8 reasonable estimate of the costs Landlord shall incur by reason of Tenant's late payment. Landlord shall apply any monies received from Tenant first to any accrued delinquency charges and then to any rent then due. Acceptance of such delinquency charges by Landlord shall not constitute a waiver of Tenant's default with respect to such overdue amount. The delinquency charge is in addition to all other remedies that Landlord may have under this Lease or at law.
2. Any amount due to Landlord, if not paid when due, shall bear interest from the date due until paid at the rate of the twelve percent (12%) per annum. Interest shall not be payable on delinquency or late charges nor on any amounts upon which such charges are paid by Tenant, to the extent such interest would cause the total interest to exceed that legally permitted. Payment of interest shall not excuse nor cure any default hereunder by Tenant.
E. Accord and Satisfaction. Landlord's acceptance of a lesser amount of rent or other sum due hereunder shall not be deemed to be other than on account of the earliest rent or payment due and shall be applied by Landlord as provided in subsection D. 1. No endorsement or statement on any check or letter accompanying any such check or payment shall be deemed an accord and satisfaction, and Landlord may accept such check or payment and pursue any other remedy available under this Lease or at law. Landlord may accept any partial payment from Tenant without invalidation of any contractual notice required hereunder (if required) and without invalidation of any notice required pursuant to California Code of Civil Procedure Section 1161, et seq., or any successor statute.
4. PROPERTY AND OTHER TAXES
A. Possessory Interest Taxes. The property interests created by this Lease may be subject to property taxation and Tenant, in whom the possessory interest is vested, will be responsible for the timely payment of any property taxes levied on such possessory interest.
Tenant agrees to pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the state, county, city or any tax or assessment levying body against the transfer of the leasehold interest hereunder upon recordation or otherwise, or upon any activity carried on under this Lease, any interest in this Lease or any possessory right which Tenant may have in or to the Property or the Premises by reason of its use or occupancy thereof or otherwise.
B. City of Berkeley Assessments. Tenant also shall be responsible for and shall pay prior to delinquency all assessments imposed against the Property and/or the Premises by the City. Tenant acknowledges that City has established certain assessment districts within the City of Berkeley and that all properties within the assessment districts are subject to annual assessments. The City reserves the right to create additional districts and to terminate any such district(s). Tenant shall be billed for each such assessment in the same manner as other property owners and lessees in the City.
C. Personal Property and Other Taxes. In addition to all other sums to be paid by Tenant hereunder, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the term of the Lease on Tenant's equipment, furniture, fixtures, merchandise, and other
9 personal property located in the Premises, and shall pay, or shall reimburse Landlord for, any and all assessments (including, without limitation, all assessments for public improvements, services or benefits, irrespective of when commenced or completed), excises, levies, business taxes, Lease, permit, inspection and other authorization fees, transit fees, service payments in lieu of taxes and any other fees or charges of any kind, which are levied, assessed, or imposed by any public authority: (i) upon or measured by rental payable hereunder, including without limitation, any gross income tax or excise tax levied by the City of Berkeley, Alameda County, the State of California, the Federal Government or any other government body with respect to the receipt of such rental; (ii) upon or with respect to the development, possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the or any portion thereof; (iii) upon, measured by or reasonably attributable to the cost or value of Tenant's equipment, furniture, fixtures, merchandise, and other personal property located at or in the Premises or by the cost or value of any improvements made by Tenant to the Premises, regardless of whether title to such improvements shall be in Tenant or Landlord; or (iv) upon this Lease or any document to which Tenant is a party creating or transferring an interest in the Premises.
D. Tenant's Right to Contest. Tenant may, at no cost to Landlord, reasonably contest the legal validity or amount of any taxes, assessments, or charges for which Tenant is responsible under this Lease, and institute such proceedings as Tenant considers necessary; provided, however, that Tenant shall at all times protect Landlord from foreclosure of any lien, and that Landlord shall not be required to join in any proceeding or contest brought by Tenant.
5. USE OF PREMISES AND THE AQUATIC PARK MAIN LAGOON
A. The Premises shall be used for public bicycle rentals and sales, community bicycle repair space, public boat rentals, boat building space, storage area, and a small café.
B. Tenant shall operate its business on and about the Premises in a manner consistent with the use permitted herein and the standards promulgated by Landlord.
C. Tenant understands that motorboats may be used on the Main Lagoon at Aquatic Park only from May 1st through September of each Lease Year on a schedule to be approved by the City of Berkeley’s Director of Parks, Recreation, and Waterfront. For safety and instructional purposes while using the Main Lagoon, Tenant may use three motorboats, power by four-stroke outboard motors, provided the speed of said boats does not exceed 11 MPH, except in case of emergencies. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the Premises and the Main Lagoon. Tenant must comply with all applicable regulations governing the use of the Main Lagoon and Aquatic Park. Tenant may not use motorboats on any portion of the Main Lagoon from October 1st through April 30th, due to the fact that environmental studies show use during those months would impact migratory birds. Any such use of the Main Lagoon during this period is subject to approval of the City Council and other affected regulatory agency.
D. At all times, Tenant agrees to provide adequate personnel to ensure the safe and efficient management of its use of the Premises and the Main Lagoon. Tenant must comply with all applicable regulations governing the use of the Main Lagoon and Aquatic Park. Tenant
10 acknowledges that the City may alter the permitted scope of usage of the Main Lagoon and Aquatic Park in its sole discretion, and the City’s regulations shall take precedence over any agreements between Lagoon users.
E. Prior to entering and using the Main Lagoon, Tenant shall have complied with Section 15 - Insurance, of this Lease. In addition, Tenant, and any of its participants or guests of guests of its participants entering and using the Main Lagoon shall sign a waiver and release form to be provided by the Tenant that holds the City of Berkeley harmless in case of any accidents or loss of any type. Such release shall include, but not be limited to, the following:
“Participant releases and forever discharges the City of Berkeley, its divisions, subsidiaries, affiliates, officers, agents, employees, and the heirs, executors or assigns of any of the foregoing, from any and all claims, demands, and causes of action of every kind, known or unknown, whether based in tort, contract, breach of warranty, strict liability, negligence or any other legal theory of recovery, and whether for general, special, compensatory or punitive damages, arising out of or in any way related to use of the Main Lagoon at Aquatic Park.”
In the event Tenant fails to obtain a signed waiver and release form from any member or guest of its participants who uses the Main Lagoon or is in any way connected to the use of the Main Lagoon, Tenant at all times will still be bound by Section 14 of this Agreement.
F. Tenant will comply with all applicable safety standards in effect at any given time, and take all necessary steps to ensure that its participants and guests of its participants are properly supervised and trained to prevent injury to themselves and others. Tenant will provide adequate supervision and training of its participants and guests of in their use of the Premises and/or Main Lagoon.
G. Landlord shall have no responsibility for Tenant’s equipment, vehicles or personal property that may be lost, stolen, or damaged.
H. With the exception of Tenant's equipment stored within the Premises, no items will be allowed to be stored in the exterior Premises without written approval by Landlord. In no circumstances shall items not related to the Tenant’s programs be allowed to be stored on the Premises, either inside or outside.
I. Tenant agrees to require its participants and guests of participants who use the Premises and/or Main Lagoon to respect other Aquatic Park lessees, licensees and visitors and to abide by standards of behavior common to the sport of rowing, bike riding, and general park use.
J. Business may be conducted with the public on the Premises during park hours, provided that Tenant shall have obtained all required permits and provided Tenant shall comply with all rules applicable to Aquatic Park.
K. Tenant agrees to cooperate with the City in promoting community participation in Tenant’s programs and activities held on the Premises.
11 L. Tenant shall not, without the written consent of Landlord:
1. place, construct or maintain in, on, or about the Premises or within Aquatic Park any advertisement media, including without limitation, searchlights, flashing lights, loudspeakers, or other similar media or device;
2. place or permit the use in or on the Premises of any video games, pinball machines or other devices or equipment for amusement or recreation, or any vending machines, newspaper racks or other coin operated devices (excepting pay telephones).
3. warehouse or stock on the Premises any goods, wares or merchandise other than that which is directly related to the Tenant's use of the Premises;
4. store, display or sell goods or merchandise on the Premises or place or permit portable signs or other devices to be stored or to remain on the Premises;
5. use or permit any portion of the Premises to be used as living or sleeping quarters; and
6. sell, distribute, display, or offer for sale any item, which, in Landlord's good faith judgment, may tend to detract from the image of Aquatic Park.
M. Tenant shall not do or permit to be done in, on, or about the Premises anything which is prohibited by or may conflict with any law, statute, ordinance or governmental rule or regulation now in force or hereafter enacted or promulgated, which is prohibited by the standard forms of special form or commercial general liability insurance or which may cause a cancellation of any insurance policy covering Aquatic Park or the Premises or any of its contents, or (except with the prior written consent of Landlord) which may increase the existing rate of or affect any special form or commercial general liability insurance or other insurance upon Aquatic Park or the Premises, or any of its contents. In the event Tenant does or permits to be done anything or keeps or permits to be kept anything on or about the Premises or the Aquatic Park which increases the existing rate of such insurance upon Aquatic Park or the Premises or any of its contents, Tenant shall pay the amount of any such increase promptly upon Landlord's demand. Tenant shall not do or permit anything to be done which will in any way obstruct or interfere with the rights of other lawful users of Aquatic Park, including, without limitation, tenants, their employees or invitees, disturb or annoy them, or use or allow the Premises to be used for any improper, unlawful or objectionable purpose. Tenant shall not maintain or permit any nuisance in or about the Premises or commit or suffer to be committed any waste in or upon the Premises.
N. No auction, fire, bankruptcy, distress, clearance, or going-out-of-business sale shall be conducted on the Premises nor shall any sign or advertisement regarding such activity be posted in or about the Premises.
O. Tenant shall not use or permit the Premises to be used in any manner or permit anything to be brought into or kept therein which would (i) violate the certificate of occupancy
12 for the Premises; (ii) make it impossible or extraordinarily difficult to obtain special form coverage, commercial general liability or other insurance required to be furnished by Tenant under this Lease; (iii) cause structural injury to any part of the Premises or the Building; (iv) impair or interfere with the proper operation and maintenance of the Premises and/or Aquatic Park; or (v) violate any of Tenant's other obligations under this Lease.
P. If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Tenant's business, Tenant shall procure and maintain such license or permit and submit the same for inspection by Landlord. Tenant at all times shall comply with the terms and conditions of each such license or permit.
Q. Nothing shall be done in or about the Premises by Tenant or anyone having a contractual relationship with Tenant that will result in substantial interference, by themselves or third parties, with normal operation and use of Aquatic Park or the means of ingress and egress thereto ("Substantial Interference"). Tenant shall use every effort to eliminate Substantial Interference, including legal action. If Tenant fails to bring an immediate halt to any Substantial Interference, Landlord shall have the right (i) to take action and require Tenant to undertake and eliminate such Substantial Interference and (ii) to commence any legal action to eliminate such Substantial Interference. Any agreement entered into by Tenant with regard to use of the Premises shall contain a provision reserving to Tenant all of the necessary rights and remedies to permit Tenant to comply with its obligations under this provision and authorizing Landlord to enforce the terms of such provision if Tenant fails to do so.
R. Tenant acknowledges that West Bolivar Drive is closed to vehicular traffic and that Landlord has installed a gate to prohibit such traffic. Landlord agrees that Tenant and its Affiliates may use West Bolivar Drive to access the Premises, provided that Tenant and its Affiliates shall close the gate after each entry and exit.
S. Tenant agrees to submit to the Landlord, by June 1 st of each Lease Year, an annual report that describes the Tenant’s community activities in the prior year, including:
1. List tenant’s community activities in the previous year, with the number of participants volunteering and the total hours at each day of community activity.
2. List number of participants, number of participants from Berkeley, number of participants who are under 18 or other member subgroups the organization believes is appropriate to mention.
3. Tenant shall identify the fee structure utilized during the previous year, including dues for Berkeley residents, non-Berkeley residents, and different sub-groups if applicable.
4. Approximate level of usage, such as number of people per day, number of person- hours per day, or comparable information. If there is variation from one time of year to another, then this information shall be reported by season.
5. Tenant shall discuss any Aquatic Park lagoon use scheduling or issues with other park users. If there are no issues, a statement to that effect is required.
T. Tenant agrees to post on the Premises references to the Organization's website for
13 information concerning the Organization's programs and goals, events, and contacts to discuss and facilitate participation.
6. USE OF AQUATIC PARK PROPERTY
A. The parties acknowledge that Tenant has, as a member of the general public, the non-exclusive right, in common with others duly authorized by Landlord, and subject to all generally applicable laws and regulations, to use Aquatic Park, including the Main Lagoon.
B. Tenant agrees that except as otherwise provided in this Lease, it is not a covenant or condition of this Lease or of any other agreement with Tenant that Landlord undertake or cause to be undertaken any development or redevelopment of the Premises or Aquatic Park, and Landlord shall incur no liability whatsoever to Tenant for failure to undertake such development or redevelopment.
C. Landlord at all times shall have the right and privilege of making such changes in and to Aquatic Park (other than to 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, 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 to or visibility of the Premises, except temporarily during periods of construction. Landlord shall have the right to establish, promulgate, and enforce such reasonable rules and regulations concerning Aquatic Park, 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.
D. Landlord at all times shall have the sole and exclusive management and control of Aquatic Park, including without limitation, the right to lease, license or permit the use of space within Aquatic Park 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.
E. 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 Premises of Tenant's participants, 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 for the safety of its participants and guests using the Premises and/or the Main Lagoon pursuant to this Lease or any permits or licenses from the City. Tenant acknowledges that if Landlord provides security guards or police patrols for Aquatic Park or any portion thereof, Landlord does not represent, guarantee or assume responsibility that Tenant or any person or entity will be secure from losses or injury caused by the acts of third parties and does not assume responsibility for any such illegal acts. 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. City shall not be obligated to provide any public liability or property damage or loss insurance for the benefit of
14 Tenant or any other person or entity.
F. Tenant will use its best efforts to maintain effective relations with other users of Aquatic Park and with neighbors. Tenant shall park vehicles only in legal and/or designated parking areas and only for the legal period of time; shall deposit all trash in legal containers; shall not deposit food or material of any kind on adjacent Premises; and shall respect the sensitive environment of Aquatic Park. Landlord has the right at any time to revise the traffic flow on Bolivar Drive, provided Tenant continues to have vehicular access to the Premises.
G. Tenant shall not interfere with the free and unobstructed access by the public to Aquatic Park. Tenant shall not preclude other users of Aquatic Park from exercising a different use without first obtaining any and all appropriate permits. Tenant shall be obligated to permit such access to Aquatic Park as required for consistency with applicable laws of the State of California, and/or City's plans adopted from time to time; however, this sentence is not intended to, and shall not be construed to, confer any right of action upon any third party.
H. Landlord reserves to itself the right to grant to others in the future nonexclusive utility easements over, under, through, across, in or on the Premises in locations that will not unreasonably interfere with Tenant's access to or use of the Premises. Any interference 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. In the event the installation or maintenance of such future utility lines in such easements causes any damage to the Premises, or any portion thereof, or to the Building, or other facilities located upon the Premises, including but not limited to pavement, curbs and sidewalks, 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 a utility easement, except to the extent they result from the negligence or willful misconduct of Tenant or its sub-lessees or sub-tenants.
7. SERVICES
A. Landlord shall provide and maintain water and sewer service to the Premises.
Tenant shall maintain the water and sewer lines within the Building. Landlord shall pay the costs of the water and sewer service. Tenant shall pay for and be responsible for all other utilities and services, including electric, gas, garbage and telephone, and all fees and periodic charges related thereto. Tenant agrees to pay electrical services associated with Dreamland bathrooms, as they share a meter with 90 Bolivar Drive.
B. Landlord makes no representation or warranty that the supply of any utility or service to the Premises and/or the Building will not be interrupted, delayed or reduced.
C. Landlord shall not be liable for damages to either person or property; nor shall Landlord be deemed to have evicted Tenant; nor shall there be any abatement of any rent; nor shall Tenant be relieved from performance of any covenant on its part to be performed hereunder by reason of any (i) breakdown of equipment or machinery utilized in supplying utilities or services; (ii) interruption of or failure to supply or delay in supplying any such utilities or services; (iii) the limitation or restriction on use of water, electricity gas, or telecommunications
15 service serving the Premises or Aquatic Park; or (iv) failure to repair or cure any of the foregoing, except in the case of Landlord's gross negligence or willful misconduct.
8. OBLIGATION OF TENANT TO REMOVE PERSONAL PROPERTY
Upon the expiration of this Agreement, Tenant is obligated to remove any personal property placed in the Premises by the Tenant. If any personal property does remain on the Premises upon the expiration of the Agreement it will be considered abandoned personal property, which will be removed, by the City and the Tenant will be responsible for all costs associated with removing the personal property from the Premises.
9. ALTERATIONS AND IMPROVEMENTS
A. Tenant acknowledges that Landlord owns the Premises. Tenant accepts the Premises from Landlord in its "as is" condition, the conditions that exist as of the Effective Date of this Lease. Tenant acknowledges that Landlord makes no representation or warranty concerning (i) the physical condition of the Premises; (ii) the Premises suitability for Tenant's proposed use; or (iii) the presence of any Hazardous Substance in or about the Premises, except as otherwise expressly set forth in this Lease. Landlord has encouraged Tenant to make its own physical inspection of all aspects of the Premises and to conduct its own investigation as to the suitability of the Property and the Premises for Tenant's use.
B. Upon the execution of this Lease, Landlord approves and requires the improvements to the Premises listed on Exhibit “C” that shall be completed by Tenant. Tenant shall complete the improvements within the timeframe as stated in Exhibit “C” (Tenant’s Work).
Tenant shall not make any alterations, additions or improvements to the Premises (i) costing in excess of $5,000 for any single instance or $15,000 in the aggregate for any twelve (12) consecutive months or (ii) affecting the Building structure or utility systems, or attach any fixture or item of equipment thereto without Landlord's prior written consent except for the Fence and the improvements listed in Exhibit “C”. All such alterations, additions, or improvements shall be made at Tenant's sole expense in accordance with Landlord's General Design Requirements (if any) and the plans and specifications (including specifications for materials to be used in connection therewith) and a statement of the estimated cost of such work submitted to and approved by Landlord (collectively the "Plans and Specifications"). If the cost thereof exceeds $5,000 for any single instance, or if such Tenant's Work involves the Building structure or utility systems, any contractor or person selected by Tenant must be a licensed contractor. Landlord, in its sole discretion, shall approve or disapprove Tenant's request and may disapprove Tenant's use of any materials or substances, including but not limited to asbestos and fiberglass, which Landlord, in its sole discretion, deems potentially hazardous, toxic or threatening to health. To the extent that Tenant's Work shall 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 of Tenant's Work until Tenant has obtained all requisite permits. Tenant further shall comply with all prevailing wage requirements of California Labor Code Sections 1720 et seq., to the extent such requirements are applicable to Tenant's work.
C. Except as otherwise expressly provided in this Lease, Tenant shall not repair,
16 replace or modify any utility system located within the Building without the Landlord's prior written consent. Tenant is responsible for the repair of any damage to any utility system, structural element of the Building(s), facilities of Landlord or any other facilities arising out of Tenant's construction activities or Tenant's negligence or willful misconduct; provided, however, such provision is not intended to and shall not be interpreted to make any other person or entity a third party beneficiary thereof.
D. This Lease specifically prohibits Tenant, or any other party, from expanding uses or structures allowed on the Premises beyond those designated in use permits approved by the City of Berkeley. Notwithstanding approval of any new Use Permit allowing expansion, or any future expansion of the uses in existing buildings, or additions to existing buildings or docks, or construction of any new buildings or docks, or moving existing buildings onto the Premises, are all subject to the prior written approval of the Landlord (with the exception of the Exhibit “C” Improvements) and all improvements (including Exhibit “C” Improvements) are subject to the environmental review and permit regulations and approvals of same by all applicable local, state, and federal agencies.
E. If Tenant proposes to make or construct any alterations, improvements, additions or fixtures (other than Exhibit “C” Improvements) that affect any portion of the Premises or any structures located on the Premises that are allowed under an existing use permit, Tenant shall first provide the Landlord with thirty (30) days prior written notice. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits.
F. Except for Exhibit “C” Improvements, Tenant shall not substantially deface or change any floors, walls, ceilings, roofs, or partition any of the structures or improvements on the Premises without first providing thirty (30) days written notice to Landlord. If Landlord raises no objections within thirty (30) days after receipt of such notice, Tenant may proceed, provided Tenant obtains all required permits. Except as may be specifically approved in writing by Landlord, Tenant shall require all contractors to provide a labor and materials bond for the full amount of any contract for improvements that exceed $50,000, including any applicable Exhibit “C” Improvements. Tenant shall pay, when due, all sums of money that may be due or become due for any labor, services, materials, supplies or equipment furnished to or for Tenant in, at, upon or about the Premises and which may be secured by any mechanic's, material men’s or other lien against the Premises or Landlord's interest therein.
All alterations, improvements or additions that are now or in the future attached permanently to the Premises shall be the Property of Landlord and shall remain with the Property at the termination of this Lease, except that Landlord can elect within thirty (30) days of the termination of the Lease to require Tenant, at its cost, to remove any equipment that Tenant has affixed to the Premises.
G. 1. Tenant hereby agrees in accordance with the schedule set forth in Exhibit "C" to undertake and complete all of the recommended capital improvements.
2. Tenant understands the Premises were inspected by the City’s Certified Access Specialist CASp. The Lessee acknowledges receipt of their findings and many of these are
17 incorporated into planned improvements in Exhibit C. City makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee’s use of the Premises requires modifications or additions to the Premises in order to comply with the ADA or similar legislation, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s expense. City shall have no responsibility to make any repairs or modifications to the premises in order to comply with accessibility standards, except as set forth in other provisions of this Lease.
3. The parties acknowledge and agree that one of the principles underlying the terms and conditions of this Lease is Tenant's agreement to perform specified capital improvements on the Premises in exchange for abated rent and a 10-year term of occupancy. The parties have thoroughly inspected the Building and Premises and have entered into this Lease on the assumption that the capital improvements set forth in Exhibit C represents a reasonable estimate of the improvements necessary to preserve, enhance and improve the condition of the Building through the term of this Lease. However, the parties also acknowledge and agree that certain events (for example, latent or unanticipated defects or damage to the Premises, accessibility requirements, etc.) may give rise to substantial, unavoidable expenses that materially and adversely affect Tenant's ability to perform its obligations under this Lease. In such event, upon Tenant's written notice to Landlord, Landlord shall temporarily defer declaring default pursuant to Section 19 of this Lease, and the parties, in good faith, shall employ their best efforts to negotiate amendments to the Lease that recognize Tenant's financial hardship while preserving to the extent possible the original terms and intent of the Lease. In the event the parties are unable to reach agreement on such amendments, either party may terminate this lease upon 30 days’ written notice to the other. Upon such termination, Tenant shall vacate the Premises in accordance with Section 2.B. and shall be relieved of all other obligations under this Lease.
H. 1. 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 prevailing rate of per diem wages, and travel and subsistence payments (defined in applicable collective bargaining agreements filed in accordance with Section 1773.8 of the California Labor Code), in effect on the date of Landlord's first approval of a building permit or other approval of the work. 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 Twenty-Five Dollars ($25) 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.
2. Tenant agrees to keep or cause to be kept by each contractor and subcontractor an accurate payroll record for each worker employed on Tenant's Work covered by this subsection H showing all of the information specified in subsection (a) of Section 1776 of the California Labor Code. All such payroll records shall be certified, available for inspection and filed in accordance with the procedures specified in subsections (b)-(e) inclusive of Section
18 1776 of the California Labor Code. In the event of noncompliance with the foregoing requirements concerning payroll records which continues for more than ten (10) days after Landlord gives Tenant written notice specifying in what respects Tenant must comply, Tenant shall forfeit, as a penalty to Landlord, for each worker Twenty-Five Dollars ($25) for each calendar day, or portion thereof, until strict compliance is effectuated. Tenant shall be responsible for complying with Section 1777.5 of the California Labor Code concerning apprenticeable occupations, with respect to all work covered by that section. For purposes of the prevailing wage requirements of this subsection, Tenant shall be deemed to be a "contractor" as that term is used in Sections 1720 et seq., of the California Labor Code. Except where the context otherwise requires, the definitions of terms and phrases contained in the State prevailing wage law, Sections 1720 et seq., of the California Labor Code, and in the implementing administrative regulations, shall apply to the same terms and phrases which are used in the prevailing wage requirements of this subsection H.
