Tuesday, March 22, 2022 AGENDA Page 1
AGENDA
BERKELEY CITY COUNCIL MEETING
Tuesday, March 22, 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/85474741619
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To join by phone: Dial 1-669-900-9128 or 1-877-853-5257 (Toll Free) and enter Meeting ID: 854 7474 1619. 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.
1. Presentation by the Anti-Eviction Mapping Project
2. Presentation on Seismic Retrofits for Civic Center Buildings 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, p ersons 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.
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.
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1. Lease Agreement with NFS Unlimited, LLC for Skates-on-the-Bay From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,802-N.S. 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.
First Reading Vote: All Ayes.
Financial Implications: See report.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
2. 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, February 8, 2022, and March 8, 2022.
Financial Implications: To be determined.
Contact: Farimah Brown, City Attorney, (510) 981-6950
3. Resolution Reviewing and Ratifying the Proclamation of Local Emergency Due to the Spread of a Severe Acute Respiratory Illness Caused by a Novel (New) Coronavirus (COVID-19)
From: City Manager
Recommendation: Adopt a Resolution reviewing the need for continuing the local emergency due to the spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19) and ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021, and February 8, 2022.
Financial Implications: To be determined.
Contact: Farimah Brown, City Attorney, (510) 981-6950
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4. Minutes for Approval
From: City Manager
Recommendation: Approve the minutes for the Council meetings of February 8 (regular), February 15 (closed and special), February 18 (closed), February 22 (regular) and February 24 (closed).
Financial Implications: None
Contact: Mark Numainville, City Clerk, (510) 981-6900
5. Amendment to the Berkeley Revolving Loan Fund Administrative Plan to allow management of the COVID-19 Resiliency Loan Program (RLP) by Working Solutions, a certified Community Development Financial Institution; Authorize a $60,000 contract with Working Solutions to provide technical assistance and small business support to Berkeley’s RLP participants
From: City Manager
Recommendation: Adopt two Resolutions:
1. Approving changes to the Administrative Plan of the Berkeley Revolving Loan Fund (RLF) to allow for third party administration of the COVID-19 Resiliency Loan Program (RLP).
2. Authorizing the City Manager to execute a sole source contract and any amendments with Working Solutions, a certified Community Development Financial Institution, not to exceed $60,000 of ARPA funds to provide additional small business support and technical assistance to Berkeley’s RLP participants for the period beginning March 31, 2022 through the five-year term of the RLP loan repayments (anticipated ending date December 31, 2027).
Financial Implications: See report.
Contact: Eleanor Hollander, Economic Development, (510) 981-7530
6. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on March 22, 2022
From: City Manager
Recommendation: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on March 22, 2022 Financial Implications: $12,952,000
Contact: Henry Oyekanmi, Finance, (510) 981-7300
7. Donation of Fire Apparatus and Equipment
From: City Manager
Recommendation: Adopt a Resolution donating a surplus fire truck, Auto 910 and equipment, to the Livermore Pleasanton Department.
Financial Implications: See report.
Contact: Abe Roman, Fire, (510) 981-3473
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8. Contract: Pinnacle for Occupational Physicals
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with Pinnacle Training Systems, LLC (Contractor) for occupational health and pre-employment medical examinations including cancer and cardiac screening for firefighters, paramedics, emergency medical technicians, police officers and other designated staff through March 22, 2026 in an amount not to exceed $325,000 per fiscal year with an option to extend for three additional two- year terms, for a total ten-year potential contract not to exceed $3,250,000.
Financial Implications: See report.
Contact: Abe Roman, Fire, (510) 981-3473
9. Contract: Interior Motions for HHCS Public Health Division Furniture From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to execute a contract, and any amendments or extensions, with Interior Motions for new furniture for the Public Health Division offices. The contract will be in an amount not to exceed $100,000 for the period January 1, 2022 through December 30, 2022.
Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
10. Contract No. 32100178 Amendment: California Mental Health Services Authority Help@Hand Participation Agreement
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to execute an Amendment to the Help@Hand Participation Agreement with the California Mental Health Services Authority (CalMHSA) (Contract No.32100178) to increase the amount of funding by $140,800 for a total amount not to exceed $541,715 through June 30, 2024, and any amendments.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
11. Revenue Contract: Alameda County Behavioral Health Care Services From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to execute a revenue contract amendment with Alameda County Behavioral Health Care Services (ACBH) for the provision of mental health services, including Medi-Cal, Medicare, Educationally Related Mental Health Services (ERMHS), and Early Periodic Screening, Diagnosis and Treatment (EPSDT) billing and reimbursement, with an Effective Date of July 1, 2021.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400 5 Consent Calendar
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12. Increase Taxi Scrip Window Daily Cash Redemption Limit From: City Manager
Recommendation: Adopt a Resolution authorizing Berkeley Rides for Seniors & the Disabled (BRSD) to increase the Taxi Scrip Window daily cash redemption limit from $800 to $1,000, one day per week.
Financial Implications: See report.
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
13. Amending Berkeley Municipal Code (BMC) Chapter 12.70 Sections 12.70.031 and 12.70.050A.1 to align with State and Local Laws
From: City Manager
Recommendation: Staff recommends the City Council adopt the reading of an Ordinance amending Berkeley Municipal Code (BMC) Chapter 12.70 Smoking Pollution Control to incorporate two changes:
1) Amending BMC 12.70.030 to replace the outdated term “Dispensary” with “Cannabis Retailer” in order to align with the State’s Medicinal and Adult-Use of Cannabis Safety and Regulation Act (MAUCSRA); and
2) Revise BMC Chapter 12.70.050.A.1 to clarify that smoking tobacco is allowed at a tobacco retailer, and smoking cannabis is allowable at a Cannabis Retailer, subject to Council-approved BMC Sections 23.320.020.F.2, 12.21.020.U, V, and Y, and
12.22.040.F.2 allowing “Cannabis Lounges”.
Financial Implications: None
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400
14. Amendments to On-Call Architectural Services Contract No. 31900137 (ELS Architecture and Urban Design), Contract No. 31900155 (Siegel & Strain Architects), and Contract No. 31900131 (Noll & Tam Architects) From: City Manager
Recommendation: Adopt Resolutions authorizing the City Manager to:
1. Execute an amendment to Contract No. 31900137 for ELS Architecture and Urban Design increasing the contract amount by $900,000; and
2. Execute amendments to Contract No. 31900155 for Siegel & Strain Architects, and Contract No. 31900131 for Noll & Tam Architects by increasing the contract amount by $900,000 each and duration by 9 months each, from June 30, 2022 to March 31, 2023.
Financial Implications: See report.
