaneous employee); or
2. Employed by the City and represented by any of the following associations:
Berkeley Police Association (a police employee), effective January 1, 1989; or
Berkeley Fire Fighters Association Local 1227 I.A.F.F., effective March 20, 2022; or
3. Employed by any other public entity Employer that has adopted the Plan with approval of the Council.”
Section 2. That Sections 4.38.107 and 4.38.201 of the Berkeley Municipal Code are amended to make non-substantive, clerical changes to read in their entirety as follows:
“4.38.107
Employer.
‘Employer’ shall mean the City of Berkeley and any other public entity that has adopted the Plan with the approval of the Council. Effective as of July 1, 2007, the Berkeley Housing Authority shall be considered an Employer under the Plan with respect to its employees. An Employer who has been approved to participate in the Plan may do so as long as it fulfills its obligations as an Employer under the Plan to the satisfaction of the City of Berkeley, as determined by the City of Berkeley’s sole and absolute discretion. If
15 Ordinance No. 7,800-N.S. Page 2 of 2
the City determines that an Employer is not fulfilling its obligations, the City shall provide written notice to that effect to the Employee and that Employer’s participation under the Plan shall terminate as of the date of such notice. (Ord. 7264-NS § 2, 2012)
4.38.201
Participation date.
Any Employee who was a Participant in the Plan immediately prior to January 1, 2001 shall continue to be a Participant on January 1, 2001. Each other Employee who becomes such on or after July 22, 1988 shall become a Participant upon their date of employment, or if later, the date they become an Employee. Any Participant of the City of Berkeley Supplementary Retirement Income Plan I may elect, at any time, to cease participation in that plan and become a Participant in this Plan (i.e., the City of Berkeley Supplementary Retirement Income Plan II). Such election shall be irrevocable. Any Participant who is a police employee on January 1, 2005 shall cease being an active or inactive participant in this Plan on December 31, 2004.” At a regular meeting of the Council of the City of Berkeley held on February 22, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: Bartlett.
16 Ordinance No. 7,801-N.S. Page 1 of 2
ORDINANCE NO. 7,801-N.S.
AUTHORIZING AN AMENDMENT TO THE CONTRACT BETWEEN THE CITY
COUNCIL OF THE CITY OF BERKELEY AND THE BOARD OF ADMINISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1.
That an amendment to the contract between the City Council of the City of Berkeley and the Board of Administration, California Public Employees’ Retirement System is hereby authorized, a copy of said amendment being attached hereto, marked Exhibit A, and by such reference made a part hereof as though herein set out in full.
Section 2.
The Mayor of the City of Berkeley City Council is hereby authorized, empowered, and directed to execute said amendment for, and on behalf of, said Agency.
Section 3.
This Ordinance shall take effect thirty (30) days after the date of its adoption. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
At a regular meeting of the Council of the City of Berkeley held on February 22, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: Bartlett.
17 Ordinance No. 7,801-N.S. Page 2 of 2
18 A
CalPERS
EXHIBIT
California
Public Employees' Retirement System
_......._. __ . ___ _
AMENDMENT TO CONTRACT
Between the
Board of Administration
California Public Employees' Retirement System
and the
City Council
City of Berkeley
----•----
The Board of Administration, California Public Employees' Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafter referred to as Public Agency, having entered into a contract effective March 1, 1942, and witnessed January 30, 1942, and as amended effective September 1, 1947, April 1, 1949, January 1, 1952, May 1, 1954, March 1, 1956, August 1, 1959, November 1, 1961, June 29, 1962, December 1, 1962, April 1, 1963, August 1, 1963, October 1, 1964, October 16, 1965, November 16, 1968, March 1, 1973, December 16, 1973, December 1, 1974, July 22, 1976, May 25, 1978, July 9, 1978, January 2, 1983, October 28, 1983, July 18, 1986, June 26, 1988, June 30, 1992, November 28, 1996, October 15, 1998, November 6, 1998, April 9, 1999, April 14, 2000, July 14, 2000, December 22, 2000, July 7, 2002, January 5, 2003, June 13, 2003, December 28, 2012, July 3, 2016, November 6, 2016, January 1, 2017 and December 31, 2017 which provides for participation of Public Agency in said System, Board and Public Agency hereby agree as follows:
A. Paragraphs 1 through 20 are hereby stricken from said contract as executed effective December 31, 2017, and hereby replaced by the following paragraphs numbered 1 through 20 inclusive:
19 1. All words and terms used herein which are defined in the Public Employees' Retirement law shall have the meaning as defined therein unless otherwise specifically provided. "Normal retirement age" shall mean age 55 for classic local miscellaneous members, age 62 for new local miscellaneous members, age 50 for classic local fire members and for those classic local police members entering membership in the police classification on or prior to December 28, 2012, age 55 for classic local police members entering membership for the first time in the police classification after December 28, 2012 and age 57 for new local safety members.
2. Public Agency shall participate in the Public Employees' Retirement System from and after March 1, 1942 making its employees as hereinafter provided, members of said System subject to all provisions of the Public Employees• Retirement Law except such as apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency.
3. Public Agency agrees to indemnify, defend and hold harmless the California Public Employees' Retirement System (CalPERS) and its trustees, agents and employees, the CalPERS Board of Administration, and the California Public Employees' Retirement
Fund from any claims, demands, actions,
losses, liabilities, damages, judgments, expenses and costs, including but not limited to interest, penalties and attorney fees that may arise as a result of any of the following:
(a) Public Agency's election to provide retirement benefits, provisions or formulas under this Contract that are different than the retirement benefits, provisions or formulas provided under the Public Agency's prior non-CalPERS retirement program.
(b) Any dispute, disagreement, claim,
or proceeding (including
without limitation arbitration, administrative hearing, or litigation) between Public Agency and its employees (or their
representatives) which relates to Public Agency's election to amend this Contract to provide retirement benefits, provisions or formulas that are different than such employees' existing retirement benefits, provisions or formulas.
(c) Public Agency's agreement with a third party other than CalPERS to provide retirement benefits, provisions, or formulas that are different than the retirement benefits, provisions or formulas provided under this Contract and provided for under the California Public Employees' Retirement Law.
20 4. Employees of Public Agency in the following classes shall become members of said Retirement System except such in each such class as are excluded by law or this agreement:
a. Local Fire Fighters (herein referred to as local safety members); b. Local Police Officers (herein referred to as local safety members); c. Employees other than local safety members (herein referred to as local miscellaneous members).
5. In addition to the classes of employees excluded from membership by said Retirement Law, the following classes of employees shall not become members of said Retirement System:
a. PERSONS EMPLOYED JUNE 1, 1962, OR THEREAFTER IN THE
FOLLOWING CLASSES IN THE FOLLOWING CLASSES IN THE
RECREATION AND PARKS LIBRARY, AND FINANCE
DEPARTMENTS:
ASSISTANT CAMP UTILITY MAN
CAMP CLERK
CAMP COUNSELOR
CAMP NURSE
CAMP SUPERVISOR
CAMP UTILITY MAN
CAMP RECREATION LEADER
COOK'S AIDE
CHIEF COOK
FIRST ASSISTANT COOK
KITCHEN HELPER
SECOND ASSISTANT COOK
DINING ROOM HELPER
DINING ROOM SUPERVISOR
FIELD APPRAISER
LIBRARY PAGE I
LIBRARY PAGE II
LIFEGUARD
ASSISTANT PLAYGROUND LEADER
PLAYGROUND LEADER
PLAYGROUND LEADER TRAINEE
SENIOR PLAYGROUND
LEADER
SPECIAL ACTIVITY LEADER;
21 b. PERSONS EMPLOYED APRIL 1, 1963, OR THEREAFTER AS
POLICE TRAINEES;
c. PHYSICIANS EMPLOYED AFTER AUGUST 1, 1963, CLASSIFIED AS "PHYSICIANS" IN THE CITY'S POSITION ORDINANCE AS
THAT ORDINANCE EXISTED ON AUGUST 1, 1963;
d. PERSONS COMPENSATED ON AN HOURLY BASIS WHO
ENTER EMPLOYMENT WITH PUBLIC AGENCY ON OCTOBER
16, 1965, OR THEREAFTER; AND
e. EMPLOYEES WHO FIRST ENTERED PUBLIC AGENCY SERVICE
PRIOR TO JANUARY 26, 1973, IN AN EMPLOYMENT IN WHICH
THEY WERE ELIGIBLE FOR MEMBERSHIP IN ANY ONE OF THE
PUBLIC AGENCY'S RETIREMENT SYSTEMS FOR SAFETY
MEMBERS, AND WHO HAVE NOT EXECUTED AND FILED WITH
THE PUBLIC AGENCY A WAIVER OF RIGHTS UNDER THE
LOCAL SYSTEM DURING THE PERIOD PRESCRIBED, SUCH
EXCLUSION SHALL APPLY WHETHER OR NOT THE
EMPLOYEE REENTERS SERVICE OF THE PUBLIC AGENCY
THEREAFTER.
6. Those
safety members in the local retirement system employed by Public Agency and who did not waive their rights under said local system were provided another opportunity to execute and file a waiver on or before October 28, 1983.
7. Assets heretofore accumulated with respect to members in the local retirement system have been transferred to the Public Employees' Retirement System and applied against the liability for prior service incurred thereunder. That portion of the assets so transferred which represent the accumulated contributions (plus interest thereof) required of the employees under said local
system has been credited to the individual membership
account of each such employee under the Public Employees' Retirement System.
8. Public Agency and the Berkeley Redevelopment Agency have agreed to a merger of their contracts, and this contract shall be a continuation of the benefits of the contract of the Berkeley Redevelopment Agency, pursuant to Section 20567.6 of the Government Code. Such merger is effective as of August 1, 1977. Public Agency, by this contract, assumes the assets and liabilities accumulated under the former contract of the Berkeley Redevelopment Agency. Legislation repealed said Section effective January 1, 1988.
22 9. The percentage of final compensation to be provided for each year of credited prior and current service for classic local miscellaneous members in employment before and not on or after January 5, 2003 shall be determined in accordance with Section 21354 of said Retirement Law, subject to the reduction provided therein for service on and after January 5, 1957, the effective date of Social Security coverage, and prior to December 31, 1982, termination of Social Security, for members whose service has been included in Federal Social Security (2% at age 55 Full and Modified).
10. The percentage of final compensation to be provided for each year of credited prior and current service for classic local miscellaneous members in employment on or after January 5, 2003 shall be determined in accordance with Section 21354.5 of said Retirement Law, subject to the reduction provided therein for service on and after January 5, 1957, the effective date of Social Security
coverage, and prior to December 31, 1982,
termination of Social Security, for members whose service has been included in Federal Social Security (2.7% at age 55 Full and Modified).
11. The percentage of final compensation to be provided for each year of credited prior and current service as a new local miscellaneous member shall be determined in accordance with Section 7522.20 of said Retirement Law (2% at age 62 Full).
12. The percentage of final compensation to be provided for each year of credited prior and current service as a classic local fire member and for those classic local police members entering membership in the police classification on or prior to December 28, 2012 shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at age 50 Full).
13. The percentage of final compensation to be provided for each year of credited current service as a classic local police member entering membership for the first time in the police classification after December 28, 2012 shall be determined in accordance with Section 21363.1 of said Retirement Law (3% at age 55 Full).
14. The percentage of final compensation to be provided for each year of credited prior and current service as a new local safety member shall be determined in accordance with Section 7522.25(d) of said Retirement Law (2. 7% at age 57 Full).
15. Public Agency
elected and elects to be subject to the following optional provisions:
a. Section 21573 (Third Level of 1959 Survivor Benefits) for local miscellaneous members only.
b. Sections 21624, 21626 and 21628 (Post-Retirement Survivor Allowance).
23 c. Section 21536 (Local System Service Credit Included in Basic Death Benefit).
d. Section 21222.1 (One-Time 5% Increase - 1970) for local miscellaneous members only. Legislation repealed said Section effective January 1, 1980.
e. Section 21222.2 (One-Time 5% Increase - 1971 ). Legislation repealed said Section effective January 1, 1980.
f. Section 20042 (One-Year Final Compensation) for classic local miscellaneous members, classic local
fire members and for those
classic local police members entering membership on or prior to December 28, 2012.
g. Section 20965 (Credit for Unused Sick Leave).
h. Section 21574 (Fourth Level of 1959 Survivor Benefits) for local police members only.
i. Section 21548 (Pre-Retirement Option 2W Death Benefit) for local police members only.
j. Section 21024 (Military Service Credit as Public Service). k.
Section 21023.5 (Public Service Credit for Peace Corps, AmeriCorps VISTA, or AmeriCorps Service).
I. Section 21574.5 (Indexed Level of 1959 Survivor Benefits) for local fire members only.
m. Section 20475 (Different Level of Benefits): Section 21363.1 (3% @
55 Full formula) and Section 20037 (Three-Year Final
Compensation) are applicable to classic local police members entering membership for the first time with this agency in the police classification after December 28, 2012.
n. Section 20516 (Employees Sharing Additional Cost):
From and after July 3, 2016, 1.25% for local miscellaneous members in the International Brotherhood of Electrical Workers Local 1245.
From and after November 6, 2016, 8% for classic local
miscellaneous members in the Public Employees Union Local 1.
From and after November 6, 2016 and until the effective date of this amendment to contract, 8% for new local miscellaneous members in the Public Employees Union Local 1.
24 From and after the effective date of this amendment to contract, 5% for new local miscellaneous members in the Public Employees Union Local 1.
From and after January 1, 2017, 8% for classic local miscellaneous members in the Community Services & Part-Time Recreation Leaders Association Local 1021.
From and after January 1, 2017 and until the effective date of this amendment to contract, 8% for new local miscellaneous members in the Community Services & Part-Time Recreation Leaders
Association Local 1021.
From and after the effective date of this amendment to contract, 5% for new local miscellaneous members in the Community Services & Part-Time Recreation Leaders Association Local 1021.
From and after December 31, 2017, 8% for classic local
miscellaneous members in the Unrepresented Employees group.
From and after December 31, 2017 and until the effective date of this amendment to contract, 8% for new local miscellaneous members in the Unrepresented Employees group.
From and after the effective date of this amendment to contract, 7% for new local miscellaneous members in the Unrepresented Employees group.
From and after December 31, 2017, 8% for classic local
miscellaneous members in the Service Employees International Union Local 1021 Maintenance and Clerical Chapters.
From and after December 31, 2017 and until the effective date of this amendment to contract, 8% for new local miscellaneous members in the Service Employees International Union Local 1021 Maintenance and Clerical Chapters.
From and after the effective date of this amendment to contract, 7% for new local miscellaneous members in the Service Employees International Union Local 1021 Maintenance and Clerical Chapters.
The portion of the employer's contribution that the member agrees to contribute from his or her compensation, over and above the member's normal contribution ("Cost Sharing Percentage"), shall not exceed the Employer Normal Cost Rate, as that rate is defined in the Cal PERS Actuarial Valuation for the relevant fiscal year. If the Cost Sharing Percentage will exceed the relevant Employer Normal Cost Rate, the Cost Sharing Percentage shall automatically be reduced to an amount equal to, and not to exceed, the Employer Normal Cost Rate for the relevant fiscal year.
25 16. Public Agency, in accordance with Government Code Section 20834, shall not be considered an "employer" for purposes of the Public Employees' Retirement Law. Contributions of the Public Agency shall be fixed and determined as provided in Government Code Section 20834, and such contributions hereafter made shall be held by the Board as provided in Government Code Section 20834.
17. Public Agency shall contribute to said Retirement System the contributions determined by actuarial valuations of prior and future service liability with respect to local miscellaneous members and local safety members of said Retirement System.
18. Public Agency shall also contribute to said Retirement System as follows:
a. Contributions required per covered member on account of the 1959 Survivor Benefits provided under Section 21573 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local miscellaneous members.
b. Contributions required per covered member on account of the 1959 Survivor Benefits provided under Section 21574 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local police members.
c. Contributions required per covered member on account of the 1959 Survivor Benefits provided under Section 21574.5 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local fire members.
d. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law.
e. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the periodic investigation and valuations required by law.
19. Contributions required of Public Agency and its employees shall be subject to adjustment by Board on account of amendments to the Public Employees' Retirement Law, and on account of the experience under the Retirement System as determined by the periodic investigation and valuation required by said Retirement Law.
26 20. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the end of the period to which said contributions refer or as may be prescribed by Board regulation. If more or less than the correct amount of contributions is paid for any period, proper adjustment shall be made in connection with subsequent remittances. Adjustments on account of errors in contributions required of any employee may be made by direct payments between the ,o employee and the Board.
C:
�amendment shall be effective on the __ day of ______ __ _ �
8. BOARD O�MINISTRATION
PUBLIC EMP(OYEES' RETIREMENT SYSTEM
� /'
BY �
MELODY BENA�S, CHIEF
PENSION coNT�
l
s AND PREFUNDING
PROGRAMS DIVIS
PUBLIC EMPLOYE �ETI REMENT SYSTEM
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AMENDMENT CalPERS ID #4652939061
PERS-CON-702A
CITY COUNCIL
CITY OF .J3ERKELEY
BY "f'r,
PRESIDING�FICER
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Witness Date ::,t:.
Attest: �
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27 28
Office of the City Attorney
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council Madame City Manager
From: Farimah Faiz Brown, City Attorney
Subject: Resolution Making Required Findings Pursuant to the Government Code and Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
RECOMMENDATION
Adopt a resolution making the required findings pursuant to Government Code Section 54953(e)(3) and determining that as a result of the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference, initially ratified by the City Council on September 28, 2021, and subsequently reviewed and ratified on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, and February 8, 2022.
FISCAL IMPACT OF RECOMMENDATION
To be determined.
CURRENT SITUATION AND ITS EFFECTS
The City Council made the initial findings required under the Government Code on September 28, 2021. The Council must make the findings every thirty days in order to continue to meet exclusively through video conference or teleconference.
Pursuant to California Government Code section 8630 and Berkeley Municipal Code Chapter 2.88.040, on March 3, 2020, the City Manager, in her capacity as Director of Emergency Services, proclaimed a local emergency due to conditions of extreme peril to the safety of persons and property within the City as a consequence of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19), including a confirmed case in the City of Berkeley. As a result of multiple confirmed and presumed cases in Alameda County, the County has declared a local health emergency. On March 4, 2020, Governor Gavin Newsom issued a Proclamation of a State of Emergency due to the spread of COVID-19. On March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312.
29 On March 17, 2020, Governor Newsom signed Executive Order N-29-20, which suspended certain portions of the Ralph M. Brown Act (Cal. Gov. Code § 54950 et seq.) related to the holding of teleconferenced meetings by City legislative bodies. Among other things, Executive Order N-29-20 suspended requirements that each location from which an official accesses a teleconferenced meeting be accessible to the public.
These changes were necessary to allow teleconferencing to be used as a tool for ensuring social distancing. City legislative bodies have held public meetings via videoconference and teleconference pursuant to these provisions since March 2020.
These provisions of Executive Order N-29-20 will expire on September 30, 2021.
COVID-19 continues to pose a serious threat to public health and safety. There are now over 4,700 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley.
Additionally, the SARS-CoV-2 B.1.617.2 (“Delta”) variant of COVID-19 that is currently circulating nationally and within the City is contributing to a substantial increase in transmissibility and more severe disease.
As a result of the continued threat to public health posed by the spread of COVID-19, state and local officials continue to impose or recommend measures to promote social distancing, mask wearing and vaccination. Holding meetings of City legislative bodies in person would present imminent risks to the health and safety of the public and members of legislative bodies, and therefore public meetings cannot safely be held in person at this time
Assembly Bill 361 (Rivas), signed into law by Governor Newsom on September 16, 2021, amended a portion of the Brown Act (Government Code Section 54953) to authorize the City Council, during the state of emergency, to determine that, due to the spread of COVID-19, holding in-person public meetings would present an imminent risk to the health or safety of attendees, and therefore City legislative bodies must continue to meet via videoconference and teleconference. Assembly Bill 361 requires that the City Council must review and ratify such a determination every thirty (30) days.
Therefore, if the Council passes this resolution on March 8, 2022, the Council will need to review and ratify the resolution by April 7, 2022.
This item requests that the Council review the circumstances of the continued state of emergency posed by the spread of COVID-19, and find that the state of emergency continues to directly impact the ability of the public and members of City legislative bodies to meet safely in person, that holding public meetings of City legislative bodies in person would present imminent risks to the health and safety of attendees, and that state and local officials continue to promote social distancing, mask wearing and vaccination. This item further requests that the Council determine that City legislative bodies, including but not limited to the City Council and its committees, and all commissions and boards, shall continue to hold public meetings via videoconference and teleconference, and that City legislative bodies shall continue to comply with all provisions of the Brown Act, as amended by SB 361.
30 BACKGROUND
On March 1, 2020, Alameda County Public Health Department and Solano County Public Health Department reported two presumptive cases of COVID-19, pending confirmatory testing by the Centers for Disease Control (CDC), prompting Alameda County to declare a local health emergency.
On March 3, 2020, the City’s Director of Emergency Services proclaimed a local emergency due to the spread of COVID-19, including a confirmed case in the City of Berkeley and multiple confirmed and presumed cases in Alameda County.
On March 4, 2020, Governor Gavin Newsom issued a Proclamation of a State of Emergency due to the spread of COVID-19.
On March 10, 2020, the City Council ratified the Proclamation of Local Emergency.
Since that date, there have been over 4,700 confirmed cases of COVID-19 and at least 57 deaths in the City of Berkeley.
On March 17, 2020, Governor Newsom signed Executive Order N-29-20 which suspended certain portions of the Ralph M. Brown Act (Cal. Gov. Code § 54950 et seq.) to allow teleconferencing of public meetings to be used as a tool for ensuring social distancing. As a result, City legislative bodies have held public meetings via teleconference throughout the pandemic. The provisions of Executive Order N-29-20 allowing teleconferencing to be used as a tool for social distancing will expire on September 30, 2021.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Not applicable.
RATIONALE FOR RECOMMENDATION
The Resolution would enable the City Council and its committees, and City boards and commissions to continue to hold public meetings via videoconference and teleconference in order to continue to socially distance and limit the spread of COVID-
19. ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Farimah Brown, City Attorney, City Attorney’s Office (510) 981-6998 Mark Numainville, City Clerk, (510) 981-6908
Attachments:
1: Resolution Directing City Legislative Bodies to Continue to Meet Via Videoconference and Teleconference
31 RESOLUTION NO. –N.S.
RESOLUTION MAKING THE REQUIRED FINDINGS PURSUANT TO GOVERNMENT CODE SECTION 54953(E)(3) AND DIRECTING CITY LEGISLATIVE BODIES TO
CONTINUE TO MEET VIA VIDEOCONFERENCE AND TELECONFERENCE WHEREAS, in accordance with Berkeley Municipal Code section 2.88.040 and sections 8558(c) and 8630 of the Government Code, which authorize the proclamation of a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a City exist, the City Manager, serving as the Director of Emergency Services, beginning on March 3, 2020, did proclaim the existence of a local emergency caused by epidemic in the form of the global spread of a severe acute respiratory illness caused by a novel (new) coronavirus (“COVID-19”), including confirmed cases in California and the San Francisco Bay Area, and presumed cases in Alameda County prompting the County to declare a local health emergency; and WHEREAS, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312; and WHEREAS, on March 4, 2020, Governor Gavin Newsom issued a Proclamation of a State of Emergency pursuant to the California Emergency Services Act, in particular, Government Code section 8625; and
WHEREAS, the Proclamation of a State of Emergency issued by Governor Newsom on March 4, 2020 continues to be in effect; and
WHEREAS, on September 16, 2021, Governor Newsom signed into law AB 361, which authorizes the City Council to determine that, due to the continued threat to public health and safety posed by the spread of COVID-19, City legislative bodies shall continue to meet via videoconference and teleconference; and
WHEREAS, the City Council does find that the aforesaid conditions of extreme peril continue to exist, and now include over 4,700 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley; and
WHEREAS, the City Council recognizes that the SARS-CoV-2 B.1.617.2 (“Delta”) variant of COVID-19 that is currently circulating nationally and within the City is contributing to a substantial increase in transmissibility and more severe disease; and WHEREAS, as a result of the continued threat to public health posed by the spread of COVID-19, state and local officials continue to impose or recommend measures to promote social distancing, mask wearing and vaccination; and
32 WHEREAS, holding meetings of City legislative bodies in person would present imminent risks to the health and safety of the public and members of legislative bodies, and therefore public meetings cannot safely be held in person at this time; and WHEREAS, the City Council made the initial findings required by the Government Code on September 28, 2021; and
WHEREAS, the City Council made subsequent findings required by the Government Code on October 26, 2021, November 16, 2021, December 14, 2021, January 10, 2022, and February 8, 2022; and
WHEREAS, the City Council will need to again review the need for the continuing necessity of holding City legislative body meetings via videoconference and teleconference by April 7, 2022.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Berkeley that, pursuant to Government Code section 54953, the City Council has reviewed the circumstances of the continued state of emergency posed by the spread of COVID-19, and finds that the state of emergency continues to directly impact the ability of the public and members of City legislative bodies to meet safely in person, that holding public meetings of City legislative bodies in person would present imminent risks to the health and safety of attendees, and that state and local officials continue to promote social distancing, mask wearing and vaccination.