10. LIENS
Tenant shall keep the Premises, the Building, and Aquatic Park free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant. In the event that Tenant shall not cause any such liens to be released of record, Landlord shall have, in addition to all other remedies provided herein or by law, the right (but not the obligation) to cause the same to be released by such means as Landlord shall deem proper, including payment of the claim giving rise to such lien. All sums paid and all expenses incurred by Landlord in connection therewith shall be reimbursed by Tenant promptly on demand. Landlord shall have the right to post and keep posted on the Premises any notices (including, without limitation, notices of non-responsibility pursuant to California Civil Code Section 3094) that Landlord may deem proper for protection of Landlord and the Premises. Tenant shall give Landlord at least ten (10) business days' prior notice of the date of commencement of any Tenant's work on or in the Premises to allow Landlord to post such notices.
11. TENANT AND LANDLORD MAINTENANCE OBLIGATIONS
A. Tenant agrees that during the entire term of this Lease, at its own cost and expense, it shall keep and maintain the Building on the Premises, and all leasehold improvements, fixtures, furniture, and other improvements located on the Premises in good-quality order, repair and condition. Except as otherwise provided in this Lease, Tenant shall perform, at its own cost and expense, any and all maintenance, removal of graffiti, repairs, or rehabilitation to the Building, Public Dock, or other area in the Premises, whether required by deterioration or by operations of Tenant or otherwise. This obligation includes any repairs to the roof or building structure.
B. To the extent applicable, Tenant hereby waives the provisions of Civil Code Sections 1941 and 1942, and any other provision of law now or hereafter in effect, with regard to the habitability of the Property and the Premises.
C. "Good-quality order, repair and condition", as used herein, shall mean the maintenance, repair, or renovation of the Building, equipment, furniture, fixtures, outdoor
19 lighting, signage, and appurtenances necessary to keep and maintain the Building in efficient and attractive condition, given the nature and age of the Building, at any time during the term of this Lease.
D. Tenant shall provide its own janitorial service for the Premises, and all of Tenant's rubbish shall be removed by Tenant to such location(s) on the Premises or within Aquatic Park as may be designated by Landlord for pick-up and disposal by the Landlord.
E. Tenant shall maintain or cause to be maintained, at Tenant’s expense, the Public Dock adjacent to the Premises.
F. In the event of a dispute that Landlord and Tenant cannot informally resolve, Tenant’s only remedy against Landlord shall be the right to terminate this Lease, effective thirty (30) days from the delivery of written notice to Landlord.
G. Nothing in this Section 11 shall be deemed to affect or impair Landlord's rights under Section 9 of this Lease. Tenant acknowledges that Landlord has no obligation and has made no promises to alter, remodel, improve, repair, decorate or paint the Building or to improve the Premises, or any part thereof. Other than as set forth in the Facilities Condition Assessments, Landlord has made no representations respecting the condition of the Building, the Premises, or Aquatic Park, except as specifically set forth in this Lease.
12. ENVIRONMENTAL
A. Tenant shall follow all environmental rules and regulations as they apply to City agencies. Specifically, Tenant shall minimize waste and recycle and compost. Tenant must participate in a recycling service provided by the City or provide an acceptable alternative with the approval of the City’s Recycling Supervisor. To that end, Tenant shall:
1. Assign someone to be in charge of its recycling programs, and to communicate needs and questions to the City’s Zero Waste Division.
2. Recycle corrugated cardboard, office papers and beverage containers (glass bottles, plastic bottles, and cans)
3. Place collection containers for paper at convenient locations.
4. Educate employees and program participants about recycling procedures.
5. Recycle batteries and office equipment (contact the City’s Zero Waste Division for information about vendors).
6. Tenant shall recycle construction waste from tenant improvements.
7. Tenant shall conserve energy.
13. DAMAGE OR DESTRUCTION
A. In the event the Premises are damaged by fire, flood, earthquake, act of God, the elements, or other casualty, then (unless this Lease is terminated pursuant to this Section 13) Tenant shall forthwith repair the same, at its sole expense. In this event, Tenant shall be solely responsible for the loss, repair, and replacement of its equipment and leasehold improvements.
20 B. Anything in subsection A to the contrary notwithstanding, neither Tenant nor Landlord shall have any obligation to repair or rebuild the Premises or the Buildings following damage or destruction thereto if the damage or destruction is due to any cause or casualty other than one against which the responsible party is required to carry insurance or actually does carry insurance and such party reasonably estimates that the cost of repair or rebuilding exceeds ten percent (10%) of the replacement cost of the Premises or Buildings, as the case may be. If the responsible party elects not to repair any damage or destruction pursuant to this provision, such party shall give the other party notice of such election within sixty (60) days after the date of such damage or destruction; and this Lease shall terminate as of the date of such damage or destruction.
C. Tenant hereby waives the provisions of California Civil Code Sections 1932 and 1933 and any other statutes now or hereafter in effect which relate to termination of a lease when leased Premises is damaged or destroyed and agrees that such event shall be governed by the terms of this Lease.
14. INDEMNIFICATION
A. To the fullest extent permitted by law, Tenant shall (1) immediately defend and (2) indemnify Landlord, and its directors, officers, and employees from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with the Lease. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. The Tenant's obligation to indemnify applies regardless of whether a liability is a result of the negligence of any other person, unless it is adjudicated that the liability is caused by the sole active negligence or sole willful misconduct of an indemnified party.
B. The duty to defend is a separate and distinct obligation from the Tenant’s duty to indemnify. The Tenant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the Landlord, the Landlord and its directors, officers, and employees, immediately upon submittal to the Tenant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. A determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Tenant from its separate and distinct obligation to defend Landlord. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Tenant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Tenant may submit a claim to the Landlord for reimbursement of reasonable attorneys’ fees and defense costs.
C. The review, acceptance or approval of any of Tenant’s work or work product by any indemnified party shall not affect, relieve or reduce the Tenant’s indemnification or defense
21 obligations. This Section survives the termination of this Lease. The provisions of this Section are not limited by and do not affect the provisions of this Lease relating to insurance.
D. Liabilities subject to this Section include any claim of discrimination or harassment, including but not limited to sexual harassment, arising from the conduct of the Tenant or any of the Tenant’s officers, employees, agents, licensees, or subcontractors. In the event of a discrimination or harassment complaint against any employee, agent, licensee or subcontractor of the Tenant or its subcontractors, the Tenant shall take immediate and appropriate action in response to such complaint, including, but not limited to termination or appropriate discipline of any responsible employee, agent, licensee or subcontractor.
15. INSURANCE
A. Tenant, at its sole expense, shall procure and maintain the following insurance:
1. Commercial general liability insurance insuring Tenant against any liability arising out of its use, occupancy, repair or maintenance of the Premises, the Building, Aquatic Park or the Main Lagoon, with a combined single limit of not less than $2,000,000 for injury to or death of one or more persons in any one accident or occurrence and Property damage in any one accident or occurrence. Such comprehensive general liability insurance shall include fire liability coverage and public liability and Property damage insurance, including personal injury, broad form Property damage, blanket contractual, and other coverage as may be reasonably required by Landlord. Landlord shall have the right, from time to time, to require Tenant to increase the amount of its comprehensive general liability insurance coverage if, in Landlord's reasonable opinion, the amount of such coverage is not sufficient in light of the risks insured and Tenant's use of the Premises or Aquatic Park.
2. Special Form Property insurance for cost of damage to the Premises, including, without limitation, during any term of construction of Tenant's Work, builders' All- Risk Insurance. Such insurance shall include coverage for vandalism and malicious mischief and cost of demolition and increased cost of construction by reason of changes in applicable ordinances/laws and shall not contain a co-insurance clause.
B. All policies of insurance and all renewals thereof shall be approved as to form and sufficiency by Landlord's Risk Manager and shall be issued by good and responsible companies qualified to do and doing business in California and rated A+: XIII or better in the most recent version of Best's Insurance Guide. Each of the required insurance coverages except for workers compensation (i) shall name Landlord and each of its Affiliates as additional insureds and, with respect to casualty insurance, as their respective interests may appear and (ii) shall provide that it may not be canceled or altered by the insurer in such manner as to adversely affect the coverage unless sixty (60) days' prior notice is given by certified mail to Landlord at the address set forth in Section 35 below, or to such place as Landlord may from time to time designate in a notice to Tenant.
C. An original certificate of each policy of insurance shall be delivered to Landlord prior to the date the Premises is delivered to Tenant and from time to time during the Term. If
22 Tenant shall fail to procure or maintain any insurance required hereunder or shall fail to furnish to Landlord any duplicate policy or certificate, Landlord may obtain such insurance; and any premium or cost paid by Landlord for such insurance shall be reimbursed by Tenant promptly upon Landlord's demand. Tenant shall make good faith efforts to ensure that at least sixty (60) days prior to the expiration of any such policy, an extension endorsement showing that such insurance coverage has been or will be renewed or extended shall be delivered to Landlord and if, despite such good faith efforts, such extension endorsement cannot be timely delivered, Tenant shall cause to be delivered to Landlord within said time other reasonable documentary evidence of renewal of coverage and shall continue exercising diligent efforts to deliver to Landlord the required extension endorsement. If such coverage is canceled or reduced, Tenant, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage but in no event later than the effective date of cancellation or reduction, shall deliver to Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company(ies). Upon Tenant's failure to so deliver such certificate, Landlord may, without further notice and at its option, (1) exercise Landlord's rights as provided in this Lease or (2) procure such insurance coverage at Tenant's expense and Tenant shall promptly reimburse Landlord for such expense.
D. If any of the insurance required in this Section 15 is provided under a claims- made form of policy, Tenant shall maintain such coverage continuously throughout the Term and without lapse for a period of not less than five (5) years beyond the termination of this Lease, to the effect that should occurrences during the Term give rise to claims made after termination of this Lease, such claims shall be covered by such claims-made policies.
E. Each of Tenant's Property insurance policies insuring the Premises and Tenant's Property in the Premises shall include a waiver of the insurer's right of subrogation against Landlord, or, if such waiver should be unobtainable or unenforceable, (i) an express agreement that such policy shall not be invalidated if the assured waives, before the casualty, the right of recovery against any party responsible for a casualty covered by the policy or (ii) any other form of permission concerning the assured's right to waive its right of recovery. If such waiver, agreement or permission shall not be, or shall cease to be, obtainable, Tenant shall so notify Landlord promptly after learning thereof.
F. Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which Tenant might otherwise have against Landlord for loss, damage or destruction of Tenant's Property occurring during the Term to the extent to which Tenant is insured under a policy (ies) containing a waiver of subrogation or agreement or permission to release liability, as provided in E. above. If, notwithstanding the recovery of insurance proceeds by Tenant for such loss, damage or destruction, Landlord is liable to Tenant with respect thereto or is obligated under this Lease to make replacement, repair, restoration or payment, then (provided Tenant's right of full recovery under its insurance policies is not thereby prejudiced or otherwise adversely affected) the amount of the net proceeds of the Tenant's insurance against such loss, damage or destruction shall be offset against Landlord's liability to Tenant therefore or shall be made available to Landlord to pay for replacement, repair or restoration, as the case may be. Nothing contained herein shall relieve either party of any duty to repair, restore or rebuild imposed elsewhere in this Lease or shall nullify any abatement of rent provided for elsewhere in this Lease.
23 G. If Tenant employs any person, it shall carry workers' compensation and employer's liability insurance and shall provide a certificate of insurance to the Landlord. The workers' compensation insurance shall: provide that the insurance carrier shall not cancel, terminate, or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the Landlord; provide for a waiver of any right of subrogation against Landlord to the extent permitted by law; and be approved as to form and sufficiency by the Landlord's Risk Manager.
H. If a death, serious personal injury, or substantial Property damage occurs in connection with the performance of this Lease, Tenant shall immediately notify the Landlord's Risk Manager. If any accident occurs in connection with this Lease, Tenant shall promptly submit a written report to Landlord, in such form as the Landlord may require. This report shall include the following information: 1) name and address of the injured or deceased person(s); 2) name and address of Tenant's subtenant, if any; 3) name and address of Tenant's liability insurance carrier; and 4) a detailed description of the accident, including whether any of Landlord's equipment, tools or materials were involved.
I. Tenant shall forward all insurance documents to:
Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia St., 3rd Floor
Berkeley, CA 94704
16. COMPLIANCE WITH LAWS
A. Tenant, at its sole expense, shall promptly comply with all applicable laws, ordinances, rules, regulations, permits or requirements now or hereafter in effect (whether foreseen or unforeseen by Landlord or Tenant), with the requirements of any board of fire underwriters or similar body now or hereafter constituted; with any occupancy certificate issued by any public officer and with the provisions of all recorded documents affecting the Premises, insofar as any of the foregoing relate to or affect the condition, use or occupancy of the Premises or the Building. Such compliance by Tenant shall include, without limitation, compliance with all obligations to alter, maintain, or restore the Premises (and, as applicable, the Building), or construct improvements in or to the Premises, regardless of cost and regardless of when during the term of the Lease the work is required.
B. Tenant acknowledges that conducting its operations at the Premises and making certain alterations and improvements may require an authorization, approval or permit (collectively, "Regulatory Approval") from a governmental authority having jurisdiction over the Premises, including but not limited to the Bay Conservation and Development Commission.
Tenant shall be solely responsible for obtaining any such Regulatory Approval, and Tenant shall not seek any Regulatory Approval without first obtaining the approval of Landlord, except for the Fence and items listed on Exhibit “C”. All costs associated with applying for and obtaining any necessary Regulatory Approval shall be borne by Tenant. Tenant shall be solely responsible
24 for complying with any and all conditions imposed by regulatory agencies as part of a Regulatory Approval; however, Landlord shall not take any action that would materially interfere or prevent Tenant from complying with all such conditions. Any fines or penalties imposed as a result of the failure of Tenant to comply with the terms and conditions of any Regulatory Approval shall be paid and discharged by Tenant, and Landlord shall have no liability, monetary or otherwise, for said fines and penalties, except to the extent that such fines or penalties were caused by the willful acts or omissions of Landlord. To the fullest extent permitted by law, Tenant agrees to indemnify and hold Landlord and its officers, agents and employees harmless from and against any loss, expense, cost, damage, attorneys' fees, penalties, claims or liabilities which Landlord may incur as a result of Tenant's failure to timely obtain or comply with the terms and conditions of any Regulatory Approval. Landlord agrees to cooperate (but only to the same extent and in the same manner as a non-public entity could so cooperate, and not as an exercise of Landlord's police or regulatory power) with Tenant in filing, processing and obtaining all Regulatory Approvals, and upon request of Tenant, to join with Tenant as co- applicant in filing, processing and obtaining all Regulatory Approvals; provided, however, that Landlord may refuse to file, process or obtain Regulatory Approvals or to join Tenant as a co-- applicant if Landlord determines in its sole and absolute discretion that it is not in Landlord's best interest to do so. Nothing contained herein shall be deemed to limit or otherwise constrain Landlord's discretion, powers, and duties as a regulatory agency with certain police powers.
C. Tenant understands and agrees that Landlord is entering into this Lease in its capacity as a landowner with a proprietary interest in the Premises 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. By Landlord's entering into this Lease, neither Landlord nor any of City 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 or Aquatic Park. 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 or Aquatic Park. By entering into this Lease, Landlord is in no way modifying or limiting the obligation of Tenant to cause the Premises to be used and occupied in accordance with all laws.
17. ASSIGNMENT AND SUBLEASE
A. Any provision of this Lease to the contrary notwithstanding, Tenant shall not directly or indirectly, by operation of law or otherwise, transfer, assign, pledge, encumber or hypothecate this Lease or all or any portion of the Premises or Tenant's interest in and to the Premises (collectively, an "Assignment") or sublet the Premises or any portion thereof or permit the Premises or any portion thereof to be used, occupied or managed by anyone other than Tenant pursuant to any Lease, use or concession agreement or otherwise (collectively, a "Sublease") without first obtaining Landlord’s written consent. Any assignment, encumbrance, or sublease without Landlord's written consent shall be voidable and, at Landlord's election, shall constitute a default. City has the sole discretion to determine whether to agree to any sublease or
25 assignment. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this subsection.
B. Neither this Lease nor any interest therein shall be assignable or transferable in proceedings in attachment, garnishment, or execution against Tenant, in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Tenant or by any process of law. Possession of the Premises shall not be divested from Tenant in such proceedings or by any process of law without the prior written consent of Landlord.
C. Tenant expressly waives any rights that it might otherwise be deemed to possess pursuant to applicable law, including without limitation, Section 1997.040 of the California Civil Code, to limit any remedy of Landlord pursuant to Section 1951.2 or 1951.4 of the Code by means of proof that enforcement of a restriction on use of the Premises would be unreasonable.
18. INSPECTION
Landlord may enter the Premises at all reasonable times (with reasonable advance notice except in case of emergency) (i) to inspect the same; (ii) to exhibit the same to prospective purchasers, mortgagees or tenants; (iii) to conduct tests, inspections and surveys to determine whether Tenant is complying with all of its obligations hereunder; (iv) to post notices of nonresponsibility or other notices that may be permitted hereunder; (v) to post "to Lease" signs of reasonable size upon the Premises during the last ninety (90) days of the Term; and (vi) to make repairs required or permitted to be made by Landlord or repairs to any adjoining space or any utility systems or to make repairs, alterations or additions to any other portion of the Building or Aquatic Park; provided, however, that all such work shall be done as promptly and with as little interference to Tenant as reasonably possible. Tenant hereby waives all claims against Landlord for any injury or inconvenience to or interference with Tenant's business or any loss of occupancy or quiet enjoyment of the Premises resulting from Landlord's entry into the Premises or any work performed therein by Landlord. Landlord shall at all times have a key to all doors in and about the Premises (excluding Tenant's vaults, safes and similar areas designated by Tenant in writing in advance), and Landlord shall have the right to use any and all means which Landlord may deem proper in an emergency to obtain entry to the Premises. Tenant also shall provide Landlord with written notice of the name, address, telephone number, and Tenant's account number of the burglar alarm company (if any) utilized by Tenant for the Premises. Any entry to the Premises by any of said means or otherwise shall not under any circumstances be deemed a forcible or unlawful entry into or a detainer of the Premises or an eviction (actual or constructive) of Tenant from the Premises.
19. DEFAULT
The occurrence of any one of the following shall constitute an event of default on the part of Tenant:
A. Failure to Use Premises. Failure to use the Premises as specified in Sections 5 and 6.
26 B. Nonpayment of Rent. Failure to pay any installment of rent or any other sum due and payable hereunder upon the date when such payment is due, such failure continuing for a period of five (5) days after written notice of such failure; provided, however, that Landlord shall not be required to provide such notice more than twice during any consecutive twelve (12) months with respect to non-payment of any portion of rent, the third such non-payment during any consecutive twelve (12) months constituting an event of default without requirement of notice.
C. Other Obligations. Failure to perform any obligation, agreement or covenant under this Lease, such failure having continued for thirty (30) days after notice of such failure from Landlord or such longer period as is reasonably necessary to remedy such default, provided that Tenant has commenced to remedy the default within such thirty (30) day period and shall continuously and diligently pursue such remedy until such default is cured.
D. General Assignment. A general assignment by Tenant for the benefit of creditors.
E. Bankruptcy. The filing of a voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. In the event that under applicable law the trustee in bankruptcy or Tenant has the right to affirm this Lease and to continue to perform the obligations of Tenant hereunder, such trustee or Tenant, in such time period as may be permitted by the bankruptcy court having jurisdiction, shall cure all defaults of Tenant hereunder outstanding as of the date of affirmance and shall provide to Landlord such adequate assurances as may be necessary to ensure Landlord of the continued performance of Tenant's obligations hereunder. Any transferee (by operation of law or otherwise) must provide Landlord with adequate assurance of its future performance under this Lease. In the event of Tenant's bankruptcy, insolvency or reorganization, the parties specifically intend that the actions of the trustee or Tenant in assuming and/or assigning this Lease shall be governed by Section 365 of Title 11 of the United States Code applicable to shopping center leases.
F. Receivership. The employment of a receiver to take possession of all or substantially all of Tenant's assets in the Premises.
G. Insolvency. The attachment, execution or other judicial seizure of all or substantially all of Tenant's assets in or on the Premises; the admission by Tenant in writing of its inability to pay its debts as they become due; the filing by Tenant of a petition seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation; the filing by Tenant of an answer admitting or failing timely to contest a material allegation of a petition filed against Tenant in any such proceeding or if, within thirty (30) days after the commencement of any proceeding against Tenant seeking reorganization or arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future law or regulation, such proceeding shall not have been dismissed.
H. Release of Hazardous or Toxic Substances or Materials and Other Environmental Impacts. Any release or discharge in, on, under, around, or from the Premises
27 and/or Aquatic Park by Tenant, its agents or employees of Hazardous Substances which has not been fully cleaned up within ten (10) days after such release or discharge. Any negative impacts to the natural habitat and environment of Aquatic Park and/or the Main Lagoon caused by Tenant that are documented by a qualified, independent source and for which reasonable remediation measures are not available, or the Tenant fails to cooperate with the Landlord in implementing in a timely manner reasonable measures intended to mitigate any negative impacts.
I. Illegal Drugs. Any release or discharge of chemicals, toxics, solution in connection with the manufacturing and mixing of any illegal substance on the premises.
J. Non-compliance with lease term. Failure to perform any of the obligations and improvements listed on Exhibit “C”, such failure continuing for 30 days after notice from the landlord of said default.
20. REMEDIES UPON DEFAULT
A. Termination. In the event of the occurrence of any event of default, Landlord shall have the right immediately to terminate this Lease by written notice and at any time thereafter to recover possession of the Premises or any part thereof and to expel and remove Tenant, any other person or party occupying the same and all Premises located therein, by any lawful means and to reenter the Premises without prejudice to any of the remedies that Landlord may have under this Lease or under law or equity.
B. Continuation after Default. In the event of any default, this Lease shall continue in effect for so long as Landlord does not terminate this Lease under subsection A above. In such case, Landlord may enforce all its rights and remedies under this Lease, including without limitation, the right to recover rent as it becomes due, and all of its rights and remedies under law. Acts of maintenance, preservation, efforts to relet the Premises for Tenant's account or the appointment of a receiver upon application of Landlord to protect Landlord's interest under this Lease shall not constitute an election to terminate this Lease or Tenant's right to possession.
C. Damages upon Termination. Should Landlord terminate this Lease pursuant to subsection A above, in addition to any other rights and remedies to which it may be entitled under applicable law, Landlord shall be entitled to recover from Tenant: (i) the worth at the time of the award of the unpaid rent and other amounts which had been earned at the time of termination; plus (ii) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rent loss that Tenant proves reasonably could have been avoided; plus (iii) the worth at the time of the award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rent loss that Tenant proves reasonably could be avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which, in the ordinary course of things, would likely result therefrom, including without limitation, the costs and expenses (including brokerage commissions and advertising costs) incurred by Landlord, with or without terminating the Lease, (1) in retaking possession of the Premises; (2)
28 in cleaning and making repairs and alterations to the Premises reasonably necessary to return the Premises to good condition for the use permitted by this Lease and otherwise to prepare the Premises for reletting;(3) in removing all persons and personal property from the Premises and transporting and storing any of Tenant's personal property left at the Premises, although Landlord shall have no obligation to remove, transport, or store any of such personal property; and (4) in reletting the Premises for such term, at such rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; plus (v) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under California law. The "worth at the time of award" of the amounts referred to in (i) and (ii) shall be computed with interest at the maximum rate allowed by law. The "worth at the time of award" of the amount referred to in (iii) shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%).
D. Computation of Rent for Purposes of Default. For purposes of computing unpaid rent which would have accrued and become payable pursuant to subsection C above, unpaid rent shall include the total rent for the balance of the term of the Lease.
E. Remedies Cumulative. All rights, privileges and elections or remedies of the parties are cumulative and not alternative to the extent permitted by law and except as otherwise specifically provided herein.
F. No Waiver. Landlord's waiver of any breach of a covenant or condition hereof, or Landlord's failure to declare any default immediately upon occurrence thereof or a delay in taking any action in connection therewith shall not waive such breach or such covenant or condition or any subsequent breach thereof. The subsequent acceptance of rent or other monies by Landlord shall not be deemed a waiver of any preceding default by Tenant, other than the failure of Tenant to pay the particular rent or other sum so accepted, regardless of Landlord's knowledge of such default at the time of its acceptance of rent.
G. No Right of Redemption. Tenant waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 or any other present or future law in the event Tenant is evicted or Landlord takes possession of the Premises by reason of Tenant's default.