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700
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15. Purchase Order: Nicholas K Corp dba the Ford Store San Leandro for Fifteen Ford Interceptor Utility Hybrid Vehicles
From: City Manager
Recommendation: Adopt a Resolution satisfying requirements of City Charter Article XI Section 67.2 allowing the City Manager to participate in Alameda County bid procedures and authorize the City Manager to execute a purchase order for fifteen (15) Ford Interceptor Utility Hybrid vehicles with Nicholas K Corp dba the Ford Store San Leandro in an amount not to exceed $765,000.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
16. Purchase Order: Nicholas K Corp dba the Ford Store San Leandro for Three Electric Vehicle Ford Pickup Trucks
From: City Manager
Recommendation: Adopt a Resolution satisfying requirements of City Charter Article XI Section 67.2 allowing the City Manager to participate in Alameda County bid procedures and authorize the City Manager to execute a purchase order for three (3) Electric Vehicle Ford Pickup Trucks with Nicholas K Corp dba the Ford Store San Leandro in an amount not to exceed $135,000.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
17. Contract No. 112725-1 Du-All Safety, LLC for Safety Consulting and Training Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 112725-1 with Du-All Safety, LLC for continued safety training and consulting services up to $100,000 for a total contract amount not to exceed $400,000, and to extend the contract term through December 31, 2025.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
18. Contract No. 32100122 Amendment: Silao General Engineering for Site Improvements Project at 125/127 University Avenue
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 32100122 with Silao General Engineering, Inc. to complete the parking lot site improvements at 125/127 University Avenue increasing the current contract amount of $192,946.60 by $85,000.00 for a total amount not-to-exceed of $277,947.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
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19. Contract No. 31900106 Amendment: Coastland Civil Engineering for On-Call Civil Engineering Services for the Sanitary Sewer Program From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 31900106 with Coastland Civil Engineering (Coastland) for On-Call Civil Engineering Services for the Sanitary Sewer Program, increasing the contract by $500,000, for a total amount not to exceed $1,400,000, and extending the term of the contract to June 30, 2023.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
20. Contract No. 31900094 Amendment: West Yost for On-Call Civil Engineering Services for the Sanitary Sewer Program
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 31900094 with West Yost Associates (West Yost) for On-Call Civil Engineering Services for the Sanitary Sewer Program, increasing the contract by $500,000, for a total amount not to exceed $1,200,000, and extending the term of the contract to June 30, 2023.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
21. Contract No. 090342-1 Amendment: Waste Management of Alameda County for Landfill Disposal Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend the City’s existing Contract No. 090342-1 with Waste Management, Inc. of Alameda County for Landfill Disposal Services through December 31, 2026 by increasing the Not to Exceed amount from $32,740,168 to $45,545,780.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
22. Fiscal Year 2023 Street Lighting Assessments – Initiating Proceedings From: City Manager
Recommendation: Adopt two Resolutions describing proposed improvements to be used to determine the annual assessments levied for Berkeley Street Lighting Assessment District No. 1982-1 and Street Lighting Assessment District No. 2018, and order the preparation of Engineer’s Reports.
Financial Implications: See report.
Contact: Liam Garland, Public Works, (510) 981-6300
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23. Vacancies on Commission on Disability
From: Commission on Disability
Recommendation: Appoint new members to fill vacancies on the Commission on Disability from District 3, District 4, District 5, District 6, District 7, and Mayor Jesse Arreguin
Financial Implications: None
Contact: Dominika Bednarska, Commission Secretary, (510) 981-6300
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24. Recommendation to Identify High Risk Safety Areas that are Exempt from State Imposed Housing Increases Due to Public Safety Considerations From: Disaster and Fire Safety Commission
Recommendation: The Disaster and Fire Safety Commission (DFSC) recommends that the City Council define the location of those areas in Berkeley in which residents are at high risk due to public safety considerations and use this information to help guide the Housing Element process so that greater density and development in those areas is avoided to the extent reasonably possible. These areas include:
1. Fire Zones 2 and 3 with narrow (26 feet or less in width), winding streets, or those with “pinch-points’ that do not allow emergency vehicle access and safe evacuation routes for residents in the event of a wildfire; and
2. Locations within the Alquist-Priolo (Hayward Fault) Earthquake Zone identified by the California Geological Survey; and
3. Locations within the Liquefaction or Landslide Zones identified by the California Geological Survey and areas associated with creeks, above and underground and subject to the impacts of Sea Level Rise. A. Establish a Priority: The DFSC requests that the identification process begin with items 1 and 2 listed above. State legislation mandating increased development in these areas is effective January 1, 2022, and the identification of the boundaries of areas where residents are at high risk in Berkeley should be completed prior to that date. Item 3 is also important, but as a practical matter, it may take longer to review. Therefore, completing identification may have to be done in steps over time. An additional consideration in giving priority at this time to areas affected by fire is that we are now in the “traditional” wildfire season with the clear statewide warning that today’s wildfires are both more frequent and intense and are being fueled by the State’s continued severe drought with no relief in the foreseeable future. B. Establish an Easy-to-Understand Map Format: The DFSC requests that the identification information presented be in an easy-to- understand map format that is available to the public and kept in an up-to-date format as the process progresses. This format should; within technical capability, clearly identify streets that are boundaries to the public safety areas. The California Geological Survey already maintains property-specific maps that address Items 1 and 2 above. The DFSC requests that the City produce similar maps for the other hazardous areas as they are identified. C. Need for Timely Action: The Council has recently taken action to indicate their intent to begin a process to complete the Sate required new Housing Element for the City’s General Plan. Establishing high-risk public safety areas is a foundational tool in the work that needs to be done to complete a new Housing Element. D. Provides an Opportunity to Inform the Public:
Defining high-risk public safety zones not only informs residents about the nature of the risks but encourages individuals and groups to be part of the effort to reduce those risks.
Financial Implications: See report.
Contact: Keith May, Commission Secretary, (510) 981-3473
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25. Letter of Support for Budget Referral: South Sailing Basin Dredging From: Parks and Waterfront Commission
Recommendation: Send the attached Letter of Support for Budget Referral: South Sailing Basin Dredging to be added to the scope of the project for the study of dredging the main channel.
Financial Implications: See report.
Contact: Roger Miller, Commission Secretary, (510) 981-6700
26. Letter of Support for Infrastructure Improvement Projects in the Berkeley Waterfront from the Parks, Recreation, and Waterfront Commission to State Senate Budget Chair Skinner and Assembly Budget Chair Ting From: Parks and Waterfront Commission
Recommendation: Send the attached Letter of Support for Infrastructure Improvement Projects in the Berkeley Waterfront from the Parks, Recreation, and Waterfront Commission to State Senate Budget Chair Skinner and Assembly Budget Chair Ting.
Financial Implications: See report.
Contact: Roger Miller, Commission Secretary, (510) 981-6700
27. Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities
From: Auditor
Recommendation: We recommend City Council request that the City Manager report back by September 29, 2022, and every six months thereafter, regarding the status of our audit recommendations until reported fully implemented by the Berkeley Police Department (BPD). They have agreed to our findings and recommendations.
Please see our report for their complete response.
Financial Implications: None
Contact: Jenny Wong, Auditor, (510) 981-6750
Council Consent Items
28. Support for AB-2053 (Social Housing Act)
From: Councilmember Taplin (Author)
Recommendation: Send a letter in support of Assembly Bill 2053 to the state legislature.
Financial Implications: None
Contact: Terry Taplin, Councilmember, District 2, (510) 981-7120
29. Support for AB-2336
From: Councilmember Taplin (Author), Councilmember Wengraf (Co-Sponsor), Mayor Arreguin (Co-Sponsor), Councilmember Robinson (Co-Sponsor) Recommendation: Send a letter of support for Assembly Bill 2336: Speed Safety System Pilot Program.
Financial Implications: None
Contact: Terry Taplin, Councilmember, District 2, (510) 981-7120 11 Council Consent Items
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30. Support for AB-2713
From: Councilmember Taplin (Author), Councilmember Bartlett (Co-Sponsor) Recommendation: Send a letter of Support for Assembly Bill 2713: Rent caps Financial Implications: None
Contact: Terry Taplin, Councilmember, District 2, (510) 981-7120
31. Budget Referral: West Berkeley Transportation Plan From: Councilmember Taplin (Author)
Recommendation: That the City Council refer $300,000 to the FY23-24 budget process for the hiring of a consultant to conduct a study and draft a comprehensive plan for transportation in West Berkeley through 2050.
