Agenda packet — Berkeley City Council, June 6, 2023 (part 1 of 3)

Tuesday, June 6, 2023 REVISED AGENDA Page 1

R E V I S E D AG E N D A
(REVISED CO -SPONSORSH IP IN FORM ATION FOR ITEM 9)

BERKELEY CITY COUNCIL MEETING
Tuesday, June 6, 2023
6:00 PM
SCHOOL DISTRICT BOARD ROOM - 1231 ADDISON STREET, BERKELEY, CA 94702 TELECONFERENCE LOCATION - 1404 LE ROY AVE, BERKELEY 94708

JESSE ARREGUIN, MAYOR
Councilmembers:

DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – MARK HUMBERT
This meeting will be conducted in a hybrid model with both in-person attendance and virtual participation . For in- person attendees, face coverings or masks that cover both the nose and the mouth are encouraged. If you are feeling sick, please do not attend the meeting in person.

Live captioned broadcasts of Council Meetings are available on Cable B -TV (Channel 33) and via internet accessible video stream at http://berkeley.granicus.com/MediaPlayer.php?publish_id=1244.

Remote participation by the public is available through Zoom. To access the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this UR L: https://cityofberkeley- info.zoomgov.com/j/1605182859 . If you do not wish for your name to appear on the screen, then use the drop down menu and click on "rename" to rename yourself to be anonymous. To request to speak, use the “raise hand” icon by rolling over the bottom of the screen. To join by phone: Di al 1-669-254-5252 or 1 -833-568-8864 (Toll Free) and enter Meeting ID: 160 518 2859. If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.

Please be mindful that the meeting will be record ed and all rules of procedure and decorum apply for in-person attendees and those participating by teleconference or videoconference.

To submit a written communication for the City Council’s consideration and inclusion in the public record , email [email protected].

This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953 and applicable Executive Orders as issued by the Governor that are currently in ef fect. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981-6900. The City Council may take action related to any subject listed on the Agenda. Meetings will adjourn a t 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.

Rev - 1

Tuesday, June 6, 2023 REVISED AGENDA Page 2
Preliminary Matters
Roll Call:

Land Acknowledgement Statement: The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch-yoon)), the ancestral and unceded land of the Chochenyo (Cho-chen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County. This land was and continues to be o f great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000 -year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay. We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of this unceded stolen land since the City of Berkeley’s incorporation in 1878. As s tewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today. The City of Berkeley will continue to build relationships with the Lisjan Tribe and to create meaningful actions that uphold the intention of this land acknowledgement.

Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.

City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.

Public Comment on Non-Agenda Matters: Persons will be selected to address matters not on the Council agenda. If five or fewer persons wish to speak, each person selected will be allotted two minutes each. If more than five persons wish to speak, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. Persons attending the meeting in-person and wishing to address the Council on matters not on the Council agenda during the initial ten-minute period for such comment, must submit a speaker card to the City Clerk in person at the meeting location and prior to commencement of that meeting. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda.

Consent Calendar
The Council will first determine whether to move items on the agenda for “Action” or “Information” to the “Consent Calendar”, or move “Consent Calendar” items to “Action.” Three members of the City Council must agree to pull an item from the Consent Calendar or Information Calendar for it to move to Action.

Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.

No additional items can be moved onto the Consent Calendar once public comment has commenced. At any time during, or immediately after, public comment on Information and Consent items, any Councilmember may move any Information or Consent item to “Action.” Following this, the Co uncil will vote on the items remaining on the Consent Calendar in one motion.

For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may spe ak again at the time the matter is taken up during the Action Calendar.

Rev - 2

Tuesday, June 6, 2023 REVISED AGENDA Page 3
Public Comment on Consent Calendar and Information Items Only: The Council will take public comment on any items that are either on the amended Consent Calendar or the Information Calendar. Speakers will be entitled to two minutes each to speak in opposition to or support of Consent Calendar and Information Items. A speaker may only speak once during the period for public comment on Consent Calendar and Information items.

Additional information regarding public comment by City of Berkeley employees and interns: Employees and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such, the department in which they work and state whether they are speaking as an individual or in their official capacity when addressing the Council in open session or workshops.