21. ENVIRONMENTAL OBLIGATIONS
A. Tenant shall not, without Landlord's prior written consent (which consent may be granted or denied in Landlord's sole discretion), install, bring into or release or discharge in, on, under, around, or from the Premises any (i) asbestos-containing materials, (ii) electrical transformers, fluorescent light fixtures with ballasts or other equipment containing PCB's or (iii) materials which constitute hazardous, extremely hazardous or toxic materials under the Resource Conservation and Recovery Act, the California Hazardous Waste Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the California Safe Drinking Water and Toxic Enforcement Act of 1986 or any other applicable law or regulation concerning hazardous or toxic materials, (collectively "Hazardous Substances") and has not done so prior to the effective date of this Lease. Any Hazardous Substances which are used, stored,
29 treated, disposed of or released from the Premises by Tenant or its representatives, agents, employees or invitees, shall be used, stored, treated, released and disposed of in accordance with all applicable laws and regulations.
B. If Tenant knows or has reasonable cause to believe that any Hazardous Substance has been released on or beneath the Premises, Tenant shall immediately notify the Berkeley Police Department and the Toxic Management Office and promptly give written notice of same to Landlord. If Tenant knows or has reasonable cause to believe that such substance is an imminent and material danger to public health or safety, Tenant shall take all actions necessary to alleviate such danger. Tenant shall provide to Landlord as promptly as possible, and in any event within five business days after Tenant first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Tenant's use thereof and concerning Hazardous Substances. Tenant shall not negotiate or enter into any settlement agreement, consent decree or other compromise in respect of Hazardous Substances affecting the Premises or the Premises without first giving Landlord prior written notice and full opportunity to appear, intervene or otherwise protect Landlord's rights and interests.
C. Without limitation of the provisions of Section 14 hereof, Tenant shall indemnify, defend and hold Landlord and its affiliates harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses which arise during or after the term of this Lease as a result of the handling of Hazardous Substances on the Premises, or Aquatic Park by Tenant, its agents or invitees, including without limitation, all costs of monitoring, investigating, and remediation of the same, damages for diminution in the value of the Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on marketing of any such space and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees. This indemnification by Tenant includes, but is not limited to, costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration work requested by Landlord or required by any federal, state or local governmental agency or political subdivision because of Hazardous Substance present in the soil or groundwater in, on or under the Premises or in any improvements. Without limiting the foregoing, if the presence of any Hazardous Substance in, on, under or about the Premises caused or permitted by Tenant results in any contamination of the Premises or Aquatic Park, Tenant, at its sole expense, promptly shall take all action that is necessary to return the Premises to the condition existing prior to the introduction of such Hazardous Substance in, on, under or about the Premises; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions could not potentially have any material adverse effect upon the Premises. Tenant's obligations under this Section 21.C. shall survive the expiration or termination of this Lease.
22. LANDLORD'S RIGHT TO CURE
All covenants to be performed by Tenant shall be performed at Tenant's sole cost and expense and without abatement of rent. Without limiting Landlord's rights under any other provision of this Lease, if Tenant shall fail to pay any sum of money or shall fail to perform any other act and such failure shall have become an event of default under Section 19, Landlord,
30 without waiving or releasing Tenant from any of its obligations, may make (but shall not be obligated to make) any such payment or perform any such other act. All sums so paid by Landlord and all necessary incidental costs shall be deemed additional rent and shall be payable to Landlord immediately upon Landlord's written demand.
23. EMINENT DOMAIN
A. If all or any part of the Premises shall be taken as a result of the exercise of the power of eminent domain, this Lease shall terminate as to the part so taken on the earlier of the dates that title vests in the condemning authority or such authority takes possession of the Premises. In the case of a partial taking, either Landlord or Tenant shall have the right to terminate this Lease as to the balance of the Premises by written notice to the other party within thirty (30) days after such date of taking; provided, however, that Tenant shall have no right to terminate this Lease unless the portion of the Premises taken shall be of such extent and nature as substantially to impede or impair Tenant's use of the balance of the Premises. In the event of any such taking, Landlord shall be entitled to all compensation, damages, income, rent, awards and interest that may be paid or made in connection with such taking. Tenant shall have no claim against Landlord for the value of any unexpired Term; however, Landlord shall cooperate with Tenant if Tenant seeks to recover, at its sole expense, proceeds or awards paid to compensate for damage to the "goodwill" associated with Tenant's business. Any such amounts recovered shall belong to Tenant.
B. If any part of the Premises shall be so taken and this Lease shall not be terminated, then this Lease shall continue in full force and effect, except that the Rent shall be reduced in the same proportion that the rentable area of the Premises taken bears to the original rentable area of the Premises. Landlord, upon receipt of the award, shall make all necessary repairs and alterations (exclusive of Tenant's trade fixtures, furniture, furnishings, personal Premises, decorations, signs and contents) to restore the portion of the Premises remaining to as near its former condition as the circumstances will permit and to restore the Building to the extent necessary to constitute the portion of the Building not so taken a complete architectural unit. Landlord, in any event, shall not be required to spend for such repairs and alterations an amount in excess of the amount received by Landlord as damages for the taking of such part of the Premises and/or Building; and Tenant, at its sole cost and expense, shall make all necessary repairs and alterations to Tenant's trade and lighting fixtures, furniture, furnishings, personal Premises, decorations, signs and contents.
C. As used herein, the "amount received by Landlord" shall mean that portion of the award received by Landlord as damages from the condemning authority which is free and clear of all prior claims or collections by Landlord and less reasonable attorneys' and appraisers' fees and expenses.
24. SUBORDINATION
A. This Lease shall be subject and subordinated to (i) all ground or underlying leases which have been or may hereafter be executed affecting the Premises, (ii) any Declaration of Covenants, Conditions and Restrictions now or hereafter recorded affecting Aquatic Park, all
31 without the necessity of having further instruments executed on behalf of Tenant to effectuate such subordination.
B. Tenant agrees to execute and deliver upon demand such further instruments or documents as may reasonably be required by Landlord to evidence any such subordination of this Lease. Tenant hereby constitutes and appoints Landlord, as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any such instrument(s) on behalf of Tenant.
25. NO MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any existing subleases or subtenancies or operate as an assignment to it of any or all such subleases or subtenancies.
26. TRANSFER BY LANDLORD
In the event the original Landlord or any successor owner of Aquatic Park shall sell or convey the Premises or the Building, or any portion thereof that includes the Premises, all liabilities and obligations on the part of the original Landlord or such successor owner shall terminate. All such liabilities and obligations thereupon shall be binding only upon the new owner. Tenant agrees to attorn to such new owner.
27. ESTOPPEL CERTIFICATES
From time to time, Tenant shall execute and deliver to Landlord promptly upon request a certificate certifying (i) that this Lease is unmodified and in full force and effect or, if there has been any modification, that this 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 (10) business days after Landlord's written request, such 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.
28. HOLDING OVER
If, after the expiration of the Term of the Lease, Tenant remains in possession of the Premises with Landlord’s consent all provisions of this Lease shall remain in effect with the following exceptions: (1) Tenant shall become a tenant from month-to-month, such tenancy
32 terminable on thirty (30) days’ notice given at any time by either party; and (2) the Rent shall increase to 120% of the amount of the rent when the Lease expired.
29. CHANGES BY LANDLORD
A. The description of the Premises and the location of any Premises utility system(s), including without limitation electrical, plumbing, shall be subject to such minor changes as Landlord determines to be necessary or desirable in the course of any construction performed by or under the authorization of Landlord. No such changes shall invalidate or affect this Lease. Landlord shall effect such changes using reasonable efforts not to disturb Tenant's business. Tenant shall have no claim against Landlord for abatement of rent or loss of business as a result of any such disturbance.
B. Landlord shall have the right in its sole discretion to, among other things, change permitted land uses, install, maintain and remove public improvements, change the arrangement, character, use or location of entrances or passageways, walkways, streets, sidewalks, parking areas, stairs, landscaping, toilets, and other facilities and portions of Aquatic Park, and to change the name, number or designation by which the Building is commonly known. None of the foregoing shall be deemed an actual or constructive eviction of Tenant, nor shall it entitle Tenant to any reduction of rent hereunder or result in any liability of Landlord to Tenant; provided, however, Landlord shall not unreasonably obstruct or interfere with access to or the lines of sight toward the Premises.
30. GOVERNING LAW
This Lease shall be governed by the laws of the State of California.
31. SECURITY DEPOSIT
As security for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease, Tenant shall deposit with Landlord in an amount of THREE HUNDRED DOLLARS ($300), unless waived in whole or in part by Landlord. Such security shall be deposited on or before the Effective Date of this Lease.
If Tenant defaults in respect to any of the terms, provisions, covenants and conditions of this Lease, including but not limited to the payment of rent, Landlord may use the security deposit or any portion of it to cure the default or compensate the Landlord for all damage sustained by Landlord resulting from Tenant's default. If Landlord so uses any portion of the security deposit, Tenant will restore the security deposit to its original amount within ten (10) days after written demand from Landlord.
Landlord will not be required to keep the security deposit separate from its own funds and Tenant shall not be entitled to interest on the security deposit. The security deposit will not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this Lease, Landlord shall return the unused portion of the security deposit to
33 Tenant within sixty (60) days after the end of the term. Landlord may deliver the security deposit to a purchaser of the Premises and be discharged from further liability with respect to it.
32. SIGNAGE
The size, design, material and location of any sign, marquee, awning, decoration or other attachment, advertising material or lettering on the Premises or on the exterior of the Building (collectively "signage") shall be subject to Landlord's prior written approval. All such signage shall comply with the criteria outlined in Landlord's General Design Requirements (if any) and shall be subject to the following provisions:
A. Tenant, at its sole expense, shall submit to Landlord a written description of all proposed signage, including dimensions, color, proposed location and other pertinent information ("Signage Proposal"). Landlord shall review the Signage Proposal and shall notify Tenant in writing of its approval, or reason(s) for its disapproval, within thirty (30) business days after Landlord's receipt of the Signage Proposal. If disapproved, Tenant shall make all required modifications to the Signage Proposal and shall resubmit the same to Landlord within seven (7) days after its receipt of Landlord's disapproval.
B. Within ten (10) days after Landlord's approval of the Signage Proposal, Tenant, at its sole expense, shall cause to be prepared and submitted to Landlord two (2) sets of plans ("Sign Plans") reflecting in detail the information contained in the approved Signage Proposal.
Landlord shall review the Sign Plans within thirty (30) days after Landlord's receipt of the same.
C. Upon Tenant's receipt of its sign permit from Landlord, Tenant shall construct and/or install all signage shown on the Sign Plans; in any event, however, Tenant shall complete such construction and/or installation not later than thirty (30) days after the sign permit is issued, unless otherwise agreed to by the City in writing.
D. Upon Landlord's request, Tenant immediately shall remove any signage that Tenant has placed or permitted to be placed in, on or about the Premises or Building contrary to the terms of this Section 32. If Tenant fails to do so, Landlord may enter upon the Premises and remove the same at Tenant's expense. Tenant, at its sole expense, shall maintain and replace all approved signage and shall repair, at its sole expense, any damage to the Building caused by the erection, maintenance or removal of any signage, including any damage caused by Tenant's removal of its signage at the expiration or earlier termination of the Lease. Tenant also shall comply with such regulations as may from time to time be promulgated by Landlord governing the signage of all tenants in Aquatic Park.
33. NO PARTNERSHIP
It is expressly understood and agreed that Landlord shall not be deemed in any way or for any purpose a partner, agent or principal of Tenant, in the conduct of its business or otherwise, or a joint venture or member of a joint enterprise with Tenant.
34. NO WAIVER
34 Landlord's waiver of Tenant's breach of any covenant or condition shall not be deemed a waiver of any subsequent breach of the same or any other covenant or condition, nor shall any custom or practice which may develop between the parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord to insist upon Tenant's performance in strict accordance with the terms of this Lease.
35. NOTICES
All notices, demands, consents or approvals which may or are required to be given by either party shall be in writing and shall be deemed to have been received when delivered personally or on the earlier of the date of actual receipt or two (2) business days following deposit in the United States mail, registered or certified, postage prepaid, addressed as follows:
To Tenant: Waterside Workshops
84 Bolivar Drive
Berkeley, CA 94710
To Landlord: Parks, Recreation & Waterfront
City of Berkeley
2180 Milvia Street, 3rd Floor
Berkeley, CA 94704
With copies to: City Manager Parks Superintendent
City of Berkeley City of Berkeley
2180 Milvia Street, 5th Floor 1325 Bancroft Way
Berkeley, CA 94704 Berkeley, CA 94702
Notices to Landlord regarding Hazardous Substances required by Section 21 hereof shall be sent both to the above addresses and to such other place as either party may from time to time designate in a written notice to the other party, or in the case of Tenant, delivered to the Premises.
Tenant will appoint an agent to receive the service of all proceedings, demands, and notices hereunder the person in charge of or occupying the Premises at the time. If no person shall be in charge of or occupying the same, then such service may be made by attaching the same on the main entrance of the Premises
36. COMPLETE AGREEMENT
This Lease is intended by the parties as the final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Lease constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding involving this Lease. The language and all parts of this Lease shall be construed as a whole and in accordance with its fair meaning and not
35 restricted for or against either party. This Lease may be modified or amended only by a written instrument signed by both parties.
37. REQUESTS FOR CONSENT; WAIVER OF CLAIM
Tenant hereby waives any claim for damages against Landlord that it may have based upon any assertion that Landlord unreasonably has withheld or has delayed any consent or approval, and Tenant's sole remedy shall be an action for specific performance of such provision, injunction or declaratory judgment. In the event of a final determination in Tenant's favor, the requested consent or approval shall be deemed to have been granted.
38. INTERPRETATION
The use of masculine, feminine, or neuter genders shall include the other genders, and the singular shall include the plural and vice-versa. Headings are intended for convenience only and shall not be referred to in construing any provision. If there is more than one party as Tenant, the obligations imposed upon Tenant shall be joint and several. If any provision(s) of this Lease shall be found, to any extent, to be invalid or unenforceable the remainder of the Lease shall not be affected thereby.
39. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and shall inure to the benefit of Landlord, its successors and assigns, and shall be binding upon and shall inure to the benefit of Tenant, its heirs, successors and (to the extent assignment may be permitted hereunder) assigns.
40. AUTHORITY
If Tenant is a corporation or partnership, each of the persons executing this Lease on behalf of Tenant covenants and warrants that Tenant is a duly authorized and existing corporation or partnership, that Tenant has and is qualified to do business in California, that Tenant has full right and authority to enter into this Lease and that each person signing on behalf of Tenant is authorized to do so.
41. UNAVOIDABLE DELAYS
A. In the event that Tenant or Landlord is delayed, directly or indirectly, from the performance of any act or thing required to be done or performed under the terms or conditions hereof by acts of the other party to this Lease, acts of God, fire, floods, inclement weather, unavoidable governmental action, strikes or labor difficulties of any and all kinds, shortages of or delay in the delivery of materials, acts of war, riot and civil commotion, or by any other cause beyond the reasonable control of Tenant or Landlord, as the case may be, such failure shall not be deemed to be a breach of this Lease or a violation of any such covenants or conditions and the time within which Tenant or Landlord must perform any such act shall be extended by a period of time equal to the period of delay arising from any of such causes.
36 B. Notwithstanding any provision of this Section 41 or any other provision of this Lease to the contrary, it is understood and agreed that there shall be no abatement of, or delay in the commencement of, or payment of any sum due to Landlord under this Lease.
42. TIME OF THE ESSENCE
Time is of the essence of each and every covenant and condition of this Lease.
43. BROKERAGE
Landlord and Tenant hereby represent and warrant, each to the other, that they have not disclosed this Lease or the subject matter hereof to, and have not otherwise dealt with, any broker, finder or any other person, firm, corporation or other legal entity so as to create any legal right or claim of whatsoever kind or nature for a commission or similar fee or compensation with respect to the Premises or this Lease. Landlord and Tenant hereby indemnify each other against, and agree to hold each other harmless from, any liability or claim (and all expenses, including attorneys' fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with the indemnitor and relating to the Premises or this Lease.
44. CITY NON-DISCRIMINATION ORDINANCE
A. 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 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.
B. Tenant understands that this Lease is governed by City Council Resolution No. 58,664 – N.S. This resolution, as may be amended from time, stipulates that Tenant's membership policies may be reviewed by the City for compliance therewith at any time, and that unsatisfactory membership policies may result in non-renewal of this Lease or termination by the City.
45. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES A. If Tenant provides any aid, service or benefit to others on the Landlord’s behalf,
37 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.
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.
46. 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 board, a committee or commission member of Landlord, who has directly or indirectly influenced the making of this 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 reasonably 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 subsection shall be governed by the definitions and provisions used 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.
47. 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.
48. 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 Lease to forego contractual relations
38 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 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 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 subsection shall constitute a default of this Lease and Landlord may terminate this Lease pursuant to Section 19. In the event that Landlord terminates this Lease due to a default under this provision, Landlord may deem Tenant a non- responsible bidder for five (5) years from the date this Lease is terminated.
49. BERKELEY LIVING WAGE ORDINANCE (LWO)
A. Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Tenant employs six (6) 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 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. 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 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 subsection shall be made available upon the City's request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Section 19 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.
39 D. If Tenant fails to comply with the requirements of this the LWO and this lease, the 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 lease, upon which City may terminate this lease pursuant to Section 19.
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 all 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.
50. 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 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 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 Section 19 of this lease.
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 lease, upon which City may terminate this lease pursuant to Section 20.
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 can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.
51. BERKELEY SANCTUARY CITY ORDINANCE
40 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.
52. AUDIT
Pursuant to Section 61 of the Berkeley City Charter, the City Auditor's Office, or its designee, may conduct an audit of Tenant's financial, performance and compliance records maintained in connection with the operations and services performed under this Lease, and with the payments made under this Lease. In the event of such audit, Tenant agrees to make all such financial, performance 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.
53. 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 lawfully assessed and due. Tenant certifies under penalty of perjury that the taxpayer identification number written below is correct.
54. SURVIVAL
The provisions of this Lease and obligations of Tenant, that by their nature, are to be performed after or are to survive termination of this Lease shall survive such termination.
55. EXHIBITS
Exhibits A, B, C, and D and any other exhibit, addendum or schedule referenced in this Lease are made a part hereof by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Lease at Berkeley, California
41 effective as of the Effective Date.
LANDLORD:
CITY OF BERKELEY
A municipal corporation
By: __________________
City Manager Date
Approved as to form: Registered by:
___________________ __________ City Attorney Date City Auditor Date
Attest:
__________________
City Clerk Date
TENANT:
WATERSIDE WORKSHOPS
A non-profit organization
By: ______________________________
Neil Larsen, Executive Director Date
TENANT INFORMATION
Tax Identification No. ____________________
Incorporated: Yes No
Certified Woman Business Enterprise: Yes ____ No X
Certified Minority Business Enterprise: Yes ____ No X
Certified Disadvantaged Business Enterprise: Yes No City Business License No. ___________, or Exempt pursuant to B.M.C. Section __________
42 Exhibit “A”
43 Exhibit “B”: Berkeley Aquatic Park
44 Exhibit “C”:
Proposed Repair/Renovation Schedule 2023-2031
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Donation: Memorial Bench at the Cesar Chavez Park in memory of Walt and Trudee Rowson
RECOMMENDATION
Adopt a Resolution accepting a cash donation in the amount of $3,400 for a memorial bench to be placed at the Cesar Chavez Park at the Berkeley Marina in memory of Walt and Trudee Rowson.
FISCAL IMPACTS OF RECOMMENDATION
The value of a single bench and memorial plaque is $3,400, which covers the purchasing and installation costs performed by the City. The cash donation will be deposited into Parks Fund donation revenue budget code 608-52-544-591-0000-000- 000-481110 and will be appropriated in FY 2023.
CURRENT SITUATION AND ITS EFFECTS
Tracie Rowson, daughter of Walt and Trudee Rowson, wishes to donate a memorial bench in their memory to be placed in Cesar Chavez Park with a cash donation of $3,400. Per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation. The Director has determined that the proposed donation complies with the City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the donation, subject to Council approval.
BACKGROUND
Benches are placed throughout the City in accordance with the City’s Park Bench Donation Policy approved by Council on July 22, 2008 (Resolution No. 64,148-N.S.).
The City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166- N.S.)
16
Donation: Memorial Bench at Cesar Chavez Park – Walt and Trudee Rowson CONSENT CALENDAR September 13, 2022
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACT
The City’s vendor for benches, Dumor, Inc., makes its priority to purchase only sustainably-harvested wood derived from stringently-regulated timber source locations, including California, Oregon, Washington and British Columbia. This policy reduces solid waste volumes in landfills, helps conserve natural resources and limits the environmental effects resulting from the extraction of virgin materials. The benches therefore comply with the City’s environmentally preferable purchasing policy, specifically section 3.7 Forest Conservation.
CONTACT PERSON
Alexandra Endress, Waterfront Manager, 510-981-6737
Attachments:
1: Resolution
RESOLUTION NO. -N.S.
DONATION: MEMORIAL BENCH AT THE CESAR CHAVEZ PARK IN MEMORY OF A
WALT AND TRUDEE ROWSON
WHEREAS, on July 22, 2008, Council adopted the Park Bench Donation Policy (Resolution No. 64,148-N.S.); and
WHEREAS, the City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166-N.S.); and
WHEREAS, Tracy Rowson, the daughter of Walt and Trudee Rowson wishes to donate a memorial bench in their memory to be placed at the Cesar Chavez Park with a cash donation of $3,400; and
WHEREAS, per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation; and WHEREAS, the Director has determined that the proposed donation complies with City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the proposed donation; and
WHEREAS, the cash donation will be deposited into Parks Fund donation revenue budget code 608-52-544-591-0000-000-000-481110 and will be appropriated in FY 2023.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that a cash donation in the amount of $3,400 for a memorial bench to be placed at Cesar Chavez Park in memory of Walt and Trudee Rowson is hereby accepted.
Office of the City Manager
CONSENT CALENDAR
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Donation: Memorial Bench at the Cesar Chavez Park in memory of Don Rothenberg
RECOMMENDATION
Adopt a Resolution accepting a cash donation in the amount of $3,400 for a memorial bench to be placed at the Cesar Chavez Park at the Berkeley Marina in memory of Don Rothenberg.
FISCAL IMPACTS OF RECOMMENDATION
The value of a single bench and memorial plaque is $3,400, which covers the purchasing and installation costs performed by the City. The cash donation will be deposited into Parks Fund donation revenue budget code 608-52-544-591-0000-000- 000-481110 and will be appropriated in FY 2023.
CURRENT SITUATION AND ITS EFFECTS
The family of Don Rothenberg wishes to donate a memorial bench in his memory to be placed in Cesar Chavez Park with a cash donation of $3,400. Per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation. The Director has determined that the proposed donation complies with the City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the donation, subject to Council approval.
BACKGROUND
Benches are placed throughout the City in accordance with the City’s Park Bench Donation Policy approved by Council on July 22, 2008 (Resolution No. 64,148-N.S.).
The City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166- N.S.)
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
17
Donation: Memorial Bench at Cesar Chavez Park – Don Rothenberg CONSENT CALENDAR September 13, 2022
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACT
The City’s vendor for benches, Dumor, Inc., makes its priority to purchase only sustainably-harvested wood derived from stringently-regulated timber source locations, including California, Oregon, Washington and British Columbia. This policy reduces solid waste volumes in landfills, helps conserve natural resources and limits the environmental effects resulting from the extraction of virgin materials. The benches therefore comply with the City’s environmentally preferable purchasing policy, specifically section 3.7 Forest Conservation.
CONTACT PERSON
Alexandra Endress, Waterfront Manager, 510-981-6737
Attachments:
1: Resolution
RESOLUTION NO. - N.S.
DONATION: MEMOR
IAL BENCH AT THE CESAR CHAVEZ PARK IN MEMORY OF
DON ROTHENBERG
WHEREAS, on July 22, 2008, Council adopted the Park Bench Donation Policy (Resolution No. 64,148-N.S.); and
WHEREAS, the City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166-N.S.); and
WHEREAS, the family of Don Rothenberg wishes to donate a memorial bench in his memory to be placed at the Cesar Chavez Park with a cash donation of $3,400; and WHEREAS, per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation; and WHEREAS, the Director has determined that the proposed donation complies with City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the proposed donation; and
WHEREAS, the cash donation will be deposited into Parks Fund donation revenue budget code 608-52-544-591-0000-000-000-481110 and will be appropriated in FY 2023.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that a cash donation in the amount of $3,400 for a memorial bench to be placed at Cesar Chavez Park in memory of Don Rothenberg is hereby accepted.