Financial Implications: $300,000
Contact: Terry Taplin, Councilmember, District 2, (510) 981-7120
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32. Budget Referral: Berkeley Reparations – Funding for a Consultant to Facilitate Community Process to Design and Implement a Local Reparations Plan From: Councilmember Bartlett (Author), Councilmember Hahn (Co-Sponsor), Councilmember Taplin (Co-Sponsor), Mayor Arreguin (Co-Sponsor) Recommendation: Refer to the Fiscal Year 2022/2023 Budget Process, an allocation of $350,000 to fund a Consultant to develop policy recommendations for reparations in Berkeley. These recommendations will address the economic injury and intergenerational trauma experienced by Berkeley’s descendants of slavery and the ongoing harm caused to all African Americans by systems that uphold the legacy of segregation. The Consultant will design a process to develop short, medium, and long-term recommendations for reparation policies in Berkeley designed to promote the creation of generational wealth and boost economic mobility, and opportunity in Berkeley’s African American community. 1. Inform. The Consultant should hold a series of educational events, truth-telling symposiums, sessions, and community gatherings on Berkeley’s history. The Consultant should engage a myriad of Berkeley stakeholders, including residents who have experienced harm with economists and historians to provide context. Subject matter experts will employ financial and historical data to illuminate the generational wealth gap, describe barriers to economic mobility, and detail the systemic racism against Berkeley’s African American community. 2. Interact. The Consultant should aim to foster an interactive dialogue centered on the community’s historical experiences and legacy of racism. These group settings should be between persons of diverse vantage points and opinions. The Consultant’s facilitation of these emotive conversations should aspire to enable learning and deep listening, connection, and ultimately trust, healing, and the desire to repair the community. 3. Recommend. Draw from the community dialogues to issue short, medium, and long-term recommendations, for reparations policies. The policy recommendations should focus on creating significant, sustainable progress towards repairing the damage caused by public and private systemic racism; and mitigate racial disparities in wealth, education, employment, homeownership, health, criminal justice, and more. The recommendations should include a portfolio of policies aligned under the following framework: i. Reckoning ii. Acknowledgment iii. Accountability iv. Redress Financial Implications: See report.
Contact: Ben Bartlett, Councilmember, District 3, (510) 981-7130
33. Supporting Ranked Choice Voting -- Opposing AB 2808 (O’Donnell) From: Councilmember Hahn (Author), Mayor Arreguin (Author), Councilmember Robinson (Author)
Recommendation: Adopt a resolution opposing AB 2808 (O’Donnell), which would ban rank choice voting in California, including in those charter cities where the system is already in use. Send a letter to the bill author stating opposition. Send a copy of the Resolution to Assemblymember Buffy Wicks, State Senator Nancy Skinner, and Governor Gavin Newsom.
Financial Implications: None
Contact: Sophie Hahn, Councilmember, District 5, (510) 981-7150
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34. Support for AB 1755 (Levine)
From: Councilmember Wengraf (Author), Councilmember Harrison (Co- Sponsor), Councilmember Hahn (Co-Sponsor)
Recommendation: Adopt a Resolution in Support of AB-1755: Homeowners Insurance: Home Hardening (Levine). AB-1755 will require, beginning in 2025, an insurance provider licensed in California to issue an insurance policy to a homeowner that has taken science-based actions to harden their property from wildfire risk. This legislation would also create the Wildfire Protection Grant Program under the Department of Insurance that would administer grants to residential property owners of up to $10,000 to help pay for costs associated with home hardening and wildfire mitigation improvements. Send copies of the Resolution to Assembly Member Levine, Assembly Member Wicks, Senator Skinner, Governor Newsom and Insurance Commissioner Lara.
Financial Implications: None
Contact: Susan Wengraf, Councilmember, District 6, (510) 981-7160
35. Support for AB-1594 Firearms: Civil Suits
From: Councilmember Wengraf (Author), Councilmember Taplin (Co-Sponsor), Councilmember Bartlett (Co-Sponsor), Councilmember Hahn (Co-Sponsor) Recommendation: Adopt a Resolution in support of AB-1594 (Assembly Member Ting) which would allow gun manufacturers to be sued for creating a public nuisance if their failure to follow federal, state or local law caused injury or death or if the gun industry member engaged in unfair business practices.
Send the Resolution to Assembly Members Ting, Gipson, Ward and Wicks along with Senator Skinner and Governor Newsom.
Financial Implications: None
Contact: Susan Wengraf, Councilmember, District 6, (510) 981-7160
36. 2022 Virtual Holocaust Remembrance Day Program: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds From: Councilmember Wengraf (Author), Councilmember Hahn (Author), Councilmember Bartlett (Co-Sponsor), Mayor Arreguin (Co-Sponsor) Recommendation: Adopt a Resolution approving the expenditure of an amount not to exceed $500 per Councilmember, including $500 each from Councilmember Wengraf and Councilmember Hahn to support the City’s Annual Holocaust Remembrance Day program with funds relinquished to the City’s general fund. The relinquishment of funds from Councilmember Wengraf’s, Hahn’s, Bartlett’s, and Mayor Arreguin’s discretionary Council Office Budgets and all other Councilmembers who would like to contribute, allows the City of Berkeley to invite the community to the City’s 19th Annual Holocaust Remembrance Day virtual program, created by the community with City Council support. In light of the vulnerability of many of the attendees, and the continuing threat of the COVID pandemic, this year’s program will be held virtually on April 28, 2022.
Financial Implications: See report.
Contact: Susan Wengraf, Councilmember, District 6, (510) 981-7160
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37. Budget Referral: Telegraph-Channing Garage Elevator Repairs From: Councilmember Robinson (Author), Councilmember Hahn (Co-Sponsor) Recommendation: Refer $3.6M to the June 2022 budget process for urgent repairs to the Telegraph-Channing Garage elevators. Additionally, refer to the City Manager to pursue all available funding opportunities for this project, including American Rescue Plan Act funds.
Financial Implications: See report.
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 – New Business
38. Berkeley Economic Dashboards Update
From: City Manager
Contact: Eleanor Hollander, Economic Development, (510) 981-7530
Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. This is followed by five-minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak use the "raise hand" function to be recognized and to determine the number of pe rsons 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.
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.
Each member of the City Council shall verbally disclose all ex parte contacts concerning the subject of the hearing. Councilmembers shall also submit a report of such contacts in writing prior to the commencement of the hearing. Written reports shall be available for public review in the office of the City Clerk.
15 Action Calendar – Public Hearings
Tuesday, March 22, 2022 AGENDA Page 16
39. Referral Response: Research and Development (R&D) Definition From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt the first reading of a Zoning Ordinance amendment that modifies the land use definition of Research and Development (R&D) [Berkeley Municipal Code (BMC) Division 5:
Glossary – Defined Terms 23.502.020].
Financial Implications: None
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Action Calendar – Old Business
40. Resolution Accepting the Surveillance Technology Report for Automatic License Plate Readers, GPS Trackers, Body Worn Cameras, and the Street Level Imagery Project Pursuant to Chapter 2.99 of the Berkeley Municipal Code (Continued from January 25, 2022. Item contains supplemental materials.) From: City Manager
Recommendation: Adopt a Resolution Accepting the Surveillance Technology Report for Automatic License Plate Readers, GPS Trackers, Body Worn Cameras, and the Street Level Imagery Project Pursuant to Chapter 2.99 of the Berkeley Municipal Code.
Financial Implications: None
Contact: Jennifer Louis, Police, (510) 981-5900, LaTanya Bellow, City Manager's Office, (510) 981-7000
Information Reports
41. FY 2022 First Quarter Investment Report: Ended September 30, 2021 From: City Manager
Contact: Henry Oyekanmi, Finance, (510) 981-7300
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 .
16 Tuesday, March 22, 2022 AGENDA Page 17
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.