Consent Calendar

1. Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on June 6, 2023
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.

Financial Implications: Various Funds - $1,061,394
Contact: Henry Oyekanmi, Finance, (510) 981-7300

2. Shelter Plus Care Program Renewal Grants
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to receive funds and execute any agreements and amendments resulting from the renewal of the following grants: 1. Two Shelter Plus Care grants from U.S.

Department of Housing and Urban Development (HUD): a) $3,949,021 for Supportive Housing Collaborative Project (SHC) for the period June 1, 2023 through May 31, 2024; b) $2,327,914 for COACH Project (COACH) for the period of January 1, 2023 through December 31, 2023. 2. One federal Shelter Plus Care grant received via Alameda County in a not-to-exceed amount of $881,045 to provide tenant-based rental assistance to individuals who are chronically homeless and disabled from March 1, 2023 through February 28, 2024.

Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400

Rev - 3
Consent Calendar
Tuesday, June 6, 2023 REVISED AGENDA Page 4

3. Request for Proposal for Martin Luther King, Junior (MLK) House From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to: 1. Release a Request for Proposals (RFP) seeking a new owner/operator for Martin Luther King, Junior (MLK) House currently owned by Resources for Community Development (RCD); and 2. Consider the reallocation of $1,178,974 in 2021 Housing Trust Fund (HTF) Rehabilitation Funding initially awarded to RCD to the new owner/operator of MLK House as part of the transfer of property to help support rehabilitation of the existing housing.

Financial Implications: See report
Contact: Lisa Warhuus, Health, Housing, and Community Services, (510) 981-5400

4. Grant Application: The Surrendered and Abandoned Vessel Exchange (SAVE) Grant Program of the California Division of Boating & Waterways From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or her designee to 1) Apply for and accept a grant in the amount of $60,000 from the California Division of Boating & Waterways (“DBW”) Surrendered and Abandoned Vessel Exchange (SAVE) grant program for the removal and disposal of anticipated abandoned vessels located at the Berkeley Marina; 2) Execute any amendments; and 3) Authorize a local match contribution of $6,000.

Financial Implications: Grant - $60,000
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

5. Contract Amendments for As-needed Trees Services with Bay Area Tree, Hamilton Tree, Professional Tree, and West Coast Arborist From: City Manager
Recommendation: Adopt four Resolutions authorizing the City Manager to amend contracts with Bay Area Tree Specialists (31900202), Hamilton Tree Service (31900193), Professional Tree Care (31900212), and West Coast Arborists (31900218), for as-needed tree services, increasing the amount by $250,000 each.

Financial Implications: See report.

Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

6. Donation from the Bessemer Trust for Tree Planting
From: City Manager
Recommendation: Adopt a Resolution accepting a cash donation in the amount of $7,105 for tree planting at Indian Rock Park and John Hinkel Park from the Bessemer Trust.

Financial Implications: $7,105 (Donation)
Contact: Scott Ferris, Parks, Recreation and Waterfront, (510) 981-6700

Rev - 4
Consent Calendar
Tuesday, June 6, 2023 REVISED AGENDA Page 5

7. Contract: Rebuilding Together East Bay North for Just Transition Pilot Program
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager or their designee to award a contract and execute any amendments, extensions, or change orders with Rebuilding Together East Bay North (RTEBN) in an amount not to exceed $1,500,000 to develop and implement a Just Transition Pilot Program over a two-year period.

Financial Implications: See report
Contact: Jordan Klein, Planning and Development, (510) 981-7400

8. Contract No. 32000020 Amendment: Rincon Consultants, Inc. for On-Call Planning and Environmental Services
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000020 with Rincon Consultants, Inc. to prepare an addendum to the 2023-2031 Housing Element Update Environmental Impact Report (EIR) for the Southside Zoning Implementation Program, increasing the contract amount by $61,000 to a new total not-to-exceed contract amount of $2,061,000.

Financial Implications: See report.

Contact: Jordan Klein, Planning and Development, (510) 981-7400

9. Berkeley City Auditor Whistleblower Program
From: Auditor, Mayor Arreguin (Co-Sponsor), Councilmember Kesarwani (Co- Sponsor), Councilmember Harrison (Co-Sponsor), Councilmember Wengraf (Co-Sponsor)
Recommendation: Adopt a Resolution to support and endorse the City Auditor’s plan to implement a Whistleblower Program. Consistent with the implementation plan, the City Auditor is currently requesting authorization to hire one additional Audit Manager.