Office of the City Manager
CONSENT CALENDAR
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Donation: Memorial Bench at the Indian Rock Park in memory of Dave Altman
RECOMMENDATION
Adopt a Resolution accepting a cash donation in the amount of $3,400 for a memorial bench to be placed at Indian Rock Park in memory of Dave Altman, a longtime Berkeley rock climber and a treasured member of the rock-climbing community.
FISCAL IMPACTS OF RECOMMENDATION
The value of a single bench and memorial plaque is $3,400, which covers the purchasing and installation costs performed by the City. The cash donation will be deposited into Parks Fund donation revenue budget code 138-52-542-568-0000-000- 000-481110 and will be appropriated in FY 2023.
CURRENT SITUATION AND ITS EFFECTS
On behalf of Berkeley Ironworks and the friends of Dave Altman, Lynn Barraza wishes to donate a memorial bench in their memory to be placed at Indian Rock Park with a cash donation of $3,400. Per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation. The Director has determined that the proposed donation complies with the City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the donation, subject to Council approval.
BACKGROUND
Benches are placed throughout the City in accordance with the City’s Park Bench Donation Policy approved by Council on July 22, 2008 (Resolution No. 64,148-N.S.).
The City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166- N.S.)
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
18
Donation: Memorial Bench at Indian Rock Park – Dave Altman CONSENT CALENDAR September 13, 2022
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACT
The City’s vendor for benches, Dumor, Inc., makes its priority to purchase only sustainably-harvested wood derived from stringently-regulated timber source locations, including California, Oregon, Washington and British Columbia. This policy reduces solid waste volumes in landfills, helps conserve natural resources and limits the environmental effects resulting from the extraction of virgin materials. The benches therefore comply with the City’s environmentally preferable purchasing policy, specifically section 3.7 Forest Conservation.
CONTACT PERSON
Bruce Pratt, Parks Superintendent, 510-981-6632
Attachments:
1: Resolution
RESOLUTION NO. -N.S.
DONATION: MEMORIAL BENCH AT THE INDIAN ROCK PARK IN MEMORY OF A
DAVE ALTMAN
WHEREAS, on July 22, 2008, Council adopted the Park Bench Donation Policy (Resolution No. 64,148-N.S.); and
WHEREAS, the City’s Open Governance Ordinance (OGO) requires City Council disclosure and approval of any gift to the City in excess of $1,000 (BMC Section 2.06.150, Ord. 7,166-N.S.); and
WHEREAS, on behalf of Berkeley Ironworks and the friends of Dave Altman, Lynn Barraza wishes to donate a memorial bench in her memory to be placed at the Indian Rock Park with a cash donation of $3,400; and
WHEREAS, per the City’s Park Bench Donation Policy, individuals may donate memorial benches to the City’s parks in selected locations, subject to the approval of the Director of the Parks Recreation & Waterfront Department, and pay for all associated costs, subject to Council disclosure and approval of the gift donation; and WHEREAS, the Director has determined that the proposed donation complies with City’s Bench Donation Policy as described in Resolution No. 64,148-N.S. and has approved the proposed donation; and
WHEREAS, the cash donation will be deposited into Parks Fund donation revenue budget code 138-52-542-568-0000-000-000-481110 and will be appropriated in FY 2023.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that a cash donation in the amount of $3,400 for a memorial bench to be placed at Indian Rock Park in memory of Dave Altman is hereby accepted.
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Subject: Contract - Bellingham Inc. to replace and repair docks at the Berkeley Marina
RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute a contract with Bellingham Inc. to replace and repair docks at the Berkeley Marina in an amount not-to-exceed $550,000, which includes a contract amount of $480,000 and 14.58% contingency in the amount of $70,000.
FISCAL IMPACTS OF RECOMMENDATION
Funding for the construction contract in the amount of $550,000 is available in the FY23 Marina Fund budget.
Construction contract
Bellingham Marine .................................................................................... $480,000
14.58% Contingency……………………………………………………………$70,000
Total construction contract cost .............................................................. $550,000 Marina Fund
Waterfront Docks
608-52-545-000-0000-000-473-663110- PRWWF22008……………………..$550,000 Total Marina Fund $550,000
CURRENT SITUATION AND ITS EFFECTS
Docks at the Berkeley Marina (J to O) were installed in the early 1970’s and need repair or replacement to retain structural integrity for the safety for our slipholders and their boats.
The City requires the services of a qualified marina dock construction contractor.
BACKGROUND
On April 21, 2022 the City issued an Invitation For Bid (IFB) for Marina Finger Dock Construction (Spec No. 22-11515-C). The City received one bid from Bellingham Marina, which was deemed a responsive and responsible bidder.
19
Contract - Bellingham Inc. to replace and repair docks at the Berkeley Marina CONSENT CALENDAR September 13, 2022
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The construction contract includes requirements to comply with the City's Environmentally Preferable Purchasing Policy. The project involves the repair and replacement of existing docks and therefore will not negatively affect natural habitat.
RATIONALE FOR RECOMMENDATION
The FY23 budget includes an allocation of Marina Fund to replace damaged and deteriorated docks at the Berkeley Marina. The City does not have the in-house labor or equipment resources to repair damaged docks.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Ali Endress, Waterfront Manager, 981-6737
Sean Crothers, Waterfront Supervisor, 981-6744
Attachments:
1: Resolution
RESOLUTION NO. ##-###
CONTRACT: BELLINGHAM INC. TO REPLACE AND REPAIR DOCKS AT THE
BERKELEY MARINA
WHEREAS, on April 21, 2022, the City issued an Invitation For Bid (IFB) for Marina Finger Dock Construction (Spec No. 22-11515-C). The City received one (1) bid from Bellingham Marina, which was deemed a responsive and responsible bidder; and WHEREAS, funding for the construction contract in the amount of $550 ,000 is available in the FY23 Marina Fund budget.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is hereby authorized to execute a contract and any amendments with Bellingham Marine to replace and repair docks at the Berkeley Marina in the amount not-to- exceed $550,000, which includes a contract amount of $480,000 and a 14.58% contingency in the amount of $70,000. A record signature copy of said contract will be on file in the Office of the City Clerk.
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer A. Louis, Interim Chief of Police Subject: Revenue Grant: California Office of Traffic Safety (OTS) for the 2023 “Selective Traffic Enforcement Program (STEP) Grant
RECOMMENDATION
Adopt a Resolution authorizing the Chief of Police to accept the "Selective Traffic Enforcement Program (STEP)" grant and enter into the resultant grant agreement and any amendments, with the California Office of Traffic Safety. This OTS grant is for $180,000 for the period of October 1, 2022 through September 30, 2023, which is Federal Fiscal Year 2023.
FISCAL IMPACTS OF RECOMMENDATION
The total of this project will not exceed $180,000. Grant revenues will be deposited into budget code 309-71-703-812-0000-000-000-431-110 to offset expenditures.
Appropriation of the expenditures is being included in the First Amendment to the Appropriations Ordinance. This grant will fund overtime, benefits, equipment, training costs, and reduce additional General Fund expenditures.
CURRENT SITUATION AND ITS EFFECTS
Securing OTS grant funding is a Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city.
Currently the Traffic Bureau at the Berkeley Police Department is staffed by two motor officers, one traffic data analyst, one sergeant, and one lieutenant. Motor officers’ responsibilities include injury-collision investigations and traffic enforcement; however, resources often deplete rapidly due to ancillary duties and personnel shortages in the Operations Division. OTS funding builds upon our current traffic safety efforts by allowing patrol and motor officers opportunities to address traffic safety issues-most significantly pedestrian and bicycle safety, distracted and impaired driving- in addition to and outside of their regularly scheduled duties. Additionally, the funds provide opportunities for leadership development and learning in traffic safety and DUI/impaired driving enforcement, and enhance the department's overall mission of public safety.
20
Revenue Grant: California Office of Traffic Safety Grant for the 2023 STEP Grant CONSENT CALENDAR
September 13, 2022
BACKGROUND
Office of Traffic Safety (OTS) rankings place the City of Berkeley number one for the past seven years in pedestrian and bicycle related injury collisions when compared to fifty-nine other cities with comparable populations. Each year hundreds of people are injured in traffic collisions that occur in the City of Berkeley. Berkeley maintains a high ranking in total fatal and injury collisions, hit and run injury collisions, speed related collisions, nighttime collisions, and motorcycle involved collisions. With assistance from the 2023 Office of Traffic Safety Grant, the department will continue our efforts to reduce the number of community members injured in collisions whether they choose to walk, drive, bike or ride a motorcycle in our city.
In 2018, the City of Berkeley was number one (1/59) for injury collisions involving pedestrians; number one (1/59) for collisions involving bicyclists; number one (1/59) for injury collisions involving bicyclists; and number one (1/59) for collisions involving pedestrians, and fifth (5/59) for injuries and fatal collisions involving motorcyclists.
Based on these statistics and OTS rankings, the City of Berkeley is one of the most dangerous cities in the State of California to be a pedestrian or bicyclist.
Between January 2016 and June 2022, there have been twenty-three fatal auto collisions in the City of Berkeley. Eighteen of those resulted in a pedestrian being killed, and five resulted in a bicyclist being killed.
The OTS Grant and the City Council’s Vision Zero Program have shared ideologies.
BPD’s participation directly supports two of three of Vision Zero’s tenets. BPD’s efforts directly support Public Awareness Education and Traffic Enforcement. Public Awareness through our social media, departmental messaging, and direct contact with the public (in the field and at community meetings) and data-driven enforcement of primary collision factor offenses in areas where they have the highest probability of occurring.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City of Berkeley continues to have one of the highest bicycle and pedestrian usage rates in the County of Alameda and, as a result, there are a large number of bicyclists and pedestrians sharing the roadway with motorists. This grant will support the City of Berkeley's efforts to promote more sustainable forms of transportation, reducing greenhouse gas emissions-with the goal of reducing traffic injuries and fatalities related to all modes of transportation.
RATIONALE FOR RECOMMENDATION
The Police Department requests this funding be approved to enhance our current mission of providing a safer environment for pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways.
Revenue Grant: California Office of Traffic Safety Grant for the 2023 STEP Grant CONSENT CALENDAR
September 13, 2022
ALTERNATIVE ACTIONS CONSIDERED
The California Office of Traffic Safety currently provides the only known grant funding specific to traffic enforcement and related education. Not accepting this OTS grant would require additional overtime expenditures from General Fund resources or could result in a decrease in the overall safety of the citizens of Berkeley
CONTACT PERSON
Lieutenant Jen Tate, Police Traffic Bureau, (510) 981-5983 Attachments:
1: Resolution
Exhibit A: OTS Grant Agreement
RESOLUTION NO. ##,###-N.S.
REVENUE GRANT: SELECTIVE TRAFFIC ENFORCEMENT PROGRAM (STEP)
GRANT FROM THE OFFICE OF TRAFFIC SAFETY TO FUND STRATEGIES TO
REDUCE THE NUMBER OF INJURIES AND DEATHS RELATED TO TRAFFIC
COLLISIONS IN THE CITY OF BERKELEY
WHEREAS, the Police Department is committed to providing a safe and secure environment through law enforcement within the City of Berkeley; and WHEREAS, the Office of Traffic Safety (OTS) has made grant funding available to the Police Department to assist them in their mission of increasing traffic safety; and WHEREAS, this grant will provide funding to support efforts to reduce injury and fatal collisions involving pedestrians, bicyclists, motorcyclists, and motorists on all City of Berkeley roadways and highways; and
WHEREAS, grant revenues will be deposited into budget code 309-71-703-812-0000- 000-000-431110, in the DUI Enforcement Education Program Fund.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Chief of Police is authorized to accept the Selective Traffic Enforcement Program (STEP) Grant and enter into the resultant grant agreement and any amendments, with the Office of Traffic Safety (OTS) to fund increased levels of impaired or distracted driving enforcement, nighttime seatbelt enforcement, motorcycle safety enforcement, and educational programs regarding bicycle and pedestrian collisions in the amount of $180,000 for the period of October 1, 2022 to September 30, 2023.
Exhibit
A: OTS Grant Agreement
8/24/2022 8:00:59 AM Page 1 of 19
State of California Office of Traffic Safety
GRANT AGREEMENT
GRANT NUMBER
PT23088
1. GRANT TITLE
Selective Traffic Enforcement Program (STEP)
2. NAME OF AGENCY 3. Grant Period
Berkeley From:
To:
10/01/2022
09/30/2023 4. AGENCY UNIT TO ADMINISTER GRANT
Berkeley Police Department
5. GRANT DESCRIPTION
Best practice strategies will be conducted to reduce the number of persons killed and injured in crashes involving alcohol and other primary crash factors. The funded strategies may include impaired driving enforcement, enforcement operations focusing on primary crash factors, distracted driving, night-time seat belt enforcement, special enforcement operations encouraging motorcycle safety, enforcement and public awareness in areas with a high number of bicycle and pedestrian crashes, and educational programs. These strategies are designed to earn media attention thus enhancing the overall deterrent effect.
6. Federal Funds Allocated Under This Agreement Shall Not Exceed: $180,000.00
7. TERMS AND CONDITIONS: The parties agree to comply with the terms and conditions of the following which are by this reference made a part of the Agreement:
Schedule A Problem Statement, Goals and Objectives and Method of Procedure Schedule B Detailed Budget Estimate and Sub-Budget Estimate (if applicable) Schedule B-1 Budget Narrative and Sub-Budget Narrative (if applicable) Exhibit A Certifications and Assurances
Exhibit B* OTS Grant Program Manual
Exhibit C Grant Electronic Management System (GEMS) Access *Items shown with an asterisk (*), are hereby incorporated by reference and made a part of this agreement as if attached hereto.
These documents can be viewed at the OTS home web page under Grants: www.ots.ca.gov.
We, the officials named below, hereby swear under penalty of perjury under the laws of the State of California that we are duly authorized to legally bind the Grant recipient to the above described Grant terms and conditions.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
8. Approval Signatures
A. GRANT DIRECTOR B. AUTHORIZING OFFICIAL
NAME:
TITLE:
EMAIL:
PHONE:
ADDRESS:
Jennifer Tate
Lieutenant
(510) 981-5983
2100 Martin Luther King, Jr. Way
Berkeley, CA 94704
ADDRESS: Jennifer Louis
Interim Chief of Police
(510) 981-5700
2100 Martin Luther King, Jr. Way
Berkeley, CA 94704
{{_es_signer2_signature}} {{_es_signer2_date}} {{_es_signer4_signature}} {{_es_signer4_date}} (Signature) (Date) (Signature) (Date)
C. FISCAL OFFICIAL
D. AUTHORIZING OFFICIAL OF OFFICE OF TRAFFIC SAFETY
ADDRESS: Chuck Gunter
Administrative & Fiscal Services Manager
510-981-5976
2100 Martin Luther King Jr. Way
Berkeley, CA 94704
ADDRESS: Barbara Rooney
Director
(916) 509-3030
2208 Kausen Drive, Suite 300
Elk Grove, CA 95758
{{_es_signer3_signature}} {{_es_signer3_date}} {{_es_signer6_signature}} {{_es_signer6_date}} (Signature) (Date) (Signature) (Date)
8/24/2022 8:00:59 AM Page 2 of 19
E. A CCOUNTING OFFICER OF OFFICE OF TRAFFIC SAFETY 9. SAM INFORMATION NAME: Carolyn Vu SAM #:
REGISTERED
ADDRESS:
CITY:
ZIP+4:
KC7DYLV9EF25
2180 Milvia St. 3rd Floor
Berkeley
94704-1122
ADDRESS: 2208 Kausen Drive, Suite 300
Elk Grove, CA 95758
10. PROJECTED EXPENDITURES
FUND CFDA ITEM/APPROPRIATION F.Y. CHAPTER STATUTE PROJECTED
EXPENDITURES
164AL-23 20.608 0521-0890-101 2022 22/22 BA/22 $80,000.00 402PT-23 20.600 0521-0890-101 2022 22/22 BA/22 $100,000.00
AGREEMENT
TOTAL $180,000.00
AMOUNT ENCUMBERED BY THIS DOCUMENT
I CERTIFY upon my own personal knowledge that the budgeted funds for the current budget year are available for the period and purpose of the expenditure stated above.
$180,000.00
PRIOR AMOUNT ENCUMBERED FOR THIS
AGREEMENT
$ 0.00
OTS DATE SIGNED TOTAL AMOUNT ENCUMBERED TO DATE
{{_es_signer5_signature}} {{_es_signer5_date}} $180,000.00
8/24/2022 8:00:59 AM Page 3 of 19
State of California Office of Traffic Safety
GRANT AGREEMENT
Schedule A
GRANT NUMBER
PT23088
1. PROBLEM STATEMENT
In California alone, there are more than 32 cities bigger than Berkeley. In Alameda County, Berkeley is ranked number four in population behind Oakland, Fremont, and Hayward. Yet, the City of Berkeley is famous around the globe.
According to the 2020 Cens
square mile. Nearly 48 percent of Berkeley residents use a motor vehicle to commute to work, just under 8 percent used a bicycle and 16 percent walked. Berkeley makes up only 8 pe
special events, work, and education. UC Berkeley had nearly 43,000 student population in 2019. Located less than ½ mile away from UC Berkeley, is Berkeley City College, with a student population of over 6,000.
Berkeley High School, located just one block away has a student population of over 3,000. All of these schools are located near central Berkeley in the downtown business district.
Additionally, in 2018 Berkeley City Council voted to allow three scooter companies, each with 200-400 scooters to operate within the city. Berkeley joined a number of other cities in California and across the nation in an effort to implement regulations and maintain rider safety. According to a study published by the Center for Disease Control and Prevention and Public Health Departments of Austin, TX., published in April 2019, they found that for every 100,000 scooter rides, 20 people were injured. Half of all the reported injuries were to the head, and 15 percent showed evidence of traumatic brain injury.
The City of Berkeley continually strives to promote safety for all modes of transportation with the large number of bicyclists and pedestrians share the crowded roadway with motorists.
The Office of Traffic Safety (OTS) rankings place the City of Berkeley number one for the past several years in pedestrian and bicycle related injury crashes when compared to fifty-nine other cities with comparable populations. Each year hundreds of people are injured in traffic crashes that occur in the City of Berkeley. Berkeley has maintained a high ranking in total fatal and injury crashes, hit and run injury crashes, motorcycle involved crashes, nighttime crashes, and speed related crashes. The Berekely Police Department will continue efforts to reduce the number of individuals injured in crashes whether they choose to walk, drive, bike or ride a motorcycle in the city.
In 2019, the City of Berkeley was ranked number one (1/59) for crashes involving bicyclists, motorcyclists, pedestrians, and pedestrians over 65 years old and. Based on these statistics and OTS rankings, the City of Berkeley is one of the most dangerous cities in the State of California to walk or ride a bicycle.
Between January 1, 2012 and January 1, 2022 there have been thirty-one fatal auto crashes in the City of Berkeley. Sixteen of those resulted in a pedestrian being killed, and five resulted in a bicyclist being killed. In 2021 alone Berkeley Police Investigated seven fatal crashes.
On May 11th 2021, at approximately 1:39 pm the driver of a 1988 Toyota Camry lost control of the vehicle after the brakes failed while driving westbound on Marin Ave (roadway with approx. 18% grade). The Toyota went airborne and collided with the rear driver side of an Audi SUV that was also driving westbound on Marin Ave before hitting a telephone pole, rolling over, and colliding with a tree on the opposite side of the street. The passenger in the Camry was pronounced dead at the scene and the driver later died as a result of his injuries. The 3-year-old in a child restraint device in the center rear seat of the Audi had a minor injury and the driver suffered a spine injury.
On June 14th 2021, at approximately 9:36 pm a 50-year-old man told witnesses that he wanted to kill himself and then laid down in the roadway on Telegraph Ave near Ashby Ave. A newer model Nissan sedan collided with the pedestrian in the roadway, and fled the scene. On June 26th the male passed away as a result of his
8/24/2022 8:00:59 AM Page 4 of 19
injuries. The involved vehicle and driver were never contacted even after a reward and numerous press releases.
On July 26th 2021, at approximately 9:56 pm a 54-year-old pedestrian was crossing Ashby Ave at the intersection with Newbury St. There were no painted crosswalks at the intersection in the direction the pedestrian was crossing. D-1 who was driving for a food delivery service at the time, collided with P-2 causing her to fall onto the road. Following the crash D-1 became afraid for her own safety and began to drive away when she collided with P-2 and P-3. P-2 and P-3 were both transported to the Alameda County Hospital where P-2 succumbed to her injuries.
On August 19th 2021, at approximately 2:46 pm a 59-year-old pedestrian was crossing San Pablo Ave at the intersection with Oregon St (in a marked crosswalk). D-1 was driving a Chrysler minivan northbound on San Pablo Ave and stated he never saw the pedestrian. Following the investigation at the scene D-1 was arrested for VC 23153(a). P-2 succumbed to his injuries five days later at the hospital.
On September 6th 2021, at approximately 12:35 am, BPD officers respond to a report of a male laying in the median of Adeline St north of the intersection with Ashby Ave. The subject was pronounced deceased but th the Alameda County
Coroners office contacted BPD Fait team to advise that the cause of death was determined to be caused by a crash. Press releases were shared, but the driver nor vehicle were ever identified.
On November 3rd 2021, at approximately 7:43 pm the driver of a BMW M5 was driving westbound on University Ave west of West Frontage Rd. A witness reported the vehicle traveling at about 100 MPH. The vehicle struck a tree, telephone box, and the top of a fence before becoming airborne hitting a concrete pier piling and dock. The driver was pronounced deceased at the scene. He was reported to have a prior medical condition, and the investigation lead to that being the possible cause of this crash.
On November 17th 2021, at approximately 6:11 pm, BPD officers respond to the report of a male laying in the roadway of Ashby Ave west of the intersection of 6th St. The 65-year-old male had fatal injuries that appeared to be the result of an automobile crash. The investigation revealed no witnesses, or investigative leads.
In 2021, 547 persons were injured in auto crashes. 69 of those were pedestrians, 95 were bicyclists. In crashes involving a pedestrian, the motor vehicle operator was found at fault over eighty-six percent of the time. In crashes involving a bicyclist, the bicyclist was found at fault over sixty-three percent of the time. cement strategy in these two critical
areas.
In 2021, Berkeley Police made 123 misdemeanor DUI arrests, 9 felony DUI arrests, and 1 minor over .05% DUI arrests. Officers attended NHTSA Standardized Field Sobriety Testing (SFST), NHTSA Advanced Roadside Impaired Driving Enforcement (ARIDE). Drug Recognition Expert (DRE), and Drug Recognition Expert (DRE) DRE Recertification classes.
Over the past five years (2017-2021), BPD has investigated 51 injury crashes where alcohol or drugs were a factor (average of 10 per year). Continued proactive enforcement through DUI saturation patrols and DUI checkpoints will be effective aids for taking dangerously impaired drivers off the road, and also serving to educate the community as to the dangers of drug and alcohol impaired driving. Due to limited staffing levels, Berkeley PD had to cancel a few checkpoints over the last few years.
Unsafe speed (VC 22350) was the most prevalent primary crash factor in 2021. Berkeley Police Investigated 97 injury crashes, resulting in 124 people injured as a result of unsafe speed. According to OTS rankings for 2019 the City of Berkeley ranked in the top twelve (12/59) for speed related injury crashes. The majority of roadways in Berkeley have a 25 MPH speed limit. There are only three roadways with a higher speed limit.
Those roadways have the greatest speed limit in the city at 35 MPH. Drivers travelling in the City of Berkeley at unsafe speeds continue to be an enforcement priority for the Berkeley Police Department.
According to OTS rankings for 2019 the City of Berkeley ranks thirteen (13/59) in Total Fatal and Injury crashes.
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ds the importance of buckling up. In 2021 Berkeley Police Officers issued 59 citations for seatbelt violations. Many of these were issued by traffic enforcement officers during
A factor that is vastly under reported in injury crashes in the City of Berkeley is distracted driving due to cellular phone use. While it is often difficult to determine if this is the primary crash factor in many crashes, BPD Officers issued 429 citations for driving while using a cellphone device in a non-hands free manner in 2021.
Based on the NHTSA findings, drivers who text while behind the wheel have a twenty-three percent chance of causing a crash.
Two of the core methodologies that the Berkeley PD Traffic Unit employs, are the use of internal crash and SWITRS data to provide a data driven approach to focus our enforcement efforts. The data allows us to identify the top PCFs and the most dangerous roadways in the city for vehicles, pedestrians, and bicyclists, and to direct the majority of available resources to in an informed and impartial manner. Secondly, altering traffic violator behavior through vigorous traffic enforcement of top PCFs by issuing citations, rather than warnings.