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 March 10, 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 #27: Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities
1. Aimee Baldwin
Item #40: Resolution Accepting the Surveillance Technology Report for Automatic License Plate Readers, GPS Trackers, Body Worn Cameras, and the Street Level Imagery Project Pursuant to Chapter 2.99 of the Berkeley Municipal Code
2. Jennifer Head
Street Paving Adding $9,000,000 to General Fund
3. Alex Benn
4. David Lerman
17 Tuesday, March 22, 2022 AGENDA Page 18
UC Berkeley – Student Housing
5. Rachel Doughty
6. Margot Smith
7. Mary Zernicke
Hopkins Corridor
8. Susan Schwartz
Support the Plastic Bag Ordinance
9. Sofia Pavlova
10. Peter DiMaria
Keeping Berkeley Residents Housed
11. Drew Finke
12. Negeene Mosaed
13. Elana Auerbach
14. cooperlb@
Grocery vs Market Berkeley Redlines
15. Aimee Baldwin
Amending His Brown Act Complaint
16. Thomas Lord
Tenants Opportunity to Purchase Act (TOPA)
17. Kiran Shenoy, on behalf of the Bridge Association of Realtors
18. Erin Markham
19. Eduardo Madrigal
Covid Dashboard
20. Thomas Lord (2)
21. Councilmember Harrison
Berkeley Drop-In Center and the Berkeley Police Department
22. Boona Cheema
23. Diana Bohn
24. Katrina Killian
25. Interim Police Chief Louis
Community Policing: Flex Team for Problem-Oriented Policing
26. Josh Buswell-Charkow
27. Minda Berbeco
28. Jane Ellis
29. Jennifer Head
30. John Caner, on behalf of the Downtown Berkeley Association
18 Tuesday, March 22, 2022 AGENDA Page 19
Legal Protection for My Daughter Who Was Abused
31. Mandisa Leacheman
Ongoing Violations of ADA and IDEA
32. Gail Burke
Emergency Greenhouse Gas (GHA) Limits Ordinance
33. Nilang Gor, on behalf of Sierra Club SF Bay Sustainable Food & Agriculture Committee
Parking Garage at 2215 4
th Street
34. Jack Litewka (3)
35. Anne Burns
Masks – Covid - Vaccinations
36. Val Cipollone
37. David Freeling
38. George Torgun
BART Redistricting 2022
39. April Quintanilla
East Bay Community Energy Finance, Administration, Procurement
40. East Bay Community Energy
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.
19 20
Ordinance No. 7,802-N.S. Page 1 of 1
ORDINANCE NO. 7,802–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.
At a regular meeting of the Council of the City of Berkeley held on March 8, 2022, this Ordinance was passed to print and ordered published by posting by the following vote:
Ayes: Bartlett, Droste, Hahn, Harrison, Kesarwani, Robinson, Taplin, Wengraf, and Arreguin.
Noes: None.
Absent: None.
21 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
22 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
23 TABLE OF CONTENTS
(Ground Lease)
Page
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
24 TABLE OF CONTENTS
(Ground Lease)
Page
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
25 TABLE OF CONTENTS
(Ground Lease)
Page
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
26 TABLE OF CONTENTS
(Ground Lease)
Page
v
LIST OF EXHIBITS
Exhibit A Site Map
Exhibit B Memorandum of Ground Lease
Exhibit C Improvements
27 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
28 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.
29 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_______
30 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
31 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)
32 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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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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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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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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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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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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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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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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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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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
64 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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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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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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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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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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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
70 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
71 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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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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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 ____
74 Exhibit A Page 1 of 1
EXHIBIT A
SITE MAP
75 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]
76 Exhibit B
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:
77 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF _________________________ )
On ________________________ before me, ____________________________________, Notary Public, personally appeared
________________________________________________________________, who proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_________________________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
On ________________________, 2022 before me, ______________________________________, Notary Public, personally appeared Steven L. Scheinthal, who proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Texas that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_________________________________________
78 Exhibit C - Improvements
EXHIBIT C
IMPROVEMENTS
Tenant agrees to complete the following improvements within the Initial Term of this Lease.
Cost of these improvements may be eligible for credit against annual rent, as provided in section 3.3.C of the lease.
Roof: Tenant shall replace the building roof. Landlord acknowledges that work is expected to start in 2022, and may be completed prior to this lease execution. Landlord agrees that this work will be eligible for credit against annual rent, as provided in section
3.3.C of the Lease.
Parking lot reconstruction: The parking lot adjacent to the restaurant shall be reconstructed by tenant. This work includes mobilization, traffic control, Storm Water Pollution Prevention Plan, asphalt concrete paving (3 inches), Aggregate Base (9 inches), Pavement marking and striping, curb and gutter, C3 Storm Water Treatment, concrete walkway, trash enclosure relocation and improvements, Americans with Disabilities Act (ADA) curb ramps, construction testing, permits, and similar, construction contingencies, design, construction management and inspection. The parking lot and path of travel adjacent to the restaurant in the Non-Exclusive Use Area depicted in Exhibit A shall be maintained by the tenant for the duration of this lease term and option term, in a manner consistent with section 5.6.
Accessibility Improvements: The following accessibility improvements to will be made in accordance with Table C-1, below:
79 Exhibit C - Improvements
Table C-1: Accessibility Improvements
ADA Accessability Survey Report for the Berkeley Marina - Recommendations appropriate for Skates to fund | 2021 Record Number Category Description Sub Description Item Finding On Site
Finding Recommendation
Recommended
Value Deviation
Measure
Units Costing Info
Estimated
Cost Code Reference
88446 Photo 1 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Left
Accessible Space
ISA is Faded or
Damaged
ISA marking is faded
and not viewable.
Faded or
Damaged
Repaint the ISA marking
in the parking space.
See
Recommendation
Re-stripe existing
parking space $117.00
ADA 502, CA
11B-502.6
88442 Photo 1 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Left
Accessible Space
Outline is Faded,
Damaged or Missing
The accessible
parking space
outline is faded,
Faded or
Damaged
Re-stripe the existing
parking space marked as
accessible to define the
See
Recommendation
Re-stripe existing
parking space $350.00
ADA 502, 502.2,
CA 11B-502.2
88443 Photo 1 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Left
Accessible Space Parking Space Width
The accessible
parking space does
not meet the
98.00 inches
Re-stripe the accessible
parking space.
At least 108.00
inches -10.00 inches
Re-stripe existing
parking space $350.00
ADA 502, 502.2,
CA 11B-502.2
88444 Photo 1 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Left
Accessible Space Parking Space Slope
The surface of the
accessible parking
space has a slope
3.70 percent
Pave the parking lot to
provide a level surface.
Up to 2.08
percent 1.62 percent
Repave surface to
correct slope and re-
stripe
$3,800.00
ADA 502, 502.4,
CA 11B-502.4
88445 Photo 1 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Left
Accessible Space Access Aisle
There is an
accessible parking
space designated in
the parking lot.
No Access
Aisle
Provide a compliant
access aisle at the
parking space. Parking
spaces shall each
See
Recommendation
Paint ground
markings and install
a post mounted sign
$370.00
ADA 502, 502.3,
502.3, CA 11B-
502.2
88449 Photo 2 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Right
Accessible Space
International
Symbol of Access
(ISA) is Faded or
ISA marking is faded
and not viewable.
Faded or
Damaged
Repaint the ISA marking
in the parking space.
See
Recommendation
Re-stripe existing
parking space $117.00
ADA 502, CA
11B-502.6
88447 Photo 2 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Right
Accessible Space Parking Space Width
The accessible
parking space does
not meet the
minimum
requirements for
width.
98.00 inches
Re-stripe the accessible
parking space.
At least 108.00
inches -10.00 inches
Re-stripe existing
parking space $350.00
ADA 502, 502.2,
CA 11B-502.2
88448 Photo 2 Parking
Parking Lot Next to
Seawall Drive
Next to Skates, Right
Accessible Space Access Aisle
There is an
accessible parking
space designated in
the parking lot.
There is no access
aisle located at the
parking space.
No Access
Aisle
Provide a compliant
access aisle at the
parking space. Parking
spaces shall each
provide an access aisle
that may be shared.