BE IT FURTHER RESOLVED that City legislative bodies, including but not limited to the City Council and its committees, and all commissions and boards, shall continue to hold public meetings via videoconference and teleconference.
BE IT FURTHER RESOLVED that all City legislative bodies shall comply with the requirements of Government Code section 54953(e)(2) and all applicable laws, regulations and rules when conducting public meetings pursuant to this resolution.
33 34
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Henry Oyekanmi, Director, Finance
Subject: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on March 8, 2022
RECOMMENDATION
Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.
Total estimated cost of items included in this report is $7,470,316.
CURRENT SITUATION AND ITS EFFECTS
On May, 6, 2008, Council adopted Ordinance No. 7,035-N.S. effective June 6, 2008, which increased the City Manager’s purchasing authority for services to $50,000. As a result, this required report submitted by the City Manager to Council is now for those purchases in excess of $100,000 for goods; and $200,000 for playgrounds and PROJECT Fund Source Amount
City of Berkeley, Zero
Waste Division,
Construction and
Demolition Material
Hauling and Sorting
Services
601
341 $7,470,316
Total: $7,470,316
35 Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council March 8, 2022 Approval on March 8, 2022
construction; and $50,000 for services. If Council does not object to these items being sent out for bid or proposal within one week of them appearing on the agenda, and upon final notice to proceed from the requesting department, the IFB (Invitation for Bid) or RFP (Request for Proposal) may be released to the public and notices sent to the potential bidder/respondent list.
BACKGROUND
On May 6, 2008, Council adopted Ordinance No. 7,035-N.S., amending the City Manager’s purchasing authority for services.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The Finance Department reviews all formal bid and proposal solicitations to ensure that they include provisions for compliance with the City’s environmental policies. For each contract that is subject to City Council authorization, staff will address environmental sustainability considerations in the associated staff report to City Council.
RATIONALE FOR RECOMMENDATION
Need for the services.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Darryl Sweet, General Services Manager, Finance, 510-981-7329 Attachments:
1: Formal Bid Solicitations and Request for Proposals Scheduled For Possible Issuance After Council Approval on February 8, 2022
Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.
a) City of Berkeley, Zero Waste Division, Construction and Demolition Material Hauling and Sorting Services
36 NEXT 30 DAYS
DATE SUBMITTED: March 8, 2022
Attachment 1
1 of 2
SPECIFICATI
ON NO.
DESCRIPTION
OF GOODS /
SERVICES
BEING
PURCHASED
APPROX.
RELEASE
DATE
APPROX.
BID
OPENING
DATE
INTENDED USE ESTIMATED COST BUDGET CODE TO BE
CHARGED
DEPT. /
DIVISION
CONTACT
NAME &
PHONE
22-11499-C City of Berkeley,
Zero Waste
Division,
Construction and
Demolition
Material Hauling
and Sorting
Services
3/10/2022 4/14/2022 RFP for the Construction
and Demolition (C&D)
Materials that is delivered
to the City’s Transfer
Station, which will be
loaded by City equipment
into long haul trailers
provided transfer trailers,
then hauled to an offsite
C&D sorting facility. The
offsite facility will attain a
minimum of 65% recycling
rate for all materials
delivered.
Frist 5 year term years
FY 2022 -2027
$4,943,960
Fund 601
$1.500.000
Fund 341
Optional, 5 year
FY 2028-2032
$5,970,316
Fund 601
$1,500,000
Fund 341
601-54-627-734-3023-000-
472-612990-
341-54-627-732-3025-000-
431-612990-
341-54-627-733-3026-000-
431-612990-
PW/ Zero Waste Greg Apa
981-6359
Dept TOTAL $7,470,316
DEPT. TOTAL $7,470,316
37
38 Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Director, Health, Housing, and Community Services Subject: Housing Consultant Contract Amendment (Contract # 32100126) – Anjanette Scott LLC
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to the City’s contract with Anjanette Scott LLC (contract # 32100126) to add up to $50,000 for consulting services in a total amount not to exceed $100,000, with a contract end date of June 30, 2023.
FISCAL IMPACTS OF RECOMMENDATION
The total not-to-exceed amount of this contract will be $100,000. Resources for the contract will be provided from General Fund allocated to the Housing and Community Services Division, ERMA GL Code 011-51-504-530-0000-000-444-612990, which is currently available in the Fiscal Year 2022 Budget.
CURRENT SITUATION AND ITS EFFECTS
The City has a contract with Anjanette Scott LLC to provide project management services for the Housing Trust Fund program. These services include reviewing and underwriting project proposals, drafting loan documents, managing projects under development, reviewing draw requests, and supporting other work of the Housing Trust Fund and Below Market Rate programs as needed.
The current contract with Anjanette Scott LLC expires on February 28, 2022, though the City Manager is authorized to extend the contract by giving written notice. Staff will request an extension of the current contract to June 30, 2022.
The City has a robust affordable housing pipeline, and the work required to support the existing projects exceeds the capacity of current housing staff. The Housing and Community Services Division is in the process of hiring new staff, but requires outside support; both in the interim and during the transition period while new staff are being trained.
39 Housing Consultant Contract Amendment – Anjanette Scott LLC CONSENT CALENDAR March 8, 2022
Supporting housing programs is a Strategic Plan Priority Project, advancing our goal to create affordable housing and housing support service for our most vulnerable community members.
BACKGROUND
Anjanette Scott LLC entered into the current contract with the Housing Department on February 7, 2021 to provide project management services to support the City’s affordable housing programs, particularly the Housing Trust Fund program. In response to the continued need for outside project management support, the contract was amended on August 1, 2021 to extend the contract and increase the total amount to $50,000.
The consultant has participated in construction and management meetings for Berkeley Way, reviewed project draw requests, reviewed and assessed funding applications received through the 2021 Housing Trust Fund Request for Proposals, developed the City’s Homekey Request for Proposals, drafted loan documents for Housing Trust Fund projects, and provided general project management support on housing projects as needed. The consultant has provided critical support in a time of unprecedented housing activity, and staff request extending the contract to ensure continuous support for housing programs and projects.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no environmental impacts related to amending the consultant contract.
RATIONALE FOR RECOMMENDATION
In recent years, the City has funded an unprecedented number of affordable housing projects thanks to new affordable housing funding sources. The workload required to support these projects exceeds the capacity of current staff. The City is in the process of hiring new Community Development Project Coordinators, but for continuity and in order to provide the level of project support needed, staff recommend extending and amending Anjanette Scott LLC’s contract.
ALTERNATIVE ACTIONS CONSIDERED
If the Department is unable to amend and extend the contract with Anjanette Scott LLC, staff will not be able to adequately support the affordable housing projects in the City’s pipeline.
CONTACT PERSON
Jenny Wyant, Senior Community Development Project Coordinator, HHCS, (510) 981-5228
Attachments:
1: Resolution
40 RESOLUTION NO. ##,###-N.S.
APPROVING AN AMENDMENT OF THE PERSONAL SERVICES CONTRACT WITH
ANJANETTE SCOTT LLC
WHEREAS, the City Council established a Housing Trust Fund (HTF) program to assist in the development and expansion of housing affordable to low- and moderate-income persons who either work or reside within the City of Berkeley, and authorized the City Manager to implement the HTF program; and
WHEREAS, on February 7, 2021, the Health, Housing and Community Services Department entered into a contract with Anjanette Scott LLC (contract # 32100126) to provide project management support to the City’s affordable housing programs including the HTF program and Below Market Rate program as needed; and WHEREAS, Anjanette Scott LLC continues to provide critical support to the affordable housing programs, and staff identified an ongoing need to provide coverage and support to housing developments with City funding reservations.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that City Manager is authorized to amend the personal services contract with Anjanette Scott LLC (contract # 32100126) to add up to $50,000 for a total not to exceed amount of up to $100,000, and extend the contract to June 30, 2023.
BE IT FURTHER RESOLVED the City Manager, or her designee, is hereby authorized to execute all original or amended documents or agreements to effectuate this action; a signed copy of said documents, agreements and any amendments will be kept on file in the Office of City Clerk.
41 42
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Director, Health, Housing, and Community Services Subject: Contract No. 32100082 Amendment: Resource Development Associates to Facilitate Grant Writing for the Specialized Care Unit
RECOMMENDATION
Adopt a Resolution authorizing the City Manager or her designee to amend a contract with Resource Development Associates (RDA) to add grant writing services for the Specialized Care Unit (SCU) and mental health system for a total contract limit of $245,000 for the period beginning January 1, 2021 and ending June 30, 2023. This amendment will add $60,000 in funding and one year to the contract term.
FISCAL IMPACTS OF RECOMMENDATION
The total not-to-exceed amount of this contract will be $245,000. Resources for the contract will be provided from the following fund: $60,000 in General Funds allocated to the Mental Health Division, ERMA GL Code 011-51-503-520-0000-000-451-612990, which is currently available in the Fiscal Year 2022 Budget.
CURRENT SITUATION AND ITS EFFECTS
On December 1, 2020 by Resolution No. 69,621-N.S., City Council approved Contract No. 32100082 with Resource Development Associates for SCU design. The contract amendment will fund grant writing services to support the creation and implementation of the SCU and enhance the mental health system.
BACKGROUND
The original contract with RDA was for a comprehensive feasibility study, community engagement process, best practice research, data collection, program design, and implementation plan for an SCU to respond to public safety calls that do not require presence of law enforcement. While RDA has been conducting the work for the scope in this contract, there have been opportunities to apply for grants that could support the SCU and help improve the mental health system. RDA is uniquely positioned to pursue these grants, given their detailed knowledge of the SCU project and their experience in grant development. This contract aligns with the Strategic Plan goal to champion and demonstrate social and racial equity.
43 Contract No. 32100082 Amendment CONSENT CALENDAR
March 8, 2022
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
RDA was selected as the vendor for the original contract through a competitive RFP process, and the evaluation panel for the RFP included both City Staff and community stakeholders. Given RDA’s detailed knowledge of the SCU design and experience in grant development, they are uniquely qualified to perform the grant writing services in this amendment.
ALTERNATIVE ACTIONS CONSIDERED
No alternative actions were considered.
CONTACT PERSON
Lisa Warhuus, Director of Health Housing and Community Services, (510) 981-5404 Steven Grolnic-McClurg, Manager of Mental Health Services, HHCS, (510) 981-5249 Attachments:
1: Resolution
44 RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 32100082 AMENDMENT: RESOURCE DEVELOPMENT
ASSOCIATES FOR SPECIALIZED CARE UNIT
WHEREAS, on July 14, 2020, the City Council of the City Berkeley passed a package of items providing direction for the development of a new paradigm of public safety in Berkeley that included direction to the City Manager to analyze and develop a pilot program to re-assign non-criminal police service calls to a Specialized Care Unit (SCU); and
WHEREAS, City of Berkeley community members would prefer a 24/7 mental health crisis response system that does not so heavily involve law enforcement; and WHEREAS, Resource Development Associates will conduct a comprehensive feasibility study, program design and implementation plan for an SCU to respond to public safety calls that do not require presence of law enforcement; and WHEREAS, Resource Development Associates’ services align with the Strategic Plan goal to champion and demonstrate social and racial equity; and WHEREAS, Resource Development Associates was selected through a competitive Request for Proposals process; and
WHEREAS, on December 1, 2020 by Resolution No. 69,621-N.S. City Council approved Contract No. 32100082 with Resource Development Associates for SCU design; and WHEREAS, this amendment will fund grant writing services to support the creation and implementation of the SCU framework designed by RDA and enhancement of the mental health system; and
WHEREAS, funds are currently available in the Fiscal Year 2022 Budget.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is hereby authorized to amend the existing contract with Resource Development Associates (RDA) by adding $60,000 to facilitate grant writing services for the Specialized Care Unit (SCU) for a total contract limit of $245,000 for the period beginning January 1, 2021 and ending June 30, 2023. A record signature copy of the contract and any amendments between the City and RDA shall be on file in the Office of the City Clerk.
45 46
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Michael Sinor, Interim Director, Information Technology Subject: Contract No. 319001221-1 Amendment: Rolling Orange, Inc. for Additional Website Redesign Services
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 319001221-1 with Rolling Orange, Inc. for the additional website redesign services, for an amount not-to-exceed $10,000 and a total contract value not-to-exceed $569,300 from March 1, 2019 to June 30, 2024.
FISCAL IMPACTS OF RECOMMENDATION
Funding for the additional professional services is available in the Fiscal Year (FY) 2022 and 2023 IT Cost Allocation fund as outlined below. Spending in future years for this amendment is subject to Council approval of the proposed citywide budget and annual appropriation ordinances.
$1,750 FY 2022: Professional Services
Budget Code: 680-35-363-384-6005-000-472-612990-
(IT Cost Allocation, Business Applications, Professional Services) $8,250 FY 2023: Professional Services
Budget Code: 680-35-363-384-6005-000-472-612990-
(IT Cost Allocation, Business Applications, Professional Services) $10,000 FY 2022 and FY 2023: Total Professional Services
CURRENT SITUATION AND ITS EFFECTS
The City began working with Rolling Orange, Inc. to develop a new city website in March 2019. The project includes the development of a new information architecture, new look and feel, mobile-responsive design, and build-out of the new website in the Drupal content management system.
The City’s website hosts four custom-built tools that are highly used by community members – a Building Permit Fee estimator, Council District lookup tool by address, Rent Board Stabilization Annual General Adjustment (AGA) calculator, and Rent Board
47 Contract No. 319001221-1 Amendment: CONSENT CALENDAR Rolling Orange, Inc. for Additional Website Redesign Services March 8, 2022
Stabilization Security deposit interest calculator. These applications were determined to be essential features of the website, but the existing code is incompatible with the new software and hosting environment. These tools will be rebuilt and integrated into the new website.
Annual General Adjustment (AGA) Calculator: Each year the Berkeley Rent Board passes an Annual General Adjustment (AGA) which allows landlords to raise the rents for all rental units fully covered by the Berkeley Rent Ordinance for which the landlord did not establish an initial rent during the prior calendar year. The AGA calculator is a tool for the landlords to use in determining the maximum rent amount for their rental units.
Security Deposit Interest Calculator: The Berkeley Rent Stabilization Ordinance requires landlords to pay tenants interest on their security deposits while being held by the landlord. Landlords must use the "Berkeley Bank Rate" when calculating the amount of security deposit interest to return to tenants. The Security Deposit Interest calculator is a tool for the landlords to use in determining the amount of interest to be paid to the tenant.
The website redesign is a Strategic Plan Priority Project, advancing our goal to be a customer-focused organization that provides excellent, timely, easily accessible service and information to the community.
BACKGROUND
Rolling Orange, Inc was selected to develop a new website for the City of Berkeley after a competitive bidding process. In February 2018, the City published Request for Proposal (RFP) No. 17-1118-C seeking a website redesign and new web content management system with secure, high-performance offsite hosting.
The City received twenty-five (25) responses. A multi-departmental team evaluated the proposals and conducted two rounds of interviews and software demonstrations. Rolling Orange was selected for the project after receiving the highest scores from both the evaluation team and other stakeholders who were invited to attend the demonstrations.
The City began work with Rolling Orange in March 2019. Working closely with City staff to assess technical and user needs, Rolling Orange has developed new posting templates, workflows, navigation structures and underlying technical architecture, and has completed end-user testing on a prototype version of the new website.
The new website will use secure, off-site hosting, allowing the City to retire the server that currently hosts the website. This necessitates the replacement of several legacy applications which had been custom built in-house and are currently maintained and support by Information Technology staff.
48 Contract No. 319001221-1 Amendment: CONSENT CALENDAR Rolling Orange, Inc. for Additional Website Redesign Services March 8, 2022
During technical discovery and template development with Rolling Orange, several additional needs were identified and addressed in previous amendments: replacement of self-hosted custom applications, system integration for 311 intake forms, implementation of portals for Rent Stabilization Board and Berkeley Housing Authority, additional template and guided service delivery tool development, and additional applications for the Rent Stabilization Board webpage. Work on these items have started and are in various stages of completion.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The improvements in website ease-of-use and availability of online transactions will help reduce travel associated with on-site visits to City offices. The improved functionality of the new software will increase efficiency of internal processes thus reducing paper-based processes resulting in an environmentally sound and cost-effective information technology infrastructure.
Additionally, moving the website from onsite to offsite hosting will reduce the City’s server and storage computing needs as well as ongoing maintenance needed to maintain the equipment. It will also provide redundancy in case of a disaster such as earthquake, etc.
RATIONALE FOR RECOMMENDATION
The replacement of existing custom applications and integration into the new website will reduce maintenance and support needed from Information Technology staff and improve the new website’s utility and ease-of-use for community members.
ALTERNATIVE ACTIONS CONSIDERED
Alternative actions considered included not including this functionality on the new website, however this option is not practical. Online issue reporting and easier online transactions are highly desired by community members and are part of the City’s Strategic Plan.
CONTACT PERSON
Michael Sinor, Interim Director, Information Technology, 510-981-6541 Attachments:
1: Resolution
49 Internal
RESOLUTION NO. ##,###-N.S.
CONTRACT NO. 319001221-1 AMENDMENT: ROLLING ORANGE, INC. FOR
WEBSITE REDESIGN, WEB CONTENT MANAGEMENT SYSTEM (CMS), AND
SUPPORT
WHEREAS, on February 27, 2018, the City issued a Request for Proposals (RFP) for a website redesign and web content management system and received twenty-five qualifying vendor responses; and
WHEREAS, the RFP evaluation committee evaluated each proposal and determined that the Rolling Orange, Inc. proposal best met the City’s operational, technological, and fiscal requirements; and
WHEREAS, additional technical discovery after the commencement of work with Rolling Orange identified additional functional needs for the new website, including the replacement and integration of several custom-built applications and enhanced online 311 reporting; and
WHEREAS, funding for the additional development services is available in Fiscal Year (FY) 2022 and 2023 IT Cost Allocation Fund, and spending in future years for this amendment is subject to Council approval of the proposed citywide budget and annual appropriation ordinances.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to amend Contract No. 319001221-1 with Rolling Orange, Inc. for website redesign and web content management system, increasing the amount by $10,000, for a total contract amount not to exceed $569,300 from March 1, 2019 to June 30, 2024.
50 Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.cityofberkeley.info/manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks, Recreation & Waterfront Subject: Measure T1 Contract: Western Water Features Inc. for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster, Tile, and Filter Replacement
RECOMMENDATION
Adopt a Resolution:
1. Approving the plans and specifications for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project, Specification No. 22-11489-C;
2. Accepting the bid of the lowest responsive and responsible bidder, Western Water Features, Inc.; and
3. Authorizing the City Manager to execute a contract and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specifications, with Western Water Features, Inc. for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project in an amount not to exceed $1,010,000, which includes a contract amount of $989,449 and a 10% contingency in the amount of $20,551.
FISCAL IMPACTS OF RECOMMENDATION
Funding for this construction project contract in the amount of $1,010,000 is comprised of $350,000 of Measure T1 Phase 2 funds and $660,000 of City General Fund.
King Pool Tile and Plaster – PRWT122011
Measure T1 Phase 2
511-52-545-000-0000-000-461-663110-……………………….…………$350,000 General Fund
011-52-545-000-0000-000-461-663110-……………………….……….….$88,275 West Campus Pool Tile, Plaster, and Filter Replacement- PRWPK22005 General Fund
011-52-545-000-0000-000-461-663110-………………………...…….….$571,725
51 Contract: Western Water Features Inc. - repairs at King & West Campus Pools Consent Calendar March 8, 2022
Total ……………………………………………………………...…….….$1,010,000
CURRENT SITUATION AND ITS EFFECTS
On December 15, 2020, City Council approved phase 2 projects for the Measure T1 Infrastructure Bond that was passed by voters by an 86.5% margin on November 3, 2016. Phase 2 included an allocation of $350,000 to complete the work at King Pool.
The remaining $88,275 needed for King Pool is funded from General Fund. The West Campus Pool is not eligible for T1 funds because of the limited length of the 5-year agreement for the use of the pool. Therefore, the work at West Campus Pool is funded by $571,725 of General Fund.
Specification # No 22-11489C was competitively bid out in early January 2022. On January 27, 2022 the City received 2 bids for the specified work from Tricon Construction. Inc. and Western Water Features Inc., who was determined to be the lowest responsive and responsible bidder. Staff recommends council approval of a contract with the Western Water Features Inc. for construction services at King and West Campus Pools.
BACKGROUND
The City currently operates two year-round public pools, King and West Campus. West Campus pool was built in 1964 and King pool in 1965. Both pools are owned by the Berkeley Unified School District (BUSD) and operated by the City via an MOU, the most recent version of which was approved by City Council in December of 2020.
Agreements for pools use and maintenance between the BUSD and the City have been in place since these pools were constructed. Per the current agreement, the City is responsible for the maintenance and upkeep of all pool and pool building infrastructure.
In the past 12 years, the City has performed the following major maintenance projects:
2009 Replacement of King Pool plaster, coping stones, tile and VGB Compliance.
2010 Replacement of West Campus pool plaster, coping stones, tile and VGB Compliance.
2013 King Pool Pumps and Filters replaced/ 1 West Campus filter replaced with used filter from Willard.
2017 King Pool Boiler Replaced.
2018 West Campus Pool Boiler Replaced.
Municipal pool plaster and tile life expectancy is between 7-10 years. It has been 13 years since King Pool and 12 years since West Campus pool have received this maintenance work. Additionally, the West Campus pool filters have not been replaced since the mid-1990’s and are in-need of complete replacement. All of this work will be accomplished with the completion of this contract.
52 Contract: Western Water Features Inc. - repairs at King & West Campus Pools Consent Calendar March 8, 2022
ENVIRONMENTAL SUSTAINABILITY
This promotes environmental sustainability and meets the Strategic Plan Goal 1 to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.