The Berkeley Police Department will maintain it's mission to reduce the overall number of injury crashes, bicycle and pedestrian related crashes, alcohol related crashes, speed related crashes, motorcycle related crashes, and crashes involving distracted driving.
Currently, the Traffic Bureau at the Berkeley Police Department is staffed by three motor officers, one traffic data analyst, one sergeant, and one lieutenant. Motor officer responsibilities include injury-crash investigations and traffic enforcement, however resources often deplete rapidly due to ancillary duties and personnel shortages in the Operations/Patrol Division. Grant operations build upon current traffic safety efforts by allowing patrol and motor officers opportunities to address traffic safety most significantly pedestrian and bicycle safety, distracted and impaired driving in addition to and outside of their regularly scheduled duties. Grant acrtivity will provide opportunities for leadership development and learning in traffic safety and DUI
2. PERFORMANCE MEASURES
A. Goals:
1. Reduce the number of persons killed in traffic crashes.
2. Reduce the number of persons injured in traffic crashes.
3. Reduce the number of pedestrians killed in traffic crashes.
4. Reduce the number of pedestrians injured in traffic crashes.
5. Reduce the number of bicyclists killed in traffic crashes.
6. Reduce the number of bicyclists injured in traffic crashes.
7. Reduce the number of persons killed in alcohol-involved crashes.
8. Reduce the number of persons injured in alcohol-involved crashes.
9. Reduce the number of persons killed in drug-involved crashes.
10. Reduce the number of persons injured in drug-involved crashes.
11. Reduce the number of persons killed in alcohol/drug combo-involved crashes.
12. Reduce the number of persons injured in alcohol/drug combo-involved crashes.
13. Reduce the number of motorcyclists killed in traffic crashes.
14. Reduce the number of motorcyclists injured in traffic crashes.
15. Reduce hit & run fatal crashes.
16. Reduce hit & run injury crashes.
17. Reduce nighttime (2100 - 0259 hours) fatal crashes.
18. Reduce nighttime (2100 - 0259 hours) injury crashes.
B. Objectives: Target Number
1. Issue a press release announcing the kick-off of the grant by November 15. The kick-off press releases and media advisories, alerts, and materials must be emailed to the OTS Public Information Officer at [email protected], and copied to 1
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your OTS Coordinator, for approval 14 days prior to the issuance date of the release.
2. Participate and report data (as required) in the following campaigns; Quarter 1:
National Walk to School Day, National Teen Driver Safety Week, NHTSA Winter Mobilization; Quarter 3: National Distracted Driving Awareness Month, National Motorcycle Safety Month, National Bicycle Safety Month, National Click it or Ticket Mobilization; Quarter 4: NHTSA Summer Mobilization, National Child Passenger Safety Week, and California's Pedestrian Safety Month.
10 3.
and traffic officers to be on the lookout for identified repeat DUI offenders with a suspended or revoked license as a result of DUI convictions. Updated DUI BOLOs should be distributed to patrol and traffic officers monthly. 12 4. Send law enforcement personnel to the NHTSA Standardized Field Sobriety Testing (SFST) (minimum 16 hours) POST-certified training. 2 5. Send law enforcement personnel to the NHTSA Advanced Roadside Impaired Driving Enforcement (ARIDE) 16 hour POST-certified training. 2 6. Send law enforcement personnel to the Drug Recognition Expert (DRE) training. 2
7. Send law enforcement personnel to the DRE Recertification training. 2
8. Send law enforcement personnel to SFST Instructor training. 2
9. Send law enforcement personnel to DRE Instructor training. 1
10. Conduct DUI/DL Checkpoints. A minimum of 1 checkpoint should be conducted during the NHTSA Winter Mobilization and 1 during the Summer Mobilization. To enhance the overall deterrent effect and promote high visibility, it is recommended the grantee issue an advance press release and conduct social media activity for each checkpoint. For combination DUI/DL checkpoints, departments should issue press releases that mention DL's will be checked at the DUI/DL checkpoint. Signs for DUI/DL checkpoints should read "DUI/Driver's License Checkpoint Ahead." OTS does not fund or support independent DL checkpoints. Only on an exception basis and with OTS pre-approval will OTS fund checkpoints that begin prior to 1800 hours. When possible, DUI/DL Checkpoint screeners should be DRE- or ARIDE-trained.
3 11. Conduct DUI Saturation Patrol operation(s). 19
12. Conduct Traffic Enforcement operation(s), including but not limited to, primary crash factor violations.
13 13. Conduct highly publicized Distracted Driving enforcement operation(s) targeting drivers using hand held cell phones and texting.
14 14. Conduct highly publicized Motorcycle Safety enforcement operation(s) in areas or during events with a high number of motorcycle incidents or crashes resulting from unsafe speed, DUI, following too closely, unsafe lane changes, improper turning, and other primary crash factor violations by motorcyclists and other drivers. 15 15. Conduct highly publicized pedestrian and/or bicycle enforcement operation(s) in areas or during events with a high number of pedestrian and/or bicycle crashes resulting from violations made by pedestrians, bicyclists, and drivers. 16 16. Conduct Traffic Safety educational presentation(s) with an effort to reach community members. Note: Presentation(s) may include topics such as distracted driving, DUI, speed, bicycle and pedestrian safety, seat belts and child passenger safety.
4 17. Participate in highly visible collaborative DUI Enforcement operations. 2
18. Participate in highly visible collaborative Traffic Enforcement operations. 2
19. Send law enforcement personnel to DUI Checkpoint Planning and Management training.
2 3. METHOD OF PROCEDURE
A. Phase 1 Program Preparation (1st Quarter of Grant Year)
outlined in the objectives section.
All training needed to implement the program should be conducted this quarter.
All grant related purchases needed to implement the program should be made this quarter.
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description, current license status, and the number of times suspended or revoked for DUI. DUI BOLOs should be updated and distributed to traffic and patrol officers at least monthly.
Implementation of the STEP grant activities will be accomplished by deploying personnel at high crash locations.
Media RequirementsIssue a press release approved by the OTS PIO announcing the kick-off of the grant by November 15, but no sooner than October 1. The kick-off release must be approved by the OTS PIO and only distributed after the grant is fully signed and executed. If you are unable to meet the November 15 deadline to issue a kick-off press release, communicate reasons to your OTS coordinator and OTS PIO.
B. Phase 2 Program Operations (Throughout Grant Year)
The department will work to create media opportunities throughout the grant period to call attention to the innovative program strategies and outcomes.
Media Requirements
The following requirements are for all grant-related activities:
Send all media advisories, alerts, videos, graphics, artwork, posters, radio/PSA/video scripts, storyboards, digital and/or print educational materials for grant-related activities to the OTS PIO at [email protected] for approval and copy your OTS coordinator. Optimum lead time would be 7 days before the scheduled release but at least 3 business days prior to the scheduled release date for review and approval is appreciated.
The OTS PIO is responsible for the approval of the design and content of materials. The agency understands OTS PIO approval is not authorizing approval of budget expenditure or cost. Any cost approvals must come from the Coordinator.
Pre-approval is not required when using any OTS-supplied template for media advisories, press releases, social media graphics, videos or posts, or any other OTS-supplied educational material.
However, copy the OTS PIO at [email protected] and your OTS coordinator when any material is distributed to the media and public, such as a press release, educational material, or link to social media post. The OTS-supplied kick-off press release templates and any kickoff press releases are an exception to this policy and require prior approval before distribution to the media and public.
If an OTS-supplied template, educational material, social media graphic, post or video is substantially changed, the changes shall be sent to the OTS PIO at [email protected] for approval and copy to your OTS Coordinator. Optimum lead time would be 7 days prior to the scheduled release date, but at least 3 business days prior to the scheduled release date for review and approval is appreciated.
Press releases, social media posts and alerts on platforms such as NextDoor and Nixle reporting immediate and time-sensitive grant activities (e.g. enforcement operations, day of event highlights or announcements, event invites) are exempt from the OTS PIO approval process. The OTS PIO and your Coordinator should still be notified when the grant-related activity is happening (e.g. car seat checks, bicycle rodeos, community presentations, DUI checkpoints, etc.).
Enforcement activities such as warrant and probation sweeps, court stings, etc. that are embargoed or could impact operations by publicizing in advance are exempt from the PIO approval process. However, announcements and results of activities should still be copied to the OTS PIO at [email protected] and your Coordinator with embargoed date and time or with
Any earned or paid media campaigns for TV, radio, digital or social media that are part of a specific grant objective, using OTS grant funds, or designed and developed using contractual services by a subgrantee, requires prior approval. Please send to the OTS PIO at [email protected] for approval and copy your grant coordinator at least 3 business days prior to the scheduled release date.
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Social media posts highlighting state or national traffic safety campaigns (Distracted Driving Month, Motorcycle Safety Awareness Month, etc.), enforcement operations (DUI checkpoints, etc.), or any other grant-related activity such as Bicycle rodeos, presentations, or events, are highly encouraged but do not require prior approval.
Submit a draft or rough-cut of all digital, printed, recorded or video material (brochures, posters, scripts, artwork, trailer graphics, digital graphics, social posts connected to an earned or paid media campaign grant objective) to the OTS PIO at [email protected] and copy your OTS Coordinator for approval prior to the production or duplication.
Use the following standard language in all press, media, and printed materials, space permitting:
Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.
Space permitting, include the OTS logo on all grant-funded print materials, graphics and paid or earned social media campaign grant objective; consult your OTS Coordinator for specifics, format-appropriate logos, or if space does not permit the use of the OTS logo.
Email the OTS PIO at [email protected] and copy your OTS Coordinator at least 21 days in advance, or when first confirmed, a short description of any significant grant-related traffic safety event or program, particularly events that are highly publicized beforehand with anticipated media coverage so OTS has sufficient notice to arrange for attendance and/or participation in the event.
If unable to attend, email the OTS PIO and coordinator brief highlights and/or results, including any media coverage (broadcast, digital, print) of event within 7 days following significant grant- related event or program. Media and program highlights are to be reflected in QPRs.
Any press releases, work plans, scripts, storyboards, artwork, graphics, videos or any educational or informational materials that received PIO approval in a prior grant year needs to be resubmitted for approval in the current grant year.
Contact the OTS PIO or your OTS Coordinator for consultation when changes from any of the above requirements might be warranted.
C. Phase 3 Data Collection & Reporting (Throughout Grant Year)
1. Prepare and submit invoice claims (due January 30, April 30, July 30, and October 30)
2. Prepare and submit Quarterly Performance Reports (QPR) (due January 30, April 30, July 30, and October 30)
Collect and report quarterly, appropriate data that supports the progress of goals and objectives.
Provide a brief list of activity conducted, procurement of grant-funded items, and significant media activities. Include status of grant-funded personnel, status of contracts, challenges, or special accomplishments.
Provide a brief summary of quarterly accomplishments and explanations for objectives not completed or plans for upcoming activities.
Collect, analyze and report statistical data relating to the grant goals and objectives.
4. METHOD OF EVALUATION
Using
the fourth/final Quarterly Performance Report (QPR). The Final Evaluation should provide a brief summary significant activities. This narrative should also include whether goals and objectives were met, exceeded, or an explanation of why objectives were not completed.
5. ADMINISTRATIVE SUPPORT
This program has full administrative support, and every effort will be made to continue the grant activities after grant conclusion.
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State of California Office of Traffic Safety
GRANT AGREEMENT
Schedule B
GRANT NUMBER
PT23088
FUND NUMBER CATALOG
NUMBER (CFDA)
FUND DESCRIPTION TOTAL AMOUNT
402PT-23 20.600 State and Community Highway
Safety
$100,000.00
164AL-23 20.608 Minimum Penalties for Repeat
Offenders for Driving While
Intoxicated
$80,000.00
COST CATEGORY FUND
NUMBER
UNIT COST OR
RATE
UNITS TOTAL COST TO
GRANT
A. PERSONNEL COSTS
Straight Time
$0.00
Overtime
DUI/DL Checkpoints 164AL-23 $13,536.00 3 $40,608.00
DUI Saturation Patrols 164AL-23 $1,410.00 19 $26,790.00 Collaborative DUI Enforcement 164AL-23 $1,410.00 2 $2,820.00 Benefits AL @ 9.91% 164AL-23 $70,218.00 1 $6,959.00
Traffic Enforcement 402PT-23 $1,410.00 13 $18,330.00
Distracted Driving 402PT-23 $1,410.00 14 $19,740.00
Motorcycle Safety 402PT-23 $1,410.00 15 $21,150.00
Pedestrian and Bicycle Enforcement 402PT-23 $1,410.00 16 $22,560.00 Traffic Safety Education 402PT-23 $846.00 4 $3,384.00
Collaborative Traffic Enforcement 402PT-23 $1,410.00 2 $2,820.00 Benefit PT @ 9.91% 402PT-23 $87,984.00 1 $8,719.00
Category Sub-Total $173,880.00
B. TRAVEL EXPENSES
In State Travel 402PT-23 $3,297.00 1 $3,297.00
$0.00
Category Sub-Total $3,297.00
C. CONTRACTUAL SERVICES
$0.00
Category Sub-Total $0.00
D. EQUIPMENT
$0.00
Category Sub-Total $0.00
E. OTHER DIRECT COSTS
DUI Checkpoint Supplies 164AL-23 $2,823.00 1 $2,823.00 Category Sub-Total $2,823.00
F. INDIRECT COSTS
$0.00
Category Sub-Total $0.00
GRANT TOTAL $180,000.00
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State of California Office of Traffic Safety
GRANT AGREEMENT
Schedule B-1
GRANT NUMBER
PT23088
BUDGET NARRATIVE
PERSONNEL COSTS
DUI/DL Checkpoints - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
DUI Saturation Patrols - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
Collaborative DUI Enforcement - Overtime for grant funded Collaborative DUI Enforcement operations conducted by appropriate department personnel
Benefits AL @ 9.91% - Total Benefits
1.45% Medicare
8.46% Worker's Comp
Traffic Enforcement - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
Distracted Driving - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
Motorcycle Safety - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
Pedestrian and Bicycle Enforcement - Overtime for grant funded law enforcement operations conducted by appropriate department personnel.
Traffic Safety Education - Overtime for grant funded traffic safety presentations or campaigns conducted by appropriate department personnel.
Collaborative Traffic Enforcement - Overtime for grant funded Collaborative Traffic Enforcement operations conducted by appropriate department personnel
Benefit PT @ 9.91% - Total Benefits
1.45% Medicare
8.46% Worker's Comp
TRAVEL EXPENSES
In State Travel - Costs are included for appropriate staff to attend conferences and training events supporting the grant goals and objectives and/or traffic safety. Local mileage for grant activities and meetings is included. Anticipated travel may include the OTS Law Enforcement Forum. All conferences, seminars or training not specifically identified in the Budget Narrative must be approved by OTS. All travel claimed must be at the agency approved rate. Per Diem may not be claimed for meals provided at conferences when registration fees are paid with OTS grant funds.
CONTRACTUAL SERVICES
-
EQUIPMENT
-
OTHER DIRECT COSTS
DUI Checkpoint Supplies - On-scene supplies needed to conduct sobriety checkpoints. Costs may include 28" traffic cones, MUTCD compliant traffic signs, MUTCD compliant high visibility vests (maximum of 10), traffic counters (maximum of 2), generator, gas for generators, lighting, reflective banners, electronic flares, PAS Device/Calibration Supplies, heater, propane for heaters, fan, anti-fatigue mats, and canopies.
Additional items may be purchased if approved by OTS. The cost of food and beverages will not be reimbursed. Each item must have a unit cost of less than $5,000 (including tax and shipping).
INDIRECT COSTS
-
STATEMENTS/DISCLAIMERS
Program Income default statement:
There will be no program income generated from this grant.
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Enforcement Grant Quota Disclaimer:
enforcement officer issue a specified or predetermined number of citations in pursuance of the goals and objectives here under.
Benefits Disclaimer:
Benefits for personnel costs can only be applied to straight time or overtime hours charged to the grant.
CHP Grant Program Disclaimer:
The OTS grant funded activities must be separate from the CHP Cannabis Tax Fund Grant Program activities and maintained under separate accounting/tracking/other codes (example: the same DUI checkpoint may not be funded by both the CHP and the OTS).
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State of California Office of Traffic Safety
GRANT AGREEMENT
Exhibit A
GRANT NUMBER
PT23088
CERTIFICATIONS AND ASSURANCES FOR HIGHWAY SAFETY GRANTS (23 U.S.C. Chapter 4; Sec. 1906, Pub. L. 109-59, As Amended By Sec. 4011, Pub. L. 114-94) The officials named on the grant agreement, certify by way of signature on the grant agreement signature page, that the Grantee Agency complies with all applicable Federal statutes, regulations, and directives and State rules, guidelines, policies, and laws in effect with respect to the periods for which it receives grant funding.
Applicable provisions include, but are not limited to, the following:
GENERAL REQUIREMENTS
23 U.S.C. Chapter 4 Highway Safety Act of 1966, as amended Sec. 1906, Pub. L. 109-59, as amended by Sec. 4011, Pub. L. 114-94 23 CFR part 1300 Uniform Procedures for State Highway Safety Grant Programs 2 CFR part 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
2 CFR part 1201 Department of Transportation, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
NONDISCRIMINATION
(applies to all subrecipients as well as States)
The State highway safety agency will comply with all Federal statutes and implementing regulations relating to nondiscrimination Nondiscrimination These include but are not limited to:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin) and 49 CFR part 21; The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); Federal-Aid Highway Act of 1973, (23 U.S.C. 324 et seq.), and Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683 and 1685-1686) (prohibit discrimination on the basis of sex);
Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. 794 et seq.), as amended, (prohibits discrimination on the basis of disability) and 49 CFR part 27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. 6101 et seq.), (prohibits discrimination on the basis of age);
The Civil Rights Restoration Act of 1987, (Pub. L. 100-209), (broadens scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal aid recipients, subrecipients and contractors, whether such programs or activities are Federally-funded or not);
Titles II and III of the Americans with Disabilities Act (42 U.S.C. 12131-12189) (prohibits discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing) and 49 CFR parts 37 and 38;
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (prevents discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations); and Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (guards against Title VI national origin discrimination/discrimination because of limited English proficiency (LEP) by ensuring that funding recipients take reasonable steps to ensure that LEP persons have meaningful access to programs (70 FR 74087-74100).
The Subgrantee-
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Will take all measures necessary to ensure that no person in the United States shall, on the grounds of race, color, national origin, disability, sex, age, limited English proficiency, or membership in any other class protected by Federal Nondiscrimination Authorities, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any of its programs or activities, so long as any portion of the program is Federally-assisted; Will administer the program in a manner that reasonably ensures that any of its subrecipients, contractors, subcontractors, and consultants receiving Federal financial assistance under this program will comply with all requirements of the Non- Discrimination Authorities identified in this Assurance;
Agrees to comply (and require its subrecipients, contractors, subcontractors, and consultants to comply) with all applicable provisions of law or regulation governing or access to records, accounts, documents, information, facilities, and staff, and to cooperate and comply with any program or compliance reviews, and/or complaint investigations conducted by US DOT or NHTSA under any Federal Nondiscrimination Authority;
Acknowledges that the United States has a right to seek judicial enforcement with regard to any matter arising under these Non-Discrimination Authorities and this Assurance; Agrees to insert in all contracts and funding agreements with other State or private entities the following clause:
o the performance of this contract/funding agreement, the contractor/funding recipient agrees
a. To comply with all Federal nondiscrimination laws and regulations, as may be amended from time to time;
b. Not to participate directly or indirectly in the discrimination prohibited by any Federal non- discrimination law or regulation, as set forth in appendix B of 49 CFR part 2l and herein; c. To permit access to its books, records, accounts, other sources of information, and its facilities as required by the State highway safety office, US DOT or NHTSA; d. That, in event a contractor/funding recipient fails to comply with any nondiscrimination provisions in this contract/funding agreement, the State highway safety agency will have the right to impose such contract/agreement sanctions as it or NHTSA determine are appropriate, including but not limited to withholding payments to the contractor/funding recipient under the contract/agreement until the contractor/funding recipient complies; and/or cancelling, terminating, or suspending a contract or funding agreement, in whole or in part; and
e. To insert this clause, including paragraphs (a) through (e), in every subcontract and subagreement and in every solicitation for a subcontract or sub-agreement, that receives Federal funds under this program.
THE DRUG-FREE WORKPLACE ACT OF 1988 (41 U.S.C. 8103)
The Subgrantee will provide a drug-free workplace by:
a. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; b. Establishing a drug-free awareness program to inform employees about:
1. The dangers of drug abuse in the workplace;
2. The grantee's policy of maintaining a drug-free workplace;
3. Any available drug counseling, rehabilitation, and employee assistance programs;
4. The penalties that may be imposed upon employees for drug violations occurring in the workplace;
5. Making it a requirement that each employee engaged in the performance of the grant be given a copy of the statement required by paragraph (a); c. Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will
1. Abide by the terms of the statement;
2. Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction; d. Notifying the agency within ten days after receiving notice under subparagraph (c)(2) from an
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employee or otherwise receiving actual notice of such conviction; e. Taking one of the following actions, within 30 days of receiving notice under subparagraph (c)(2), with respect to any employee who is so convicted
1. Taking appropriate personnel action against such an employee, up to and including termination;
2. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
f. Making a good faith effort to continue to maintain a drug-free workplace through implementation of all of the paragraphs above.
POLITICAL ACTIVITY (HATCH ACT)
(applies to all subrecipients as well as States)
The State will comply with provisions of the Hatch Act (5 U.S.C. 1501-1508), which limits the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds.
CERTIFICATION REGARDING FEDERAL LOBBYING
(applies to all subrecipients as well as States)
Certification for Contracts, Grants, Loans, and Cooperative Agreements The signed certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement;
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions;
3. The undersigned shall require that the language of this certification be included in the award documents for all sub-award at all tiers (including subcontracts, subgrants, and contracts under grant, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
RESTRICTION ON STATE LOBBYING
(applies to all subrecipients as well as States)
None of the funds under this program will be used for any activity specifically designed to urge or influence a State or local legislator to favor or oppose the adoption of any specific legislative proposal pending before any State or local legislative body. Such activities include both direct and indirect (e.g., "grassroots") lobbying activities, with one exception. This does not preclude a State official whose salary is supported with NHTSA funds from engaging in direct communications with State or local legislative officials, in accordance with customary State practice, even if such communications urge legislative officials to favor or oppose the adoption of a specific pending legislative proposal.
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
(applies to all subrecipients as well as States)
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Instructions for Primary Tier Participant Certification (States)
1. By signing and submitting this proposal, the prospective primary tier participant is providing the certification set out below and agrees to comply with the requirements of 2 CFR parts 180 and 1200.
2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective primary tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary tier participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default or may pursue suspension or debarment.
4. The prospective primary tier participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary tier participant learns its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms covered transaction, civil judgment, debarment, suspension, ineligible, participant, person, principal, and voluntarily excluded, as used in this clause, are defined in 2 CFR parts 180 and 1200.
You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary tier participant further agrees by submitting this proposal that it will include
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered without
modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions and will require lower tier participants to comply with 2 CFR parts 180 and 1200.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any prospective lower tier participants, each participant may, but is not required to, check the System for Award Management Exclusions website (https://www.sam.gov/).
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal government, the department or agency may terminate the transaction for cause or default.
Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Tier Covered Transactions
(1) The prospective primary tier participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment
8/24/2022 8:00:59 AM Page 16 of 19
rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or Local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. (2) Where the prospective primary tier participant is unable to certify to any of the Statements in this certification, such prospective participant shall attach an explanation to this proposal.
Instructions for Lower Tier Participant Certification
1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below and agrees to comply with the requirements of 2 CFR parts 180 and 1200.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms covered transaction, civil judgment, debarment, suspension, ineligible, participant, person, principal, and voluntarily excluded, as used in this clause, are defined in 2 CFR parts 180 and 1200.
You may contact the person to whom this proposal is submitted for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause
Regarding
Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions and will require lower tier participants to comply with 2 CFR parts 180 and 1200.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any prospective lower tier participants, each participant may, but is not required to, check the System for Award Management Exclusions website (https://www.sam.gov/).
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension or debarment.
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Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Covered Transactions:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
BUY AMERICA ACT
(applies to all subrecipients as well as States)
The State and each subrecipient will comply with the Buy America requirement (23 U.S.C. 313) when purchasing items using Federal funds. Buy America requires a State, or subrecipient, to purchase with Federal funds only steel, iron and manufactured products produced in the United States, unless the Secretary of Transportation determines that such domestically produced items would be inconsistent with the public interest, that such materials are not reasonably available and of a satisfactory quality, or that inclusion of domestic materials will increase the cost of the overall project contract by more than 25 percent. In order to use Federal funds to purchase foreign produced items, the State must submit a waiver request that provides an adequate basis and justification for approval by the Secretary of Transportation.