Financial Implications: See report
Contact: Jenny Wong, Auditor, (510) 981-6750

Rev - 5
Council Consent Items
Tuesday, June 6, 2023 REVISED AGENDA Page 6

10. Referral to City Manager and City Attorney: Tenant Habitability Plan and Amendments to Relocation Ordinance (Reviewed by the Land Use, Housing, & Economic Development Committee)
From: Mayor Arreguin (Author)
Recommendation:

1. Refer to the City Manager and City Attorney to review and develop proposed amendments to the Berkeley Municipal Code to require a Tenant Habitability Plan for major construction or renovation at tenant occupied properties. Proposed language modeled after the City of Los Angeles’ Tenant Habitability Plan requirements is attached for consideration. The City Manager should also return with information on the costs and staffing needs for implementation for future budget discussions.

2. Refer to the City Manager and City Attorney recommendations from the 4x4 City Council/Rent Board Joint Committee on Housing for amendments to the City’s Relocation Ordinance, BMC Chapter 13.84 to strengthen and improve enforcement of the ordinance.

Policy Committee Recommendation: Forward the item to Council with a positive recommendation that the City Council approve the item with the Author’s updated recommendations as follows:

Financial Implications: See report
Contact: Jesse Arreguin, Mayor, (510) 981-7100

11. Amendments to the COVID-19 Emergency Response Ordinance From: Mayor Arreguin (Author), Councilmember Harrison (Author), Councilmember Hahn (Author), Councilmember Robinson (Author) Recommendation: Adopt first reading of an Ordinance amending Berkeley Municipal Code (BMC) Chapter 13.110, the COVID-19 Emergency Response Ordinance to adjust the required timeline to provide documentation proving that non- payment of rent was for a Covered Reason for Delayed Payment if an Unlawful Detainer is served.

Financial Implications: None
Contact: Jesse Arreguin, Mayor, (510) 981-7100
Rev - 6
Council Consent Items
Tuesday, June 6, 2023 REVISED AGENDA Page 7

12. Budget Referral: Additional Street Maintenance Funding to Improve Pavement Condition, Saving Tax Dollars and Our Streets (Reviewed by the Facilities, Infrastructure, Transportation, Environment & Sustainability Committee) From: Councilmember Kesarwani (Author), Councilmember Humbert (Co- Sponsor), Councilmember Taplin (Co-Sponsor), Councilmember Wengraf (Co- Sponsor)
Recommendation: Refer to the FY 2023-25 biennial budget process to further increase the street paving budget by $4.7 million General Fund in FY 2024-25 for a total street paving budget of approximately $20 million in FY 2024-25.

Policy Committee Recommendation: To send the item to Council with a positive recommendation.

Financial Implications: See report
Contact: Rashi Kesarwani, Councilmember, District 1, (510) 981-7110

13. Bench Donation: Relinquishment of Council Office Budget Funds to General Fund and Grant of Such Funds
From: Councilmember Bartlett (Author)
Recommendation: Adopt a Resolution approving the expenditure of funds, including $3500 from Vice Mayor Bartlett for creating a community bench in memory of the efforts of community members made in 2020 on the Black Lives Matter movement, with funds relinquished to the City’s General Fund for this purpose from the discretionary council office budget of Vice Mayor Bartlett and any other Councilmembers who would like to contribute.

Financial Implications: Councilmember's Discretionary Funds - $3,500 Contact: Ben Bartlett, Councilmember, District 3, (510) 981-7130

14. Berkeley Juneteenth Festival: Relinquishment of Council Office Budget Funds to General Fund and Grant of Such Funds
From: Councilmember Bartlett (Author), Councilmember Hahn (Co-Sponsor) Recommendation: Adopt a Resolution approving the expenditure of funds, including $1000 from Vice Mayor Bartlett for pre-planning of the Berkeley Juneteenth Festival (organized by Berkeley Juneteenth Association, Inc. 501(c)3), with funds relinquished to the City’s General Fund for this purpose from the discretionary council office budget of Vice Mayor Bartlett and any other Councilmembers who would like to contribute.