RATIONALE FOR RECOMMENDATION
Western Water Features, Inc. is highly qualified and responsive. They have successfully worked for the City of Berkeley and many other local municipalities.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Scott Ferris, Director, Parks, Recreation & Waterfront, 981-6700 Attachment:
1: Resolution
2: Bid Abstract
53 RESOLUTION NO.: ##,###-N.S.
MEASURE T1 CONTRACT: WESTERN WATER FEATURES INC. FOR THE KING
POOL PLASTER AND TILE REPLACEMENT AND WEST CAMPUS POOL PLASTER,
TILE, AND FILTER REPLACEMENT
WHEREAS, the City currently operates two year-round public pools, King and West Campus. West Campus pool was built in 1964 and King pool in 1965. Both pools are owned by the Berkeley Unified School District (BUSD) and operated by the City via an MOU. Per the current agreement, the City is responsible for the maintenance and upkeep of all pool and pool building infrastructure
; and
WHEREAS, the life expectancy of municipal pool plaster and tile is between 7-10 years. It has been 13 years since King Pool and 12 years since West Campus pool have received this maintenance work. Additionally, the West Campus pool filters have not been replaced since the mid-1990’s and are in-need of complete replacement; and WHEREAS, on December 15, 2020, City Council approved phase 2 projects for the Measure T1 Infrastructure Bond program, which
allocated of $350,000 to complete
the work at King Pool. The remaining $88,275 needed for King Pool is funded from General Fund. The West Campus Pool is not eligible for T1 funds because of the limited length of the 5-year agreement for the use of the pool. Therefore, the work at West Campus Pool is funded by $571,725 of General Fund; and WHEREAS, Specification # No 22-11489C was competitively bid out in early January 2022. On January 27, 2022 the City received 2 bids for the specified work:
Tricon Construction. Inc. and Western Water Features Inc. Western Water Features, Inc. was determined to be the lowest responsive and responsible bidder.
Staff recommends council approval of a contract with the Western Water Features Inc. for construction services at King and West Campus Pools.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project, Specification No. 22-11489-C are approved; and
BE IT FURTHER RESOLVED that the construction contract is awarded to the Western Water Features, Inc.as the lowest responsive and responsible bidder; and BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specifications, with Western Water Features, Inc. for the King Pool Plaster and Tile Replacement and West Campus Pool Plaster and Tile Replacement and Filter Replacement Project in an amount not to exceed $1,010,000, which includes a contract amount of $989,449 and a 10% contingency in the amount of $20,551. A record signature copy of the agreement and any amendments to be on file in the Office of the City Clerk.
54 City of Berkeley
Abstract of Bid Worksheet
Finance Department
General Services Division
Spec. # Bid Date:
FOR: King Pool Plaster and Tile Project 22-11489-C
Bidders Base Bid Bid
Bond Addenda (1) Reg.&
Exp Subs Non-
Coll. Certs.
1 Tri Con Construction $1,335,930 x x x x x x
2 Western Water Features, Inc. $989,449 x x x x x x
3 4
5 6
7 8
9 10
Bid Recorder: ______________________________ Darryl Sweet Bid Opener: _______________________________ Josh Roben Project Manager: ________ Justin Pitcher
1/27/2022
required w/ bid
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7320 TDD: 510.981.6903 [email protected]
Attachment 2 - Bid Abstract
55 56
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Amendment to Contract No. 32000219 with Lind Marine - Removal of Derelict and Abandoned Vessels at the Berkeley Marina
RECOMMENDATION
Adopt a resolution authorizing the City Manager to amend Contract No. 32000219 with Lind Marine to remove derelict and abandoned vessels at the Berkeley Marina by increasing the contract amount by $42,000; and authorizing additional contingency of $4,200 for a contract total not-to-exceed amount of $188,400; and contingency of $47,000; and extend the contract to September 30, 2023.
FISCAL IMPACTS OF RECOMMENDATION
In 2021, the Parks, Recreation, and Waterfront Department received a third SAVE grant in the amount of $42,000 from the California Division of Boating and Waterways (DBW) that requires a local match of 10% ($4,200) (Resolution No. 69,876-N.S. on May 25, 2021). These grant funds will be deposited into account code 607-52-544-592-0000-000- 472-612990- PRWWF22005, and the local match has been budgeted in the Marina Fund account code 608-52-544-592-0000-000-472-612990- PRWWF22005. These funds, totaling $46,200, will be appropriated as part of the second amendment to the FY2022 annual appropriations ordinance.
Contract Contingency Total
Current Amount $146,400 $42,800 $189,200
Proposed Amendment $42,000 $ 4,200 $46,200
Total $188,400 $47,000 $235,400
CURRENT SITUATION AND ITS EFFECTS
In 2021, the City received a third SAVE grant from the California Division of Boating and Waterways in the amount of $42,000 to remove derelict and abandoned vessels at the Berkeley Marina. A second contract amendment with Lind Marine is required in order to perform the vessel removal services funded by the grant. This new round of funding will enable us to keep our docks clear of derelict vessels in the coming year, and build upon
57 Amend Contract No. 32000219: Lind Marine - Removal of Abandoned Vessels CONSENT CALENDAR March 08, 2022
2 the progress we made in removing twenty-five (25) derelict vessels since receiving the 2019 SAVE Grant.
The current contract with Lind Marine will be extended to September 30th 2023. Along with the contract total not-to-exceed amount of $188,400, $47,000 will act as a contingency to cover future abandoned vessel removals and unforeseen circumstances and that may arise between now and the expiration of the SAVE 2021 grant in September 30, 2023.
BACKGROUND
Each year, approximately five to ten vessels get abandoned by their owners at the Berkeley Marina because they lack funds to repair the vessels or they lack funds to pay for their dockage fees. Due to the age and neglect of the vessels, they have no value, are not sea-worthy, and are likely to sink. These vessels occupy slips in the Berkeley Marina that could otherwise be used to generate dockage revenue for the City, and these vessels are a visual blight on our Marina and harm our reputation.
Responsibility for derelict and abandoned vessels, unfortunately, often falls on public agencies. For the past 20 years, the Division of Boating and Waterways has provided grant funding assistance to public agencies to properly remove, store, and dispose of abandoned, wrecked, or dismantled vessels or any other partially submerged objects that pose a substantial hazard to navigation, from navigable waterways or adjacent public property, or private property with the landowner’s consent.
In 2019, the Parks, Recreation, and Waterfront Department received a grant in the amount of $130,000 from the California Division of Boating and Waterways (DBW) to remove abandoned vessels that required a local match of 10% ($13,000) (Resolution No. 68,791-N.S.) On March 26, 2019, the City conducted a competitive Request For Proposal (RFP) process and Lind Marine was selected to perform these services.
In 2020, the City received a second SAVE grant in the amount of $42,000, which was added to the Lind contract as amendment number 1 (Resolution No. 69,349-N.S.) In 2021, the City received a third SAVE grant in the amount of $42,000. In order to add this funding to the Lind contract to complete the work, a second contract amendment is needed.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Derelict, abandoned, and sunken vessels pose a navigational and environmental hazard to the Bay waters at the Berkeley Marina. Removal and proper disposal of these vessels contributes to the improvement of water quality of the waters of the Bay.
RATIONALE FOR RECOMMENDATION
The Parks, Recreation, and Waterfront Department has the primary responsibility for removing derelict and abandoned vessels from local waters. The contract amendment
58 Amend Contract No. 32000219: Lind Marine - Removal of Abandoned Vessels CONSENT CALENDAR March 08, 2022
3 will allow the City to continue to safely remove these potential environmental and navigational hazards from the Berkeley Marina.
CONTACT PERSON
Alexandra Endress, Waterfront Manager, 981-6737
Sean Crothers, Waterfront Supervisor, 981-6744
Attachments:
1. Resolution
59 RESOLUTION NO. ##,###-N.S.
AMENDMENT TO CONTRACT 32000219: LIND MARINE, INC. FOR REMOVAL OF
ABANDONED VESSELS AT THE BERKELEY MARINA
WHEREAS, each year, approximately five to ten vessels get abandoned by their owners at the Berkeley Marina because they lack funds to repair the vessels or they lack funds to pay for their dockage fees. Due to the age and neglect of the vessels, they have no value, are not sea-worthy, and are likely to sink. These vessels occupy slips in the Berkeley Marina that could otherwise be used to generate dockage revenue for the City, and these vessels are a visual blight on our Marina and harm our reputation; and WHEREAS, responsibility for abandoned vessels, unfortunately, often falls on public agencies. For the past 20 years, the Division of Boating and Waterways has provided grants to public agencies, including the City of Berkeley, to remove, store, and dispose of abandoned, wrecked, or dismantled water vessels or any other partially submerged objects that pose a substantial hazard to navigation, from navigable waterways or adjacent public property, or private property with the landowner's consent; and WHEREAS, the Parks, Recreation and Waterfront Department has the primary responsibility for removing derelict and abandoned vessels from local waters. By applying for SAVE grants, the City is able to substantially leverage our existing funding for these projects, and safely remove potential environmental and navigational hazards from our waters; and
WHEREAS, In 2021, the Parks, Recreation, and Waterfront Department received a third SAVE grant in the amount of $42,000 from the California Division of Boating and Waterways (DBW) that requires a local match of 10% ($4,200) (Resolution No. 69,876- N.S. on May 25, 2021). Grant funds will be deposited into account code 607-52-544-592- 0000-000-472-612990-PRWWF22005, and the local match has been budgeted in the Marina Fund account code 608-52-544-592-0000-000-472-612990- PRWWF22005.
These funds, totaling $46,200, will be appropriated as part of the second amendment to the FY2022 annual appropriations ordinance; and
WHEREAS, in February of 2019, the City conducted a competitive RFP process to obtain services for this project, and received four proposals on April 2, 2019. The bid of Lind Marine was determined to best meet the requirements as set out in the RFP.
WHEREAS, on April 14, 2021, the City Council authorized an amendment to the contract increasing the amount by $42,000, in addition to $4,200 in contingency to fund the removal of additional abandoned vessels at the Berkeley Marina, for an amount not to exceed $189,200; and
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is hereby authorized to amend contract no. 32000219 with Lind Marine to remove and dispose derelict and abandoned vessels at the Berkeley Marina by increasing the contract amount by $42,000; and authorizing additional
60 contingency of $4,200 for a total not-to-exceed contract amount of $188,400; and a total authorized contingency of $47,000. As well as extend the contract to September 30, 2023 to coincide with the expiration of the SAVE 2021 grant agreement on September 30, 2023. A record signature copy of said contract will be on file in the Office of the City Clerk.
61 62
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/manager
CONSENT CALENDAR
March 8, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks, Recreation & Waterfront Subject: Lease Agreement with NFS Unlimited, LLC for Skates-on-the-Bay
RECOMMENDATION
Adopt first reading of an Ordinance authorizing the City Manager to execute the attached ground lease with NFS Unlimited, LLC, the owner/lessee of Skates-on-the-Bay at the Berkeley Waterfront for a 10-year term with 2 additional options to extend for 5 years each, effective from May 1, 2022.
FISCAL IMPACTS OF THE RECOMMENDATION
The City’s total annual rent received is expected to be similar to or higher than current levels. The existing lease, which is in holdover status, requires base rent of $24,000/month ($288,000/year). In the proposed lease, the base rent will be $24,000/month, and will add a percentage rent of 3.5% of gross revenue above $1.5 million. In exchange for capital improvements, including to the roof and adjacent parking lot, the tenant will receive up to $100,000/year credit against annual rent during the initial term only. Base rent will escalate every 5 years by the lesser of 10% or 4 x the CPI increase over the prior 5 years. The lease includes 2 options to extend for an addition 5-year period each; if exercised, monthly rent will increase by the lesser of 10% or 4 x the CPI increase over the prior 5 years. Lease revenue will be deposited in the Marina Fund Budget Code 608-52-544-592-0000-000-000-461120.
Based on pre-Covid gross revenue of $8.3M/year, this would result in a total rent payment of $426,000/year. At peak pandemic revenue levels of $1.75M/year, total rent would fall to $195,000/year.
In addition, the new lease provides a delayed rent payment agreement for the tenant to repay $313,000 in deferred rent during the Covid pandemic. This will be paid in 10 equal annual payments of $31,300, and will not be eligible for any credits. No interest will be charged on this amount, consistent with the terms of the Covid-19 Emergency Response Ordinance, (Ordinance 7,743-N.S.)
63 Lease Agreement for 100 Seawall Drive CONSENT CALENDAR NFS Unlimited, LLC for Skates-on-the-Bay March 8, 2022
Funds for annual rent and delayed rent repayment will be deposited into the Marina Fund revenue account: 608-52-544-592-0000-000-000-461120-.
CURRENT SITUATION AND ITS EFFECTS
The City’s lease for Skates-on-the-Bay, a Waterfront restaurant just north of the Berkeley Pier, has been in holdover status since January 1, 2019, as new lease terms are negotiated. The restaurant was constructed in 1967 by the original tenant, Manning’s Inc. under a 50-year ground lease. Since 2019, Skates has been under the ownership of Landry’s Inc., doing business as NFS Unlimited, Inc.
This proposed lease continues the existing restaurant as Skates-on-the-Bay, and provides a 10-year base term, with an additional 10-year option period.
The premises will continue to include the approx. 12,000 square foot restaurant building and pilings, driveway, median, garbage area and surrounding landscaping. The restaurant has non-exclusive use and maintenance responsibilities for the adjacent parking lot.
As described above, the rent includes base rent of $24,000/mo (or $288,000/year); percentage rent of 3.5% of gross sales over $1.5M; and up to $100,000/year in rent credit during the original lease term for approved capital expenditures including but not limited to replacement of the roof and renovation of the adjacent parking lot. The lease also includes a delayed rent repayment agreement by which the $313,000 in unpaid rent during the Covid pandemic will be repaid in 10 equal annual installments.
The building is located on State tidelands held in trust by the City of Berkeley for the promotion of commerce, navigation, and fisheries ("public trust uses"). Restaurants are considered “public trust uses” of State tidelands.
BACKGROUND
The City entered into a 50-year ground lease with prior owner of Skates-on-the-Bay, Mannings, Inc. on March 23, 1967 (Ord. 4247-N.S.). This initial agreement was amended on May 18, 1967; July 6, 1967; May 7, 1974 (Ord. 4697-N.S.); June 6, 1974; February 14, 1978 (Ord. 5027-N.S.); and September 24, 1996 (Ord. 6341-N.S.) Council most recently amended the lease on March 13, 2018, in an action that extended the lease term to December 31, 2018 and added a holdover clause (Ord. 7591-N.S.) In July 2019, Skates-on-the-Bay transferred ownership to Landry’s, Inc., doing business as NFS Unlimited, LLC.
Council reviewed the proposed lease terms in closed session meetings on December 10, 2019 and November 16, 2021.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Lease revenue generated at the Waterfront is required to be reinvested into the public trust lands overseen by the City, and supports the City’s environmental/ecological educational programming at the Shorebird Park Nature Center, habitat maintenance at
64 Lease Agreement for 100 Seawall Drive CONSENT CALENDAR NFS Unlimited, LLC for Skates-on-the-Bay March 8, 2022
Cesar Chavez Park, and capital projects at the Waterfront.
RATIONALE FOR RECOMMENDATION
The revenue generated by this lease will help restore revenue for the Marina Fund, which depends on berth and lease revenue to support all Waterfront operations.
CONTACT PERSON
Scott Ferris, Director, Parks, Recreation & Waterfront, 981-6700 Christina Erickson, Deputy Director, Parks, Recreation & Waterfront, 981-6703 Alexandra Endress, Waterfront Manager, Parks, Recreation & Waterfront, 981-6737 Attachments:
1. Ordinance
2. Exhibit A: Lease Agreement
65 ORDINANCE NO. –N.S.
LEASE AGREEMENT WITH NFS UNLIMITED, LLC FOR SKATES-ON-THE-BAY BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The City Manager is hereby authorized to execute a ten-year ground lease agreement and any amendments with NFS Unlimited, LLC for the Skates-on-the-Bay restaurant and premises at the Berkeley Waterfront. Such lease shall be on substantially the terms set forth in Exhibit A.
Section 2. The base rent will be $24,000/month, and will add a percentage rent of 3.5% of gross revenue above $1.5 million. In exchange for capital improvements, including to the roof and adjacent parking lot, the tenant will receive up to $100,000/year credit against annual rent during the initial term only. Base rent will escalate every 5 years by the lesser of 10% or 4 x the CPI increase over the prior 5 years. The lease includes 2 options to extend for an addition 5-year period each; if exercised, monthly rent will increase by the lesser of 10% or 4 x the CPI increase over the prior 5 years. Lease revenue will be deposited in the Marina Fund Budget Code 608-52-544-592-0000-000-000-461120. In addition, the new lease provides a delayed rent payment agreement for the tenant to repay $313,000 in deferred rent during the Covid pandemic. This will be paid in 10 equal annual payments of $31,300, and will not be eligible for any credits. No interest will be charged on this amount, consistent with the terms of the Covid-19 Emergency Response Ordinance, (Ordinance 7,743-N.S.)
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
Exhibit A:
Lease Agreement
66 OAK #4844-1773-7306 v3
GROUND LEASE
by and between
CITY OF BERKELEY
(“Landlord”)
and
NFS UNLIMITED, LLC
(“Tenant”)
Doing Business As (DBA) Skates on the Bay
Dated ___________________, 2022
67 TABLE OF CONTENTS
(Ground Lease)
Page
i
ARTICLE 1. PROPERTY AND BACKGROUND ..........................................................................1
1.1 Overview ..............................................................................................................1
1.2 Ground Lease ......................................................................................................1 ARTICLE 2. TERM .......................................................................................................................1
2.1 Term .....................................................................................................................1
2.2 Options to Extend. ............................................................................................1 ARTICLE 3. RENT AND SECURITY............................................................................................2
3.1 Rent ......................................................................................................................2
3.2 Annual Rent .........................................................................................................2
3.3 Payment of Annual Rent. ...................................................................................2
3.4 Base Rent Adjustments .....................................................................................2
3.6 Gross Receipts ...................................................................................................3
3.7 Late Charge .........................................................................................................6
3.8 Application of Payments ....................................................................................6
3.9 Payment of Deferred Rent. ................................................................................6 ARTICLE 4. TAXES AND ASSESSMENTS.................................................................................6
4.1 Personal Property Taxes ....................................................................................6
4.2 Statement Regarding Possessory Interest Tax ...............................................6
4.3 Real Property Taxes ...........................................................................................7
4.4 Assessments .......................................................................................................7
4.5 Tenant’s Tax Liability Prorated .........................................................................7
4.6 Real Property Tax Contest .................................................................................7 ARTICLE 5. USE, CHARACTER, OPERATION AND MAINTENANCE COVENANTS ...............8
5.1 General ................................................................................................................8
5.2 Use Obligations...................................................................................................8
5.3 General Use Prohibitions ...................................................................................8
5.4 Non-Discrimination .............................................................................................9
5.5 General Standards of Maintenance .................................................................10
5.6 Parking Lot ........................................................................................................10
5.7 Governmental Requirements ...........................................................................11
5.8 Landlord Access Rights ...................................................................................11
5.9 Use of Berkeley Waterfront Property; Public Trust. ......................................11
5.10 Public Trust Tidelands Requirements. ...........................................................12
5.11 Landlord’s Status as a Landowner .................................................................13
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ii
5.12 Regulatory Approvals Generally .....................................................................13
5.13 Covenants Regarding Improvements .............................................................13 ARTICLE 6. CONDITION OF PROPERTY ................................................................................14
6.1 Landlord’s Disclaimers and Tenant’s Acknowledgements ..........................14
6.2 Hazardous Materials .........................................................................................15 ARTICLE 7. CONSTRUCTION AND LIENS ..............................................................................16
7.1 Improvements ...................................................................................................16
7.2 Alterations on Premises, Facility, or Non-Exclusive Use Areas ..................16
7.3 Construction Standards ...................................................................................17
7.4 Protection of Landlord .....................................................................................18
7.5 Liens and Stop Notices ....................................................................................19
7.6 Notice .................................................................................................................19 ARTICLE 8. OWNERSHIP OF IMPROVEMENTS AND PERSONAL PROPERTY...................19
8.1 Ownership of Facility During Term .................................................................19
8.2 Ownership of Improvements at Termination or Expiration ..........................19
8.3 Removal and Ownership of Personal Property at Termination or Expiration ..........................................................................................................20 ARTICLE 9. UTILITIES ..............................................................................................................20 ARTICLE 10. INSURANCE AND INDEMNITY...........................................................................20
10.1 General Insurance Requirements ...................................................................20
10.2 Indemnity ...........................................................................................................22 ARTICLE 11. DAMAGE OR DESTRUCTION ............................................................................22
11.1 Restoration........................................................................................................22
11.2 Right to Terminate Upon Destruction Near the End of the Term .................24
11.3 Waiver ................................................................................................................24
11.4 Determination of Extent of Destruction, Interference with Use ...................25
11.5 Procedures for Repair and Restoration ..........................................................25 ARTICLE 12. CONDEMNATION................................................................................................25
12.1 Definitions. ........................................................................................................25
12.2 Parties’ Rights and Obligations to be Governed by Ground Lease .............25
12.3 Total Taking .......................................................................................................25
12.4 Effect of Partial Taking .....................................................................................25
12.5 Restoration of Facility ......................................................................................26
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iii
12.6 Waiver of CCP Section 1265.130 .....................................................................26
12.7 Award .................................................................................................................26 ARTICLE 13. BRAND QUALITY, ASSIGNMENT AND SUBLETTING ......................................27
13.1 Brand Name and Quality. .................................................................................27
13.2 Assignment. ......................................................................................................27
13.3 Subleases ..........................................................................................................28 ARTICLE 14. TENANT DEFAULTS AND LANDLORD’S REMEDIES.......................................28
14.1 Defaults by Tenant ............................................................................................28
14.2 Remedies ...........................................................................................................29
14.3 Damages ............................................................................................................30
14.4 Landlord’s Right to Cure Tenant’s Default .....................................................30 ARTICLE 15. MORTGAGEE PROTECTION PROVISIONS......................................................31
15.1 Ground Leasehold Mortgage Authorized .......................................................31
15.2 Notice to Landlord ............................................................................................31
15.3 Definitions .........................................................................................................31
15.4 Consent of Ground Leasehold Mortgagee Required .....................................31
15.5 Notice to Ground Leasehold Mortgagee .........................................................32
15.6 Ground Leasehold Mortgagee Foreclosure ...................................................32
15.7 Purchaser at Foreclosure ................................................................................33
15.8 Ground Leasehold Mortgagee’s Right to Sell ................................................33
15.9 Holder Not Obligated to Construct Improvements ........................................33
15.10 Right of Landlord to Cure Ground Leasehold Mortgage Default .................34 ARTICLE 16. MISCELLANEOUS...............................................................................................34
16.1 Holding Over .....................................................................................................34
16.2 Attorneys’ Fees .................................................................................................34
16.3 Quiet Possession ..............................................................................................34
16.4 Force Majeure ...................................................................................................34
16.6 Notices ...............................................................................................................35
16.7 Waiver ................................................................................................................35
16.8 Surrender ...........................................................................................................35
16.9 Binding ...............................................................................................................35
16.10 Landlord’s Right to Enter Premises and Facility ...........................................35
16.11 Disclaimer of Partnership ................................................................................36
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iv
16.12 Memorandum ....................................................................................................36
16.13 Quitclaim ...........................................................................................................36
16.14 Interpretation .....................................................................................................36
16.15 Severability ........................................................................................................36
16.16 Computation of Time ........................................................................................37
16.17 Legal Advice ......................................................................................................37
16.18 Time of Essence ...............................................................................................37
16.19 Nonliability of Landlord’s Officials and Employees ......................................37
16.20 Assignment by Landlord ..................................................................................37
16.21 Applicable Law ..................................................................................................37
16.22 Agent for Service of Process ...........................................................................37
16.23 Covenants and Conditions ..............................................................................38
16.24 Integration .........................................................................................................38
16.25 Estoppel Certificates ........................................................................................38
16.26 Amendments to this Ground Lease ................................................................38
16.27 Brokerage Commissions .................................................................................38
16.28 City Non-Discrimination Ordinance ................................................................39
16.29 Non-Discrimination Against Persons With Disabilities. ...............................39
16.30 Conflict of Interest Prohibited. ........................................................................39
16.31 Nuclear Free Berkeley ......................................................................................40
16.32 Required Accessibility Disclosure. .................................................................40
16.33 Oppressive States. ...........................................................................................40
16.34 Berkeley Living Wage Ordinance (LWO). .......................................................41
16.35 Berkeley Equal Benefits Ordinance (EBO). ....................................................41
16.36 Berkeley Marina Zone Worker Retention Ordinance .....................................42
16.37 Pests and Pesticide Management. ..................................................................42
16.38 Berkeley Sanctuary City Ordinance ................................................................42
16.39 Audit ...................................................................................................................43
16.40 City Business License, Payment of Taxes, Tax I.D. Number ........................43
16.41 Survival ..............................................................................................................43
71 TABLE OF CONTENTS
(Ground Lease)
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LIST OF EXHIBITS
Exhibit A Site Map
Exhibit B Memorandum of Ground Lease
Exhibit C Improvements
72 BASIC LEASE INFORMATION
(Ground Lease)
OAK #4844-1773-7306 v3 1
1. “Landlord” CITY OF BERKELEY, a public body corporate and politic Notice Address:
City of Berkeley
2180 Milvia Street
Berkeley, California 94704
Attention: City Manager
Telephone: (510) 981-7000
Facsimile: (510) 981-7099
With a copy to:
City of Berkeley
2180 Milvia Street
Berkeley, California 94704
Attention: City Attorney
Telephone: (510) 981-6991
Facsimile: (510) 981-6960
2. “Tenant” NFS UNLIMITED, LLC, a Texas limited liability company Notice Address:
NFS Unlimited, LLC
1510 West Loop South
Houston, TX 77027
Attention: General Counsel
Telephone: (713) 386-7002
Email: [email protected]; [email protected]
With a copy to:
NFS Unlimited, LLC
1510 West Loop South
Houston, TX 77027
Attention: Rodney Lerner, VP - Real Estate
Telephone: (713) 386-7082
Email: [email protected]
3. “Effective Date” The later of (i) the date of last execution and (ii) the date that is 30 days after the Landlord’s City Council’s adoption of the Ordinance by which this Ground Lease is approved.