PROHIBITION ON USING GRANT FUNDS TO CHECK FOR HELMET USAGE (applies to all subrecipients as well as States)
The State and each subrecipient will not use 23 U.S.C. Chapter 4 grant funds for programs to check helmet usage or to create checkpoints that specifically target motorcyclists.
POLICY ON SEAT BELT USE
In accordance with Executive Order 13043, Increasing Seat Belt Use in the United States, dated April 16, 1997, the Grantee is encouraged to adopt and enforce on-the-job seat belt use policies and programs for its employees when operating company-owned, rented, or personally-owned vehicles. The National Highway Traffic Safety Administration (NHTSA) is responsible for providing leadership and guidance in support of this Presidential initiative. For information and resources on traffic safety programs and policies for employers, please contact the Network of Employers for Traffic Safety (NETS), a public-private partnership dedicated to improving the traffic safety practices of employers and employees. You can download information on seat belt programs, costs of motor vehicle crashes to employers, and other traffic safety initiatives at www.trafficsafety.org. The NHTSA website (www.nhtsa.gov) also provides information on statistics, campaigns, and program evaluations and references.
POLICY ON BANNING TEXT MESSAGING WHILE DRIVING
In accordance with Executive Order 13513, Federal Leadership On Reducing Text Messaging While Driving, and DOT Order 3902.10, Text Messaging While Driving, States are encouraged to adopt and enforce workplace safety policies to decrease crashes caused by distracted driving, including policies to ban text messaging while driving company-owned or rented vehicles, Government-owned, leased or rented vehicles, or privately-owned vehicles when on official Government business or when performing any work on or behalf of the Government. States are also encouraged to conduct workplace safety initiatives in a manner commensurate with the size of the business, such as establishment of new rules and programs or re- evaluation of existing programs to prohibit text messaging while driving, and education, awareness, and other outreach to employees about the safety risks associated with texting while driving.
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INSTRUCTIONS FOR ADDING OR UPDATING GEMS USERS
1. Each agency is allowed a total of FIVE (5) GEMS Users.
2. GEMS Users listed on this form will be authorized to login to GEMS to complete and submit Quarterly Performance Reports (QPRs) and reimbursement claims.
3. Complete the form if adding, removing or editing a GEMS user(s).
4. The Grant Director must sign this form and return it with the Grant Agreement.
CURRENT GEMS USER(S)
1. Gina Chan
Title: Assistant Management Analyst Media Contact: No
Phone: (510) 981-5971
Email: [email protected]
2. Stephanie Cole
Title: Police Officer Media Contact: Yes
Phone: (510) 981-5897
Email: [email protected]
3. Andrew Frankel
Title: Sergeant Media Contact: Yes
Phone: (510) 981-5982
Email: [email protected]
4. Chuck Gunter
Title: Administrative & Fiscal Services Manager Media Contact: No Phone: 510-981-5976
Email: [email protected]
5. Jennifer Tate
Title: Lieutenant Media Contact: No
Phone: (510) 981-5983
Email: [email protected]
State of California Office of Traffic Safety
OTS-55 Grant Electronic Management System (GEMS) Access Exhibit C
GRANT NUMBER
PT23088
GRANT DETAILS
Grant Number: PT23088
Agency Name: Berkeley Police Department
Grant Title: Selective Traffic Enforcement Program (STEP) Agreement Total: $180,000.00
Authorizing Official: Jennifer Louis
Fiscal Official: Chuck Gunter
Grant Director: Jennifer Tate
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Complete the below information if adding, removing or editing a GEMS user(s) GEMS User 1
Add/Change {{[] c11_es_:signer1}} Remove Access {{[] c12_es_:signer1}}
Add as a media contact? Yes {{[] c1_es_:signer1}} No{{[]c2_es_:signer1}} {{UserName1_es_:signer1 }} {{UserTitle1_es_:signer1 }} Name Job Title
{{UserEmail1_es_:signer1 }} {{UserPhone1_es_:signer1 }} Email address Phone number
GEMS User 2
Add/Change {{[] c13_es_:signer1}} Remove Access {{[] c14_es_:signer1}}
Add as a media contact? Yes {{ []c3_es_:signer1}}No {{[]c4_es_:signer1}} {{UserName2_es_:signer1 }} {{UserTitle2_es_:signer1 }} Name Job Title
{{UserEmail2_es_:signer1 }} {{UserPhone2_es_:signer1 }} Email address Phone number
GEMS User 3
Add/Change {{[] c15_es_:signer1}} Remove Access {{[] c16_es_:signer1}}
Add as a media contact? Yes {{[] c5_es_:signer1}}No {{[]c6_es_:signer1}} {{UserName3_es_:signer1 }} {{UserTitle3_es_:signer1 }} Name Job Title
{{UserEmail3_es_:signer1 }} {{UserPhone3_es_:signer1 }} Email address Phone number
GEMS User 4
Add/Change {{[]c17_es_:signer1}} Remove Access {{[] c18_es_:signer1}}
Add as a media contact? Yes {{[] c8_es_:signer1}}No {{[]c7_es_:signer1}} {{UserName4_es_:signer1 }} {{UserTitle4_es_:signer1 }}
Name
Job Title
{{UserEmail4_es_:signer1 }} {{UserPhone4_es_:signer1 }} Email address Phone number
GEMS User 5
Add/Change {{[] c19_es_:signer1}} Remove Access {{[] c20_es_:signer1}}
Add as a media contact? Yes {{[] c9_es_:signer1}}No {{[]c10_es_:signer1}} {{UserName5_es_:signer1 }} {{UserTitle5_es_:signer1 }} Name Job Title
{{UserEmail5_es_:signer1 }} {{UserPhone5_es_:signer1 }}
Email address
Phone number
Form completed by: {{Sig_es_:signer1:signature}} Date: {{Dte1_es_:signer1:date}}
As a signatory I hereby authorize the listed individual(s) to represent and have GEMS user access. {{Sig_es_:signer2:signature}} {{Name1_es_:signer2:fullname }} Signature Name
{{Dte2_es_:signer2:date}} Grant Director
Date Title
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Liam Garland, Director, Department of Public Works Subject: 2022 Vision Zero Program Grant Applications
RECOMMENDATION
Adopt three Resolutions:
1. Certifying that the Berkeley Vision Zero Action Plan, the Berkeley Bicycle Plan, and the Berkeley Pedestrian Plan, collectively meet the Safe Streets and Roads for All grant program requirement for a Comprehensive Safety Action Plan.
2. Authorizing the City Manager to submit a grant application to the federal Safe Streets and Roads for All (SS4A), accept the grant awarded, and execute any resultant agreements and amendments.
3. Authorizing the City Manager to submit a grant application to the federal Reconnecting Communities Pilot Grant Program (RCP), accept the grant awarded, and execute any resultant agreements and amendments.
FISCAL IMPACTS OF RECOMMENDATION
If awarded, the SS4A and RCP grants would bring a total of up to $6,480,000 of competitive grant revenue to the Federal Capital Grants Fund (Fund 305) for high- priority transportation projects, starting in FY 2023.
Safe Streets and Roads for All Grant Funding Request and Matching Funds Vision Zero Pedestrian and Bicycle Crossing Safety Improvements up to $6,000,000 Required City Matching Funds (20% of total project cost) up to $2,000,000 Total Project Cost up to $8,000,000
Reconnecting Communities Pilot Grant Funding Request and Matching Funds Ashby Avenue Vision Zero Safety Plan up to $480,000
Required City Matching Funds (20% of total project cost) up to $120,000 Total Project Cost up to $600,000
The total estimated cost of the projects is up to $8.6 million. Both SS4A and RCP require local match of 20% of the total project cost. Funding for the required $2,120,000 local match is available from the Alameda County Measure BB Bicycle and Pedestrian Program Fund (Fund 135) and the Measure BB Local Streets and Roads Fund (Fund 134), with planning and capital project design activities anticipated to begin in FY2023
21
2022 Vision Zero Grant Applications CONSENT CALENDAR
September 13, 2022
and FY2024, and capital bidding and construction activities anticipated in FY2025, FY2026, and FY2027.
CURRENT SITUATION AND ITS EFFECTS
In the two years since the Berkeley Vision Zero Action Plan1 was adopted, the City has made substantial progress in implementing projects from both the 2017 Berkeley Bicycle Plan2 and the 2021 Berkeley Pedestrian Plan3 that are located on Vision Zero High Injury Streets. Since 2020, Public Works has completed the Sacramento Complete Streets Project, the Milvia Bikeway Project, and initiated planning, design, and public engagement for projects on Hopkins Street, Sacramento Street, Martin Luther King Junior Way, streets in the Southside neighborhood, among other locations in Berkeley.
These projects are intended to improve traffic safety to achieve the Vision Zero goal of eliminating all severe injury and fatality traffic crashes in Berkeley by 2028.
Continuing with these efforts, staff is requesting approval from Council to submit the following traffic safety projects to compete for SS4A capital project design and construction funding and RCP capital project planning funding. These applications are due in September and October 2022, respectively.
Vision Zero Pedestrian and Bicycle Crossing Safety Improvements (SS4A funding) This project bundles intersection traffic safety improvements from the Berkeley Bicycle Plan and/or Berkeley Pedestrian Plan, selected because of their location on Vision Zero High Injury Streets within the Equity Priority Area identified in the Vision Zero Action Plan. Crossing treatments fall into one of two categories: rectangular rapid-flashing beacons with raised concrete street medians (RRFB + Median) or pedestrian hybrid beacons (PHB). Both treatments are intended to help people walking and biking to cross the street more safely. More information about the specific proposed improvements can be found in the Berkeley Bicycle Plan and Berkeley Pedestrian Plan. Bicycle Boulevard Intersection Crossings:
o Channing Way/6th Street: RRFB+Median
o Channing Way/Sacramento Street: PHB
o Russell Street/Sacramento Street: PHB*
o California Street/Dwight Way: RRFB + Median
Pedestrian Plan Intersection Crossings:
o Sacramento Street/Derby Street: PHB**
o Sacramento Street/Harmon Street: PHB**
o Alcatraz Street/King Street: RRFB+Median**
o Alcatraz Street/California Street: RRFB+Median**
*Location also identified in Pedestrian Plan
**Location also identified in Bicycle Plan
1 https://berkeleyca.gov/your-government/our-work/adopted-plans/vision-zero-action-plan 2 https://berkeleyca.gov/your-government/our-work/adopted-plans/berkeley-bicycle-plan 3 https://berkeleyca.gov/your-government/our-work/adopted-plans/pedestrian-plan-2020
2022 Vision Zero Grant Applications CONSENT CALENDAR
September 13, 2022
Ashby Avenue Vision Zero Safety Plan (RCP funding)
The Ashby Avenue Vision Zero Safety Plan will develop a conceptual plan for safety improvements along Ashby Avenue (State Route 13) from Telegraph Avenue to San Pablo Avenue, with the goal of eliminating severe injury and fatal traffic crashes, consistent with the 2020 Berkeley Vision Zero Action Plan. Ashby Avenue is a Vision Zero High Injury Street, and the project limits are predominantly within the Equity Priority Area identified in the Vision Zero Action Plan. Historically, Ashby Avenue has the highest concentration of severe and fatal crashes in Berkeley. The street divides the Lorin District and South Berkeley, historically black neighborhoods that have been subject to disinvestment and “redlining” discriminatory housing lending practices, from more affluent Central and North Berkeley areas. The Plan will refine recommendations for pedestrian and bicycle crossing safety treatments from the 2021 Berkeley Pedestrian Plan and 2017 Berkeley Bicycle Plan and develop additional conceptual design recommendations as needed as part of a comprehensive approach to traffic safety on Ashby Avenue. City of Berkeley will serve as the lead agency for this study with Caltrans as a joint applicant and project partner. The Plan is necessary in order to facilitate effective interagency coordination, to develop a comprehensive corridor traffic safety plan, and to support the robust local public engagement necessary to fully understand and address the safety concerns of the local community.
BACKGROUND
In 2020, the Berkeley City Council adopted the Vision Zero Action Plan, with the goal of eliminating all severe injury and fatality traffic crashes in Berkeley by the year 2028. The Vision Zero Action Plan identified High Injury Streets in Berkeley, a relatively small number of streets where the vast majority of severe injury and fatality crashes occur.
This Plan also identified an Equity Priority Area, located predominantly in historically disinvested and “redlined” South and West Berkeley neighborhoods. The Vision Zero Action Plan prioritized the need to implement the projects identified in the 2017 Berkeley Bicycle Plan and 2021 Berkeley Pedestrian Plan that are located on High Injury Streets within the Equity Priority Area, as a way to reduce the disproportionate impact of severe injury and fatality traffic crashes on people walking and cycling in historically disinvested areas of Berkeley.
In 2021, the federal Bipartisan Infrastructure Law (BIL) established the new Safe Streets and Roads for All (SS4A) discretionary program with $5 billion in appropriated funds over 5 years. The SS4A program funds regional, local, and Tribal initiatives through grants to prevent roadway deaths and serious injuries. The SS4A program supports the United States Department of Transportation’s goal of zero deaths and serious injuries on our nation’s roadways. SS4A requires that eligible applicants have a comprehensive safety action plan to eliminate severe injury and fatal crashes. Berkeley’s Vision Zero Action Plan, along with the Berkeley Bicycle Plan and Berkeley Pedestrian Plan, meets this eligibility requirement.
In 2021, the federal Infrastructure Investment and Jobs Act (IIJA) established a new $1 billion discretionary grant program to reconnect communities divided by transportation
2022 Vision Zero Grant Applications CONSENT CALENDAR
September 13, 2022
infrastructure. This federal Reconnecting Communities Pilot (RCP) grant program supports planning, capital construction, and technical assistance to restore community connectivity through the removal, retrofit, mitigation, or replacement of eligible transportation infrastructure that creates barriers in communities. Partnerships between States and local government agencies, as well as robust engagement with community organizations are encouraged as part of eligible capital project planning.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The projects included in these grant applications would increase the number of Berkeley residents and visitors who walk, bike, and take mass transit, which would decrease vehicle miles traveled and greenhouse gas emissions. This would help the City achieve the Berkeley Climate Action Plan greenhouse gas emission reduction target of 80% below the year 2000 level by 2050. The Climate Action Plan states that, in order to meet these targets, “Transportation modes such as public transit, walking and bicycling must become the primary means of fulfilling our mobility needs.”
RATIONALE FOR RECOMMENDATION
Capital planning, design, and construction grant funding will allow the City to address critical local and regional transportation infrastructure gaps for all modes of travel. The projects in these grant applications were identified and prioritized using criteria drawn directly from adopted City plans which have undergone extensive public review prior to Council adoption.
ALTERNATIVE ACTIONS CONSIDERED
The City could choose to forgo the opportunity to seek grant funding from the federal government for these projects. Alternative funding would need to be identified or the identified projects would not move forward toward implementation.
CONTACT PERSON
Farid Javandel, Deputy Director of Public Works, Transportation/Engineering, 981-7061 Beth Thomas, Principal Planner, Public Works, 981-7068
Eric Anderson, Senior Planner, Public Works, 981-7062
Attachments:
1: Resolution: Comprehensive Safety Action Plan Self-Certification Exhibit A: Comprehensive Safety Action Plan Self-Certification 2: Resolution: Safe Streets and Roads for All Grant Application 3: Resolution: Reconnecting Communities Pilot Program Grant Application
RESOLUTION NO. -N.S.
SAFE STREETS AND ROADS FOR ALL
COMPREHENSIVE SAFETY ACTION PLAN SELF-CERTIFICATION
WHEREAS, the Safe Streets and Roads for All (SS4A) grant program requires that applicants have a Comprehensive Safety Action Plan that includes elements specified by the U.S. Department of Transportation; and
WHEREAS, applicants are required to self-certify that their Comprehensive Safety Action Plan meets these requirements; and
WHEREAS, in 2020, the Berkeley City Council adopted the Vision Zero Action Plan (Resolution No. 69,324-N.S.), with input from the Vision Zero Task Force and Vision Zero Advisory Committee, with the goal of eliminating all severe injury and fatality traffic crashes in Berkeley by the year 2028, in fulfillment of Comprehensive Safety Action Plan requirements; and
WHEREAS, the Vision Zero Action Plan describes how progress will be measured over time by utilizing data sources for severe injury and fatality traffic crashes, in fulfillment of Comprehensive Safety Action Plan requirements; and
WHEREAS, the Vision Zero Action Plan is posted publicly online on the City of Berkeley’s website, in fulfillment of Comprehensive Safety Action Plan requirements; and WHEREAS, the Vision Zero Action Plan analyzed the history and location of severe injury and fatality crashes in Berkeley, developed a map of High Injury Streets to document higher traffic safety risk locations, and used historical and current demographic and economic data to develop an Equity Priority Area to prioritize traffic safety improvements on High Injury Streets, in fulfillment of Comprehensive Safety Action Plan requirements; and
WHEREAS, the Vision Zero Action Plan development included an assessment of current policies, plans, guidelines, and standards to identify opportunities to improve how processes prioritize safety and discussed implementation through the adoption of revised or new policies, guidelines, and standards, in fulfillment of Comprehensive Safety Action Plan requirements; and
WHEREAS, the 2017 Berkeley Bicycle Plan (Resolution No. 67,945-N.S.), the 2021 Berkeley Pedestrian Plan (Resolution No. 69,711-N.S.) identify a comprehensive set of projects and strategies to address the safety problems for walking and biking documented in the Berkeley Vision Zero Action Plan, timelines for when these projects and strategies will be deployed, and an explanation of project prioritization criteria, in fulfillment of Comprehensive Safety Action Plan requirements.
NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley certifies that the 2017 Berkeley Bicycle Plan (Resolution No. 67,945-N.S.), the 2021 Berkeley Pedestrian Plan (Resolution No. 69,711-N.S.), and the 2020 Berkeley Vision Zero Action Plan (Resolution No. 69,324-N.S.) collectively fulfill the requirements for a Comprehensive Safety Action Plan as required to submit a grant application to the Safe Streets and Roads grant program.
Safe Streets and Roads for All
Self-Certification Eligibility Worksheet
Safe Streets and Roads for All
Self-Certification Eligibility Worksheet
RESOLUTION NO. -N.S.
GRANT APPLICATION: SAFE STREETS AND ROADS FOR ALL FOR
VISION ZERO PEDESTRIAN AND BICYCLE CROSSING SAFETY IMPROVEMENTS WHEREAS, people walking and cycling in Berkeley experience traffic safety issues when trying to cross the street at currently uncontrolled intersections; and WHEREAS, these traffic safety concerns have been documented in the 2017 Berkeley Bicycle Plan (Resolution No. 67,945-N.S.) and the 2021 Berkeley Pedestrian Plan (Resolution No. 69,711-N.S.); and
WHEREAS, intersection traffic safety improvements from the Berkeley Bicycle Plan and Berkeley Pedestrian Plan were selected for this grant because of their location on Vision Zero High Injury Streets within the Equity Priority Area identified in the Berkeley Vision Zero Action Plan (Resolution No. 69,324-N.S.); and
WHEREAS, crossing treatments such as rectangular rapid-flashing beacons with raised concrete street medians (RRFB + Median) and pedestrian hybrid beacons (PHB) are intended to help people walking and biking to cross the street more safely, at locations as proposed in the 2017 Berkeley Bicycle Plan and 2021 Berkeley Pedestrian Plan; and WHEREAS, Safe Streets and Roads For All grant funds can be used to make traffic safety improvements to currently uncontrolled pedestrian and bicycle intersection crossings; and WHEREAS, if awarded, the grant funds will be placed in the Federal Capital Grants Fund (Fund 305) starting in FY 2023.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to submit a grant application to the Safe Streets and Roads for All grant program, for pedestrian and bicycle intersection crossing safety improvements for up to the amount of $6,000,000; and accept the grant awarded, and execute any resultant agreements and amendments.
RESOLUTION NO. -N.S.
GRANT APPLICATION: RECONNECTING COMMUNITIES PILOT GRANT PROGRAM
FOR ASHBY AVENUE VISION ZERO SAFETY PLAN
WHEREAS, Ashby Avenue (State Route 13) has the highest concentration of severe injury and fatal traffic crashes of any street in Berkeley, as described in the Berkeley Vision Zero Action Plan (Resolution No. 69,324-N.S.); and WHEREAS, this crash history has made Ashby Avenue a barrier that is difficult to cross by any mode of transportation, dividing South Berkeley, a historically black neighborhood that has been subject to disinvestment and “redlining” discriminatory housing lending practices, from more affluent Central and North Berkeley areas; and WHEREAS, these traffic safety concerns have been documented in the Berkeley Vision Zero Action Plan, which identifies Ashby Avenue as a High Injury Street located partially within the Equity Priority Area, and in the 2017 Berkeley Bicycle Plan (Resolution No. 67,945-N.S.) and the 2021 Berkeley Pedestrian Plan (Resolution No. 69,711-N.S.); and WHEREAS, the Ashby Avenue Vision Zero Safety Plan will refine the traffic safety recommendations proposed in the 2017 Berkeley Bicycle Plan and the 2021 Berkeley Pedestrian Plan and develop additional conceptual design proposals as needed as part of a comprehensive approach to traffic safety on Ashby Avenue; and WHEREAS, the Ashby Avenue Vision Zero Safety Plan is necessary in order to facilitate effective interagency coordination, to develop a comprehensive corridor traffic safety plan, and to support the robust local public engagement necessary to fully understand and address the safety concerns of the local community; and WHEREAS, City of Berkeley will serve as the lead agency for this study with Caltrans as a joint applicant and project partner; and
WHEREAS, Reconnecting Communities Pilot Grant Program capital project planning funds can be used to develop a comprehensive corridor traffic safety plan; and WHEREAS, if awarded, the grant funds will be placed in the Federal Capital Grants Fund (Fund 305) starting in FY 2023.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to submit a grant application to the Reconnecting Communities Pilot Grant Program for the Ashby Avenue Vision Zero Safety Plan for up to the amount of $480,000; and accept the grant awarded, and execute any resultant agreements and amendments.
Disaster and Fire Safety Commission
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Disaster and Fire Safety Commission
Submitted by: Jose Luis Bedolla, Chairperson, Disaster and Fire Safety Commission Subject: Red Curbs and Visible Signage
RECOMMENDATION
The Disaster and Fire Safety Commission (“Commission” or “DFSC”) respectfully requests that Council immediately take the following remedial actions to improve emergency vehicle access and residents’ ability to evacuate in the event of a wildfire, while we await implementation of more comprehensive long-term actions such as the Safe Passages program.
In identified high fire risk areas (Fire Zones 2 and 3) and in other high-risk areas, such as where hazardous chemicals are stored or used:
1. Inspect, fix or replace all parking restriction signage as necessary;
2. Red curb all fire hydrant areas to the maximum extent allowed by law; and
3. Direct the Fire Department and Public Works to identify areas that could be pinch points for fire trucks to travel.
It is important that residents understand parking restrictions in the City and State Vehicle Codes. The City should lessen any confusion that might be caused by poorly maintained, misplaced or unclear signs or curbs. The simple step of a periodic inspection of existing parking visual cues (signage, red curbs, etc.) has a profound impact on the safety of all Berkeley residents at any time, but at this time, this effect is enhanced enormously when we are experiencing wildfire conditions tied to severe drought. This proposed periodic review is something that needs to be done and that can be done easily and quickly to reduce the increasing stress residents feel about fire danger and evacuation routes.
FISCAL IMPACTS OF RECOMMENDATION
The Commission is not privy to the budget or plans from Public Works Department and other departments, however, given the increasing fire danger, we ask that completion of this initiative be a priority. Use of Measure FF funds should be considered if necessary to expedite implementation of this initiative for the 2022 fire season.
22
Red Curbs and Visible Signage CONSENT CALENDAR
September 13, 2022
CURRENT SITUATION AND ITS EFFECTS
On June 22, the commission passed a motion to recommend remedial actions to improve emergency vehicle access and residents’ ability to evacuate in the event of an emergency.
Motion: Dean,second: Bradstreet, Vote: 8 Ayes: Bedolla, Dean, Bradstreet, Cutler, Simmons, Degenkolb, Rader, Stein; 0 Noes; 0 Absent:; 0 Abstain:
BACKGROUND
Signage in the Berkeley hills in particular is in various states of disrepair. Without clear signage, in these and other high-risk areas of the City, residents and visitors tend to ignore signage and park in prohibited areas. Parking in restricted areas could result in blocking fire trucks’ ability to get to an emergency and could prevent residents from egress in the event of wildfire. While there is existing law that governs parking near hydrants regardless of red curbing, that tends to be ignored.