See
Recommendation
Paint ground
markings and install
a post mounted sign
$370.00
ADA 502, 502.3,
502.3, CA 11B-
502.288414 Photo 3
Curb
Ramps
Curb Ramp Next to
Skates Restaurant -
Right
Appurtenances
Utilities, gratings or
other
appurtenances are
located on the curb
ramp.
Not
Compliant
Provide a compliant
curb ramp free of
appurtenances.
See
Recommendation Install curb ramp $1,440.00
ADA 406, CA
11B-
406,PROWAG
R204
Total: Total: $7,264.00
80 Office of the City Attorney
CONSENT CALENDAR
March 22, 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, February 8, 2022, and March 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
81 Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312.
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 22, 2022, the Council will need to review and ratify the resolution by April 21, 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
82 and teleconference, and that City legislative bodies shall continue to comply with all provisions of the Brown Act, as amended by SB 361.
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
83 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
84 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, February 8, 2022, March 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 21, 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.
85 86
267230.1
Office of the City Attorney
CONSENT CALENDAR
March 22, 2022
To: Honorable Mayor and Members of the City Council From: Dee Williams-Ridley, City Manager
Submitted by: Farimah Faiz Brown, City Attorney
Subject: Resolution Reviewing and Ratifying the Proclamation of Local Emergency Due to the Spread of a Severe Acute Respiratory Illness Caused by a Novel (New) Coronavirus (COVID-19)
RECOMMENDATION
Adopt a Resolution reviewing the need for continuing the local emergency due to the spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19) and ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021, and February 8, 2022.
FISCAL IMPACT OF RECOMMENDATION
To be determined.
CURRENT SITUATION AND ITS EFFECTS
Pursuant to California Government Code section 8630 and Berkeley Municipal Code Chapter 2.88, 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. The Proclamation of Local Emergency empowers the Director of Emergency Services to make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by such local emergency.
Pursuant to Government Code section 8630(b) and Berkeley Municipal Code section
87 2.88.040.A.1, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69-312.
Pursuant to Government Code section 8630(c), the City Council must review the need for continuing the local emergency at least once every sixty (60) days. The Council last reviewed and ratified the Proclamation of Local Emergency on December 14, 2021.
The Council therefore must review the continuing need for the local emergency by February 12, 2022.
This item requests that the Council review the continued need for the local emergency and again ratify the Proclamation of Local Emergency issued on March 3, 2020, initially ratified by the Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021, and February 8, 2022. If reviewed and ratified on March 22, 2022, the Council will need to again review and ratify the proclamation by May 21, 2022 in order to continue the local emergency.
If at any time the Council determines that the need for continuing the local emergency has ended, state law directs the Council to terminate the local emergency at the earliest possible date that conditions warrant. (Cal. Gov. Code section 8630(d).)
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 10, 2020, the City Council ratified the Proclamation of Local Emergency.
Since that date, there have been over 5,000 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley.
Since April 2021, the highly transmissible SARS-CoV-2 B.1.617.2 (“Delta”) variant has been detected in the City of Berkeley and is contributing to substantial levels of community transmission.
The City Council has subsequently reviewed and ratified the Proclamation of Local Emergency on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021, and February 8, 2022.
88 ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Not applicable.
RATIONALE FOR RECOMMENDATION
The Resolution would enable the Director of Emergency Services to continue to efficiently allocate resources due to the ongoing and imminent threat to public safety.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Dee Williams-Ridley, City Manager, City Manager’s Office (510) 981-7000 Farimah Brown, City Attorney, City Attorney’s Office (510) 981-6998 Attachments:
1: Resolution
89 RESOLUTION NO. –N.S.
RESOLUTION REVIEWING AND RATIFYING THE
PROCLAMATION OF LOCAL EMERGENCY
WHEREAS, the Emergency Services Act, Government Code sections 8558(c) and 8630 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; and WHEREAS, pursuant to Government Code section 8630, such an emergency may be proclaimed by the governing body or by an official designated by ordinance adopted by the governing body; and
WHEREAS, Berkeley Municipal Code section 2.88.040 provides that the City Manager, serving as the Director of Emergency Services, may request that the City Council proclaim the existence of a local emergency; and
WHEREAS, under provision of local law, if the City Council cannot be convened and, in the judgment of the Director of Emergency Services, the circumstances warrant it, a proclamation of local emergency may be issued which must be ratified or nullified by the City Council within seven days of issuance; and
WHEREAS, in accordance with authority granted under the above provisions of state and local law, 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, Government Code section 8630(c) requires that the City Council review the need for continuing the local emergency at least once every sixty (60) days; and WHEREAS, the City Council subsequently reviewed the need for continuing the local emergency and again ratified the Proclamation of Local Emergency on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021, February 8, 2022; and WHEREAS, the City Council does find that the aforesaid conditions of extreme peril continue to exist, and now include over 5,000 confirmed cases of COVID-19 and at least 55 deaths in the City of Berkeley, thereby warranting and necessitating the continuation of the local emergency; and
90 WHEREAS, the City Council will need to again review the need for continuing the local emergency and ratify the Proclamation of Local Emergency by February 12, 2022; 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, on July 16, 2021, in light of the apparent increased transmissibility of the Delta variant, the City of Berkeley recommended that all individuals including fully vaccinated persons wear masks in public indoor settings; and WHEREAS, on July 26, 2021, the California State Health Officer issued an order requiring vaccination or routine testing of all employees working in high-risk health care and congregate settings, in light of the fact that current requirements of staff in health care settings, such as universal mask requirements for all staff are not proving sufficient to prevent transmission of the more transmissible Delta variant; and WHEREAS, on July 27, 2021, the CDC updated its guidance for fully vaccinated persons to reflect new evidence regarding the Delta variant, noting that “[i]nfections in fully vaccinated people (breakthrough infections) happen in only a small proportion of people who are fully vaccinated, even with the Delta variant”; and WHEREAS, on August 2, 2021, the Health Officer for the City of Berkeley issued an order requiring all individuals to wear masks in all indoor public settings; and WHEREAS, on August 5, 2021, the California State Health Officer issued an order requiring that workers in healthcare settings be fully vaccinated by September 30, 2021; and
WHEREAS, on August 11, 2021, the City announced its intention to implement a vaccination policy for City employees to protect the health and safety of the City of Berkeley’s employees and community members from the imminent and substantial threat to public health and safety posed by the Delta variant; and WHEREAS, on September 14, 2021, given the increased and unforeseen risk posed by the Delta variant, as compared to earlier variants of the COVID-19 virus previously present in the City of Berkeley, the City Council found that a Citywide vaccination policy protects public health and reduces the risk of substantial harm to City staff and community members that could result from workplace outbreaks caused by the Delta variant; and
WHEREAS, on September 14, 2021, given the urgency posed by the highly transmissible nature of the Delta variant, the City Council recognized the variant’s existence as creating an emergency of grave character and as warranting immediate adoption of a Citywide vaccination policy.
91 NOW, THEREFORE BE IT RESOLVED by the Council of the City of Berkeley that it is hereby proclaimed and ordered that the Proclamation of Local Emergency, issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the City Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, December 14, 2021 and February 8, 2022, has been reviewed and is hereby again ratified and confirmed; and BE IT FURTHER RESOLVED that during the existence of this local emergency the powers, functions, and duties of the emergency organization of this City shall be those prescribed by state law, and the Charter, ordinances, resolutions and approved plans of the City of Berkeley.
92 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 22, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Mark Numainville, City Clerk
Subject: Minutes for Approval
RECOMMENDATION
Approve the minutes for the Council meetings of February 8 (regular), February 15 (closed and special), February 18 (closed), February 22 (regular) and February 24 (closed).