4. “Premises” and “Facility” The “Premises” are the approximately 0.77 acre area of land and assocated vehicular drive aisle, walkways,
western-facing parking stalls, garbage enclosure, and
landscaping areas, commonly known and referred to as 100 Seawall Drive on the Berkeley Marina, Berkeley, California (being a portion of APN 60-2445-1), shown on the Site Map attached hereto as Exhibit A (“Site Map”). The “Facility” including without limitation the approximately 12,000
73 BASIC LEASE INFORMATION
(Ground Lease)
2 5. “Non-Exclusive Use”
rentable square feet free standing restaurant building
located on the Premises, together with the building’s
support pilings, canopies and decking, as generally
depicted in Exhibit A attached hereto, and all other
improvements of any type constructed in accordance with the terms of this Ground Lease (together, the “Facility”).
Tenant shall have non-exclusive use of the parking lot
adjacent to the Premises, as depicted in Exhibit A. Tenant is responsible for improvements and maintenance of the
parking lot, as described in Exhibit C and section 5.6.
6. “Permitted Use” To maintain and operate on the Premises a first-class restaurant and cocktail lounge serving alcoholic beverages for the convenience and promotion of commerce, navigation and fishery in the Berkeley Marina and for no other purpose.
7. “Commencement Date” The Effective Date.
8. “Term” 10 years commencing on the Commencement Date, plus the first partial month if the Commencement Date is other than the first day of the month (“Initial Term”). Tenant has 2 options to extend the Initial Term for an additional 5 years each (each, an “Extension Term”), subject to Section 2.3 (Tenant’s Option(s) to Extend). “Lease Year” shall be the 12-month period commencing with the Commencement
Date and each anniversary thereof. The “Expiration Date” is the date the Term expires.
74 BASIC LEASE INFORMATION
(Ground Lease)
3 9. “Annual Rent” A. Generally. Payable as provided in Section 3 below, both:
B. “Base Rent” in the amount of Twenty Four Thousand and no/100th Dollars ($24,000) per month (Two Hundred Eighty-eight Thousand and no/100th Dollars [$288,000.00] per year); and C. “Percentage Rent” equal to 3.5% of Gross Receipts (as defined in Section 3.4 below) in excess of $1,500,000 per Lease Year. Except as otherwise expressly provided in this Ground Lease, Percentage Rent shall be calculated (and paid) on a annual basis by May 1st of each year.
D. “Base Rent Adjustment”. Base rent will increase every 5 years by the lesser of 10% or 4 x average CPI over the prior 5 years, as provided in section 3.3 below.
E. “Tenant Improvement Allowance” up to $100,000 / year credit against annual rent during the Initial Term, with proof of receipts and Landlord prior written approval. Tenant Improvement expenses exceeding $100,000 may be rolled over to subsequent years in the Initial Term.
10. “Gross Receipts” See Section 3.4.
11. “Payment of
Deferred Rent”
12. “Improvements”
13. “Ground Lease
Security”
As provided in Section 3.7, parties agree that $313,000 in deferred rent that was unpaid during the prior lease due to Covid will be repaid in 10 annual equal payments of $31,300.
See Section 7.1 and Exhibit C.
None
The Basic Lease Information set forth above and the Exhibits attached hereto are incorporated into and made a part of the following Ground Lease. In the event of any conflict between the Basic Lease Information and terms of the Ground Lease, the terms of the Ground Lease shall control.
LANDLORD'S INITIALS_______ TENANT'S INITIALS_______
75 1
GROUND LEASE
THIS GROUND LEASE (“Ground Lease”) is made and entered into this ___ day of ______, 2022, to be effective on the “Effective Date” (as defined in the Basic Lease Information), by and between the Landlord and Tenant identified in the Basic Lease Information, who agree as follows:
ARTICLE 1.
PROPERTY AND BACKGROUND
1.1 Overview. Tenant has succeeded to the interests of Mannings, Inc. as “Lessee” under that certain Ground Lease between the Landlord as “Lessor” and Manning's Inc. as “Lessee,” dated March 23, 1967, as subsequently amended, assigned and subleased (together, the “Prior Ground Lease”). The term under the Prior Ground Lease expired on December 31, 2018 and since that date Tenant has continued to lease and occupy the Premises on a holdover basis as provided in the Prior Ground Lease. The term of the Prior Ground Lease will terminate immediately prior to the Commencement Date, and the parties desire to enter into a new ground lease for the Premises on the terms set forth herein. From and after the Commencement Date, neither party shall have any further rights or obligations under the Prior Ground Lease other than those obligations which survive expiration or termination thereof.
A. Premises. Landlord owns the Premises (as defined in the Basic Lease Information).
B. Improvements. Pursuant to the Prior Ground Lease, Tenant or its predecessors constructed and owns the Facility (as defined in the Basic Lease Information).
Tenant will continue to own the Facility during the term of this Ground Lease.
C. Occupancy. Tenant currently leases and occupies the entire Premises and Facility under the Prior Ground Lease. There are no subtenancies.
1.2 Ground Lease. For and in consideration of the payment of Rent and the performance of all the covenants and conditions of this Ground Lease, Landlord hereby leases and demises to Tenant, and Tenant hereby leases and hires from Landlord, the Premises, for the Term (as defined below) and upon the covenants and conditions set forth herein.
ARTICLE 2.
TERM
2.1 Term. The “Initial Term” of this Ground Lease shall be as set forth in the Basic Lease Information and shall commence as of the Commencement Date as set forth in the Basic Lease Information. The Initial Term together with any Extension Term(s), if any, are collectively referred to herein as the “Term.”
2.2 Options to Extend. Provided that Tenant is not in default under the terms of this Lease beyond any applicable notice and cure period, Tenant shall have two (2) consecutive options to extend the Term of this Lease for an additional five (5) years each (each, a “Renewal Option”). To exercise a Renewal Option, Tenant must deliver written notice to Landlord no later than six (6) months before the then-scheduled expiration of the Term. Base Rent to be paid by Tenant during each Renewal Option Term shall be determined
76 2
on the first day of such Renewal Option Term, and be adjusted annually based on the “Base Rent Adjustment” methodology described in 3.4 below.
ARTICLE 3.
RENT AND SECURITY
3.1 Rent. Rent shall be paid as set forth in this Article 3. This Ground Lease is a net lease, and Base Rent, Percentage Rent and Annual Rent (as provided in Basic Lease Information or in Section 2.3), and other payments due and payable hereunder to or on behalf of Landlord (collectively, “Rent”) shall be paid without notice or demand, and, except as specifically provided for in this Ground Lease, without offset, deduction or credit. Any monthly payment of Annual Rent for any period during the Term which is for less than one month shall be a pro rata portion of the then-monthly portion of Annual Rent, based upon the actual number of days in the month. All Rent shall be payable in lawful money of the United States to Landlord at the address stated herein or to such other persons or at such other places as Landlord may designate from time-to-time in writing.
3.2 Annual Rent. During the Initial Term and any Renewal Terms, and commencing on the Commencement Date (as defined in the Basic Lease Information), Tenant shall pay to Landlord Annual Rent.
3.3 Payment of Annual Rent.
A. Tenant shall pay Base Rent in the amount of Twenty Four Thousand and no/100th Dollars ($24,000) per month (Two Hundred Eighty-eight Thousand and no/100th Dollars [$288,000.00] per year) to Landlord in monthly installments in advance on or before the first day of each month.
B. Tenant shall pay Percentage Rent commencing with the second Lease Year on the basis of the Gross Receipts for the preceding Lease Year. Percentage Rent shall be equal to 3.5% of Gross Receipts in excess of $1,500,000 per Lease Year. Except as otherwise expressly provided in this Ground Lease, Percentage Rent shall be calculated (and paid) on an annual basis by May 1st of each year.
C. Tenant shall be entitled to receive a credit against Annual Rent for capital improvements listed in Exhibit C or approved in writing by the Landlord prior to commencement of the work. This Tenant Improvement Allowance may not exceed $100,000.00 per Lease Year for each Lease Year in the Initial Term of this Lease. This allowance is provided only for actual expenses, not prospective expenses. Tenant must provide to Landlord receipts to document approved expenses prior to claiming this credit. Expenses that exceed $100,000 in a particular year may be rolled over for credit in a subsequent year; provided, however, that Tenant shall receive a credit of no more than $100,000 in each year of the Initial Term, and no credits in any Extension Term. For example, if $300,000 is spent in Year 1, it may be claimed as a credit in Years 1, 2 and 3.
3.4 Base Rent Adjustments. Beginning on the first day of the sixth lease year (“Adjustment Date”), and every 5 years thereafter, the Base Rent shall increase by an annual amount determined by multiplying the annual base rent for the immediately preceding Lease Year by a factor equal to four (4) times the percentage increase, if any, in the Consumer Price Index (as defined herein) most recently published one month prior to the Adjustment Date over the Consumer Price Index published for the same month in the calendar year five (5)
77 3
years preceding such Adjustment Date, but in no event shall any increase in Base Rent exceed ten percent (10%) of the Base Rent paid by Tenant for the Lease Year immediately preceding the Adjustment Date. Landlord shall promptly advise Tenant (but in no event less than 15 days after the Adjustment Date) of any increase in the Base Rent by reason of increases in the Consumer Price Index. The term “Consumer Price Index” as used in this Lease shall mean the Consumer Price Index, for all Urban Consumers, San Francisco-Oakland-Hayward, All Items, published by the Bureau of Labor Statistics of the United States Department of Labor.
3.6 Gross Receipts.
A. Definition. “Gross Receipts” includes the gross selling price of all food, alcohol, merchandise, goods and services sold, leased or rented in or from the Premises by Tenant and (if any) its subtenants, licensees and concessionaires; whether for cash or on credit; whether the order is received directly by on-site personnel, or is received by telephone, facsimile, email or other electronic or other ordering system at the Premises or at another location, as long as the order is either received at or filled at or from the Premises (orders delivered from the Premises, whether by Tenant employee, independent contractors or third parties, are deemed filled at the Premises); includes the gross sale prices from approved vending and other machines on or at the Premises; and regardless of whether bookkeeping, payment or collection of any account may take place away from the Premises. Any installment or credit sale shall be treated as a sale for the full cash price at time of sale.
B. Exclusions from Gross Receipts. Gross Receipts excludes the following:
1. The amount of deposits or prepayments until applied, and the selling price of gift certificates or vouchers until redeemed;
2. Interest, service or sales carrying charges or other charges, however denominated, paid by customers for extension of credit on sales where not included in the original sales price, but not charges or expenses in connection with credit cards or bank cards (or other similar devices or systems now or hereafter developed), whether paid by the customer or by Tenant;
3. The selling price of all items returned by customers and accepted for full credit and refunds to customers, or the amount of discounts and allowances made thereon, but only if the selling price of such items were previously included in Gross Receipts, and further provided that all such credits, discounts and allowances shall again be included in Gross Receipts when used or redeemed for merchandise or other items;
4. Tenant’s service of food or liquor for promotion purposes or to employees for which Tenant makes no charge, but which is shown on Tenant’s books of account as sales;
5. State, county or city sales, use, excise, gross receipts or similar taxes (including any such future taxes), but only if separately denominated from the selling price and collected from customers;
6. Sums and credits received in settling claims for loss of or damage to inventory, merchandise, fixtures, equipment or furniture located within the Premises;
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7. Sales of fixtures, equipment or property which is not inventory or stock in trade;
8. Amounts uncollected due to bad checks or uncollectible credit accounts;
9. Tips and gratuities received by Tenant’s employees;
10. Proceeds received from insurance policies, condemnation awards and the like;
11. The amount of sales for merchandise, beverages (alcoholic or non- alcoholic) and food where no money is collected for such sales (commonly known in the industry as “comps” or “complimentaries”) (with sales for such purposes not to exceed four percent (4%) of Gross Receipts per Lease Year);
12. The amount of sales for merchandise, beverages (alcoholic and non-alcoholic) and food where no money is collected for such sales due to damage, spoilage, plunder or breakage (commonly known as "spills");
13. Fees and charges paid to credit card, bank processing and check verification companies (including without limitation, Visa, MasterCard, American Express and Telecheck);
14. Proceeds from the sale of Tenant’s business in whole;
15. The amount of any discounts or credits on sales provided to customers pursuant to any promotion, loyalty or rewards programs offered by Tenant or its affiliates from time to time (e.g., Landry’s Select Club);
16. Revenue from the sale of memberships in the Landry’s Select Club or similar memberships;
17. Receipts from valet parking;
18. Fees charged to Tenant by third-party delivery companies and related third-party ordering “apps” (e.g., DoorDash, UberEats, GrubHub);
19. Sales where and solely to the extent that, the proceeds are donated to charitable or non-profit organizations provided that such amounts do not exceed three percent (3%) of Gross Receipts in any Lease Year; and
20. A surcharge customarily charged to customers in Berkeley, CA by restaurant operators used to reimburse operators for costs and other employee expenses including healthcare.
C. Tenant shall, within 15-days after the end of each month, furnish Landlord with an unaudited monthly statement of Gross Receipts for the preceding month. Such statements shall not be used to compute Percentage Rent under this Ground Lease.
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D. Tenant shall, not later than the date set forth in Section 2.3.B above, deliver to Landlord a detailed and accurate accounting in accordance with generally accepted accounting principles (“GAAP”) consistently applied, certified as correct under penalty of perjury by an officer of Tenant, showing the basis of computation of Gross Receipts and Percentage Rent for the applicable Lease Year. The accounting shall be accompanied by copies of all Tenant monthly state sales tax returns for the applicable Lease Year.
E. Tenant, on behalf of itself and its affiliated entities, shall maintain complete electronic books and records of its operations at its corporate office headquarters in Houston, Texas. Tenant shall keep all electronic books and records containing any or all of the foregoing information, for not less than five years from the end of the Lease Year to which they pertain.
Landlord and its agents and employees shall have the right at any time during regular business hours to examine and inspect all Tenant books and accounts relating to Gross Receipts, including without limitation sales tax reports, tax returns, and other reports to any governmental agency, for the purpose of verifying the accuracy of any statement of Gross Receipts provided under this Ground Lease. If requested in writing by Landlord, within ten (10) business days of such request, Tenant shall deliver (at Tenant’s sole cost and expense) all electronically maintained books and records (i) in the form of fully readable (i.e., without requiring conversion to another type of file) electronic data files, or (ii) in the form of hard-copy (paper) printouts of the same.
F. Audit Rights and Obligations.
1. For purposes of verifying Percentage Rent payments due Landlord, Landlord shall have the right (not more than once in any five-Lease Year period) to require Tenant to submit full financial statements, prepared by a third-party certified public accountant, supporting Tenant’s computations of Gross Receipts and Percentage Rent for the applicable Lease Year.
Landlord shall notify Tenant at least 30 days prior to expiration of the applicable Lease Year of the requirement to submit full financial statements for such Lease Year. Tenant shall submit such full financial statements to Landlord within 45 days following the end of the applicable Lease Year.
2. Additionally, Landlord’s representatives shall have the right (not more than once in any three-Lease Year period, unless a prior audit within that period revealed a discrepancy greater than the amount set forth below) to inspect Tenant’s books, leases, subleases, contracts, and all other pertinent records, and independently audit the results of Tenant’s operations, during reasonable business hours, on 10 business days’ written notice to Tenant. Tenant shall make all such records available to Landlord’s representatives for such audit.
If as a result of an audit by an independent certified public accountant hired by Landlord, additional Percentage Rent is due Landlord for any Lease Year which exceeds by 4% the Percentage Rent actually paid for such Lease Year, the reasonable cost of such audit shall be paid by Tenant, and the additional amount of Percentage Rent owed Landlord shall bear interest from the date it should have been paid until paid at the lesser of 10% per annum compounded annually or the maximum rate permitted by Law (“Interest Rate”). If the discrepancy is less than 4%, Tenant need not pay any interest on the delinquent Percentage Rent as long as Tenant pays it within 30- days of issuance of the audit; otherwise, it will bear interest at the Interest Rate from the date it should have been paid until paid.
3.7 Late Charge. The late payment of any Base Rent will cause Landlord to incur additional costs, including administration and collection costs and processing and accounting expenses and increased debt service (“Delinquency Costs”). If Landlord has not received any installment of Base Rent within five days after its due date, Tenant shall pay a late charge of five percent of the delinquent amount immediately. The parties agree that
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this five percent late charge represents a reasonable estimate of the Delinquency Costs incurred by Landlord in the event of a late Base Rent payment. Landlord’s acceptance of late Base Rent, partial Base Rent and late charges does not equate with a waiver of Tenant’s default with respect to the overdue amount, or prevent Landlord from exercising any rights and remedies available under this Ground Lease and/or by operation of Law.
3.8 Application of Payments. All payments received by Landlord from Tenant shall be applied to the oldest obligation owed by Tenant to Landlord. No designation by Tenant, either in a separate writing, on a check or money order, or otherwise shall modify this Section or have any force or effect.
3.9 Payment of Deferred Rent. Tenant and Landlord agree that $313,000 in deferred rent that was unpaid during the prior lease due to the Covid-19 pandemic will be repaid in 10 annual equal payments of $31,300 each. Payments will be due on May 1st of each lease year, starting on May 1st, 2022. These deferred rent payments are not included in “annual rent” as defined above, and no improvements may be credited against this amount due. No interest will be charged on the payment of deferred rent.
TAXES AND ASSESSMENTS
4.1 Personal Property Taxes. Tenant shall pay before delinquency all taxes, assessments, license fees and other charges (“Taxes”) levied and assessed against Tenant’s personal property installed or located in or on the Facility or the Premises which become payable during the Term. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. Notwithstanding the foregoing, Tenant shall have the right to contest the imposition or collection of any such Taxes which Tenant reasonably believes was improperly assessed or calculated.
4.2 Statement Regarding Possessory Interest Tax. This Ground Lease creates a possessory property interest in Tenant. Tenant acknowledges and agrees that Tenant’s leasehold and/or other real property interests may be subject to property taxation, and Tenant or the party in whom the possessory property interest is vested may be subject to the payment of property taxes levied on the interest. Such taxes are referred to herein as “Possessory Interest Taxes,” and shall be paid by Tenant as part of Real Property Taxes as provided in Section 4.3 below.
4.3 Real Property Taxes. Tenant shall pay all real property taxes and general and special taxes including Possessory Interest Taxes (collectively, “Real Property Taxes”), levied and assessed against the Premises or Facility or any portion thereof. Tenant shall, semiannually, pay the Real Property Taxes not later than the Taxing Authority’s (as defined below) delinquency date. If, at any time during the Term, any authority having the power to tax, including any federal, state or county government or any political subdivision thereof (collectively, “Taxing Authority”), shall alter the methods and/or standards of taxation and assessment against the legal or equitable interests of Landlord in the Premises or Facility or any other improvements located or constructed thereon, in whole or in part, so as to impose a monetary obligation on Landlord in lieu of or in addition to the taxes and assessments in existence as of the date of this Ground Lease, such taxes or assessments based thereon, including: (a) any tax, assessment, excise, surcharge, fee, levy, penalty, bond or similar imposition (collectively, “Impositions”), on Landlord’s right to rental or other income from the Premises or Facility or as against Landlord’s leasing of the Premises, (b) any Impositions in substitution or in lieu, partially or totally, of any Impositions assessed upon real
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property prior to any such alteration, (c) any Impositions allocable to or measured by the area of the Facility and/or Premises or the rental payable hereunder, including any Impositions levied by any Taxing Authority with respect to the receipt of such rental or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant or any subtenant of the Premises or Facility or any portion thereof, (d) any Impositions upon this lease transaction or any document to which Tenant is a party which creates or transfers any interest or estate in or to the Facility and/or Premises or any portion thereof, or (e) any special, unforeseen or extraordinary Impositions which, although not specifically described above, can fairly be characterized as a real property tax or a substitute for real property tax, shall be considered as Real Property Taxes for the purposes of this Ground Lease. Real Property Taxes shall exclude, however, all general income taxes, gift taxes, inheritance taxes and estate taxes, if any, owed by Landlord.
4.4 Assessments.
Tenant also shall be responsible for and shall pay
prior to delinquency all assessments imposed against the Premises or Facility by Landlord.
Tenant acknowledges that Landlord has established certain assessment districts within the City of Berkeley and that all properties within the assessment districts are subject to annual assessments. Landlord reserves the right to create additional districts and to terminate any such district(s). Landlord shall provide Tenant with written notice of each such assessment not later than sixty (60) days before such assessment is due and payable.
4.5 Tenant’s Tax Liability Prorated. Tenant’s liability to pay Real Property Taxes and assessments shall be prorated on the basis of a 365-day year to account for any fractional portion of a fiscal tax year included in the Term at its inception and expiration or earlier termination in accordance with this Ground Lease.
4.6 Real Property Tax Contest.
Without Landlord’s prior written
consent, Tenant shall not seek a reduction in the assessed valuation of the Premises or Facility, or contest any Real Property Taxes that are to be paid by Tenant. Landlord’s consent may be given or withheld in Landlord’s sole discretion. If Landlord consents and Tenant seeks a reduction or contests the Real Property Taxes, Tenant shall remain obligated to pay all Real Property Taxes prior to delinquency, and shall at all times protect Landlord from foreclosure of any lien. Landlord shall not be required to join in any proceeding or contest brought by Tenant.
ARTICLE 5.
USE, CHARACTER, OPERATION AND MAINTENANCE COVENANTS
5.1 General. Tenant covenants and agrees on behalf of itself and its successors and assigns that Tenant shall continuously use and operate the Premises and Facility for the Permitted Use and for no other purpose.
5.2 Use Obligations. Tenant shall, during such hours and on all such days as comparable restaurants are customarily open for business, continuously use and operate the Facility and Premises solely as a first class restaurant, and at all times will carry a full and complete stock of food and beverages offered for sale at competitive prices and maintain adequate personnel for the efficient service of customers, and for no other purpose.