As such, red curbing to the maximum distance around hydrants to the extent allowed by law will serve as a reminder of the parking restriction and allow for the fire department to access hydrants in case of fire. Lastly, we ask for further interdepartmental discussions around identifying pinch points for fire trucks where red curbing those pinch points would allow for fire truck access in case of emergencies. In cases where there is no sidewalk, the edge of the asphalt could be painted to serve the same purpose.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There is no direct environmental impact of this recommendation.
RATIONALE FOR RECOMMENDATION
The rationale is to improve emergency vehicle ingress during common emergencies and in the event of wildfire, and to improve emergency public egress in case of wildfire while we await a larger discussion around the Safe Passages program.
ALTERNATIVE ACTIONS CONSIDERED
There is no alternative to improving existing signage and red-curbing around fire hydrants other than delayed or no action. Not red curbing the areas around the fire hydrants and focusing on parking enforcement is another possible approach but would require substantially increased parking enforcement.
CITY MANAGER
The City Manager concurs with the content and recommendations of the Commission’s Report. The Fire Department has already begun to address replacement of all existing “No Parking” signs that have faded and the repainting of all existing Red Curbs in Fire Zones 1, 2, and 3.
Red Curbs and Visible Signage CONSENT CALENDAR
September 13, 2022
Funding has been allocated within Measure FF to initiate this project. The Fire Department will evaluate what the one-time fees will be to update the painting of curbs, replacement of signs, and then analyze continual maintenance costs.
The Safe Passages Project is aimed at mitigation of wildfire risks by supporting Berkeley’s Emergency Evacuation Plan and helping to keep emergency ingress and egress routes accessible.
CONTACT PERSON
Keith May, Secretary, Disaster and Fire Safety Commission, 510-981-5508
Mental Health Commission
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Mental Health Commission
Submitted by: Dr. Margaret Fine, Mental Health Commission Chair Subject: Appointment of Judy Appel to Mental Health Commission for the City of Berkeley
RECOMMENDATION
Adopt a Resolution appointing Judy Appel as a representative of the Special Public Interest Category (family member), to complete her first 3- year term beginning September 14, 2022 and ending September 13, 2025.
FISCAL IMPACTS OF RECOMMENDATION
None.
CURRENT SITUATION AND ITS EFFECTS
The Mental Health Commission is authorized to be composed of thirteen members.
However, there are presently five vacancies on the Commission. The Mental Health Commission is actively seeking candidates with the ability to fulfill the state law duties for Commissioners, including reviewing and evaluating the community’s needs, services, facilities and special problems. Approval of the recommended action will fill one vacancy and allow the Commission to move one step closer to having a full and diverse complement of commissioners.
BACKGROUND
California State law requires that appointments to the Mental Health Commission meet specific categories, who may serve up to nine years consecutively. The general public interest category may include anyone who has an interest in and some knowledge of mental health services. The special public interest category includes direct consumers of public mental health services and family members of consumers, which together must constitute at least fifty percent or nine of the commission seats. Direct consumers and family members shall each constitute at least 20% of the commission membership.
The Mental Health Commission nominated Judy Appel as a special public interest consumer applicant for appointment to the Mental Health Commission for the City of Berkeley for a three-year term. She grew up with a sister who was close in age and who
23
Appointment of Judy Appel to the MHC CONSENT CALENDAR
September 13, 2022
had severe psychiatric disabilities. She was in mental health programs and hospitals much of her life, so Judy has that personal experience which in many ways that informs her professional experience. Her sister died several years ago.
Judy Appel is a long-time Berkeley resident with a deep commitment to supporting Berkeleyans living with mental health and substance use issues and disabilities. She currently serves on the Board of Directors for the Ashby Village and is a non-profit organizational development consultant. She is committed to addressing diversion for people calling 911 who need emergency mental health and substance use services in the community and moreover, avoiding involvement in the criminal legal system and incarceration. She has worked with very diverse populations of people impacted by mental health and substance use challenges, including for people experiencing homelessness.
In addition, Judy is a strong supporter of mental health and substance use services for young people in need. She was elected to the School Board for Berkeley Unified School District in 2012 and 2016 and served two times as President. She provided policy direction for educational instruction with a focus on closing the opportunity gap for students of color and low-income students. The School Board oversees a budget of $160M from local, state, and federal sources and directs budgeting and fiscal oversight.
She has lead School Board efforts to implement restorative justice, social-emotional learning, and trauma-informed practices at multiple school sites.
Further Judy served as a Senior Program Officer and Director of Special Projects for the Jonathan Logan Family Foundation. She managed a broad range of education portfolios and grantees focused on social justice projects, equity, and inclusion. She also leveraged an extensive network to secure involvement from community leaders and influencers on foundation initiatives, including a broad range of local, national, and global grantees.
The Mental Health Commission passed the following motions at the June 23, 2022 meeting:
M/S/C (Fine, Prichett) Motion to nominate Judy Appel to the Mental Health Commission Ayes: Fine, Jones, Opton, Pritchett Noes: None; Abstentions: None; Absent: Escarcega; Taplin
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.
Appointment of Judy Appel to the MHC CONSENT CALENDAR
September 13, 2022
RATIONALE FOR RECOMMENDATION
Approval of the recommended action will allow the Mental Health Commission to move one step closer to having a full and diverse complement of commissioners to review and evaluate the community’s mental health needs, resources, and programs.
ALTERNATIVE ACTIONS CONSIDERED
None.
CITY MANAGER
The City Manager takes no position.
CONTACT PERSON
Jamie Works-Wright, Commission Secretary, HHCS, 510-981-7721 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
APPOINTMENT OF JUDY APPEL TO THE MENTAL HEALTH COMMISSION WHEREAS, membership of the Mental Health Commission is composed of thirteen appointments by the City Council as a whole, including one appointment by the Mayor (or designee), six special public interest appointments, and four general public interest appointments; and
WHEREAS, with the ongoing implementation of the Mental Health Services Act, the City of Berkeley will need to have a full complement of diverse appointees to the Commission to review and evaluate the community's mental health needs, resources, and programs and to fulfill its mandate; and
WHEREAS, Ms. Judy Appel has an investment in the mental health community and has family lived experience,
WHEREAS, the Mental Health Commission at its June 23, 2022 meeting recommended appointments of Judy Appel.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council appoint Judy Appel as a representative of the Special Public Interest family member category, to complete her first term ending September 13, 2025.
Peace and Justice
Commission
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
September 13, 2022
To: Honorable Mayor and Members of the City Council
From: Peace and Justice Commission
Submitted by: George Lippman, Chairperson, Peace and Justice Commission Subject: Taking Action on the City of Berkeley’s Commitment to Abortion Access
RECOMMENDATION
Adopt a Resolution Taking Action on the City of Berkeley’s Commitment to Abortion Access.
FISCAL IMPACTS OF RECOMMENDATION
Minimal impact to staff time.
CURRENT SITUATION AND ITS EFFECTS
Roe v. Wade, the landmark U.S. Supreme Court decision recognizing and confirming the right to privacy in the federal Constitution protects the right for pregnant people to choose to have an abortion prior to viability, is in imminent danger of being overturned At its regular meeting of June 6, 2022, the Peace and Justice Commission unanimously proposed the attached resolution for the City Council.
M/S/C: (Bohn/Morizawa)
Ayes: Bohn, Gussman, Jacqulin, Lee, Lippman, Maran, Morizawa Noes: None
Abstain: None
Absent: Leon-Maldonado, Rodriguez
BACKGROUND
On January 18, 2022, the Berkeley City Council adopted a resolution entitled “Reaffirming the City of Berkeley’s Commitment to Roe v. Wade and Access to Safe
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Taking Action on the City of Berkeley’s Commitment to Abortion Access Consent Calendar
September 13, 2022
Reproductive Health Services,” stating its “support for women to be able to exercise their constitutional rights and continue have access to critical health care services, including abortion.”
Limiting access to reproductive healthcare, including systematically stripping pregnant people of access to abortion, is not only a transgression against basic human reproductive rights but is also an assault on dignity.
Dozens of states have already taken legal action to limit or ban abortion, potentially stripping millions of people of reproductive care and endangering thousands of healthcare workers, including nurses and doctors who have dedicated their lives to caring for those in need.
California Governor Gavin Newsom has taken a number of steps, in anticipation of a Supreme Court ruling to overturn Roe v. Wade, to protect access to abortion for Californians and others across the country. These actions include the formation of the California Future of Abortion Council (CA-FAB Council), which has issued 45 recommendations including among many others:1
Assistance to the expected up to 1.4 million visitors to the state seeking abortion services, as well as to the providers that will serve them.2 Comprehensive community survey and research to identify unmet educational and health needs of California residents. To accurately assess the needs and preferences of people experiencing barriers to care, a survey must be conducted, and data analyzed on all of the following:
– The educational and health awareness needs of populations most impacted by lack of access to abortion.
– Community preferences for types of abortion services and levels of care. – How youth/young people access sexual and reproductive health services and education.
– Access to telehealth and preference for various modalities when receiving sexual and reproductive care, including abortion services.
ENVIRONMENTAL SUSTAINABILITY
1 “California plans to be abortion sanctuary if Roe overturned,” AP News, December 8, 2021, https://apnews.com/article/abortion-california-sanctuary-625a118108bcda253196697c83548d5b > https://www.plannedparenthoodaction.org/uploads/filer_public/d8/e1/d8e17825-72e0-4f6f-9c57- 7549bb54261e/ca_fab_council_report_.pdf
0 2 https://states.guttmacher.org/
Taking Action on the City of Berkeley’s Commitment to Abortion Access Consent Calendar
September 13, 2022
No significant impacts.
RATIONALE FOR RECOMMENDATION
The East Bay is home to a number of nonprofit healthcare providers that provide free or low-cost reproductive care, including abortion. The demand for abortion access is likely to increase greatly, making cities like Berkeley a destination for individuals seeking care that may be made illegal in their home cities and states.
Research and study that is locally directed, grassroots-oriented, comprehensively diverse, and collaboratively designed by staff, commissions, community members, advocates and other subject matter experts will contribute a great deal to local and state policy-makers.
For this reason the Peace and Justice Commission proposes Council refer to the Commission a request to collaborate with the listed Commissions, Boards, and Departments among others to study what resources exist for reproductive health and educational services, what obstacles residents of Berkeley face in accessing them, and what disparities may exist on the basis of race and class; and give an interim report to the City Council on what actions should be taken to address such limitations on reproductive rights and services for Berkeley’s residents, within four months.
ALTERNATIVE ACTIONS CONSIDERED
None
CITY MANAGER
The City Manager takes no position on the content and recommendations of the Commission’s Report.
CONTACT PERSON
George Lippman, Chair, Peace and Justice Commission
Okeya Vance-Dozier, Commission Secretary, City Manager’s Office, (510) 684-0503 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
Resolution Taking Action on the City of Berkeley’s Commitment to Abortion Access WHEREAS, the Peace and Justice Commission advises the City Council on all matters relating to the City of Berkeley's role in issues of peace and social justice (Berkeley Municipal Code Chapter 3.68.070); and
WHEREAS, limiting access to reproductive healthcare, including systematically stripping pregnant people of access to abortion, is not only a transgression against basic human reproductive rights but is also an assault on dignity;i and WHEREAS, Roe v. Wade, the landmark U.S. Supreme Court decision recognizing and confirming the right to privacy in the federal Constitution protects the right for pregnant people to choose to have an abortion prior to viability, is in imminent danger of being overturned; and
WHEREAS, dozens of states have already taken legal action to limit or ban abortion, potentially stripping millions of people of reproductive care and endangering thousands of healthcare workers, including nurses and doctors who have dedicated their lives to caring for those in need; and
WHEREAS, the East Bay is home to a number of nonprofit healthcare providers that provide free or low-cost reproductive care, including abortion; and WHEREAS, the Berkeley City Council passed a resolution on January 18, 2022, reaffirming Berkeley’s commitment to Roe v. Wade, stating its “support for women to be able to exercise their constitutional rights and continue have access to critical health care services, including abortion;”3 and
WHEREAS, the demand for abortion access is likely to increase greatly, making cities like Berkeley a destination for individuals seeking care that may be made illegal in their home cities and states.
THEREFORE BE IT RESOLVED, that the Council of the City of Berkeley declares Berkeley to be a Right-To-Choose Sanctuary City, recognizing that anyone should have a right to abortion, on-demand, and without question.
BE IT FURTHER RESOLVED, that the Council of the City of Berkeley urges the State of California and Alameda County to increase funding for reproductive rights and abortion 3 https://berkeleyca.gov/sites/default/files/city-council-meetings/2022-01-18%20Agenda%20Packet%20- %20Council%20-%20WEB.pdf
Taking Action on the City of Berkeley’s Commitment to Abortion Access Consent Calendar
September 13, 2022
access.
BE IT FURTHER RESOLVED, that the Council of the City of Berkeley refers this resolution to the Peace and Justice Commission requesting it to collaborate with the Berkeley Unified School District, the Health Department, the Community Health Commission, and the Commission on the Status of Women to study what resources exist for reproductive health and educational services, what obstacles residents of Berkeley face in accessing them, and what disparities may exist on the basis of race and class; and give an interim report to the City Council on what actions should be taken to address such limitations on reproductive rights and services for Berkeley’s residents, within four months.
BE IT FURTHER RESOLVED, that the Council of the City of Berkeley reaffirms its support for codifying the right to an abortion into federal law via HR 3755, The Women’s Health Protection Act of 2021 (Lee & Chu).4
BE IT FURTHER RESOLVED, that the copies of this Resolution be sent to Berkeley’s county, state, and federal legislative representatives, Rep. Judy Chu, Governor Newsom, State Senate President Pro Tempore Toni Atkins, and the BUSD. 4 https://www.congress.gov/bill/117th-congress/house-bill/3766
Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]
CONSENT CALENDAR
September 13, 2022
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín, Councilmember Rigel Robinson, and Councilmember Sophie Hahn
Subject: Pacific Center for Human Growth: Relinquishment of Council Office Budget Funds to General Fund and Grant of Such Funds
RECOMMENDATION
Adopt a Resolution approving the expenditure of an amount not to exceed $1,000 per Councilmember including $1,000 from Mayor Arreguin to the Pacific Center for Human Growth, for the planning and production of a historical quilt to honor their 50th anniversary. Funds would be relinquished to the City’s General Fund for this purpose from the discretionary Council Office Budgets of Mayor Arreguin and any other Councilmembers who would like to contribute.
BACKGROUND
Founded in 1973, the Pacific Center for Human Growth has served the Bay Area’s LGBT+ community for almost 50 years. It is the oldest LGBT+ center in the Bay Area, and third oldest in the nation. The Pacific Center works to enhance the mental health and overall well being of its clients and LGBT+ community by providing support groups, community outreach, facilitated workshops, and culturally responsive therapy. Their programs aim to counter the social and institutional experiences of homophobia, ageism, misogyny, and racism.
The City of Berkeley has an existing partnership with the Pacific Center. In 2010, to better serve individuals in underserved populations who have been exposed to trauma, the City signed a contract with the Pacific Center. Through this, the Mental Health Division partners with the Pacific Center to provide trauma support services to the LBGT+ population. This contract continues today, which was last extended in July 2022.
To commemorate their 50th anniversary in the spring of 2023, the Pacific Center plans on creating a historical quilt. A local artist will design the quilt using testimonies from community members on how the Pacific Center has supported them. These stories will be presented visually on the quilt, which will create a sense of community and connectedness. To make this project happen, the Pacific Center is requesting $3,500, which will be used for labor, materials, and related expenses (details in Attachment 2).
FINANCIAL IMPLICATIONS
25
Pacific Center 50th Anniversary Quilt CONSENT CALENDAR
September 13, 2022
No General Fund impact; $1,000 is available from Mayor Arreguín’s Council Office Budget discretionary account.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.
CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1: Resolution
2: Description of 50th Anniversary Quilt Project
RESOLUTION NO. ##,###-N.S.
AUTHORIZING THE EXPENDITURE OF SURPLUS FUNDS FROM THE OFFICE
EXPENSE ACCOUNTS OF THE MAYOR AND COUNCILMEMBERS FOR A GRANT
TO PROVIDE PUBLIC SERVICES FOR A MUNICIPAL PUBLIC PURPOSE WHEREAS, Mayor Jesse Arreguin has surplus funds in his office expenditure account; and
WHEREAS, a California non-profit tax exempt corporation, the Pacific Center for Human Growth seeks funds in the amount of $3500 to provide the following public services; to develop a historical quilt to commemorate their 50th anniversary, which will feature personal stories and testimonies about how the Pacific Center has meant to them; and
WHEREAS, the provision of such services would fulfill the following municipal public purpose of creating a sense of community and connectedness and advancing their causes of improving mental health in the LGBT+ community.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that funds relinquished by the Mayor and Councilmembers from their Council Office Budget up to $1,000 per office shall be granted to the Pacific Center for Human Growth.
Pacific Center for Human Growth: Honoring 50 Years Building LGBTQIA+ Community Wellness Pacific Center for Human Growth (“PC”) is thrilled to celebrate 50 years of building community wellness for the East San Francisco Bay Area’s diverse LGBTQIA+ communities. The Pacific Center is the oldest LGBTQIA+ community center in the Bay Area and the third oldest in the nation.
Pacific Center requests a one time project support grant of $3,500 from the City of Berkeley to support the planning and production of a historical quilt to honor our “golden” (50th) anniversary in spring 2023.
The vision for a historical quilt emerged from a local artist who approached Pacific Center to offer their vision of a collaborative project that will engage LGBTQIA+ community members in sharing their personal stories and testimonies about what Pacific Center has meant to them. Using a variety of media, the artist will facilitate a series of online or socially distanced workshops to support participants to tell their stories in a visual form.
Rooted in the East San Francisco Bay Area, we serve LGBTQIA+ community members from age nine through senior adulthood. Our peer groups, clinical program, training, and outreach activities positively impact a broad spectrum of LGBTQIA+ community members across age, race/ethnicity, and gender identities.
For 49 years, PC has provided accessible, culturally responsive mental health services and peer-driven community engagement programs. Our programs serve to counter the social and institutional experiences of homophobia, ageism, misogyny, and racism which present ongoing challenges to the wellbeing of LGBTQIA+/BIPOC community members.
The collaborative process inherent to the quilt project will increase participants’ sense of connectedness, decrease isolation, and create a legacy project to be enjoyed by many for decades to come.
Project Budget
A one-time project grant of $3,500 will enable Pacific Center to purchase materials, compensate the labor of a Project Coordinator for 100 hours of work at a living wage of $25.00 per hour, and cover overhead expenses.
Expense Total Details
Labor $ 2,500.00 Project Coordinator at 100 Hours x $25.00 hour Materials $ 500.00 Fabric, paper, ink, paint, other Overhead $ 500.00 Technology platforms supporting safe and accessible meetings including Zoom, Google Workspace, Rev Live Captions
TOTAL REQUEST $ 3,500.00
2712 Telegraph Avenue, Berkeley, CA 94705 Phone: 510.548.8283 Fax: 510.548.2938 www.pacificcenter.org
Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]
CONSENT CALENDAR
September 13, 2022
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín, Councilmember Sophie Hahn
Subject: Ordinance Amendment: Correction to the COVID-19 Emergency Response Ordinance, BMC Chapter 13.110.
RECOMMENDATION
Adopt the first reading of an Ordinance correcting BMC Chapter 13.110, the COVID-19 Emergency Response Ordinance, to clarify the effect of Ordinance No. 7,762-N.S. upon tenant protections that were inadvertently omitted during the last update of BMC Chapter 13.110.
BACKGROUND
The City of Berkeley declared a local State of Emergency on March 3, 2020 in response to the COVID-19 pandemic, first detected globally in late December 2019. Shortly thereafter, Council passed BMC Chapter 13.110 - the COVID-19 Emergency Response Ordinance (“Chapter 13.110”) - prohibiting most evictions in Berkeley, which has been subsequently updated over the past couple of years. There is currently no timeline as to when the local State of Emergency will end, and even when the health crisis is no longer a significant threat to the community, the economic ramifications of COVID-19 will be felt for some time in the future.
Chapter 13.110 has been updated a total of five times: Ordinance No. 7,693-N.S. approved on March 17, 2020; Ordinance No. 7,698-N.S., approved on April 21, 2020; Ordinance No. 7,704-N.S. approved on May 26, 2020; Ordinance No. 7,743-N.S. approved on December 15, 2020; and Ordinance No. 7,762-N.S. approved on May 11, 2021. The intent of the latest amendment, as mentioned in the report in Attachment 2, was to make just one narrowly tailored amendment to exempt from the provisions of the ordinance commercial leases where the lease has expired and the City has issued a permit for the demolition or substantial alternation of the commercial unit. This was necessary to move forward with existing approved developments that are needed to address the housing affordability crisis and meet the quota of new units as prescribed in the Regional Housing Needs Allocation (RHNA). While the recommendation was clear in the intent of amending Chapter 13.110 for this singular purpose, the amendments made in the ordinance were drafted using an older version of the ordinance, Ordinance 7,698-N.S., as approved on May 26, 2020. Because of this, the amendments that were approved in Ordinance No. 7,704-N.S. on May 26, 2020, and Ordinance No. 7,743-N.S. on December 15, 2020 were inadvertently omitted from the text of Ordinance No. 7,762- N.S.
26
COVID-19 Emergency Response Ordinance Correction CONSENT CALENDAR September 13, 2022
The amendments made in Ordinance No. 7,743-N.S. were based on recommendations approved by the 4x4 Joint Task Force Committee on Housing. This primarily includes the halting of evictions under the Ellis Act for the duration of the local state of emergency pertaining to the COVID-19 pandemic, in addition to establishment of civil penalties, adding actions that hurt a Resident’s credit rating passed on non-payment of rent as a prohibited retaliation, along with general cleanup language. The changes incorporated and approved by the Council through Ordinance No. 7,743-N.S. has been reinstated in this corrected version of the ordinance.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.
FISCAL IMPACTS OF RECOMMENDATION
None
RATIONALE FOR RECOMMENDATION
This correction is needed to clarify and fully implement the legislative intent of the passage of Ordinance No. 7,762-N.S. This is done by incorporating the changes that were enacted in Ordinance Nos. 7,704-N.S. and 7,743-N.S. and then inadvertently omitted from the text of Ordinance 7,762-N.S.
CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1: Ordinance (clean)
2: Ordinance (track changes)
2: May 11, 2021 Council Item: Amending COVID-19 Emergency Response Ordinance Relating to Commercial Leases
3: Track changes between Ordinance No. 7,743-N.S. and Ordinance No. 7,762-N.S.
ORDINANCE NO. -N.S.
ORDINANCE AMENDING CHAPTER 13.110 OF THE BERKELEY MUNICIPAL CODE, THE COVID-19 EMERGENCY RESPONSE ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The Berkeley Municipal Code Chapter 13.110 is amended to read as follows:
Chapter 13.110
COVID-19 EMERGENCY RESPONSE ORDINANCE
Sections:
13.110.010 Findings and Purpose
13.110.020 Prohibited Conduct
13.110.030 Definitions
13.110.040 Collection of Back Rent and Late Fees
13.110.050 Application
13. 110.060 Implementing Regulations
13.110.070 Waiver
13.110.080 Remedies
13.110.090 Severability
13.110.100 Liberal Construction
13.110.010 Findings and Purposes
International, national, state and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named "SARS-CoV-
2." And the disease it causes has been named "coronavirus disease 2019," abbreviated COVID-19, ("COVID-19"). In response to this emergency, on March 3, 2020, the City Manager acting as the Director of Emergency Services declared a local State of Emergency based on COVID-19 (hereinafter referred to as "the Local Emergency"), which the City Council subsequently ratified on March 10, 2020. 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, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, and July 26, 2022, the council ratified an extension of the local emergency. In addition, on March 4, 2020, the Governor declared a state of emergency in California and the President of the United States declared a national state of emergency on March 13, 2020 regarding the novel coronavirus and COVID-19.
On March 16, 2020, the City of Berkeley Public Health Officer, along with several other neighboring jurisdictions issued a Shelter in Place Order directing all individuals living in the City of Berkeley to shelter at their place of residence except that they may leave to
provide or receive certain essential services or engage in certain essential activities, and prohibiting non-essential gatherings and ordering cessation of non-essential travel. On March 31, 2020 this Shelter in Place Order was extended to May 3, 2020, and restricted activities further.