CONTACT PERSON
Mark Numainville, City Clerk, 981-6900
Attachments:
1. February 8, 2022-Regular City Council Meeting
2. February 15, 2022-Closed City Council Meeting
3. February 15, 2022-Special Closed City Council Meeting
4. February 18, 2022-Closed City Council Meeting
5. February 22, 2022- Regular Closed Council Meeting
6. February 24, 2022-Closed City Council Meeting
93 Tuesday, February 8, 2022 MINUTES Page 1
MINUTES
BERKELEY CITY COUNCIL MEETING
Tuesday, February 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 imminent 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 UR L https://us02web.zoom.us/j/83320305084. If you do not wish fo r 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: 833 2030 5084. 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 r ecord, 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.
94 Tuesday, February 8, 2022 MINUTES Page 2
Preliminary Matters
Roll Call: 6:05 p.m.
Present: Kesarwani, Taplin, Bartlett, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin
Absent: None
Ceremonial Matters:
1. Recognition of Service for Vice-Mayor Droste
2. Adjourned in Memory of Gene Ransom, Local Activist and Coach City Manager Comments: None
Public Comment on Non-Agenda Matters: 10 speakers.
Consent Calendar
Action: M/S/C (Arreguin/Hahn) to:
1) accept an urgency item from Councilmember Taplin pursuant to Government Code Section 54954.2(b)(2) entitled Adopt a Resolution approving the expenditure of an amount not to exceed $250 per Councilmember, including up to $250 from Councilmember Taplin, to support the Malcolm X Elementary PTA’s Read-a-thon program with funds relinquished to the City’s general fund; and 2) to accept an urgency item from Councilmember Hahn pursuant to Government Code Section 54954.2(b)(2) entitled Grant Application on behalf of the Commission on the Status of Women (COSOW) to support COSOW and City of Berkeley Priorities.
Vote: All Ayes.
Public Comment on Consent Calendar and Information Items Only: 29 speakers.
Action: M/S/C (Arreguin/Harrison) to adopt the Consent Calendar in one motion except as indicated.
Vote: All Ayes.
Recess: 7:57 p.m. – 8:07 p.m.
95 Consent Calendar
Tuesday, February 8, 2022 MINUTES Page 3
Urgency Item: Malcolm X Elementary Read-a-thon: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds Recommendation: Adopt a Resolution approving the expenditure of an amount not to exceed $250 per Councilmember, including up to $250 from Councilmember Taplin, to support the Malcolm X Elementary PTA’s Read-a-thon program with funds relinquished to the City’s general fund.
Contact: Terry Taplin, Councilmember, District 2, (510) 981-7120 Action: Councilmembers Harrison and Bartlett added as co-sponsors. Adopted Resolution No. 70,205–N.S. amended to include contributions from the following Councilmembers up to the amounts listed: Councilmember Bartlett - $250; Councilmember Robinson - $150; Councilmember Hahn - $200; Councilmember Wengraf - $200
Urgency Item: Grant Application on behalf of the Commission on the Status of Women (COSOW) to support COSOW and City of Berkeley Priorities Recommendation: Adopt a Resolution authorizing the City Manager or her designee to (1) submit a grant application in the amount of up to $250,000 to the California Commission on the Status of Women and Girls to support COSOW and City of Berkeley priorities, (2) accept any grants, and (3) execute any resulting grant agreements and any amendments; and, subject to securing the grant, authorizing implementation of the grant-funded projects and appropriation of funding for related expenses.
Contact: Sophie Hahn, councilmember, District 5, (510) 981-7150 Action: Adopted Resolution No. 70,206–N.S.
1. Commission Reorganization: Creating the Environment and Climate Commission
From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,796-N.S. adding Berkeley Municipal Code Chapter 3.82 to create the Environment and Climate Commission (ECC).
First Reading Vote: All Ayes.
Financial Implications: See report.
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Action: Adopted second reading of Ordinance No. 7,796–N.S.
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2. Response to City Council Action on October 26, 2021 regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,797-N.S. a local Accessory Dwelling Unit (ADU) Ordinance [Berkeley Municipal Code (BMC) Chapter
23.306] and amendments to relevant Defined Terms [BMC Chapter 23.502.020] in the Zoning Ordinance.
First Reading Vote: All Ayes.
Financial Implications: See report.
Contact: Jordan Klein, Planning and Development, (510) 981-7400 Action: Adopted second reading of Ordinance No. 7,797–N.S.
3. Response to City Council Action on October 26, 2021 regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
From: City Manager
Recommendation: Adopt second reading of Ordinance No.7,799-N.S. a local ordinance enacting Chapter 12.99 (Accessory Dwelling Units in Wildfire Hazard Areas) and amending Chapter 23.306.
Financial Implications: None
First Reading Vote: All Ayes.
Contact: Jordan Klein, Planning and Development, (510) 981-7400 Action: Adopted second reading of Ordinance No. 7,799–N.S. as revised in Supplemental Communications Packet #1 from the City Manager.
4. Lease and Cooperative Agreement: Downtown Berkeley Bike Station From: City Manager
Recommendation: Adopt second reading of Ordinance No. 7,798-N.S. authorizing the City Manager to execute a lease agreement with BART for retail space at the Center Street Garage for a fifteen-year lease term commencing February 1, 2021, and expiring on January 31, 2036.
Financial Implications: See report.
First Reading Vote: All Ayes.
Contact: Liam Garland, Public Works, (510) 981-6300
Action: Adopted second reading of Ordinance No. 7,798–N.S.
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5. Resolution Reviewing and Ratifying the Proclamation of Local Emergency Due to the Spread of a Severe Acute Respiratory Illness Caused by a Novel (New) Coronavirus (COVID-19)
From: City Manager
Recommendation: Adopt a Resolution reviewing the need for continuing the local emergency due to the spread of a severe acute respiratory illness caused by a novel (new) coronavirus (COVID-19) and ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services on March 3, 2020, initially ratified by the City Council on March 10, 2020, and subsequently reviewed and ratified by the Council on April 21, 2020, June 16, 2020, July 28, 2020, September 22, 2020, November 17, 2020, December 15, 2020, February 9, 2021, March 30, 2021, May 25, 2021, July 20, 2021, September 14, 2021, November 9, 2021, and December 14, 2021.
Financial Implications: To be determined
Contact: Farimah Brown, City Attorney, (510) 981-6950
Action: Adopted Resolution No. 70,207–N.S.
6. 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, and January 10, 2022.
Financial Implications: To be determined
Contact: Farimah Brown, City Attorney, (510) 981-6950
Action: Adopted Resolution No. 70,208–N.S.
7. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on February 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: $4,468,611.
Contact: Henry Oyekanmi, Finance, (510) 981-7300
Action: Approved recommendation.
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8. Contract - O2X for Public Safety Wellness Programming From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with 02X Human Performance LLC (Contractor) to provide a physical and mental wellness program for the Berkeley Fire & Police Departments (Departments) for a four (4) year base contract period that starts February 9, 2022 and ends on February 8, 2026 in an amount not to exceed $2,712,145 with an option to extend for up to six (6) additional years in two (2) year increments for a total of ten (10) years and not to exceed a total contract amount of $7,948,612.
Financial Implications: See report.
Contact: Abe Roman, Fire, (510) 981-3473
Action: Adopted Resolution No. 70,209–N.S.
9. Contract – Wildland Res Mgmt. for Community Wildfire Protection Plan (CWPP) From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract and any amendments with Wildland Res Mgmt. (Contractor) to provide Community Wildfire Protection Plan and associated analytics for the Berkeley Fire Department (Department) for an initial base contract period of one year, from February 9, 2022 to February 8, 2023 in an amount not to exceed $200,000 with an option to extend for an additional four years in two-year increments and a total not to exceed $400,000.
Financial Implications: See report.
Contact: Abe Roman, Fire, (510) 981-3473
Action: Adopted Resolution No. 70,210–N.S.
10. 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.
Financial Implications: See report.
Contact: Donald E. Ellison, Human Resources, (510) 981-6800 Action: Item removed from the agenda by the City Manager.