In connection with Tenant’s use and operation of the Facility, Tenant shall comply with all of the following:
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A. Tenant shall employ its best judgment, efforts and abilities to operate the business in a manner calculated to produce the maximum profitable volume of sales, rents and transactions obtainable and to enhance the reputation and attractiveness of the Berkeley Marina.
B. Except for emergencies or holidays on which most comparable restaurants the City of Berkeley are also closed, Tenant shall be open for full business not less than six days per week, Tuesday and Wednesday between the hours of 3 pm and 8:30 pm, Thursday between the hours of 12 noon and 8:30 pm, Friday between the hours of 12 noon and 9 pm, Saturday between the hours of 11:30 am and 9 pm, and Sunday between the hours of 11:30 am and 8:30 pm. Tenant may close on nationally recognized holidays in its sole discretion.
C. Tenant shall not do or permit to be done anything which in any way unreasonably interferes with the normal operation and use of any portion of the Berkeley Waterfront (as defined in Section 5.9) or the means of ingress and egress thereto (“Substantial Interference”). Tenant shall use every effort to eliminate Substantial Interference, including taking prompt legal action if appropriate. If Tenant fails to bring an immediate halt to any Substantial Interference, Landlord shall have the right (i) to designate the required action for Tenant to take, or (ii) to commence itself any legal action to eliminate the Substantial Interference, in either case at Tenant’s sole cost and expense. Any agreement entered into by Tenant with regard to use of the Premises or Facility shall contain a provision reserving to Tenant all of the necessary rights and remedies to permit Tenant to comply with its obligations under this subsection and authorizing Landlord to enforce it if Tenant fails to do so.
5.3 General Use Prohibitions. Tenant covenants and agrees that in connection with the use and operation of the Premises and Facility, and any portion thereof (including without limitation parking areas and pedestrian and bicycle paths), Tenant will not:
A. Use or permit the use of any reasonably objectionable advertising medium including any loudspeakers, phonographs, public address systems, sound amplifiers, radio or broadcast within the Facility in such manner that any sounds reproduced, transmitted or produced shall be directed primarily beyond the interior of the Facility (provided, however, that nothing herein shall be deemed to prohibit the installation and use of a public address system for security purposes, or for the use of a reasonable level of music for outdoor dining areas or plaza areas), and will keep all mechanical apparatus free of unreasonable vibration and noise which may be transmitted beyond the interior of the Facility;
B. Permit undue accumulations of garbage, trash, rubbish or any other refuse; C. Create, cause, maintain or permit any nuisance (as the same may be defined by applicable Law) in, on or about the Premises or Facility; D. Commit or suffer to be committed any waste in, on or about the Premises or Facility;
E. Use or allow the Premises or Facility to be used for any unlawful purpose, or for any purpose which violates the terms of any recorded instrument affecting the Premises; F. Cause or permit any insurance coverage on the Premises or Facility to become void or voidable or make it impossible to obtain any required insurance at commercially reasonable rates;
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G. Intentionally cause or knowingly permit any material structural damage to or deterioration of the Premises or Facility or to any adjacent public or private property or improvements;
H. Permit any auction, fire, bankruptcy, distress, clearance, or going-out-of- business sale to be conducted thereon, or the posting of any sign or advertisement regarding any such activity; or
I. Violate any Law, ordinance or regulation applicable to the Premises or Facility.
5.4 Non-Discrimination. Tenant covenants and agrees that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical condition, national origin or ancestry in the sublease, transfer, use, occupancy, tenure or enjoyment of the Premises, the Facility or any portion thereof, nor shall Tenant, or any person claiming under or through Tenant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, vendees, users or customers in the Premises, the Facility, or any portion thereof. Tenant shall refrain from restricting the use, occupancy, rental or sublease of the Premises, the Facility, or any portion thereof on account of race, color, creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical condition, national origin or ancestry of any person. All subleases and contracts made relative to the Premises, the Facility, or any portion thereof, shall contain or be subject to substantially the following nondiscrimination clause:
A. In subleases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical condition, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Premises, the Facility thereon, or any part thereof, herein leased.” B. In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Premises, the Facility or any portion thereof, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Premises, the Facility thereon, or any part thereof.”
5.5 General Standards of Maintenance. Tenant covenants and agrees that it shall maintain, or cause to be maintained, the Premises and the Facility as depicted in Exhibit A. This includes the restaurant building, trash enclosure, covered walkway, support
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pilings, paths of travel, landscape areas, a four-foot landscape strip around the southwest bend of the drive aisle measured from the back of the paving, and the westernmost parking stalls on the Premises adjacent to the pedestrian pathway and riprap, as shown in red in Exhibit A. Tenant covenants and agrees that not less frequently than once every ten years, Tenant shall slurry seal and restripe the loading areas and parking stalls on the Premises without cost to Landlord..All portions of the Premises, the Facility, and the Non-Exclusive Use Areas shall be maintained in first-class condition and repair, subject only to normal wear and tear. Tenant’s compliance with the Maintenance Standards shall be judged by a comparative standard with the custom and practice generally applicable to comparable first-class restaurant facilities located within the San Francisco Bay Area. To accomplish such maintenance, Tenant shall either staff or contract with and hire licensed and qualified personnel to perform such maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Section 5.5. All maintenance work shall conform to all applicable Federal and State Occupation Safety and Health Act standards and regulations for the performance of maintenance. All Maintenance work in the Non-Exclusive Use Areas shall be reviewed and approved by the Landlord in advance of completion. When parking lot or street closures are necessary, notice shall be given 7 days in advance. Landlord shall review and authorize work, if appropriate, 72-hours in advance of work commencement.
5.6 Parking Lot. Tenant understands they have non-exclusive use of the adjacent parking lot. After the tenant completes the parking lot reconstruction as provided in Exhibit C, Landlord and Tenant agree to share costs for parking lot pavement and striping maintenance, with the Tenant paying 40%, and the Landlord paying 60% of maintenance costs. Maintenance shall be mutually agreed upon prior to the commencement of work. .
Tenant shall be fully responsible for repair and maintainance of the landscaping and lighting in the parking lot. Tenant understands they have non-exclusive use of the adjacent parking lot. Improvements to the parking lot shall be subject to Landlord’s prior consent, review, and all other applicable requirements for Alterations as set forth in this Ground Lease.
Improvements, maintenance, or repairs by Tenant to the parking lot shall not confer on Tenant any exclusive possession or ownership interest in such areas or assets. Tenant agrees that the parking lot shall remain open and accessible for use by the City and by the public at all times and for no charge. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all demands, liabilities, claims, actions, damages, costs and expenses, including reasonable attorneys’ fees, arising from allegations of a dangerous condition of public property associated with the parking lot, light fixtures, and/or landscaping maintained by Tenant.
5.7 Governmental Requirements. Tenant, at Tenant's expense, shall comply with all applicable Hazardous Materials Laws (as defined in Section 6.2 below), statutes, laws, codes, rules, orders, zoning, ordinances, directions, regulations, permits, or other requirements of federal, state, county, municipal, or other governmental authorities having jurisdiction, now in force or which may hereafter be in force, and with all requirements of any board or fire insurance underwriters or other similar bodies, now or hereafter adopted, enacted or made applicable, (individually “Law” and collectively “Laws”), which shall impose any duty upon Landlord or Tenant with respect to the use, occupancy, or alteration of the Premises or Facility or any portion thereof, including those requiring alterations or additions to be made to, or safety appliances or devices to be maintained or installed in, on or about the Premises or Facility or any portion thereof, and payment of any fees, charges or assessments arising out of or in any way related to the Premises or Facility or any portion thereof as a source of adverse environmental impacts or effects.
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5.8 Landlord Access Rights. During the Term of this Ground Lease, Landlord and its designated representatives shall have the right, but not the obligation, to enter the Premises and Facility for the purpose of constructing, maintaining, replacing or adding underground utility facilities, including but not limited to water mains, sanitary sewer mains, storm drain mains, gas mains, telephone and electrical distribution facilities and fire alarm circuits. Landlord shall replace at its cost such surface improvements constructed by Tenant as may be disturbed by such construction, maintenance, replacement or addition to the condition of such improvements as of the time such disturbance occurred. If as a result of the foreoing work by Landlord or its designated representatives, Tenant is unable to operates its business in the Premises and Facility or any portion thereof as a result of being denied access to the Premises or Facility or any stoppage or interruption in any of the basic services to be provided by Landlord hereunder, Tenant is entitled to a pro rata abatement of Base Rent to the extent to such denial of access or stoppage or interruption interferes with the normal conduct of Tenant’s business.
5.9 Use of Berkeley Waterfront Property; Public Trust.
For purposes of this Ground Lease, “Berkeley Marina” means the Premises and all other lands subject to the State Tidelands Grant (also referred to as “State Grant Lands”). "Berkeley Marina," includes the areas bound by the following:
On the south by a westerly extension of Channing Way
On the north by the north edge of Cesar Chavez Park, and a westerly extension thereof On the west by a north-south line through the end of the Municipal Fishing Pier On the east by the east edge of Cesar Chavez Park, and by the west edge of the Meadow area
of Eastshore State Park and a southerly extension thereof.
A. Tenant agrees that except as otherwise provided in this Ground Lease, it is not a covenant or condition of this Ground Lease or of any other agreement with Tenant that Landlord undertake or cause to be undertaken any development or redevelopment of the Premises or the Berkeley Waterfront, and Landlord shall incur no liability whatsoever to Tenant for failure to undertake such development or redevelopment.
B. Landlord at all times shall have the right and privilege of making such changes in and to the Berkeley Waterfront (other than the Premises) from time to time which in its sole opinion are deemed to be desirable or appropriate, including the location and relocation of stairways, sidewalks, pathways, driveways, streets, entrances, exits, automobile parking spaces, the direction and flow of traffic, designation of prohibited areas, landscaped areas, landscaping, toilets, utilities and all other facilities; provided, however, that the foregoing is not intended to entitle Landlord to unreasonably effect changes that would materially and adversely affect access or lines of sight to the Premises, except temporarily during periods of construction. Any changes or additions by Landlord to the Berkeley Waterfront shall be performed in such a manner so as not to unreasonably interfere with Tenant's use of the Premises and shall not change in a material, adverse way the access to the Premises. If as a result of the foreoing work by Landlord or its designated representatives, Tenant is unable to operates its business in the Premises and Facility or any portion thereof as a result of being denied access to the Premises or Facility or any stoppage or interruption in any of the basic services to be provided by Landlord hereunder, Tenant is entitled to a pro rata abatement of Base Rent to the extent to such denial of access or stoppage or interruption interferes with the normal conduct of Tenant’s business. Landlord shall have the right to establish, promulgate, and enforce such reasonable rules and regulations concerning the
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Berkeley Waterfront, as it may deem necessary or advisable for the proper and efficient management, operation, maintenance and use thereof, and Tenant shall comply with the same.
C. Landlord at all times shall have the sole and exclusive management and control of the Berkeley Waterfront, including, without limitation, the right to lease, license or permit the use of space within the Berkeley Waterfront to persons for the sale of merchandise and/or services and the right to permit advertising displays, educational displays, displays of art, and promotional activities and entertainment.
D. Nothing contained herein shall be deemed to create any liability to Landlord for any personal injury, or any damage to motor vehicles, vessels, or other property of Tenant’s principals, employees or others, unless caused by the gross negligence or willful misconduct of Landlord, its agents, servants or employees. Tenant is solely responsible for the security of the Premises and Facility, and for the safety of those using the Premises and Facility pursuant to this Ground Lease or any permits or licenses from the City. Tenant acknowledges that if Landlord provides security guards or police patrols for the Berkeley Waterfront or any portion thereof, Landlord does not represent, guarantee or assume responsibility that Tenant or any person or entity will be secure from losses caused by the illegal acts of third parties and does not assume responsibility for any such illegal acts. To induce Landlord to provide such security, if any, as Landlord in its sole discretion deems reasonable, appropriate and economically feasible, Tenant hereby waives any present or future claims Tenant may have against Landlord, whether known or unknown, for bodily injury or property damage arising from the performance of such security agents. Landlord shall not be obligated to provide any public liability or property damage insurance for the benefit of Tenant or any other person or entity, each such party being responsible for its own insurance.
5.10 Public Trust Tidelands Requirements.
A. Tenant acknowledges that the Premises are located on State tidelands held by the City of Berkeley in trust for the promotion of commerce, navigation, and fishery pursuant to Chapter 347 of the California Statutes of 1913, as amended (the “Grant”), subject to the conditions, restrictions, limitations, rights, powers, and duties reversionary rights and other rights created or reserved in the Grant. Tenant agrees that, notwithstanding anything in this Ground Lease to the contrary, Tenant shall use the Facility and Premises consistently with and in a manner that shall not result in a violation of the Grant or of provisions of the Berkeley City Charter, the California Constitution or other applicable Laws.
B. Landlord reserves to itself and the right to grant to others in the future nonexclusive utility easements over, under, through, across or on the Premises in locations that will not unreasonably interfere with Tenant’s access to or use of the Premises or Facility. Landlord may make changes in any utility system serving the Facility or Premises as Landlord determines to be necessary or desirable in the course of any construction performed by or under the authorization of Landlord. Any interference to Tenant’s use of the Facility or Premises shall be temporary, and all work on the Premises shall proceed expeditiously. Tenant shall be given reasonable notice before commencement of any work on the Premises. No such work shall invalidate or affect this Ground Lease or give Tenant any claim against Landlord for abatement of Rent or loss of business as a result thereof unless the work continues for more than three (3) days in which event Tenant shall be entitled to a pro rata abatement of Base Rent thereafter until comnpletion of such work. In the event the installation or maintenance of utility lines in such easements causes any damage to the Premises, or any portion thereof, or to the Facility, or other facilities located upon the Premises, including but not limited to pavement, curbs and sidewalks,
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the same shall be repaired by Landlord at its expense, if not so repaired by the party installing and maintaining the line. Landlord shall hold harmless and indemnify Tenant from all claims arising out of the grant or use of such utility easements, except to the extent they result from the negligence or willful misconduct of Tenant.
5.11 Landlord’s Status as a Landowner. Tenant understands and agrees that Landlord is entering into this Ground Lease in its capacity as a landowner with a proprietary interest in the Premises and Facility and not as a regulatory agency of the City of Berkeley with certain police powers. Landlord’s legal status shall in no way limit the obligation of Tenant to obtain any required approvals from Landlord’s departments, boards or commissions that have jurisdiction over the Premises or Facility. By Landlord’s entering into this Ground Lease, neither Landlord nor any of Landlord’s Council, boards, commissions, agencies, departments, or affiliates obligates itself to any other governmental agent, board, commission or agency, or to Tenant, or to any other individual or entity, with regard to any discretionary action relating to development or operation of the Premises, Facility or Berkeley Waterfront. Discretionary action includes but is not limited to rezonings, variances, environmental clearances, or any other governmental agency approvals that may be required or desirable for the improvement, alteration, or operation of the Premises, Facility or Berkeley Waterfront. By entering into this Ground Lease, Landlord is in no way modifying or limiting the obligation of Tenant to cause the Premises and Facility to be used and occupied in accordance with all Laws.
5.12 Regulatory Approvals Generally. Tenant acknowledges and agrees that this Ground Lease does not guarantee that Landlord, in its regulatory capacity, will grant any particular request for a license, permit or other regulatory approval. Tenant understands that Landlord may grant or deny such request in its sole discretion, and may impose such terms and conditions as it deems consistent with that discretion.
5.13 Covenants Regarding Improvements. Tenant acknowledges and agrees that the Improvements will be maintained as follows:
A. Restaurant Building. Tenant has and shall continue to provide and install at the Restaurant all furniture, fixtures, and accessories necessary for the operation of a first-class restaurant and cocktail lounge. Tenant shall maintain in good condition all aspects of the building, including but not limited to building systems and structural elements.
B. Pilings. Tenant acknowledges that restaurant building is situated over the water, and is supported by pilings in the Bay. Tenant will maintain these pilings in good condition and provide periodic assessment and maintenance to assure they remain in good condition.
C. Landscaping. Such landscaping as may be reasonably required to provide an attractive development consistent with a first class restaurant. This includes landscaping inside the Premises, as well as in the Non-Exclusive Use Areas, as depicted in Exhibit A and described in section 5.6.
D. Non-Exclusive Use Areas. Non Exclusive Use Areas, including the adjacent parking lot, are depicted in Exhibit A. Tenant acknowledges that the adjacent parking lot is outside the leased premises, is shared with the Public, and Marina slip holders. Tenant acknowledges that Tenant has non-exclusive use of the parking lot and associated improvements, and that Tenant is responsible for maintenance of the landscaping and lighting in the Non-Exclusive Use Areas in good condition, as described in section 5.6.
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ARTICLE 6.
CONDITION OF PROPERTY
6.1 Landlord’s Disclaimers and Tenant’s Acknowledgements. The Premises are being leased to Tenant in their current, existing, “AS-IS” condition. Except as expressly set forth in this Ground Lease, Landlord makes no representations or warranties as to any matters concerning the Premises or Facility, including without limitation: (i) matters relating to soils, subsoils, geology, the presence or absence of fill, groundwater, drainage, and flood zone designation; (ii) the existence, quality, nature, adequacy and physical condition of utilities serving the Premises or Facility; (iii) the development potential of the Premises or Facility, or their uses, habitability, merchantability, or fitness, suitability, value or adequacy for any particular purpose, (iv) the zoning or other legal status of the Premises or Facility or any other public or private restrictions on their use, (v) the adequacy, condition, repair status, or remaining useful life of the Facility’s electrical, plumbing, HVAC, utility, mechanical or safety systems (“Facility Systems”), (vi) the adequacy, condition, repair status, or remaining useful life of the Facility’s roof, walls, foundation, pilings, or other structural components, any other structures within the Premises, the Non-ExclusiveUse Areas parking lot, the drive aisle and associated parking stall, loading stalls, pathways, and landscaping, and drive aisle between Seawall Drive and the restaurant (vii) the compliance of the Premises or Facility with Hazardous Materials Laws, covenants, conditions or restrictions of any governmental or quasi-governmental entity or of any other person or entity, (viii) the presence or removal of Hazardous Materials (as defined in Section 6.2) or wastes on, under or about the Premises or Facility; or (ix) the compliance of the Premises or Facility under any other Laws, including without limitation the ADA and other Disability Laws. It is specifically understood and agreed that Landlord has no obligation and has made no promises to alter, remodel, improve, decorate or paint the Premises or Facility, repave the adjacent parking lot in the , Non- Exclusive Use Area, construct or install any improvements or Alterations (as defined in Section 7.2), repair or replace any Facility Systems, or otherwise alter or improve the Premises, Facility, or any portion thereof. By entering onto the Premises or Facility, Tenant represents and confirms that it is familiar with the existing legal and physical condition of the Premises and Facility, fully approves the same, and acknowledges that except as expressly provided in this Ground Lease Landlord has made no representation or warranty regarding the condition thereof. Tenant acknowledges and agrees that Tenant is leasing the Premises and accepting the Premises and Facility on the basis of Tenant’s own investigation, and will act only upon information obtained by it directly from such investigation and from materials or records from independent third parties. Tenant assumes the risk that adverse physical and environmental conditions may not have been revealed by its own investigation, that below- ground improvements or facilities may still be located under the Premises, and that Hazardous Materials may subsequently be discovered upon, under or about the Premises. Tenant further acknowledges that neither Landlord, nor its officers, elected officials, agents, employees, or representatives (“Landlord’s Parties”) have made any representation or warranty of any kind in connection with any matter relating to the condition, value, fitness, or suitability of the Premises, Facility or other improvements thereon, upon which Tenant has relied directly or indirectly for any purpose.
6.2 Hazardous Materials.
A. General Compliance. Tenant shall, at its sole cost and expense, comply with all laws, codes, rules, orders, ordinances, directives, regulations, permits, or other requirements of federal, state, county, municipal or governmental authorities having jurisdiction, now in force or which may hereafter be in force (collectively, “Hazardous Materials Laws”)
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concerning the management, use, generation, storage, transportation, presence, discharge or disposal of any and all pollutants, wastes, flammables, explosives, radioactive materials, hazardous or toxic materials, hazardous or toxic wastes, hazardous or toxic substances, carcinogenic materials or contaminants and all other materials governed, monitored, or regulated by any Federal, State or local law or regulation, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Substances Account Act, and/or the Resources Conservation and Recovery Act. “Hazardous Materials” include asbestos, asbestos-containing materials, hydrocarbons, polychlorinated biphenyl (“PCB”) or PCB-containing materials, petroleum, gasoline, petroleum products, crude oil or any fraction, product or by-product thereof. Except for routine substances which are used in the normal and customary operation of a restaurant for the Permitted Use, including such subtances technically constituting Hazardous Materials, neither Tenant nor Tenant's Parties shall use, handle, store, transport, treat, generate, release or dispose of any Hazardous Materials anywhere in, on, under or about the Premises or the Facility. Tenant shall cause any and all Hazardous Materials brought onto, used, generated, handled, treated, stored, released or discharged on or under the Premises or the Facility to be removed from the Premises and Facility and transported for disposal in accordance with applicable Hazardous Materials Laws. Landlord shall have the right to enter the Premises from time to time to conduct tests, inspections and surveys concerning Hazardous Materials and to monitor Tenant's compliance with its obligations concerning Hazardous Materials and Hazard Materials Laws. Tenant shall immediately notify Landlord in writing of: (i) any release or discharge of any Hazardous Material; (ii) any voluntary clean-up or removal action instituted or proposed by Tenant, (iii) any enforcement, clean-up, removal or other governmental or regulatory action instituted or threatened, or (iv) any claim made or threatened by any person against Landlord, Tenant, the Premises, or the Facility or any portion thereof relating to Hazardous Materials or Hazardous Materials Laws. Tenant shall also supply to Landlord as promptly as possible, and in any event within five business days after Tenant receives or sends same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Facility or Tenant's use thereof and concerning Hazardous Materials or Hazardous Materials Laws. In the event Tenant institutes a cleanup or removal action, Tenant shall provide to Landlord in a timely manner copies of all workplans and subsequent reports submitted to the governmental agency with jurisdiction over such action.
B. Tenant's Indemnification. Except to the extent caused by Landlord's sole negligence or willful misconduct, Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, causes of action, liabilities, losses, damages, injunctions, suits, fines, penalties, costs or expenses (including attorneys' fees and expenses and consultant fees and expenses) caused or alleged to have been caused by the presence of Hazardous Materials in, on, under, about, or emanating from the Premises or the Facility, including, without limitation, any bodily injury, death, property damage, natural resource damage, decrease in value of the Premises or the Facility, caused or alleged to have been caused by Tenant or Tenant's Parties' use, storage, handling, treatment, generation, presence, discharge or release of Hazardous Materials in violation of Tenant's obligations under this Ground Lease, whether such claims, causes of action or liabilities are first asserted during the Term or thereafter, and including without limitation, claims made against Landlord with respect to bodily injury, death or property damage sustained by third parties caused or alleged to have been caused by Tenant or Tenant's Parties' use, storage, handling, treatment, generation, presence, discharge or release of Hazardous Materials.
ARTICLE 7.
CONSTRUCTION AND LIENS
7.1 Improvements.
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A. Construction. Tenant shall construct or cause to be constructed the improvements described in Exhibit C (“Improvements”) within the time and in the manner set forth in Exhibit C. Except as otherwise provided in this Section 7.1, Tenant shall diligently prosecute, complete, and accomplish the Improvements without cost or expense to Landlord, by licensed contractors, in compliance with all applicable Laws and permits, and in a first-class and workmanlike manner, as provided in Exhibit C and this Article 7 .