Financial Implications: Councilmember's Discretionary Funds - $1,000 Contact: Ben Bartlett, Councilmember, District 3, (510) 981-7130

15. Refer $7,000 to the June 2023 Budget Process to Purchase Marking Equipment to Engrave Identification Numbers onto Catalytic Converters From: Councilmember Harrison (Author), Councilmember Hahn (Co-Sponsor) Recommendation: Referral to the June 2023 Budget Process for $7,000 to purchase marking equipment to engrave identification numbers onto catalytic converters to deter theft and assist with investigations and recovery efforts.

Financial Implications: $7,000
Contact: Kate Harrison, Councilmember, District 4, (510) 981-7140 Rev - 7
Council Consent Items
Tuesday, June 6, 2023 REVISED AGENDA Page 8

16. Referring $15,000 to the June 2023 Budget Process for a City Recreational Vehicle Pump-Out Station
From: Councilmember Harrison (Author)
Recommendation: Refer $15,000 to the June 2023 Budget Process in Measure P funds for City recreational vehicle pump-out station, including minimal staffing costs, liability, maintenance, and replacement costs to allow individuals to discharge effluent waste directly into the City’s sewer system.

Financial Implications: $15,000
Contact: Kate Harrison, Councilmember, District 4, (510) 981-7140

17. Support for SB-233 (Skinner)
From: Councilmember Wengraf (Author), Councilmember Harrison (Co- Sponsor), Councilmember Hahn (Co-Sponsor), Councilmember Bartlett (Co- Sponsor)
Recommendation: Approve a letter to Senator Skinner in support of SB-233 (Skinner) Electric vehicles and electric vehicle supply equipment: bidirectional capability, and send copies to Assemblymember Wicks and Governor Newsom.

Financial Implications: None
Contact: Susan Wengraf, Councilmember, District 6, (510) 981-7160

Action Calendar
The public may comment on each item listed on the agenda for action. For items moved to the Action Calendar from the Consent Calendar or Information Calendar, persons who spoke on the item during the Consent Calendar public comment period may speak again during one of the Action Calendar public comment periods on the item. Public comment will occur for each Action item (excluding public hearings, appeals, and/or quasi-judicial matters) in one of two comment periods, either 1) before the Action Calendar is discussed; or 2) when the item is taken up by the Council.

A member of the public may only speak at one of the two public comment periods for any single Action item.

The Presiding Officer will request that persons wishing to speak line up at the podium, or use the "raise hand" function in Zoom, to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. S peakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.

Action items may be reordered at the discretion of the Chair with the consent of Council.

Action Calendar – Scheduled Public Comment Period
During this public comment period, the Presiding Officer will open and close a comment period for each Action item on this agenda (excluding any public hearings, appeals, and/or quasi -judicial matters). The public may speak on each item. Those who speak on an item during this comment period may not speak a second time when the item is taken up by Council.

Rev - 8

Tuesday, June 6, 2023 REVISED AGENDA Page 9
Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. For certain hearings, this is followed by five-minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak line up at the podium, or use the "raise hand" function in Zoom, to be recognized and to determine the number of persons interested in speaking at that time.

Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker.

Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may with the consent of persons representing both sides of an issue allocate a block of time to each side to present their issue.

When applicable, each member of the City Council shall verbally disclose all ex parte contacts concerning the subject of the hearing. Councilmembers shall also submit a report of such contacts in writing prior to the commencement of the hearing. Written reports shall be available for public review in the office of the City Clerk.

18. Bird Safe Building Requirements; Adding Berkeley Municipal Code Section

23.304.150
From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt first reading of an ordinance adding Berkeley Municipal Code Section 23.304.150 establishing Bird Safe Building requirements (“bird safe requirements”) for projects that require a building permit.

Financial Implications: See report
Contact: Jordan Klein, Planning and Development, (510) 981-7400

Action Calendar – New Business

19. 2022 Police Equipment & Community Safety Ordinance Annual Report From: City Manager
Recommendation: Adopt a Resolution approving the 2022 Equipment Ordinance Annual Report.