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11. Contract No. 31900207 Amendment: Recruiting Advertising and Marketing Strategy for the Berkeley Police Department
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 31900207 with Epic Recruiting, to provide additional recruiting and advertising services for police and professional staff vacancies, in an amount not to exceed $120,000 for a total contract amount not to exceed $310,000, and extending the term through April 30, 2023.
Financial Implications: General Fund - $120,000
Contact: Jennifer Louis, Police, (510) 981-5900
Action: Adopted Resolution No. 70,211–N.S.
12. Resolution supporting immigration reform for the U.S.
From: Peace and Justice Commission
Recommendation: Adopt a Resolution: 1. Urging President Biden to honor his promise for a humane immigration policy; 2. Calling for a departure from the previous administration’s cruelty toward migrant, for protections from deportation, and for a path to permanent residency for protected groups including beneficiaries of DACA, TPS, and DED; 3. Requesting closure of three California ICE detention facilities cited for many rights violations. Copies of this resolution should be sent to President Biden and Berkeley’s congressional delegation.
Financial Implications: None
Contact: Okeya Vance-Dozier, Commission Secretary, (510) 981-7100 Action: Adopted Resolution No. 70,212–N.S.
13. Resolution in Support of Justice for Haitian Refugees From: Peace and Justice Commission
Recommendation: Adopt a Resolution calling for an end to all U.S. government deportation efforts against Haitian refugees. Send a letter with the enclosed resolution to President Biden, Senators Feinstein and Padilla, and Congresswoman Barbara Lee.
Financial Implications: Staff time.
Contact: Okeya Vance-Dozier, Commission Secretary, (510) 981-7100 Action: Adopted Resolution No. 70,213–N.S.
14. Normalize Diplomatic and Economic Relations with Cuba From: Peace and Justice Commission
Recommendation: Adopt a Resolution supporting normalization of diplomatic and economic relations between the U.S. and Cuba, initiated by Cuba solidarity organizations in the U.S. Send a letter with the enclosed resolution to President Biden, Secretary of State Antony Blinken, Senators Feinstein and Padilla, and Congresswoman Barbara Lee.
Financial Implications: Staff time.
Contact: Okeya Vance-Dozier, Commission Secretary, (510) 981-7100 Action: Adopted Resolution No. 70,214–N.S.
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15. Japanese American Day of Remembrance
From: Peace and Justice Commission
Recommendation: 1. Adopt a Resolution calling on leaders to denounce anti-Asian racism, and for the City to collaborate with AAPI communities and community-based organizations to promote community building and safety, and to address systemic barriers for reporting anti-Asian hate crimes. 2. Adopt in perpetuity February 19 as the Japanese American Day of Remembrance in Berkeley in recognition of the mass incarceration of Japanese Americans and Japanese Latin Americans during World War II.
Financial Implications: Staff time.
Contact: Okeya Vance-Dozier, Commission Secretary, (510) 981-7100 Action: Adopted Resolution No. 70,215–N.S.
Council Consent Items
16. Budget Referral and Resolution Establishing City Process for Siting and Developing Public Electric Vehicle DC Fast-charging Hubs From: Councilmember Harrison (Author), Mayor Arreguin (Co-Sponsor), Councilmember Bartlett (Co-Sponsor), Councilmember Wengraf (Co-Sponsor) Recommendation:
1. Adopt a Resolution in support of a non-binding term sheet between the City of Berkeley and East Bay Community Energy (EBCE) to establish a network of publicly available electric vehicle (EV) fast-charging hubs in municipally-owned parking lots and garages in areas with a dense concentration of multifamily housing.
2. Refer to the June, 2022 FY 23-24 budget process $600,000 in General Fund revenues to fund Berkeley’s annual maximum Service Fee of $100,000/year per fast- charging hub for three hubs. Once revenues from charging exceed the annual service fee, a portion of revenues will be remitted to the City. Over the 10-year agreement, the City will realize a net gain. Under either a low and high hub utilization scenario, EBCE estimates the City will likely see net profits from Site License Agreement revenue over the ten years estimated at between $50,000 and $851,000.
In addition, EBCE estimates that the City is already on track to realize an additional $400,000-$600,000 in Utility User Tax proceeds annually over next 2-3 years under the Renewable 100 portfolio, and that number could grow to up to $1.3 million per year by 2025 assuming EV adoption goals are met.
Financial Implications: See report.
Contact: Kate Harrison, Councilmember, District 4, (510) 981-7140 Action: Moved to Action Calendar. 6 speakers. M/S/C (Hahn/Arreguin) to adopt Resolution No. 70,216–N.S.
Vote: All Ayes.
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17. Berkeley’s 2019 Community-Wide Greenhouse Gas Emissions Inventory (Continued from November 30, 2021)
From: City Manager
Contact: Jordan Klein, Planning and Development, (510) 981-7400 Action: 8 speakers. Presentation made and discussion held.
Action Calendar – Public Hearings
18. ZAB Appeal: 2956 Hillegass Avenue Use Permit #ZP2021-0068 From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the Zoning Adjustments Board (ZAB) decision to approve Zoning Permit #ZP2021-0068 for the addition of a 170 square foot third-floor balcony to the rear of an existing three-story 2,834 square foot single-family dwelling on a 2,754 square foot lot that is non-conforming to lot coverage.
Financial Implications: None
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Public Testimony: The Mayor opened the public hearing. 2 speakers.
M/S/C (Arreguin/Wengraf) to close the public hearing.
Vote: All Ayes.
Action: M/S/C (Hahn/Wengraf) to adopt Resolution No. 70,217–N.S.
Vote: All Ayes.
Information Reports
19. Update on Berkeley’s Redistricting Process for City Council Districts From: City Manager
Contact: Mark Numainville, City Clerk, (510) 981-6900
Action: Received and filed.
20. Healthy Checkout Ordinance Protocols
From: City Manager
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400 Action: Received and filed.
Public Comment – Items Not Listed on the Agenda - 6 speakers.
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Adjournment
Adjourned at 11:00 p.m.
I hereby certify that the foregoing is a true and correct record of the regular session meeting held on February 8, 2022.
________________________
Mark Numainville
City Clerk
Communications
ADU’s
1. Jeff White
Alameda County Rent Moratorium
2. Bruce Dodd
Buena Vista Way Repaving
3. Val Cipollone
4. Stefano Della Vigna
City Mobility Improvement
5. Gail Burke (2)
COVID-19
6. Troy Ault
EBCE Community Advisory Committee
7. Newsletter
Homeless
8. Diana
January 18, 2022 Council Meeting
9. Barbara Gilbert (2)
Marin and Spruce
10. Diana Damonte
Plastic Bag Ordinance
11. Jessica Mitchell
Redistricting
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12. Jack Kurzweil
13. Sabina McMurtry
RV’s
14. Charlene Washington
Stopwaste
15. David Lerman
Tenant Advocacy
16. Robin Fletcher
Tire Replacement
17. Catherine Woolf
UA Homes
18. Benjamin Hubbel
Unfunded CalPERS Liability
19. David Lerman
Supplemental Communications and Reports 1
Item #2: Response to City Council Action of October 26, 2021 Regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance
20. Devin Rand-Giovannetti
21. Sheryl Drinkwater
22. Ila Rosenzweig
23. John Litten
24. Shawna Hartman Brotsky
25. Don Read
26. Fan Albritton
27. Thea Daniels
28. Rita Maran
29. Dalia Nagel
30. David Jaffe
31. Jamie Greenwood
32. Jeanette and Jim Cottle
Item #3: Response to City Council Action of October 26, 2021 Regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
33. Supplemental material, submitted by Planning
Item #12: Resolution Supporting Immigration Reform for the U.S.