B. Timely Completion. Tenant shall take all steps necessary to enable it to commence, and will commence the construction of the Improvements and will diligently prosecute and complete maintenance ane improvements necessary to maintain the Facility, Premises, and Non-Exclusive Use Areas in Exhibit Cgood condition . In the event Tenant fails to improve or maintain the Premises, Facility, or Non-Exclusive Use Areas to maintain good condition, and does not cure such failure within 30 days of receipt of written notice from Landlord of such failure (or, if such failure cannot be cured within that 30 day period, Tenant has failed to commence the cure within 30 days and thereafter diligently and continuously pursue such cure to completion), at Landlord’s election, exercisable in its reasonable discretion, this Ground Lease shall terminate, and be null and void, and of no further force or effect.
7.2 Alterations on Premises, Facility, or Non-Exclusive Use Areas.
Any construction, reconstruction, alterations, additions, or improvements or remodeling, in, on, or about the Facility,the Premises or the Non-Exclusive Use Areas undertaken by or on behalf of Tenant from and after the Commencement Date (including without limitation the Improvements, “Alterations”) shall be governed by this Ground Lease. All Alterations, including exterior elevations and color thereof, and all such other improvements, shall be architecturally and aesthetically compatible and harmonious with the Facility, Premises, and Non-Exclusive Use Areas Berkeley Marina and any other buildings and improvements thereon to create a uniform general plan for the entire Berkeley Marina. Any Alterations shall be in compliance with applicable Laws and permits, shall at all times be of first-class construction and architectural design, and shall be in accordance with all plans and specifications therefor submitted to and approved by Landlord as set forth below. No material changes to such approved plans and specifications shall be made without Landlord’s prior written approval. All Alterations shall be diligently prosecuted, completed, and accomplished without cost or expense to Landlord (except by Tenant Improvement Allowance, as applicable), by licensed contractors, and in a first-class and workmanlike manner.
A. Alterations, Other than Minor Alterations. Except with Landlord’s prior written consent, which may be granted or denied in Landlord’s reasonable discretion, Tenant shall not make or cause to be made any Alterations except for Minor Alterations as set forth below.
If Tenant at any time following the Commencement Date desires to undertake any Alterations (other than Minor Alterations), Tenant shall, prior to the commencement of such work, prepare or cause to be prepared, at its sole expense, and shall submit to Landlord for its review, cost estimates, plans and specifications for such work, showing, without limitation, scaled elevations, scaled floor plans, design concepts, dimensions, material selection, colors, signing (if any) and such additional information as is reasonably requested by Landlord to make an informed decision on such submission. The plans and specifications shall comply with this Ground Lease and shall be in compliance with applicable Laws. Landlord shall approve or disapprove such submitted plans within 30 days of receipt of complete plans and specifications meeting the requirements of this subsection. Failure of the Landlord to approve or disapprove such plans and specifications within such 30-day period shall be deemed to be Landlord’s disapproval.
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B. Minor Alterations. Tenant shall have the right without Landlord’s consent (but subject to all other provisions of this Ground Lease and upon 30 days prior written notice to Landlord), to undertake nonstructural alterations or remodeling of the Facility not visible from the outside or affecting exterior appearance and not altering the preexisting location of the Facility on the Premises, not exceeding $150,000 individually or $300,000 in cumulative costs during the Term of this Ground Lease (“Minor Alterations”). Notwithstanding the foregoing, and regardless of the cost thereof, Landlord’s prior consent is required for any Alteration involving utility work, or attachment or any fixture or equipment to the Facility.
7.3 Construction Standards.
Unless expressly provided otherwise in
this Article (or for the Improvements Exhibit C), the following standards shall apply to the design and construction of all Alterations under this Ground Lease.
A. Insurance. Tenant’s designers, contractors and subcontractors shall maintain in force workman’s compensation and such other employee, liability and property insurance as is customary for similar construction projects, and Tenant’s designers, contractors and subcontractors shall also maintain in force professional liability insurance as is customary for similar construction projects. Other than worker’s compensation and professional liability insurance, Landlord and Landlord Parties shall be named as additional insureds on all such insurance and Tenant shall provide certificates of insurance confirming such addiitonal insured status prior to commencement of any Alterations work other than Minor Alterations.
B. Utility Work. Any work performed by or on behalf of Tenant or any occupant or sublessee to connect to, repair, relocate, maintain or install any storm drain, sanitary sewer, water line, gas line, telephone conduit or any other public utility service shall be performed so as to minimize interference with the provision of such services to other occupants and users of the Berkeley Marina.
C. Contracts, Plans and Specifications. With the exception of Minor Alterations, all contracts with any architect, other design professional or any general contractor for the Alterations shall provide, in form and substance reasonably satisfactory to Landlord, for the assignment thereof to Landlord as security to Landlord for Tenant’s performance hereunder, and Landlord shall be furnished with any such agreement, together with the further agreement of the parties thereto, that if this Ground Lease is terminated due to Tenant’s default, Landlord may use any plans and specifications to which Tenant is then entitled pursuant to any such contract without payment of any further sums to any party thereto.
D. Permits. To the extent that any Alterations require a building permit or other permits from the City of Berkeley, Bay Conservation and Development Commission (“BCDC”) and/or any other governmental agency, Tenant shall not perform any Alterations until Tenant has obtained all requisite permits.
E. Construction Safeguards. Tenant shall erect and properly maintain at all times, as required by the conditions and the progress of work performed by Tenant, all necessary safeguards for the protection of workers and the public.
F. Prevailing Wage Laws. Tenant shall comply with all prevailing wage requirements of California Labor Code Sections 1720 et seq., to the extent, such requirements are applicable to Alterations. Tenant agrees that to the extent it is required to comply with the prevailing wage requirements, Tenant shall assure that all workers are paid the general prevailing rate of per diem wages and the general per diem prevailing rate for holiday and overtime work as defined by
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applicable Laws (including without limitation Labor Code Section 1773.1) in effect from time to time. Copies of the applicable prevailing rate of per diem wages are on file at Landlord’s principal office and will be made available to any interested party on request. Tenant agrees to post a copy of the prevailing rate of per diem wages at the Premises. Tenant, as a penalty to Landlord, shall forfeit $200 for each calendar day, or portion thereof (or such other sum as specified from time to time by Section 1775 of the California Labor Code), for each worker paid less than the applicable prevailing rates for such work or craft in which such worker is employed. The difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by Tenant.
G. Landlord’s Rights. Nothing herein shall limit any Landlord right under this Ground Lease, including without limitation those under Sections 5.9 and 5.10 above.
H. Completion. Upon completion of any Alterations (including Minor Alterations), Tenant shall deliver to Landlord two sets of final as-built plans and specifications, and copies of all permits, for the applicable work.
I. Tenant Costs. Except as otherwise expressly provided in this Ground lease, all Alterations shall be without cost or expense to Landlord.
7.4 Protection of Landlord. Nothing in this Ground Lease shall be construed as constituting the consent of Landlord, expressed or implied, to the performance of any labor or the furnishing of any materials in connection with any Alterations by any contractor, subcontractor, laborer or materialman, nor as giving Tenant or any other person any right, power or authority to act as agent of, or to contract for or permit the rendering of, any services, or the furnishing of any materials, in such manner as would give rise to the filing of mechanics’ liens or other claims against the Premises or Facility. Landlord shall have the right at all reasonable times to post, and keep posted, on the Facility and the Premises any notices which Landlord may reasonably deem necessary for the protection of Landlord and of the Premises and Facility from mechanics’ liens or other claims. Tenant shall give Landlord 10 days’ prior written notice of the commencement of any Alterations to be done on or about the Facility or Premises to enable Landlord to post such notices. In addition, Landlord may in its discretion require Tenant to furnish to Landlord at Tenant’s expense reasonable improvement security, including performance and labor and materials bonds, prior to commencement of any Alterations. Tenant shall make, or cause to be made, prompt payment of all monies due and legally owing to all persons doing any Alterations or furnishing any materials or supplies to Tenant or any of its contractors or subcontractors in connection therewith.
7.5 Liens and Stop Notices. Tenant shall keep the Premises and Facility free and clear of all stop notices, mechanics’ liens and other liens on account of any Alterations done for Tenant or persons claiming under it. Tenant shall indemnify and save Landlord harmless against liability, loss, damages, costs, attorneys’ fees, and all other expenses on account of claims of lien of laborers or materialmen or others for Alterations performed or materials or supplies furnished to Tenant or persons claiming under it. If a claim of a lien or stop notice is given or recorded affecting the Premises or Facility, Tenant shall within 30 days of such recording or service:
A. Pay and discharge the same;
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B. Affect the release thereof by recording and delivering to Landlord a lien release bond in customary form and amount which results in the removal of such lien from the Facility and the Premises; or
C. Otherwise obtain or effect the release thereof.
7.6 Notice. Should any claims of lien be filed against the Premises or Facility thereon, or any action be commenced affecting the title to such property, the party receiving notice of such lien or action shall forthwith give the other party written notice thereof.
ARTICLE 8.
OWNERSHIP OF IMPROVEMENTS AND
PERSONAL PROPERTY
8.1 Ownership of Facility During Term. During the Term, the Facility and Alterations shall be and remain the property of Tenant; provided that Tenant’s rights and powers with respect to the Facility and any Alterations shall be and shall remain subject to the terms and limitations of this Ground Lease. Tenant covenants for itself and all persons claiming under or through it that the Facility is real property.
8.2 Ownership of Improvements at Termination or Expiration. Upon the expiration or other termination of this Ground Lease, all improvements on the Premises, including the Facility and any Alterations (save and except any of Tenant’s proprietary items or those which contain any of Tenant’s intellectual property) shall, without compensation to Tenant, become Landlord’s property free and clear of all claims to or against them by Tenant or any third person, and Tenant shall defend, indemnify and hold Landlord harmless against any and all claims, liability and losses arising from such claims or from Landlord’s exercise of the right conferred by this Section 8.2.
8.3 Removal and Ownership of Personal Property at Termination or Expiration. Parties agree that all attached, wired, plumbed, affixed, or mounted furniture, fixtures and equipment, including stoves, hoods, refrigeration, and other booths, bars, and kitchen equipment which are located in the Premises on the date of this Lease shall revert to City ownership at the termination of the Term. Should Tenant purchase and install replacements for any item listed above during the Term of this Lease, then at Tenant’s election, Tenant may remove such item(s) at the termination of the Term. At the expiration or sooner termination of the Term, Landlord may, at Landlord’s election, require Tenant to remove from the Premises, at Tenant’s sole cost and expense, all personal property. Tenant shall be entitled to remove from the Premises, at Tenant’s sole cost and expense, at the expiration or sooner termination of the Term, all of Tenant’s personal property , inventory, books and records, artwork, and any of Tenant’s proprietary items or those which contain any of Tenant’s intellectual property, Tenant shall be liable to Landlord for costs incurred by Landlord in effecting the removal of such personal property (including fixtures) which Tenant has failed to remove after demand pursuant to this section.
A. Tenant may, from time to time during the Term, remove any personal property (other than fixtures) that may be removed without damage to the structural integrity of the Premises or Facility. Tenant shall repair all damage caused by any such removal.
B. Any personal property owned by Tenant and not removed by Tenant prior to the expiration or earlier termination of the Term shall be deemed to be abandoned by Tenant
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and shall, without compensation to Tenant, become the Landlord’s property, free and clear of all claims to or against them by Tenant or any other person, but subject to the rights of third party lenders and equipment lessors as to which Landlord has notice.
ARTICLE 9.
UTILITIES
Tenant shall be solely responsible for contracting for, and shall promptly pay all charges for telephone, computers and cable lines, wiring, materials, security, heat, air conditioning, water, gas, sewer, electricity, refuse, sewage, garbage, pest control services, and any other utility service supplied to the Facility, the Premises or any portion thereof, or any other improvements located thereon (“Utilities”). Tenant shall indemnify, defend and hold Landlord harmless from and against any and all demands, liabilities, claims, actions, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or connected with the provision and payment of the Utilities.
ARTICLE 10.
INSURANCE AND INDEMNITY
10.1 General Insurance Requirements.
A. During the entire Term of this Ground Lease, Tenant shall provide the following forms and amounts of insurance with respect to the Facility and the Premises. Such insurance shall be primary to and not contributing with any other insurance, self-insurance, or joint self-insurance maintained by the Landlord, shall name the Landlord as an additional insured, and shall include, but not be limited to:
1. Fire and Extended Coverage Insurance in All-Risk form, with vandalism and malicious mischief endorsements, covering the Facility and the Premises against loss or damage in an amount equal to not less than 100% of the replacement cost of the Facility, including all Alterations and fixtures, with such commercially reasonable deductible as may be approved by Landlord in its reasonable discretion; provided however, Tenant maintains a deductible or self-insured retention of $500,000.00 and the same is approved by Landlord. Such insurance shall include coverage for cost of demolition and increased cost of construction by reason of changes in applicable ordinances and laws and shall not contain a co-insurance clause.
2. Business Interruption Insurance on an “all risk” basis which will provide recovery for a minimum of 12 months of Tenant’s continuing Rent obligations, (including without limitation Percentage Rent which likely would have been payable in the absence of the interruption).
3. Broad Form Commercial General Liability Insurance protecting Tenant against claims for bodily injury, personal injury and property damage based upon, or arising out of, the ownership, use, occupancy or maintenance, directly or indirectly, of the Premises, Facility, or Non-Exclusive Use Areas and all areas appurtenant thereto. Such insurance shall be written on an “occurrence” policy form providing single limit coverage in an amount not less than $2,000,000 per occurrence and umbrella/excess liability insurance in the amount of $5,000,000. Tenant shall add Landlord and its officers, agents, employees, and representatives (together, “Landlord Parties”) as additional insureds by means of an endorsement at least as broad as the Insurance Service Organization’s “Additional Insured- Managers or Landlords of Premises” endorsement and coverage shall also be extended to include
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damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Ground Lease as an “insured contract” for the performance of Tenant’s indemnity obligations under this Ground Lease. The limits of this insurance shall not, however, limit the liability of Tenant nor relieve Tenant of any obligation hereunder. Tenant shall provide a “per location’ endorsement on its liability policy or policies that provides that the general aggregate and other limits apply separately and specifically to the Premises and Facility.
4. Auto Liability Insurance endorsed for all owned and non-owned vehicles in the initial amount of $2,000,000, combined single limit.
5. Worker’s Compensation Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California.
6. Lender Insurance. Any additional policy of insurance required by any lender providing permanent financing for the Facility or any Alterations.
B. Review. The liability insurance requirements may be reviewed by Landlord every five years, for the purpose of increasing (in consultation with its insurance advisors) the minimum limits of such insurance from time to time to limits which shall be reasonable and customary for similar facilities of like size and operation in accordance with generally accepted insurance industry standards, but in no event will Tenant be required to increase the amount of cumulative or single occurrence coverage by more than 50% for any five-year period.
C. General. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII. The commercial general liability and automobile liability policies hereunder shall name Landlord and Landlord Parties as additional insureds.
Tenant shall furnish Landlord with a certificate of insurance evidencing the required insurance coverage and a duly executed endorsement evidencing such additional insured status. The certificate shall contain a statement of obligation on the part of the carrier to notify Landlord of any material change, cancellation or termination of the coverage at least 30 days in advance of the effective date of any such material change, cancellation or termination. Upon Landlord’s request, Tenant shall provide certified copies of all insurance pollicies, including declarations pages.
Coverage provided hereunder by Tenant shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self-insurance maintained by Landlord or City, and the policy shall so provide. The insurance policies shall contain a waiver of subrogation for the benefit of the Landlord and other additional insureds. The required certificate and endorsement shall be furnished by Tenant to Landlord prior to the Commencement Date, and prior to each anniversary thereof. If Tenant fails to purchase, renew or maintain any insurance policies required herein, Landlord shall have the right to so purchase any such insurance.
10.2 Indemnity. To the greatest extent permitted by Law (including without limitation Civil Code Section 2782 if and to the extent applicable), Tenant shall protect, indemnify, defend and hold Landlord and Landlord Parties harmless from and against any and all demands, liability, claims, actions and damages to any person or property, costs and expenses, including attorneys’ fees, arising out of or connected with: (i) a default by Tenant of its obligations under this Ground Lease; (ii) the use or occupancy of the Facility, the Premises, the improvements thereon including any Alterations, or any portion thereof, by Tenant or Tenant’s Parties, other than those attributable to the sole negligence or willful misconduct of Landlord or Landlord Parties; and (iii) the release, use, generation, discharge,
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storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Premises in violation, or alleged violation, of any Laws, which occurs at any time during the Term. The indemnity obligation in clause (iii) above shall include any demands, liability, claims or actions for tangible or intangible property damage; compensation for lost wages, business income, profits or other economic loss; damage to the natural resource or the environment; nuisance; trespass; and/or contamination, leak, spill, release or other adverse effect on the environment. Tenant’s indemnity obligations under this Section shall survive the expiration or termination of this Ground Lease.
ARTICLE 11.
DAMAGE OR DESTRUCTION
11.1 Restoration.
A. Insured Damage. No loss or damage by fire or any other cause resulting in either partial or total destruction of the Facility or any other improvements now or hereafter located on the Premises, including any fixtures, personal property, equipment or machinery used or intended to be used in connection with the Premises or Facility, shall (except as otherwise provided in Sections 11.1.B or 11.2, below) operate to terminate this Ground Lease or to relieve or discharge Tenant from the payment of any Rent, or other amounts payable hereunder, as and when they become due and payable, or from the performance and observance of any of the agreements, covenants and conditions herein contained to be performed and observed by Tenant. Provided however, Rent shall abate during any period of time after the occurrence of such casualty if Tenant can no longer operate its business in the Facility. Tenant covenants to repair, reconstruct, and/or replace or cause to be repaired, reconstructed and/or replaced the Facility and any other improvements now or hereafter located on the Premises, including any fixtures, personal property, equipment or machinery used or intended to be used in connection with the Premises or Facility, so damaged or destroyed. Subject to the rights of any Ground Leasehold Mortgagee (as defined in Section 14.2 below) Tenant also covenants that all insurance proceeds will be deposited with the Insurance Trustee and applied to the repair, reconstruction and/or replacement described herein. Tenant’s failure to make such full repair, restoration and replacement under any conditions in which it was elected or required so to do shall constitute a default by Tenant under this Ground Lease.
B. Facility Uninsured Damage. Notwithstanding the provisions of Section
11.1.A, if, during the Term, (i) the Facility is totally destroyed or rendered inaccessible or if the remaining portion of the Facility is rendered unsuitable (as defined herein) for Tenant’s continued use, from a risk not covered 90% by the insurance required to be carried by Tenant under this Ground Lease, and (ii) the cost of restoration exceeds 50% of the then replacement value of the Facility as reasonably determined by Landlord, Tenant can elect to terminate this Ground Lease by giving notice to Landlord within 30 days after Landlord’s determination of the restoration cost and replacement value. The Facility shall be deemed unsuitable for Tenant’s continued use if, following a reasonable amount of reconstruction, Tenant’s business in the Facility could not be operated at an economically feasible level. If Tenant elects to terminate this Ground Lease, Landlord in Landlord’s sole and absolute discretion may, within 90 days after receiving Tenant’s notice to terminate, elect to pay the difference between 90% of the replacement value of the Facility and the actual cost of restoration, in which case Tenant shall restore the Facility. Promptly following Landlord’s election to contribute, Landlord shall deposit the amount of its contribution with the Insurance Trustee provided for in subsection C below. If Tenant elects to terminate this Ground Lease and Landlord in its sole and absolute discretion does not elect to contribute toward
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the cost of restoration as provided in this Subsection 11.1.B, this Ground Lease shall terminate as of the 91st day following Tenant’s notice.
C. Establishment of Insurance Trust and Disbursement Procedures. Except as may otherwise be required by any Ground Leasehold Mortgagee, Tenant shall make the loss adjustment with the insurance company insuring the loss and on receipt of the proceeds shall immediately pay them to a builder’s control company, title company, or bank selected by the mutual agreement of the parties (“Insurance Trustee”). To the extent Landlord in its sole and absolute discretion elects to contribute to the restoration costs as provided in subsection B above, Landlord shall deposit with the Insurance Trustee its contribution toward the cost of restoration. All sums deposited with the Insurance Trustee shall be held for the following purposes and the Insurance Trustee shall have the following powers and duties:
1. The sums shall be paid in installments by the Insurance Trustee to the contractor retained by Tenant as construction progresses, for payment of the cost of restoration. Any final retention provided for in the contact with such contractor will be paid to the contractor on completion of restoration, payment of all costs, expiration of all applicable lien periods, and proof that the restored Facility and the Premises are free of all mechanics’ liens and lienable claims.
2. Payments shall be made on presentation of certificates or vouchers from the architect or engineer retained by Tenant showing the amount due. If the Insurance Trustee, in its reasonable discretion, determines that the certificates or vouchers are being improperly approved by the architect or engineer retained by Tenant, the Insurance Trustee shall have the right to appoint an architect or an engineer to supervise construction and to make payments on certificates or vouchers approved by the architect or engineer retained by the Insurance Trustee. The reasonable expenses and charges of the architect or engineer retained by the Insurance Trustee shall be paid by the Insurance Trustee out of the trust fund.
3. If the sums held by the Insurance Trustee are not sufficient to pay the actual cost of restoration, Tenant shall deposit the amount of the deficiency with the Insurance Trustee within ten (10) business days after request by the Insurance Trustee indicating the amount of the deficiency.
4. Any undisbursed funds after compliance with the provisions of this Subsection 11.1.C shall be delivered to Landlord to the extent of Landlord’s contribution to the fund, and the balance, if any, shall be paid to Tenant.
5. All actual costs and charges of the Insurance Trustee shall be paid by Tenant.
6. If the Insurance Trustee resigns or for any reason is unwilling to act or continue to act, the parties shall substitute a new trustee in the place of the designated Insurance Trustee.
7. Both parties shall promptly execute all documents and perform all acts reasonably required by the Insurance Trustee to perform its obligations under this Subsection
11.1.C.
11.2 Right to Terminate Upon Destruction Near the End of the Term.
If, during the last year of the Term, the Facility is totally or partially destroyed, and if the cost
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of restoration exceeds 20% of the replacement cost of the Facility immediately before the damage or destruction, Tenant may elect to terminate this Ground Lease, provided that Tenant complies with all of the following conditions:
A. Tenant gives Landlord written notice of the damage or destruction within 30- days after the event causing such damage or destruction; B. Tenant is not in default under this Ground Lease;
C. Tenant transfers to Landlord all insurance proceeds resulting from the casualty, net of any cost incurred by Tenant in collecting such insurance proceeds and/or in complying with the provisions of Subsection 11.2.E below and net of the portion of such proceeds that are payable to any Ground Leasehold Mortgagee pursuant to the Ground Leasehold Mortgage; and
D. Tenant delivers possession of the Premises, the Facility and all other improvements located on the Premises to Landlord and quitclaims to Landlord all of Tenant’s right, title and interest therein.
E. If Tenant so elects to terminate this Ground Lease under this Section, then Tenant shall, at its expense, promptly remove all debris and put the Facility, the Premises and all improvements thereon in a safe condition. Following Tenant’s satisfactory performance of the foregoing requirements, this Ground Lease shall terminate and the parties shall have no further obligations to each other excepting those previously accrued but theretofore unsatisfied and those obligations which by their terms survive expiration or termination of this Ground Lease.
11.3 Waiver. The provisions of this Article 11 shall govern the rights of the parties in the event of any full or partial destruction of the Facility and any improvements thereon. Tenant hereby waives the provisions of Civil Code Section 1932(2) and Civil Code Section 1933(4) and any similar successor statute or Law with respect to any destruction of the Facility.
11.4 Determination of Extent of Destruction, Interference with Use.
For purposes of this Article 11, the extent of destruction of the Facility shall be determined by dividing the estimated cost of replacement or restoration as evidenced by estimates prepared by licensed general contractors acceptable to Landlord by the full replacement cost of the Facility, as reasonably determined by Landlord.