Financial Implications: See report
Contact: Jennifer Louis, Police, (510) 981-5900
Information Reports

20. Police Overtime Audit Report Wins National Recognition From: Auditor
Contact: Jenny Wong, Auditor, (510) 981-6750
Public Comment – Items Not Listed on the Agenda
Adjournment
Rev - 9

Tuesday, June 6, 2023 REVISED AGENDA Page 10
NOTICE CONCERNING YOUR LEGAL RIGHTS : If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsu it not filed within that 90 -day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.

Archived indexed video streams are available at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas.

Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.

Communications to the City Council are public record and will become part of the City’s electron ic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service to the City Clerk Department at 2180 Milvia Street. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk Department for further information.

Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the public counter at the City Clerk Department located on the first floor of City Hall located at 2180 Milvia Street as well as posted on the City's website at https://berkeleyca.gov/.

Agendas and agenda reports may be accessed via the Internet at:
https://berkeleyca.gov/your-government/city-council/city-council-agendas and may be read at reference desks at the following locations:

City Clerk Department - 2180 Milvia Street, First Floor Tel: 510-981-6900, TDD: 510-981-6903, Fax: 510-981-6901 Email: [email protected]

Libraries: Main – 2090 Kittredge Street,
Claremont Branch – 2940 Benvenue, West Branch – 1125 University, North Branch – 1170 The Alameda, Tarea Hall Pittman South Branch – 1901 Russell

COMMUNICATION ACCESS INFORMATION:

This meeting is being held in a wheelchair accessible location.

To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at (510) 981-6418 (V) or (510) 981-6347 (TDD) at least three business days before the meeting date.

Attendees at public meetings are reminded that other attendees may be sensitive to various scents, whether natural or manufactured, in products and materials. Please help the City respect these needs.

Rev - 10

Tuesday, June 6, 2023 REVISED AGENDA Page 11
Captioning services are provided at the meeting, on B -TV, and on the Internet. In addition, assisted listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to be returned before the end of the meeting.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the agenda for this meeting of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on May 26, 2023.

Mark Numainville, City Clerk

Communications
Council rules limit action on Communications to referral to the City Manager and/or Boards and Commissions for investigation and/or recommendations. All communications submitted to Council are public record. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.

Item # 18: Bird Safe Building Requirements; Adding Berkeley Municipal Code Section 23.304.150