34. Diana Bohn
Item #18: ZAB Appeal: 2956 Hillegass Avenue Use Permit #ZP2021-0068
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35. Mollie and Adam Starr
Item #19: Update on Berkeley’s Redistricting Process for City Council Districts
36. Michael Weber
37. Max Ventura
38. Judy Grether
39. Summer Brenner
40. Kitty Calavita
41. Holly Scheider
Supplemental Communications and Reports 2
• None
Supplemental Communications and Reports 3
Item #17: Berkeley’s 2019 Community-Wide Greenhouse Gas Emissions Inventory
42. Presentation, submitted by Planning and Development Information Reports
Item #20: Healthy Checkout Ordinance Protocols
43. Ingrid De Santiago, on behalf of Healthy Options at Point of Sale
Urgent Item: Malcolm X Elementary Read-A-Thon: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds
44. Time critical item, submitted by Councilmember Taplin
Urgent Item: Grant Application on behalf of the Commission on the Status of Women (COSOW) to support COSOW and City of Berkeley Priorities
45. Urgent item, submitted by Councilmember Hahn
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B E R K E L E Y C I T Y C O U N C I L
S P E C I A L M E E T I N G M I N U T E S
TUESDAY, FEBRUARY 15, 2022
4:00 P.M.
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 imminent risks to the health of attendees. Therefore, no physical meeting location will be available.
To access the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this https://us02web.zoom.us/j/87687340786 . 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); enter Meeting ID: 876 8734 0786.
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].
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Preliminary Matters
Roll Call: 4:03 p.m.
Present: Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin
Absent: Bartlett
Councilmember Bartlett present at 4:10 p.m.
Public Comment - Limited to items on this agenda only – 15 speakers CLOSED SESSION:
The City Council will convene in closed session to meet concerning the following:
1. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(d)(1):
a. Case Name: Secure Justice v. City of Berkeley
Case Number: 21CV003630
Action: No reportable action taken.
2. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(d)(2):
a. Significant exposure to litigation – one case
Action: No reportable action taken.
3. CONFERENCE WITH LABOR NEGOTIATORS; GOVERNMENT CODE SECTION 54957.6
Negotiators: Dee Williams-Ridley, City Manager, Paul Buddenhagen, Deputy City Manager, LaTanya Bellow, Deputy City Manager, Don Ellison, Interim Human Resources Director.
Employee Organizations: Berkeley Fire Fighters Association Local 1227, Berkeley Fire Fighters Association, Local 1227 I.A.F.F. / Berkeley Chief Fire Officers Association; International Brotherhood of Electrical Workers (IBEW), Local 1245, SEIU 1021 Community Services and Part-time Recreation Activity Leaders, SEIU 1021 Maintenance and Clerical, Public Employees Union Local 1, Unrepresented Employees, Berkeley Police Association.
Action: No reportable action taken.
OPEN SESSION:
No reportable action taken.
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Adjournment
Action: M/S/C (Arreguin/Wengraf) to adjourn the meeting.
Vote: Ayes – Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent - Harrison
Adjourned at 6:55 p.m.
Councilmember Harrison absent 6:48 p.m. – 6:55 p.m.
I hereby certify that the foregoing is a true and correct record of the City Council special meeting held on February 15, 2022.
__________________________
Michael MacDonald
Assistant City Clerk
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MINUTES
SPECIAL MEETING OF THE
BERKELEY CITY COUNCIL
Tuesday, February 15, 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 imminent 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/84461712280. 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: 844 6171 2280. 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: 7:14 p.m.
Present: Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Droste, Arreguin
Absent: Harrison
Worksession
1. Homeless and Mental Health Systems and Services in Berkeley From: City Manager
Contact: Paul Buddenhagen, City Manager's Office, (510) 981-7000 Action: 13 speakers. Presentation made and discussion held.
Adjournment
Action: M/S/C (Arreguin/Wengraf) to adjourn the meeting.
Vote: Ayes – Kesarwani, Taplin, Bartlett, Hah, Wengraf, Robinson, Arreguin; Noes – None; Abstain – None; Absent – Harrison, Droste.
Councilmember Droste absent 9:31 p.m. – 9:37 p.m.
Adjourned at 9:37 p.m.
I hereby certify that the foregoing is a true and correct record of the special session meeting held on February 22, 2022.
________________________
Mark Numainville
City Clerk
Supplemental Communications and Reports 1
None
Supplemental Communications and Reports 2
None
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Supplemental Communications and Reports 3
Item #1: Homeless and Mental Health Systems and Services in Berkley
1. Presentation, submitted by the City Manager’s Office
2. Diana Bohn
3. Moni Law
4. Remi Omodele
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B E R K E L E Y C I T Y C O U N C I L
S P E C I A L M E E T I N G M I N U T E S
FRIDAY, FEBRUARY 18, 2022
9:00 A.M.
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 imminent risks to the health of attendees. Therefore, no physical meeting location will be available.
To access the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this https://us02web.zoom.us/j/84490821888 . 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); enter Meeting ID: 844 9082 1888.
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].
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Preliminary Matters
Roll Call: 9:05 a.m.
Present: Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin
Absent: Bartlett
Councilmember Bartlett present at 11:26 a.m.
Public Comment on Closed Session Item – 2 speakers.
Action: M/S/C (Arreguin/Robinson) to adopt a temporary rule limiting public comment time to one minute per speaker for Item 1.
Vote: Ayes – Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent – Bartlett
OPEN SESSION:
1. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(d)(1):
a. Supreme Court Case No. S273160: Authorize Amicus Curiae Support of Petition for Review in Save Berkeley’s Neighborhoods v. The Regents of the University of California (American Campus Communities)
Action: 27 speakers. M/S/C (Arreguin/Robinson) to authorize the City Attorney to file an Amicus Curiae Support of Petition for Review in Save Berkeley’s Neighborhoods v. The Regents of the University of California (American Campus Communities).
Vote: Ayes – Kesarwani, Taplin, Harrison, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent – Bartlett.
CLOSED SESSION:
The City Council will convene in closed session to meet concerning the following:
2. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(d)(1):
a. Supreme Court Case No. S273160: Authorize Amicus Curiae Support of Petition for Review in Save Berkeley’s Neighborhoods v. The Regents of the University of California (American Campus Communities)
Action: Item moved to Open Session for public comment, discussion, and action.
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3. CONFERENCE WITH LABOR NEGOTIATORS; GOVERNMENT CODE SECTION 54957.6
Negotiators: Dee Williams-Ridley, City Manager, Paul Buddenhagen, Deputy City Manager, LaTanya Bellow, Deputy City Manager, Don Ellison, Interim Human Resources Director.
Employee Organizations: Berkeley Fire Fighters Association Local 1227, Berkeley Fire Fighters Association, Local 1227 I.A.F.F. / Berkeley Chief Fire Officers Association; International Brotherhood of Electrical Workers (IBEW), Local 1245, SEIU 1021 Community Services and Part-time Recreation Activity Leaders, SEIU 1021 Maintenance and Clerical, Public Employees Union Local 1, Unrepresented Employees, Berkeley Police Association.
Action: No reportable action taken.
OPEN SESSION:
No reportable action taken on closed session item.
Adjournment
Action: M/S/C (Arreguin/Robinson) to adjourn the meeting.
Vote: Ayes – Kesarwani, Taplin, Bartlett, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent – Kesarwani, Harrison, Hahn.
Councilmember Harrison absent at 11:58 a.m.
Councilmember Hahn absent at 12:14 p.m.
Councilmember Kesarwani absent at 12:15 p.m.
I hereby certify that the foregoing is a true and correct record of the closed session meeting held on February 18, 2022.
________________________
Mark Numainville, City Clerk
114
Tuesday, February 22, 2022 MINUTES Page 1
MINUTES
BERKELEY CITY COUNCIL MEETING
Tuesday, February 22, 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 imminent 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 UR L https://us02web.zoom.us/j/89664206619
. 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: 896 6420 6619. 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.