11.5 Procedures for Repair and Restoration. In the event of any damage or destruction, Tenant shall promptly give Landlord written notice of such damage or destruction and the date on which such damage or destruction occurred. Tenant shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which Tenant may have against insurers or others based upon any such damage or destruction. Except as otherwise provided above, amounts received on account of any losses pursuant to insurance policies shall be used and expended for the purpose of fully repairing or reconstructing the portions of the Facility which have been destroyed or damaged. Tenant shall commence and complete or cause to be commenced and completed, in a good and workmanlike manner and in accordance with Article 7, the reconstruction or repair of any part of the Facility damaged or destroyed, after Landlord has approved Tenant’s plans, drawings, specifications, construction schedule and permits for such reconstruction or repair.
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ARTICLE 12.
CONDEMNATION
12.1 Definitions.
A. “Condemnation” means: (1) the exercise of any governmental power in eminent domain, whether by legal proceedings or otherwise, by a condemnor, and (2) a voluntary sale or transfer to any condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.
B. “Date of taking” means the date the condemnor has the right to possession of the property being condemned.
C. “Award” means all compensation, sums or anything of value awarded, paid or received on a total or partial condemnation.
D. “Condemnor” means any public or quasi-public authority, or private corporation or individual, having the power of condemnation.
12.2 Parties’ Rights and Obligations to be Governed by Ground Lease. If during the Term there is any taking of all or any part of the Premises, the Facility or any other improvements on the Premises or any interest in this Ground Lease by condemnation, the rights and obligations of the parties shall be determined pursuant to the provisions of this Article 12.
12.3 Total Taking. If the Premises or Facility is totally taken by condemnation, this Ground Lease shall terminate on the date of taking.
12.4 Effect of Partial Taking. If a portion of the Facility or Premises or any other improvements thereon are taken by condemnation, this Ground Lease shall remain in effect, except that Tenant may elect to terminate this Ground Lease if the remaining portion of the Premises or Facility is rendered unsuitable (as defined herein) for Tenant’s continued use. The remaining portion of the Facility or the Premises shall be deemed unsuitable for Tenant’s continued use if, with a reasonable amount of reconstruction, Tenant’s business in the Facility could not be operated at an economically feasible level. Tenant must exercise its right to terminate by giving Landlord written notice of its election within 90 days after the nature and extent of the taking have been finally determined. Such notice shall also specify the date of termination, which shall not be prior to the date of taking. Failure to properly exercise the election provided for in this Section 12.4 will result in this Ground Lease continuing in full force and effect. Provided however, if the Ground Lease continues in effect as aforesaid, the Base Rent shall be equitably abated based on the remaining area of the Facility or the Premises bears to the pre-condemnation area of the Facility or the Premises.
12.5 Restoration of Facility. If in Tenant’s judgment it is reasonably possible and economically feasible to do so, Tenant shall be entitled to use that portion of the award allocable to the Facility (but not any portion allocable to the Premises) as is necessary to restore or to add on to the Facility so that the area and approximate layout of the Facility will be substantially the same after the date of taking as it was before the date of taking. If it is not reasonably possible and economically feasible to so restore the area and layout of the Facility, the remaining provisions of this Article 12 shall govern the rights of the parties. If Tenant fails to promptly commence any reasonably required repair, restoration or
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26 reconstruction of the Facility and diligently prosecute such repair, restoration or reconstruction to completion, and such failure is not remedied within 30 days of written notice from the Landlord to Tenant, this Ground Lease may be terminated by the Landlord.
12.6 Waiver of CCP Section 1265.130. Each party waives the provisions of the Code of Civil Procedure Section 1265.130 allowing either party to petition the Superior Court of the County of Alameda, State of California to terminate this Ground Lease in the event of a partial taking of the Premises.
12.7 Award. If all or any portion of the Premises is taken in connection with a condemnation, the entire portion of the award allocable to the Premises shall belong to Landlord. Subject to the provisions of Section 12.5, and subject to the rights of any Ground Lease Mortgagee, if all or any portion of the Facility or any other improvements on the Premises is taken in connection with a condemnation, the award for the Facility or such other improvements shall belong to Landlord, except as hereinafter provided. Tenant, or any subtenant, as applicable, shall be entitled to receive only: (a) the value of any leasehold improvements, merchandise, personal property, and furniture, fixtures and equipment owned by Tenant or its subtenant that are taken in connection with such condemnation; and (b) loss of Tenant’s or its subtenant’s business goodwill, if agreed to be paid by the condemning authority or awarded by a court. Neither Tenant nor any subtenant shall have any right to receive any amount on account of any loss of any other interest in this Ground Lease, including without limitation any so-called “leasehold bonus value” or other amount due to differences between the Rent payable hereunder and the then current fair market rental value of Tenant’s interest in this Ground Lease. Nothing in this Section 12.7 shall be deemed a waiver or surrender by Tenant or any subtenant of any right to receive relocation assistance under Government Code Section 7260, et seq., or compensation for moving of personal property under Code of Civil Procedure Section 1263.260.
ARTICLE 13.
BRAND QUALITY, ASSIGNMENT AND SUBLETTING
13.1 Brand Name and Quality.
A. Tenant shall continue to operate the Restaurant as Skates on the Bay.
B. Tenant shall continue the first-class business reputation Skates on the Bay currently has in the restaurant industry, and operate a restaurant at the same or better level of quality as at lease commencement.
C. Tenant shall provide the City with advance notice in the event that a brand name change or quality change is requested. The request shall include the reason for the request, along with supporting documentation that the proposed concept, name, and quality will continue to facilitate a first class, high quality, full-service restaurant that meets a community need, and is of a similar price point and revenue-generation standard to Skates on the Bay. The City shall have 3 months to review the proposal, request additional information, however City’s approval shall not be unreasonably withheld, conditioned or delayed.
13.2 Assignment.
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27 A. Tenant shall not assign, sublet or otherwise transfer, whether voluntarily or involuntarily or by operation of Law, this Ground Lease, the Facility or any part thereof (collectively an “assignment”) without Landlord’s written consent, which shall not unreasonably be withheld, conditioned or delayed. The merger of Tenant with any other entity or the assignment or transfer of any controlling or managing ownership or beneficial interest in Tenant, or the assignment or transfer of a substantial portion of the assets of Tenant, whether or not located at the Premises, shall constitute an “assignment” hereunder. Tenant agrees that it shall not be unreasonable for Landlord to condition its approval upon, among other things, the proposed assignee having a financial net worth, according to a current financial statement prepared by a certified public accountant, which is equal to or greater than that of Tenant at the date of execution of this Lease or at the time of assignment, whichever is higher, upon the proposed assignee having a reputation for and experience and qualifications in operating and maintaining restaurant properties comparable to the Facility, and upon the proposed assignee having a first-class business reputation. In evaluating the acceptability of the net worth of a proposed assignee, Landlord may require that the assignee’s net worth be sufficient to carry out the performance of Tenant’s obligation under this Ground Lease. Subject to the foregoing, Landlord agrees that it will not withhold its consent to Tenant’s assignment of its interest in this Ground Lease if Tenant demonstrates to Landlord’s reasonable satisfaction that such assignee has a net worth equal to or exceeding that of Tenant as of the Effective Date or the assignment date (whichever is greater), has a reputation for and at least five years’ experience and qualifications in operating and maintaining at least three similar restaurants of comparable quality, has a first-class business reputation in the restaurant industry, and will provide a restaurant that serves the community well.
Tenant shall promptly provide Landlord with any information reasonably requested by Landlord relating to the identity of any proposed assignee, the nature of such assignee’s business and the proposed assignee’s financial responsibility. Landlord’s consideration should be limited to the proposed assignee’s financial condition, its business experience and reputation, and the standard of operation of its existing restaurants, in determining whether to grant consent to the assignment.
B. Notwithstanding Subsection 13.1.A above, Landlord’s consent is not required for any assignment to an Affiliate of Tenant (as defined below), as long as the following conditions are met: (i) Landlord receives written notice of the assignment (as well as any documents or information reasonably requested by Landlord regarding the assignment or assignee); and (ii) the assignee assumes in writing all of Tenant’s obligations under this Ground Lease. For purposes of this Section, “Affiliate” means an entity which controls, is controlled by or under common control with Tenant. For the purposes of this definition, "control" means the direct or indirect ownership of more than 50% of the voting securities of an entity or possession of the right to direct the entity's day-to-day affairs. Notwithstanding Subsection 13.1.A above, Landlord’s consent is not required for (A) a transfer of any ownership interest in connection with a proposed public offering by Tenant or an Affiliate or parent or holding company; or (B) the merger or consolidation with or the sale of substantially all of the assets of Tenant or Tenant’s parent to a third party who shall assume Tenant’s obligations under this Lease; in such event, Tenant shall notify Landlord in writing of the occurrence of either of the foregoing events, and shall provide a true and correct copy of the assignment and assumption agreement, together with such other documentation supporting or evidencing said event as may be reasonably requested by Landlord.
C. No partial assignments of this Ground Lease shall be permitted.
Assignments of this Ground Lease shall only be made pursuant to a written assignment and assumption agreement in a form reasonably acceptable to Landlord. Landlord’s consent to any one assignment shall not constitute consent to any other assignment, and shall not constitute a waiver of the right to give or withhold consent in accordance with this Section 13.1.
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28 D. In the event Tenant shall assign this Ground Lease or request the consent of Landlord to any assignment, or if Tenant shall request the consent of Landlord for any other act Tenant proposes to do, then Tenant shall pay Landlord's reasonable attorneys' fees incurred in connection with each such request.
13.3 Subleases. Tenant shall not sublease all or any portion of the Facility or the Premises without Landlord’s prior written consent, which may not be unreasonably withheld, conditioned or delayed.
ARTICLE 14.
TENANT DEFAULTS AND LANDLORD’S REMEDIES
14.1 Defaults by Tenant. Tenant shall be in default under this Ground Lease upon occurrence of any of the following:
A. Tenant shall at any time be in default in the payment of Rent or any other monetary sum called for by this Ground Lease for more than 10 days following written notice from Landlord to Tenant; or
B. Tenant shall at any time be in default in the keeping and performing of any of its other covenants or agreements herein contained, and should such other default continue for 30 days after written notice thereof from Landlord to Tenant specifying the particulars of such default, or if such other default is of a nature that curing such default will take more than 30 days Tenant has failed to commence such cure within such 30-day period and to thereafter diligently and continuously pursue completion of such cure; or
C. Tenant fails to have timely Commenced Construction or achieved substantial completion of the Improvements as required by Section 2.2; or D. Tenant abandons or substantially suspends the Improvements prior to completion thereof and such default is not cured within 30 days of written notice from Landlord to Tenant; or
E. Tenant assigns, sells, transfers, conveys, encumbers, hypothecates or leases the whole or any part of the Facility, the Premises, or any other improvement constructed thereon in violation of the Ground Lease; or
F. Except as otherwise expressly permitted in this Ground there is any change in control of Tenant, or any other act or transaction involving or resulting in a change in the identity of the parties in control of Tenant or the degree of such control; or G. Tenant fails to pay promptly when due each and every installment of principal and interest on any private loan encumbering Tenant’s interest in this Ground Lease or any improvements on the Premises for which Tenant is responsible, and such failure continues beyond (i) the expiration of any applicable grace or cure period, and (ii) the date by which Tenant must make payment to cure any notice of default received from the holder of such private loan; or H. Any Ground Leasehold Mortgagee or any other holder of any private loan encumbering Tenant’s interest in this Ground Lease, or any improvements on the Premises initiates a foreclosure of the deed of trust by which such loan is secured, and Tenant fails to cause such foreclosure proceedings to be dismissed prior to the earlier to occur of (i) the trustee under
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29 the deed of trust giving notice of the trustee’s sale, or (ii) within 30 days of Tenant’s receipt of written notice from Landlord..
14.2 Remedies. Subject to the rights of any Ground Leasehold Mortgagees permitted under Article 15, upon the occurrence of any such default, in addition to any and all other rights or remedies of Landlord hereunder, or by Law or in equity provided, Landlord shall have the sole option to exercise the following rights and remedies:
A. Terminate this Ground Lease by giving Tenant thirty (30) days prior written notice of termination. Thirty days after the giving of such notice, all of Tenant’s rights in the Premises, Facility and any other improvements located thereon, shall terminate. On the 30 th day Immediately following delivery of the notice of termination, Tenant shall surrender and vacate the Premises, including the Facility and any other improvements located thereon, leaving them in broom-clean condition; and, subject to Subsection 14.2.B, below, respecting the right of certain subtenants to remain, Landlord may reenter and take possession of the Premises and Facility and eject all parties in possession or eject some and not others, or eject none. Termination under this subsection shall not relieve Tenant from the payment of any sum then due to Landlord or from any claim for damages previously accrued or then accruing against Tenant.
B. Without terminating this Ground Lease, Landlord may at any time and from time to time relet the Premises, including the Facility, or any part or parts thereof for the account and in the name of Tenant or otherwise. Any reletting may be for the remainder of the Term or for a longer or shorter period. Landlord may execute any leases made under this provision either in Landlord’s name or in Tenant’s name, and shall be entitled to all rents from the use, operation, and occupancy of the Premises, Facility and any other improvements thereon. Tenant hereby appoints Landlord its attorney-in-fact for purpose of such leasing. Tenant shall nevertheless pay to Landlord on the due dates specified in this Ground Lease the equivalent of all sums required of Tenant under this Ground Lease, less the revenue received by Landlord from any reletting or attornment, plus Landlord’s expenses, including (by way of example), but not limited to, remodeling expenses, Landlord’s brokerage and advertising costs and attorneys’ fees and costs. No act by or on behalf of Landlord under this subsection shall constitute a termination of this Ground Lease unless Landlord gives Tenant written notice of termination.
C. Even though Landlord may have relet all or any portion of the Premises, including the Facility and any other improvements thereon, Landlord may thereafter elect to terminate this Ground Lease and all of Tenant’s rights in or to the foregoing.
14.3 Damages. Should Landlord elect to terminate this Ground Lease, Landlord shall be entitled to recover from Tenant, as damages:
A. The worth at the time of the award of the unpaid Rent that had been earned at the time of termination of this Ground Lease;
B. The worth at the time of the award of the amount by which the unpaid Rent that would have been earned after the date of termination of this Ground Lease until the time of award exceeds the amount of the loss of Rent that Tenant proves could have been reasonably avoided;
C. The worth at the time of the award of the amount by which the unpaid Rent for the balance of the Term of this Ground Lease after the time of award exceeds the amount of the loss of Rent that Tenant proves could have been reasonably avoided; and
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30 D. Any other amount (and court costs) necessary to compensate Landlord for all detriment proximately caused by Tenant’s default, including costs of alterations and improvements in connection with reletting.
E. Computing Worth at the Time of Award. The “worth at the time of the award,” as used in Subsections 14.3.A and 14.3.B, is to be computed by allowing interest at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. The “worth at the time of the award,” as referred to in Subsection 14.3.C, is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent.
F. Landlord shall mitigate its damages by making reasonable efforts to relet the Premises on reasonable terms, including engaging a listing broker to market the Leased Premises and publishing the space as “available” in real estate databases commonly used by commercial brokers in the San Francisco/Berkley, CA market. Landlord may relet for a shorter or longer period of time than the Term and make any necessary repairs or alterations. If Landlord relets for a period of time shorter or longer than the current Term or at a lower rental rate than the Base Rent herein, then Tenant shall be liable for any lost Rent and expenses related to the new lease limited to leasing commissions, and reasonable tenant improvements, however, the cost of the leasing commissions and tenant improvements shall be amortized over the entire reletting term so that Tenant shall only be liable for such costs and expenses allocated to the remaining term of the Lease.
14.4 Landlord’s Right to Cure Tenant’s Default. Landlord, at any time after Tenant commits a default which Tenant has failed to cure within the time established therefor, may cure the default at Tenant’s cost. If Landlord at any time, by reason of Tenant’s default, pays any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date, shall bear interest at the maximum rate permitted under Section 1(2) of Article XV of the California Constitution from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant.
ARTICLE 15.
MORTGAGEE PROTECTION PROVISIONS
15.1 Ground Leasehold Mortgage Authorized. In addition to the mortgagee under the Existing Ground Leasehold Mortgage, as provided and defined in this Article, Tenant may mortgage or otherwise encumber Tenant’s interest in this Ground Lease to an “Institutional Investor” under one or more Ground Leasehold Mortgage(s) and assign this Ground Lease as security for such mortgage(s). The Ground Leasehold Mortgage(s) shall affect only Tenant’s interest in this Ground Lease and shall be subject to all of the terms and provisions of this Ground Lease. Landlord’s fee interest shall not be encumbered or subordinated.
15.2 Notice to Landlord. If Tenant shall mortgage Tenant’s interest in this Ground Lease to an Institutional Investor, and if the holder of such Ground Leasehold Mortgage shall provide Landlord with notice of such Ground Leasehold Mortgage, together with a true copy of such Ground Leasehold Mortgage, the note and all other documents relating to such Ground Leasehold Mortgage, and the name and address of the holder, Landlord and Tenant agree that, following receipt of such notice by Landlord, the provisions of this Article 15 shall apply with respect to such Ground Leasehold Mortgage. In the event of any assignment of a Ground Leasehold Mortgage, or in the event of a change of address
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31 of the holder thereunder or of an assignee of such holder, notice of the new name and address shall be provided to Landlord. Tenant shall thereafter also provide Landlord from time to time with a copy of each amendment or other modification or supplement to such instruments. All recorded documents shall be certified as true and correct copies of official records by the Alameda County Recorder and all nonrecorded documents shall be accompanied by a certification by Tenant or the holder that such documents are true, complete, and correct copies of the originals.
15.3 Definitions. As used in this Article 15:
A. “Institutional Investor” means any lender which has assets in excess of $100 Million at the time the Ground Leasehold Mortgage or similar loan is made.
B. “Ground Leasehold Mortgage” includes a mortgage, deed of trust or other security instrument authorized in favor of an (except as provided in Section 15.3) either (i) an Institutional Investor by which Tenant’s interest in this Ground Lease are mortgaged, conveyed, assigned or otherwise transferred to secure a debt or other obligation, or (ii) the Existing Ground Leasehold Mortgage.
C. “Existing Ground Leasehold Mortgagee” or “Mortgagee” shall refer to a holder of a Ground Leasehold Mortgage either (i) under with respect to which the notice provided for by Section 15.2 has been given and received and as to which the provisions of this Article 15 are applicable or (ii) under the Existing Ground Leasehold Mortgage.
15.4 Consent of Ground Leasehold Mortgagee Required.
No
cancellation, surrender or modification of this Ground Lease shall be effective as to any Ground Leasehold Mortgagee unless consented to in writing by such Ground Leasehold Mortgagee.
15.5 Notice to Ground Leasehold Mortgagee.
With respect to any
Ground Leasehold Mortgage, whenever Landlord shall deliver any notice to Tenant with respect to any default by Tenant hereunder, Landlord shall at the same time deliver a copy of such notice to each Ground Leasehold Mortgagee authorized by this Ground Lease. No notice of default shall be effective as to the Ground Leasehold Mortgagee unless such notice is given. Each Ground Leasehold Mortgagee shall (insofar as the rights of Landlord are concerned) have the right, at its option, within 60 days after the receipt of the copy of the notice, to cure or remedy or commence to cure or remedy any such default. In the event possession of the Facility or the Premises, or any portion thereof, is required to effectuate such cure or remedy, the Ground Leasehold Mortgagee shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within 60 days after receipt of the copy of the notice, diligently and continuously pursues such proceedings to completion, and, after obtaining possession, diligently and continuously completes such cure or remedy. The provisions of Section 15.7 below shall apply if, during such 60-day termination notice period, the Ground Leasehold Mortgagee shall A. Notify Landlord of such Ground Leasehold Mortgagee’s desire to nullify such notice, and
B. Pay or cause to be paid all Rent, and other payments then due and in arrears as specified in the termination notice to such Ground Leasehold Mortgagee and which may become due during such 60-day period, and
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32 C. Comply, or in good faith, with diligence and continuity, commence to comply, with all nonmonetary requirements of this Ground Lease then in default and reasonably susceptible of being complied with by such Ground Leasehold Mortgagee; provided, however, that in the event such Ground Leasehold Mortgagee shall commence foreclosure proceedings within such 60-day period, such Ground Leasehold Mortgagee shall not be required during such 60-day period to cure or commence to cure any default consisting of Tenant’s failure to satisfy and discharge any lien, charge or encumbrance against the Tenant’s interest in this Ground Lease junior in priority to the lien of the Ground Leasehold Mortgage held by such Ground Leasehold Mortgagee.
D. Any notice to be given by Landlord to a Ground Leasehold Mortgagee pursuant to any provision of this Article 15 shall be deemed properly addressed if sent to the Ground Leasehold Mortgagee who served the notice referred to in Section 15.2 at the address stated in such notice unless notice of a change of mortgage ownership has been given to Landlord pursuant to Section 15.2.
15.6 Ground Leasehold Mortgagee Foreclosure.
If Landlord shall elect
to terminate this Ground Lease by reason of any default of Tenant and the Ground Leasehold Mortgagee shall have proceeded in the manner provided for by Section 15.5, the specified date for termination of this Ground Lease as fixed by Landlord in its termination notice shall be extended for a period of six months, provided that such Ground Leasehold Mortgagee shall, during such six-month period:
A. Pay, or cause to be paid, Rent (including the Base Rent, Percentage Rent, and any other monetary obligations of Tenant under this Ground Lease) as the same become due, and continue its good faith efforts to perform all of Tenant’s other obligations under this Ground Lease; and
B. If not enjoined or stayed, take steps to acquire or sell Tenant’s interest in this Ground Lease by foreclosure of the Ground Leasehold Mortgage or other appropriate means and prosecute the same to completion with diligence.
If, at the end of such six-month period, such Ground Leasehold Mortgagee is diligently complying with this Section 15.6, this Ground Lease shall not then terminate, and the time for completion by such Ground Leasehold Mortgagee of its proceedings shall continue so long as such Ground Leasehold Mortgagee is enjoined or stayed and thereafter provided such Ground Leasehold Mortgagee continues to meet its obligations under Subsection 15.6.A above, and proceeds to complete steps to acquire or sell Tenant’s interest in this Ground Lease by foreclosure of the Ground Leasehold Mortgage or by other appropriate means with reasonable diligence and continuity. Nothing in this Section 15.6, however, shall be construed to extend this Ground Lease beyond the Initial Term (or, if applicable, any then-effective Extension Term), nor to require a Ground Leasehold Mortgagee to continue such foreclosure proceedings after the default has been timely cured. If the default shall be timely cured and the Ground Leasehold Mortgagee shall discontinue such foreclosure proceedings, this Ground Lease shall continue in full force and effect as if Tenant had not defaulted under this Ground Lease.
15.7 Purchaser at Foreclosure. If the Ground Leasehold Mortgagee is complying with Section 15.6, upon the acquisition of the entirety of Tenant’s interest in this Ground Lease by such Ground Leasehold Mortgagee or its designee or any other purchaser at a foreclosure sale or otherwise (and the discharge or extinguishment of any lien, charge or encumbrance against Tenant’s interest in this Ground Lease which is junior in priority to the
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33 lien of the Ground Leasehold Mortgage held by such Ground Leasehold Mortgagee and which the Tenant is obligated to satisfy and discharge by reason of the terms of this Ground Lease), this Ground Lease shall continue in full force and effect as if Tenant had not defaulted under this Ground Lease. Any such purchaser, including the Ground Leasehold Mortgagee or the transferee under any instrument of assignment or transfer in lieu of the foreclosure of the Ground Leasehold Mortgage, shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of the Tenant to be performed hereunder from and after the date of such purchase and assignment.