Furthermore, on March 16, 2020, the Governor issued Executive Order N-28-20, specifically authorizing local governments to halt evictions for commercial tenants, residential tenants, and homeowners who have been affected by COVID-19, emphasizing that the economic impacts of COVID-19 have been significant and could threaten to undermine housing security as many people are experiencing material income loss as a result of business closures, the loss of hours or wages or layoffs related to COVID-19, hindering their ability to keep up with rents, mortgages and utility bills.
The Order also stated that because homelessness can exacerbate vulnerability to COVID-19, Californians must take measures to preserve and increase housing security for Californians to protect public health and specifically stated that local jurisdictions may take measures to promote housing security beyond what the state law would otherwise allow.
On April 21, 2020, Alameda County enacted an urgency ordinance prohibiting eviction for any reason other than withdrawal of rental property under the Ellis Act or court-ordered eviction for public safety. Although the Alameda County ordinance does not have effect within the incorporated area of Berkeley, it is desirable to ensure that Berkeley residents have at least the same level of protection as the residents of unincorporated Alameda County.
During this State of Emergency, and in the interests of protecting the public health and preventing transmission of the COVID-19, it is essential to avoid unnecessary displacement and homelessness. It is the intent of this Ordinance to fully implement the suspension of the statutory bases for eviction for nonpayment of rent and for default in the payment of a mortgage as authorized by Executive Order N-28-20.
At the same time, the Governor, as well as, the Berkeley Health Officer, and those of other jurisdictions ordered the closure of businesses, except those deemed essential.
Many businesses, such as restaurants, are open only for take-out or pick up services and face a critical loss of business.
The City Council is aware that some landlords of commercial properties are seeking significant rent increases during the period when many commercial tenants are closed or are experiencing substantial and catastrophic reductions in their business and income.
Such rent increases force tenants who are closed or have substantially reduced revenues face the choice of accepting a significant rent increase, moving at a time when it is virtually impossible, or closing altogether. Accepting a rent increase while closed or in a reduced state of operations means that the commercial tenants face even more debt to the landlord when the emergency is over, and may face a substantially increased rent when the tenant returns to normal operations, if ever.
Landlords of commercial property that unreasonably increases rents on tenants of commercial property during the COVID-19 emergency significantly impacts vulnerable small businesses, nonprofits, and artists who form a large part of the backbone of Berkeley’s economy, revenue sources, and employment opportunities These rent increases are coming at a time when the commercial rents are likely falling due to business closures and potential loss of businesses at the end of the emergency. Thus, these rent increases appear as a way of evading the Governor’s and Berkeley’ s commercial tenant eviction moratorium by forcing tenants to agree to rent increases or leave. Such conduct constitutes constructive evictions in contravention of the eviction moratorium. Furthermore, such rent increases may affect businesses providing goods and essential services, resulting in increases in those costs of essential goods and services contravening the intent of anti-price gouging laws.
On expiration of leases when the emergency order is in place, unreasonable rent increases have already forced the closure of businesses and will result in closing of additional business causing loss of income for the business owners, loss of employment for the employees and of revenue to the city, and an increase in homelessness. To reduce the spread of COVID-19, it is essential to avoid unnecessary displacement and homelessness. Because of the emergency restrictions, businesses forced out due to increased rents will be unable to move to new locations and new businesses will be unable to open during this emergency period. During a state of emergency cities have extraordinary powers and jurisdiction to create legislation in order to counteract the effects of the emergency situation on its people and businesses. Protecting tenants from excessive rent increases will prevent additional loss of employment and essential services for Berkeley residents. In order to effectively implement an eviction moratorium, the City Council finds it imperative to prevent constructive eviction through unreasonable rent increases.
Accordingly, the City of Berkeley adopts the following amendments to Berkeley Municipal Code Chapter 13.110.
13.110.020 Prohibited Conduct
A. During the Covered Period, no Landlord or Lender shall evict or attempt to evict a Resident of real property, or otherwise require a Tenant to vacate, unless necessary to stop an imminent threat to the health and safety of other occupants. For purposes of this Ordinance, the basis for an exception to this Ordinance cannot be the Resident’s COVID- 19 illness or exposure to COVID-19, whether actual or suspected.
B. Residential Eviction Moratorium. It shall be a complete defense to any action for unlawful detainer that the notice upon which the action is based was served or expired, or that the complaint was filed or served, during the Covered Period.
C. No landlord of an Impacted Business or Nonprofit may upon expiration of a lease increase rent for an Impacted Business or Nonprofit in an amount greater than ten (10) percent over the rent in effect at the commencement of the local emergency declared by
the Director of Emergency Services. For purposes of this section, rent means all consideration for the use and enjoyment of the rented premises, including base rent and any additional rent or other charges for costs such as utilities, maintenance, cleaning, trash removal, repairs and any other charges to the tenant required under the rental agreement. This section 13.110.020 C. shall expire on May 31, 2020, concurrent with Executive Order N-28-20; provided, however, that this section shall be automatically extended if Executive Order N-28-20 is extended or the tenant protections therein are extended pursuant to another Governor’s Executive Order.
D. For the duration of the Covered Period, if a tenant has a Covered reason for delayed payment, the tenant may terminate a lease or rental agreement with 30 days ’notice without penalty. A tenant may also exercise rights under this subsection if the tenants or roommates of the tenants are or were registered at an educational institution that cancelled or limited in-person classes due to the COVID-19 pandemic.
13.110.030 Definitions
A. “Covered Period” means the period of time beginning with March 17, 2020 and concluding upon the expiration of the local emergency. However, the City Council may vote by resolution to extend the duration of the Covered Period.
B. "Covered Reason for Delayed Payment" means:
(1) The basis for the eviction is nonpayment of rent, arising out of a material decrease in household, business, or other rental unit occupant(s)’s income (including, but not limited to, a material decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or to caregiving responsibilities, or a material decrease in business income caused by a reduction in opening hours or consumer demand), or material out-of-pocket medical expenses, or a reduction in the number of tenants living in the unit (including due to difficulty finding new tenants and/or subtenants willing and able to cover a sufficient share of rent) which reduces the ability of the remaining tenants to pay rent, or a rent increase that exceeds the Annual General Adjustment for the current year; and
(2) The decrease in household, business, or other rental unit occupant’s income or the expenses or reduction in number of tenants described in subparagraph (1) was caused by the impacts of COVID-19 pandemic, or by any local, state, or federal government response to COVID-19.
C. “Delayed Rent Payment Agreement” means a mutual agreement between a landlord and tenant regarding the timing and amount of payments for rent that is delayed by a Covered Reason for Delayed Payment.
D. “Homeowner” means the owner or owners of a Residential Unit subject to a mortgage or similar loan secured by the residential unit. “Homeowner” is limited to owners who reside in the unit and includes the individuals residing in the unit with the homeowner.
E. “Impacted Business or Nonprofit” means a business or nonprofit organization that had a business license in 2019 or 2020 in the City of Berkeley or is a registered nonprofit in either or both of those years and:
1. whose operation has been shut down due to the COVID-19 emergency, or
2. that is unable to accept customers at its location and is open for limited virtual, take-out or pickup services only, or
3. who suffered a material loss of income.
F. "Landlord" includes owners, lessors, or sublessors of either residential or commercial rental property, and the agent, representative, or successor of any of the foregoing.
G. "Lender” means the mortgagee of a purchase money or similar mortgage, or the holder or beneficiary of a loan secured by one or more units, which person has the right to mortgage or similar payments from the owner as mortgagor, including a loan servicer, and the agent, representative, or successor of any of the foregoing.
H. “Resident” means a Tenant, Homeowner, or their household.
I. "Tenant" includes a tenant, subtenant, lessee, sublessee, lodger or any other person entitled by written or oral rental agreement to use or occupancy of either residential or commercial property.
13.110.040 Collection of Back Rent and Late Fees
A. Nothing in this Chapter shall relieve the tenant of liability for unpaid rent, which the landlord may seek after expiration of the local State of Emergency. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment. The City will develop standards or guidelines for tenants to repay unpaid rent accrued during the Covered Period course of the local State of Emergency. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.
B.
1. For rent accrued through January 31, 2021, Tenants shall have until March 31, 2022, or the date adopted by state law, as applicable, to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").
2. For rent accrued beginning February 1, 2021, Tenants shall have until twenty-four (24) months after the conclusion of the Covered Period to pay rent that was delayed by a Covered Reason for Delayed Payment, or the period of time adopted by state law, as applicable, unless the landlord and tenant come to a mutual repayment agreement ("Delayed Rent Payment Agreement").
3. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment.
C. A Tenant is not required to provide documentation to the Landlord in advance to qualify for the delayed repayment of rent. However, upon the request of a Landlord, a Tenant shall provide such documentation to the Landlord within forty-five (45) days after the request or within thirty (30) days after the Covered Period, whichever is later. A declaration sworn under penalty of perjury shall constitute documentation for the purpose of this requirement. In the case of nonpayment of rent, the failure of a Tenant to notify the landlord in advance of being delinquent in the payment of rent prior to being served with a notice pursuant to Code of Civil Procedure sections 1161(2) et seq. does not waive the Tenant’s right to claim this Chapter as a complete defense to nonpayment of rent in an unlawful detainer action.
D. Any medical or financial information provided to the landlord shall be held in confidence, and shall not be disclosed to other entities unless such disclosure is permitted or required by the law, or unless the tenant explicitly authorizes the disclosure of the information in writing.
E. Any relief from the City of Berkeley either directly to a property owner on their own application or as a pass through for City relief payments to the tenant shall directly reduce the amount of any rent that was delayed by a Covered Reason for Delayed Payment.
This requirement shall be applied into any Delayed Rent Payment Agreement, regardless of the terms of that agreement.
13.110.050 Application
A. This Chapter applies to eviction notices and unlawful detainer actions based on notices served, filed, or which expire during the Covered Period. It does not apply to commercial leases where the term has expired and the City has issued a permit for the demolition or substantial alteration of the commercial unit, or to units ordered by the City to be vacated for the preservation of public health, including where the City deems necessary to control the spread of COVID-19.
B. Except where expressly required by state law (such as Assembly Bill 3088 or any subsequent statewide COVID-19 relief legislation), a landlord may seek rent accrued during the Covered Period as set forth in Section 13.110.040, but may not file an action pursuant to Code of Civil Procedure sections 1161(2) et seq. or otherwise seek to recover possession of a rental unit based on the failure to pay rent that accrued during the Covered Period. In any action to evict based on alleged nonpayment of rent, it shall be a complete defense to such action if any part of the rent in dispute accrued at any time during the Covered Period, or if the action otherwise demands any fees or amounts contrary to the provisions of this Chapter. A landlord shall not apply any rent payment towards rent that is delayed by a Covered Reason for Delayed Payment before applying it towards any other Rent owed without the explicit written permission of the Tenant.
C. A Landlord or Lender shall not retaliate against a Resident for exercising their rights under this Ordinance, including but not limited to shutting off any utilities reducing services or amenities, refusing to make or delaying repairs to which the Resident would otherwise be entitled, or taking actions which hurt the Resident’s credit rating based on non- payment of rent during the Covered Period as allowed under this ordinance.
D. In addition to the affirmative defenses set forth above, in any action to recover possession of a rental unit filed under Berkeley Municipal Code section 13.76.130(A)(1), it shall be a complete defense that the landlord impeded the tenant’s effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party.
13.110.060 Implementing Regulations
The City Manager may promulgate implementing regulations and develop forms to effectuate this Ordinance. This includes the option of requiring Landlords and Lenders to give a notice to Residents informing them of this Chapter and the right to seek the benefits of this Chapter.
13.110.070 Waiver.
A. By entering into a Delayed Rent Payment Agreement, Tenants do not waive any rights under this Chapter.
B. Any agreement by a Tenant to waive any rights under this ordinance shall be void and contrary to public policy.
13.110.080 Remedies
A. In the event of a violation of this Ordinance, any person or entity aggrieved by the violation may institute a civil proceeding for injunctive relief, and money actual damages as specified below, and whatever other relief the court deems appropriate.
1. An award of actual damages may include an award for mental and/or emotional distress and/or suffering. The amount of actual damages awarded to a prevailing plaintiff shall be trebled by the Court outside of the presence, and without the knowledge of, the jury, if any, if a defendant acted in knowing violation of, or in reckless disregard for, the provisions of this Chapter.
2. A defendant shall be liable for additional civil penalties of up to five thousand dollars for each violation of this Chapter committed against a person who is disabled within the meaning of California Government Code section 12926, et seq., or aged sixty-five or over.
3. In addition to the above awards of damages in a civil action under this Chapter, a prevailing plaintiff shall be entitled to an award of reasonable attorney’s fees. A prevailing defendant in a civil action under this Chapter shall only be entitled to an award of
attorney’s fees if it is determined by the Court the action was wholly without merit or frivolous.
4. In addition, this Chapter grants a complete defense to eviction in the event that an eviction notice or unlawful detainer action is commenced, filed, or served in violation of this Chapter.
B. The protections provided by this ordinance shall be available to all Residents, regardless of any agreement wherein a Resident waives or purports to waive their rights under this Ordinance, with any such agreement deemed void as contrary to public policy.
C. A. Violations of Section 13.110.020(C) - (Commercial rent restrictions).
1. Violations of Section 13.110.020(C) may be enforced by an administrative fine of up to $1,000 pursuant to Chapter 1.28. Each day a commercial property landlord demands rent in excess of the amount permitted pursuant to Section 13.110.020(C) is a separate violation. The City may also charge the costs of investigating and issuing any notices of violations, and any hearings or appeals of such notices.
2. The City Attorney may refer those violators of Section 13.110.020(C) to the Alameda County District Attorney for redress as a violation of Business and Professions Code section 17200, et seq. or, if granted permission by the District Attorney, may bring an action pursuant to Business and Professions Code section 17200, et seq.
D. Nonexclusive Remedies and Penalties. The remedies provided in this subdivision are not exclusive, and nothing in this Chapter shall preclude any person from seeking any other remedies, penalties or procedures provided by law.
13.110.090 Severability.
If any section, subsection, sentence, clause, phrase, or word of this Chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter. The Council of the City of Berkeley hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.
13.110.100 Liberal Construction
The provisions of this Chapter shall be liberally construed so as to fully achieve its purpose and provide the greatest possible protections to tenants.
Section 2.
Effective Date
This ordinance shall go into effect thirty days from the time of its final passage.
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 the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
ORDINANCE NO. -N.S.
ORDINANCE AMENDING CHAPTER 13.110 OF THE BERKELEY MUNICIPAL CODE, THE COVID-19 EMERGENCY RESPONSE ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. The Berkeley Municipal Code Chapter 13.110 is amended to read as follows:
Chapter 13.110
COVID-19 EMERGENCY RESPONSE ORDINANCE
Sections:
13.110.010 Findings and Purpose
13.110.020 Prohibited Conduct
13.110.030 Definitions
13.110.040 Collection of Back Rent and Late Fees
13.110.050 Application
13. 110.060 Implementing Regulations
13.110.070 Waiver
13.110.080 Remedies
13.110.090 Severability
13.110.100 Liberal Construction
13.110.010 Findings and Purposes
International, national, state and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named "SARS-CoV-
2." And the disease it causes has been named "coronavirus disease 2019," abbreviated COVID-19, ("COVID-19"). In response to this emergency, on March 3, 2020, the City Manager acting as the Director of Emergency Services declared a local State of Emergency based on COVID-19 (hereinafter referred to as "the Local Emergency"), which the City Council subsequently ratified on March 10, 2020. 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, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, and July 26, 2022 the council ratified an extension of the local state of emergency. through June 21, 2020. In addition, on March 4, 2020, the Governor declared a state of emergency in California and the President of the United States declared a national state of emergency on March 13, 2020 regarding the novel coronavirus and COVID-19.
On March 16, 2020, the City of Berkeley Public Health Officer, along with several other neighboring jurisdictions issued a Shelter in Place Order directing all individuals living in the City of Berkeley to shelter at their place of residence except that they may leave to
provide or receive certain essential services or engage in certain essential activities, and prohibiting non-essential gatherings and ordering cessation of non-essential travel. On March 31, 2020 this Shelter in Place Order was extended to May 3, 2020, and restricted activities further.
Furthermore, on March 16, 2020, the Governor issued Executive Order N-28-20, specifically authorizing local governments to halt evictions for commercial tenants, residential tenants, and homeowners who have been affected by COVID-19, emphasizing that the economic impacts of COVID-19 have been significant and could threaten to undermine housing security as many people are experiencing material income loss as a result of business closures, the loss of hours or wages or layoffs related to COVID-19, hindering their ability to keep up with rents, mortgages and utility bills.
The Order also stated that because homelessness can exacerbate vulnerability to COVID-19, Californians must take measures to preserve and increase housing security for Californians to protect public health and specifically stated that local jurisdictions may take measures to promote housing security beyond what the state law would otherwise allow.
On April 21, 2020, Alameda County enacted an urgency ordinance prohibiting eviction for any reason other than withdrawal of rental property under the Ellis Act or court-ordered eviction for public safety. Although the Alameda County ordinance does not have effect within the incorporated area of Berkeley, it is desirable to ensure that Berkeley residents have at least the same level of protection as the residents of unincorporated Alameda County.
During this State of Emergency, and in the interests of protecting the public health and preventing transmission of the COVID-19, it is essential to avoid unnecessary displacement and homelessness. It is the intent of this Ordinance to fully implement the suspension of the statutory bases for eviction for nonpayment of rent and for default in the payment of a mortgage as authorized by Executive Order N-28-20.
At the same time, the Governor, as well as, the Berkeley Health Officer, and those of other jurisdictions ordered the closure of businesses, except those deemed essential.
Many businesses, such as restaurants, are open only for take-out or pick up services and face a critical loss of business.
The City Council is aware that some landlords of commercial properties are seeking significant rent increases during the period when many commercial tenants are closed or are experiencing substantial and catastrophic reductions in their business and income.
Such rent increases force tenants who are closed or have substantially reduced revenues face the choice of accepting a significant rent increase, moving at a time when it is virtually impossible, or closing altogether. Accepting a rent increase while closed or in a reduced state of operations means that the commercial tenants face even more debt to the landlord when the emergency is over, and may face a substantially increased rent when the tenant returns to normal operations, if ever.
Landlords of commercial property that unreasonably increases rents on tenants of commercial property during the COVID-19 emergency significantly impacts vulnerable small businesses, nonprofits, and artists who form a large part of the backbone of Berkeley’s economy, revenue sources, and employment opportunities These rent increases are coming at a time when the commercial rents are likely falling due to business closures and potential loss of businesses at the end of the emergency. Thus, these rent increases appear as a way of evading the Governor’s and Berkeley’ s commercial tenant eviction moratorium by forcing tenants to agree to rent increases or leave. Such conduct constitutes constructive evictions in contravention of the eviction moratorium. Furthermore, such rent increases may affect businesses providing goods and essential services, resulting in increases in those costs of essential goods and services contravening the intent of anti-price gouging laws.
On expiration of leases when the emergency order is in place, unreasonable rent increases have already forced the closure of businesses and will result in closing of additional business causing loss of income for the business owners, loss of employment for the employees and of revenue to the city, and an increase in homelessness. To reduce the spread of COVID-19, it is essential to avoid unnecessary displacement and homelessness. Because of the emergency restrictions, businesses forced out due to increased rents will be unable to move to new locations and new businesses will be unable to open during this emergency period. During a state of emergency cities have extraordinary powers and jurisdiction to create legislation in order to counteract the effects of the emergency situation on its people and businesses. Protecting tenants from excessive rent increases will prevent additional loss of employment and essential services for Berkeley residents. In order to effectively implement an eviction moratorium, the City Council finds it imperative to prevent constructive eviction through unreasonable rent increases.
Accordingly, the City of Berkeley adopts the following amendments to Berkeley Municipal Code Chapter 13.110.
13.110.020 Prohibited Conduct
A. During the local State of EmergencyCovered Period, no Llandlord or Lender other entity shall evict or attempt to evict a n occupant Resident of real property, or otherwise require a Tenant to vacate, unless necessary to stop an imminent threat tofor the health and safety of residentsother occupants. For purposes of this Ordinance, the basis for an exception to this Ordinance cannot be the Resident’s COVID-19 illness or exposure to COVID-19, whether actual or suspected.
B. Residential Eviction Moratorium. It shall be a complete defense to any action for unlawful detainer that the notice upon which the action is based was served or expired, or that the complaint was filed or served, during the local State of EmergencyCovered Period.
C. No landlord of an Impacted Business or Nonprofit may upon expiration of a lease increase rent for an Impacted Business or Nonprofit in an amount greater than ten (10) percent over the rent in effect at the commencement of the local state of emergency declared by the Director of Emergency Services. For purposes of this section, rent means all consideration for the use and enjoyment of the rented premises, including base rent and any additional rent or other charges for costs such as utilities, maintenance, cleaning, trash removal, repairs and any other charges to the tenant required under the rental agreement. This section 13.110.020 C. shall expire on May 31, 2020, concurrent with Executive Order N-28-20; provided, however, that this section shall be automatically extended if Executive Order N-28-20 is extended or the tenant protections therein are extended pursuant to another Governor’s Executive Order.
D. For the duration of the local State of EmergencyCovered Period, if a tenant has a Covered reason for delayed payment, the tenant may terminate a lease or rental agreement with 30 days ’notice without penalty. A tenant may also exercise rights under this subsection if the tenants or roommates of the tenants are or were registered at an educational institution that cancelled or limited in-person classes due to the COVID-19 pandemic.
13.110.030 Definitions
A. “Covered Period” means the period of time beginning with March 17, 2020 and concluding upon the expiration of the local emergency. However, the City Council may vote by resolution to extend the duration of the Covered Period.
B. "Covered Reason for Delayed Payment" means:
(1) the basis for the eviction is nonpayment of rent, arising out of a material decrease in household, business, or other rental unit occupant(s)’s income (including, but not limited to, a material decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or to caregiving responsibilities, or a material decrease in business income caused by a reduction in opening hours or consumer demand), or material out-of-pocket medical expenses, or, a reduction in the number of tenants living in the unit (including due to difficulty finding new tenants and/or subtenants willing and able to cover a sufficient share of rent) in a group living arrangement wherein all tenants are collectively responsible for payment of the rent to the landlord, a reduction in the number of tenants living in the unit which reduces the ability of the remaining tenants to pay the rent, or a rent increase that exceeds the Annual General Adjustment for the current year; and
(2) The decrease in household, business, or other rental unit occupant’s income or the expenses or reduction in number of tenants described in subparagraph (1) was caused by the impacts of COVID-19 pandemic, or by any local, state, or federal government response to COVID-19.
CB.“Delayed Rent Payment Agreement” means a mutual agreement between a landlord and tenant regarding the timing and amount of payments for rent that is delayed by a Covered Reason for Delayed Payment.
D. “Homeowner” means the owner or owners of a Residential Unit subject to a mortgage or similar loan secured by the residential unit. “Homeowner” is limited to owners who reside in the unit and includes the individuals residing in the unit with the homeowner.
EC. “Impacted Business or Nonprofit” means a business or nonprofit organization that had a business license in 2019 or 2020 in the City of Berkeley or is a registered nonprofit in either or both of those years and:
1. whose operation has been shut down due to the COVID-19 emergency, or
2. that is unable to accept customers at its location and is open for limited virtual, take-out or pickup services only, or
3. who suffered a material loss of income.
FD. "Landlord" includes owners, lessors, or sublessors of either residential or commercial rental property, and the agent, representative, or successor of any of the foregoing.
G. “Lender” means the mortgagee of a purchase money or similar mortgage, or the holder or beneficiary of a loan secured by one or more units, which person has the right to mortgage or similar payments from the owner as mortgagor, including a loan servicer, and the agent, representative, or successor of any of the foregoing.
H. “Resident” means a Tenant, Homeowner, or their household.
IE. "Tenant" includes a tenant, subtenant, lessee, sublessee, or any other person entitled by written or oral rental agreement to use or occupancy of either residential or commercial property.
13.110.040 Collection of Back Rent and Late Fees
A. Nothing in this Chapter shall relieve the tenant of liability for unpaid rent, which the landlord may seek after expiration of the local State of Emergency. Notwithstanding any lease provision to the contrary, a landlord may not charge or collect a late fee, fine, or interest for rent that is delayed by a Covered Reason for Delayed Payment. The City will develop standards or guidelines for tenants to repay unpaid rent accrued during the Covered Period course of the local State of Emergency. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.
B. Tenants shall have up to twelve (12) months to pay rent that was delayed by a Covered Reason for Delayed Payment unless the landlord and tenant come to a mutual repayment agreement “Delayed Rent Payment Agreement”). Notwithstanding any lease