15.8 Ground Leasehold Mortgagee’s Right to Sell. If such Ground Leasehold Mortgagee acquires title to Tenant’s interest in this Ground Lease pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings, such Ground Leasehold Mortgagee, upon acquiring Tenant’s interest in this Ground Lease, may sell and assign the combined entirety of Tenant’s interest in this Ground Lease only on such terms and to such persons and organizations as are reasonably acceptable to Landlord. If such Ground Leasehold Mortgagee’s proposed transferee is acceptable to Landlord, in the exercise of Landlord’s commercially reasonable discretion, then from and after the date of such sale and assignment the Ground Leasehold Mortgagee shall be relieved of all obligations under this Ground Lease as if such transferee has delivered to Landlord its written agreement to be bound by all of the provisions of this Ground Lease.
15.9 Holder Not Obligated to Construct Improvements. The holder of any Ground Leasehold Mortgage authorized by this Ground Lease shall not be obligated by the provisions of this Ground Lease to construct or complete the Improvements or to guarantee such construction or completion. Nothing in this Ground Lease shall be deemed to or be construed to permit or authorize any such Ground Leasehold Mortgagee to devote the Facility or the Premises to any uses or to construct any improvements thereon or therein other than those uses and improvements provided for and authorized by this Ground Lease.
15.10 Right of Landlord to Cure Ground Leasehold Mortgage Default.
If a Ground Leasehold Mortgage default or breach by Tenant occurs prior to completion of the Improvements, and the Ground Leasehold Mortgagee has not exercised its option to cure the default, Landlord may cure the default following prior notice thereof to Tenant. In such event, Tenant shall be liable for, and Landlord shall be entitled to reimbursement from Tenant of, all costs and expenses incurred by Landlord associated with and attributable to the curing of the Ground Leasehold Mortgage default or breach. Landlord shall also be entitled to record a lien against Tenant’s interest in this Ground Lease to the extent of such incurred costs and disbursements. Any such lien shall be subject and subordinate to all prior Ground Leasehold Mortgages and encumbrances.
ARTICLE 16.
MISCELLANEOUS
16.1 Holding Over. If Tenant shall hold over in the Facility or on the Premises after the expiration of the Term hereof with the consent of Landlord, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations contained in this Ground Lease. Tenant hereby agrees to pay to Landlord as monthly rental 1/12th of the amount which is 125% of the highest amount of total Annual Rent paid by Tenant to Landlord during the Term.
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34 16.2 Attorneys’ Fees. In the event that any action is brought by either party hereto against the other for the enforcement or declaration of any right or remedy in or under this Ground Lease or for the breach of any covenant or condition of this Ground Lease, the prevailing party shall be entitled to recover, and the other party agrees to pay, all fees and costs to be fixed by the court therein including, but not limited to, attorneys’ fees.
16.3 Quiet Possession. Landlord agrees that so long as Tenant is not in default under this Ground Lease and is paying the Rent and performing all of the covenants and conditions of this Ground Lease, Tenant shall quietly have, hold and enjoy the Premises throughout the Term hereof without interruption or disturbance from Landlord or any other persons claiming by, through or under Landlord.
16.4 Force Majeure. Except as to the payment of Rent, subject to the limitations set forth below, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Ground Lease shall be extended, where delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; unusually severe weather; lack of reasonable availability of labor or materials; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of Landlord which shall not excuse performance by Landlord). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause. Times of performance under this Ground Lease may also be extended in writing by the mutual agreement of Landlord and Tenant. Tenant expressly agrees that adverse changes in economic conditions, either of Tenant specifically or the economy generally, changes in market conditions or demand, and/or Tenant’s inability to obtain financing or other lack of funding, or to complete the Improvements shall not constitute grounds of force majeure delay pursuant to this Section 16.4. Tenant expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Commencement Date.
If, at any time during the Term, fifty percent (50%) or more of the indoor dining room portion of the Premises cannot be utilized as a seated indoor dining restaurant for more than three (3) days as a result of any local, state, or federal order, regulation, law, directive or other mandate (each a “Government Order”), then Base Rent payable thereafter shall abate commencing as of the date on which such Government Order takes effect, and expiring on the date on which such Government Order is lifted. In the event that the Government Order has not ceased within 180 days from the first date on which the Government Order takes effect, Tenant shall have the right to elect to terminate this Lease at any time thereafter upon written notice to Landlord at any time after the expiration of such 180 day period, and both parties shall be relieved of all further obligations hereunder except for those obligations which expressly survive any termination hereof.
16.6 Notices. Any notice to be given or other document to be delivered by either party to the other hereunder shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery, (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth below, or (iii) the immediately succeeding business day after deposit with Federal Express or other equivalent overnight delivery system, addressed to the party for
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35 whom intended, as indicated in the Basic Lease Information. Any party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified.
16.7 Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Ground Lease shall be construed to be a waiver of any succeeding breach of the same or other terms, covenants, agreements, restrictions and conditions hereof.
16.8 Surrender. Upon the expiration or sooner termination of the Term of this Ground Lease, and notwithstanding anything herein contained to the contrary, Tenant shall surrender to Landlord the Facility, the Premises and any improvements thereon, broom clean and in good condition and repair, reasonable wear and tear excepted.
16.9 Binding. Subject to the restrictions set forth herein regarding assignment of , Tenant’s interest in this Ground Lease, each of the terms, covenants and conditions of this Ground Lease shall extend to and be binding on and shall inure to the benefit of not only Landlord and Tenant, but to each of their respective heirs, administrators, executors, successors and assigns. Whenever in this Ground Lease reference is made to either Landlord or Tenant, the reference shall be deemed to include, wherever applicable, the heirs, administrators, executors, successors and assigns of such parties, the same as if in every case expressed.
16.10 Landlord’s Right to Enter Premises and Facility . Landlord and its authorized representatives shall have the right to enter the Premises and Facility at all reasonable times, after giving Tenant 24 hours prior written notice (except in emergency in which case no notice shall be required), for any purpose, including: to determine whether the Premises, the Facility, or any other improvements on the Premises is in good condition and whether Tenant is complying with its obligations under this Ground Lease; to do any necessary maintenance and to make any restoration to the Facility or any other improvements upon the Premises that Landlord has the right or obligation to perform; to serve, post or keep posted any notices required or allowed under the provisions of this Ground Lease; and to do any act or thing necessary for the safety or preservation of the Facility and the Premises if any excavation or other construction is undertaken or is about to be undertaken on any adjacent property or nearby street.
A. Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of Landlord’s entry on the Premises and Facility as provided in this Section other than any property damage, bodily injury, or death caused by the sole active negligence or willful misconduct of Landlord, its agents, employees or contractors.
B. Tenant shall not be entitled to an abatement or reduction of Rent if Landlord exercises any rights reserved in this section but only if Landlord’s exercise of such rights does not prevent Tenant from operating its business in the Premises in the ordinary course.
16.11 Disclaimer of Partnership. The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the Improvements or in the conduct of Tenant’s business or otherwise.
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36 16.12 Memorandum. Landlord and Tenant shall execute a Memorandum of this Ground Lease or any amendment or modification thereof for recordation in the official records of the County of Alameda, California, in substantially the form attached hereto as Exhibit C.
16.13 Quitclaim. At the expiration or earlier termination of the Term, Tenant shall execute, acknowledge and deliver to Landlord within 15 days after Landlord’s written demand to Tenant, any quitclaim deed or other document reasonably required by Landlord or any reputable title company to remove the cloud of this Ground Lease from the Premises and confirm Landlord’s title to the Facility.
16.14 Interpretation. The titles to the sections of this Ground Lease are not a part of this Ground Lease and shall have no effect upon the construction or interpretation of any part of this Ground Lease. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement shall be interpreted as though prepared jointly by both parties.
16.15 Severability. If any term, provision, condition or covenant of this Ground Lease or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Ground Lease, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by Law.
16.16 Computation of Time. The time in which any act is to be done under this Ground Lease is computed by excluding the first day, and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
16.17 Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Ground Lease, and in signing this Ground Lease, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Ground Lease, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Ground Lease; and, they have freely signed this Ground Lease without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Ground Lease, and without duress or coercion, whether economic or otherwise.
16.18 Time of Essence. Time is expressly made of the essence with respect to the performance by Landlord and Tenant of each and every obligation and condition of this Ground Lease.
16.19 Nonliability of Landlord’s Officials and Employees. No member, official or employee of Landlord shall be personally liable to Tenant, or any successor in interest, in the event of any default or breach by Landlord or for any amount which may become due to Tenant or its successors, or on any obligations under the terms of this Ground
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37 Lease. Tenant hereby waives and releases any claim it may have against the members, officials or employees of Landlord with respect to any default or breach by Landlord or for any amount which may become due to Tenant or its successors, or on any obligations under the terms of this Ground Lease.
16.20 Assignment by Landlord. Landlord may assign or transfer any of its interests hereunder at any time without Tenant’s consent, provided any such assignee shall assume in writing all of Landlord’s obligations under this Lease, and shall provide written notice to Tenant of any such assignment, and the notice and payment addresses of such assignee.
16.21 Applicable Law. The laws of the State of California, including all statutes of limitations but without regard to conflict of laws principles, shall govern the interpretation and enforcement of this Ground Lease.
16.22 Agent for Service of Process. Tenant expressly agrees and understands that if it is not a resident of this State, or is an association or partnership without a member or partner resident of this State, or is a foreign corporation or company, then Tenant shall file with Landlord a designation of a natural person residing in the County of Alameda, State of California, giving his or her name, residence, and business address as Tenant's agent for the purpose of service of process in any court action between Tenant and Landlord arising out of or based upon this Ground Lease, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon such Tenant.
Tenant further expressly agrees, covenants and stipulates that if for any reason service of such process upon such agent is not possible, or Tenant fails to maintain such an agent, then in such event Tenant may be personally served with such process out of the State of California, and that such service shall constitute valid service upon such Tenant; and it is further expressly agreed that Tenant is amenable to the process so served, submits to the jurisdiction of the court so acquired, and waives any and all objection and protest thereto.
16.23 Covenants and Conditions. Each obligation of
the parties
hereunder, including, without limitation, Tenant’s obligation for the payment of Rent, shall be construed to be both a covenant and a condition of this Ground Lease.
16.24 Integration. This Ground Lease, together with all exhibits and attachments hereto, constitute the entire agreement between the parties and there are no conditions, representations or agreements regarding the matters covered by this Ground Lease which are not expressed herein.
16.25 Estoppel Certificates.
From time to time, Tenant shall execute and
deliver to Landlord within 20 days of request a certificate certifying (i) that this Ground Lease is unmodified and in full force and effect or, if there has been any modification, that this Ground Lease is in full force and effect as modified, and stating the date and nature of each such modification; (ii) the date to which Rent and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in such certificate; (iv) that Landlord is not in default under this Lease and that Tenant has no claims, charges, offsets or defenses against Landlord, or specifying the nature of any such default or claim, charges, offsets or defense; and (v) such other matters as may be reasonably requested by Landlord. Any such certificate may be relied upon by any prospective purchaser, vendee or other party. If Tenant fails to execute and deliver any such certificate within ten business days after Landlord’s written request, such
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38 failure, at Landlord’s election, shall be conclusive against Tenant that this Lease is in full force and effect, without modification (except as may be represented by Landlord), that there are no uncured defaults in Landlord’s performance, and that not more than one month’s rent has been paid in advance. In the event that Tenant requests Landlord to execute a certificate pursuant to this 16.25, then Tenant shall pay Landlord’s reasonable attorneys’ fees and consultant costs incurred in connection with each such request in an amount not to exceed $1,500, which amount shall be increased by annual CPI adjustments.
16.26 Amendments to this Ground Lease. Landlord and Tenant agree to mutually consider reasonable requests for amendments to this Ground Lease that may be made by either of them, lending institutions or bond counsel or financial consultants to Landlord or Tenant, provided such requests are consistent with this Ground Lease and would not materially alter the basic business terms included herein. Tenant shall pay Landlord’s reasonable attorneys’ fees and third-party costs incurred in connection with any amendment requested by or on behalf of Tenant. No amendment shall be effective unless in writing and signed by the parties hereto.
16.27 Brokerage Commissions. Landlord and Tenant
each represents
that it has not been represented by any broker in connection with this Ground Lease, and that no real estate broker’s commission, finder’s fee or other compensation (individually and collectively, “Brokerage Commission”) is due or payable. Landlord and Tenant each agrees to indemnify and hold the other harmless from any claims or liability, including reasonable attorneys’ fees, in connection with a claim by any person for a Brokerage Commission based upon any statement, representation or agreement of the other party.
16.28 City Non-Discrimination Ordinance. Tenant hereby agrees to comply with the provisions of the Berkeley Municipal Code (“B.M.C.”), including without limitation Chapter 13.26, as amended from time to time. In the performance of its obligations under this Ground Lease, Tenant agrees as follows:
1. Tenant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.
2. Tenant shall permit Landlord access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the reasonable opinion of Landlord, are necessary to monitor compliance with this non-discrimination provision. In addition, Tenant shall fill out, in a timely fashion, forms supplied by Landlord to monitor this non-discrimination provision.
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39 16.29 Non-Discrimination Against Persons With Disabilities.
A. If Tenant provides any aid, service or benefit to others on the Landlord’s behalf, Tenant shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Tenant shall further observe and comply with all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefits, services or activities of the Landlord, if applicable.
B. If Tenant is or becomes a “public accommodation” as defined in Title III of the Americans with Disabilities Act of 1990, Tenant shall observe and comply with all applicable provisions of the Act and any amendments thereto, and all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations offered by the Tenant. All of Tenant’s activities must be in accordance with these laws, ordinances, codes, and regulations, and Tenant shall be solely responsible for complying therewith.
16.30 Conflict of Interest Prohibited.
A. In accordance with California Government Code Section 1090, Berkeley City Charter Section 36 and B.M.C. Chapter 3.64, neither Tenant nor any employee, officer, director, partner or member of Tenant, or immediate family member of any of the preceding, shall have served as an elected officer, an employee, or a committee or commission member of Landlord, who has directly or indirectly influenced the making of this Ground Ground Lease B. In accordance with California Government Code Section 1090 and the Political Reform Act, (Government Code Section 87100 et seq.,) no person who is a director, officer, partner, trustee, employee or consultant of Tenant, or immediate family member of any of the preceding, shall make or participate in a decision made by Landlord or any of its boards, commissions or committees, if it is reasonable foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Tenant, except to the extent permitted by 2 California Code of Regulations, Section 18700(c)(2).
C. Interpretation of this paragraph shall be governed by the definitions and provisions use in the Political Reform Act, Government Code section 87100 et seq., its implementing regulations, manuals and codes, Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64, as amended from time to time.
16.31 Nuclear Free Berkeley. Tenant agrees to comply with B.M.C.
Chapter 12.90, the Nuclear Free Berkeley Act, as amended from time to time.
16.32 Required Accessibility Disclosure.
A. Landlord hereby advises Tenant that the Premises and Facility have not undergone an inspection by a certified access specialist, and except to the extent expressly set forth in this Ground Lease, Landlord shall have no liability or responsibility to make any repairs or modifications to the Premises or the Project in order to comply with accessibility standards. The following disclosure is hereby made pursuant to applicable California law:
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40 B. “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.” [Cal. Civ. Code Section 1938(e)].
Any CASp inspection shall be conducted in compliance with reasonable rules in effect at the Premises with regard to such inspections and shall be subject to Landlord’s prior written consent.
16.33 Oppressive States.
A. In accordance with Resolution No. 59,853-N.S., Tenant certifies that it has no contractual relations with, and agrees during the Term of this Ground Lease to forego contractual relations to provide personal services to, the following entities:
1. The governing regime in any Oppressive State.
2. Any business or corporation organized under the authority of the governing regime of any Oppressive State.
3. Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Ground Lease) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.
B. For purposes of this Ground Lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and U-Tsang shall be deemed oppressive states.
C. Tenant’s failure to comply with this Section shall constitute a default of this Ground Lease and Landlord may terminate this Ground Lease pursuant to Article 14. In the event that Landlord terminates this Ground Lease due to a default under this provision, Landlord may deem Tenant a non-responsible bidder for five years from the date this Ground Lease is terminated.
16.34 Berkeley Living Wage Ordinance (LWO).
A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance. If Tenant employs six or more part-time or full-time employees, and generates $350,000 or more in annual gross receipts, Tenant will be required to provide all eligible employees with City mandated minimum compensation during the Term of this Ground Lease, as defined in B.M.C. Chapter 13.27, and well as comply with the terms enumerated herein.
B. Tenant shall be required to maintain all reasonable records and documents that would establish whether Tenant is subject to Berkeley’s Living Wage Ordinance (“LWO”). If Tenant is subject to the LWO, as defined therein, Tenant shall be further required to maintain monthly records of those employees located on the leased Premises. These records shall include the total number of hours worked, the number of hours spent providing service on the leased
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41 Premises, the hourly rate paid, and the amount paid by Tenant for health benefits, if any, for each of its employees providing services under the lease. The records described in this Section shall be made available upon the Landlord’s request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Article 14 herein.
C. If Tenant is subject to the LWO, Tenant shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all subleases in which Tenant enters with regard to the subject Premises. Subtenants shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the leased Premises.
D. If Tenant fails to comply with the requirements of the LWO and this Ground Lease, the Landlord shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity.
E. Tenant’s failure to comply with this Section shall constitute a default of the Ground Lease, upon which City may terminate this Ground Lease pursuant to Article 14.
F. In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Tenant’s failure to pay any of its eligible employees at least the applicable living wage rate will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty of forfeiture for Tenant’s breach.
16.35 Berkeley Equal Benefits Ordinance (EBO).
A. Tenant hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant will be required to provide all eligible employees with City mandated equal benefits during the Term of this Ground Lease, as defined in B.M.C. Chapter
13.29, as well as comply with the terms enumerated herein.
B. If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant agrees to supply the City with any records the City deems necessary to determine compliance with this provision. Failure to do so shall be a considered a default, subject to the provisions of Article 14.
C. If Tenant fails to comply with the requirements of this Section, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law or equity. Tenant’s failure to comply with this Section shall constitute default of the Ground Lease, upon which City may terminate this Ground Lease pursuant to Article 14.
D. In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Tenant’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that
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42 can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.
16.36 Berkeley Marina Zone Worker Retention Ordinance. As a “Marina Zone Business” (as defined in the Berkeley Marina Zone Worker Retention Ordinance, B.M.C.
Chapter 13.25 “Marina Zone Ordinance”), Tenant shall comply with such Ordinance. Without limiting the foregoing, during the Ground Lease Term, Tenant shall cause any “New Operator” (as defined in the Marina Zone Ordinance) to comply with such Ordinance.
16.37 Pests and Pesticide Management. All use of pesticides on or about the Premises shall be in compliance with the City of Berkeley’s Pest/Pesticide Management Policy.
16.38 Berkeley Sanctuary City Ordinance. .
Tenant hereby agrees to comply with the provisions of the Sanctuary City Contracting Ordinance, B.M.C. Chapter 13.105. In accordance with this Chapter, Tenant agrees not to provide the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security with any Data Broker or Extreme Vetting Services as defined herein:
a. “Data Broker” means either of the following: (1)The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private- sector business and government agencies; (2) the aggregation of data that was collected for another purpose from that for which it is ultimately used. b. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services. Extreme Vetting does not include: (1) The City’s computer- network health and performance tools; (2) Cybersecurity capabilities, technologies and systems used by the City of Berkeley Department of Information Technology to predict, monitor for, prevent, and protect technology infrastructure and systems owned and operated by the City of Berkeley from potential cybersecurity events and cyber- forensic based investigations and prosecutions of illegal computer-based activity.
16.39 Audit. In addition to any other Landlord audit right herein, the City Auditor’s Office, or its designee, may conduct an audit of Tenant’s financial and compliance records maintained in connection with the operations and services performed under this Ground Lease, and with the payments made under this Ground Lease. In the event of such audit, Tenant agrees to make all such financial and compliance records available to the Auditor’s Office, or to its designee. City agrees to provide Tenant an opportunity to discuss and respond to any findings before a final audit report is filed.
16.40 City Business License, Payment of Taxes, Tax I.D. Number.
Tenant has obtained a City business license as required by B.M.C. Chapter 9.04, and its license number is written below; or, Tenant is exempt from the provisions of B.M.C. Chapter
9.04 and has written below the specific B.M.C. section under which it is exempt. Tenant shall pay all state and federal income taxes and any other taxes due. Tenant certifies under penalty of perjury that the taxpayer identification number written below is correct.
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43 16.41 Survival. The provisions of Sections 4.3 (Real Property Taxes), 4.4 Assessments, 5.5 (General Standards of Maintenance), 5.7 (Governmental Requirements),
6.2 (Hazardous Materials), 7.2 (Alterations on Premises), 7.5 (Liens and Stop Notices), 10.2 (Indemnity), 16.7 (Surrender) and any other obligation of Tenant that, by its terms or nature, is to be performed after or is to survive expiration or termination of this Ground Lease, shall survive such expiration or termination.
16.42 Union Workers. Tenant is not obligated to hire union workers and nothing in Landlord’s labor agreements requires Tenant to hire union workers. So long as Tenant occupies the Premises, Landlord agrees it will not enter into any agreement(s) requiring Tenant to hire union workers
IN WITNESS WHEREOF, Landlord and Tenant have caused this Ground Lease to be executed on their behalf by their respective officers thereunto duly authorized as of the dates set forth below.
[Signature Page Follows]
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44 TENANT:
NFS UNLIMITED, LLC, a Texas limited liability
company
By:
Steven L. Scheinthal
Vice President
Date:
LANDLORD:
CITY OF BERKELEY, a public body corporate
and politic
By:
Dee Williams-Ridley
City Manager
Date:
Approved as to form:
______________________
Farimah Brown, City Attorney
Registered by:
____________________
____________, City Auditor
Attest:
__________________
____________, City Clerk
TENANT INFORMATION
Tax Identification No. 84-3132280
Incorporated: Yes
Certified Woman Business Enterprise: No
Certified Minority Business Enterprise: No
Certified Disadvantaged Business Enterprise: No
City Business License No. ___________, or
Exempt pursuant to B.M.C. Section ____
119
Exhibit A Page 1 of 1
EXHIBIT A
SITE MAP
120
Exhibit B
EXHIBIT B
MEMORANDUM OF GROUND LEASE
Recording Requested By
And When Recorded Mail To:
City of Berkeley
2180 Milvia Street, 4th Floor
Berkeley, CA 94704
Attn: City Clerk
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code § 27383]
MEMORANDUM OF GROUND LEASE
CITY OF BERKELEY, a public body corporate and politic, as Landlord, has leased to NFS UNLIMITED, LLC, a Texas limited liability company, as Tenant, the real property described described in Exhibit A attached hereto and incorporated herein by this reference (the “Premises”).
1. Landlord previously leased to Tenant the Premises upon the terms, covenants, conditions, limitations and restrictions contained in that certain unrecorded Lease between Landlord and Manning's Inc. as “Lessee,” dated March 23, 1979, as subsequently amended, assigned and subleased (together, the “Prior Ground Lease”). Notice of the Prior Ground Lease is provided by that certain ______________________ dated ____________________, 19__ and recorded in the Official Records of Alameda County as Instrument No. ____________ on _____________, 19__ (the “Prior Ground Lease Memorandum”). The prior Ground Lease granted to Tenant the right to use and occupy the Premises until ___________________, 20__.
2. Landlord and Tenant have now entered into that certain unrecorded Ground Lease dated as of _____________, 2022 (the “Ground Lease”), pursuant to which Landlord has leased the Premises to Tenant. The Ground Lease grants to Tenant the right to continue to use and occupy the Premises until ________________, 2032. There are two (2) options to extend the term of the Ground Lease for five years each (total 10 years). If Tenant properly exercises all options, the term of the Ground Lease could extend until ______________, 2042.
3. This Memorandum of Ground Lease supersedes and replaces the Prior Ground Lease Memorandum; and this Memorandum of Ground Lease shall provide record notice of the existence of the Ground Lease with respect to the Premises and of Tenant’s rights with respect thereto.
[Signature Page Follows]