1. Teresa Ely, on behalf of the Golden Gate National Parks Conservancy

2. Bonnie Lewkowicz

3. Lucy Kenyon

4. Jeannette Kortz

5. Marie Mika

6. Janet Johnson

7. Tom Kelly

8. Victor Ichioka

9. Cathy Condon

10. Marista Jarvis

11. Deborah Crooks

12. Amanda Noguera

13. Margo Schueler

14. Hilla Abel

15. Lucas Tobin

16. Emma Cox

17. Karen Rothblatt (2)

18. Birgit Graeve

19. Keith Johnson

20. O’Brien Thiele

21. Katrina Lundstedt

22. Mary Lynn Morales

23. Charlene Woodcock

24. Sheila Metcalf Tobin

25. Jan and Steven

26. Robert Keller

27. Kim Thompson
Rev - 11

Tuesday, June 6, 2023 REVISED AGENDA Page 12

28. Isabelle Gaston

29. Miriam Fabbri

30. Kathleen Clancy

31. Wendy Bloom

32. Eric Friedman

33. Peggy Scott

34. Linda Burden

35. Patricia Long

36. Bobbi Sloan

37. Melina Howard-Herrarte, on behalf of the Sierra Club

38. Mary Frank

39. Janice Murota

40. Lois Cantor

41. Elizabeth McAnally

42. Merle Norman

43. Andrew Chan

44. Deborah Green

45. Basak Altan

46. Jenny White

47. Juli Dickey

48. Richard Peterson

49. Cheryl Fippen

50. Pamela Nudel

51. Russ Greene

52. Irene Rice

53. Alex Stec

54. Amy Dunn

55. Brenda Wallace

56. Nancy Yates

57. Michelle Squitieri

58. Kelsey Seymour

59. Alicia Telford

60. Andrea Aidells

61. Sherry Reson

62. Sheila Goldmacher

63. Sylvia Soriano

64. Donald Goldmacher

65. Miranda Ewell

66. Ariel Smith-iyer

67. Linda Zagula

68. Jeff White

69. Melissa Quilter

70. Natalie Nussbaum

71. Roberta Wyn, on behalf of Citizens for East Shore Parks

72. Allison Kidder

73. Scott Loss
Rev - 12

Tuesday, June 6, 2023 REVISED AGENDA Page 13

74. Joshua Bradt

75. Analicia Hawkins

76. Noreen Weeden, Golden Gate Audubon Conservation Committee

77. Eva Shu

78. Beverly Tharp

79. Lovell Jarvis

80. Gianna Ranuzzi

81. Bonnie Borucki, on behalf of We Bee Gardner’s

82. Kelly Hammargren

83. Linda Currie

84. Erin Diehm

85. Sally Nelson

86. Carla Woodworth

87. Pam Stello

88. Pierre Thiry

89. Selma Danskin

90. Glenn Phillips, on behalf of Golden Gate Audubon

91. Helen Morgan

92. Janet Carpinelli

93. Laura Watkins
Unhoused Becoming Unhinged

94. Jeff Morgan, on behalf of Covenant Wines

95. Farley Gwazda

96. Councilmember Kesarwani

Berkeley Police Chief

97. Karen Libby

98. Diana Andreeva

99. Josh Buswell-Charkow
100. Tom Attar
101. Janice Schroeder
102. Margot Smith

Ambulance Service in North Berkeley
103. Varya Simpson
104. Stefanie and William Guynn
105. Peggy Mendelson
106. Tom Burns
107. Rhyena Halpern
108. Hubert von Marschall
109. Susan Matisoff
110. Barbara Lanier

Housing
111. Melinda Howard-Herrarte, Chair, Northern Alameda County Sierra Club

Rev - 13

Tuesday, June 6, 2023 REVISED AGENDA Page 14
Commission Vacancies at Human Welfare and Community Action 112. David Knight, CalCAPA

3000 Shattuck Project
113. Larisa Cummings

Chess Club
114. Jeffery Mitchell

Decriminalize Psychedelics
115. Esther Lerman
Domestic Violence
116. Linda Xyz

African American Holistic Resource Center
117. Walter Wood
118. Moni Law

Mental Health Crisis
119. Fred Dodsworth

Sidewalk Safety
120. John Cooke

Keep California Public Transit Moving
121. Dulanya Cooray

Neighborhood Watch
122. Vivian Warkentin

2023 Dilemma
123. Carolyn E. Moore

Tax/Fee Freeze
124. Barbara Gilbert (2)

Senior Artists’ Colony
125. Joann Sullivan

Crosswalk at 6th and Addison
126. Rebecca Herman

Police Accountability Board Budget Recommendations
127. Hansel Aguilar

Rev - 14

Tuesday, June 6, 2023 REVISED AGENDA Page 15
Invitation to Attend Police Accountability Board Meeting 128. Hansel Aguilar

Hopkins Corridor
129. Carol Hirth
130. Kathleen Davis
131. Josie Gerst
132. Kay Englund
133. Leni Siegel
134. Stephen Wood
135. Susan Taylor
136. Cindi Goldberg
137. Verna Winters
138. Howard Goldberg
139. Pamela Zelnik
140. Lee Bishop
141. John Parman
142. Dorothea Dorenz
143. Karen Gordon
144. Melinda Howard-Herrarte, on behalf of Sierra Club

Pavement Smoothness and Fuel Efficiency
145. David Lerman

UA Theatre
146. Arlene Owseichik

Cesar Chavez and Dolores Huerta Tribute Site
147. Beatriz Leyva-Cutler

Offices to Housing
148. Merry Selk

Bayer - Amended and Restated Development Agreement Year One Reporting 149. Jennifer Cogley, Bayer Community Relations

Gas Leaf Blowers
150. Gary VanderPol

Vietnam Era Veteran
151. Will Elliott

Help Rachida To Find Housing
152. Birgit Graeve

Rev - 15

Tuesday, June 6, 2023 REVISED AGENDA Page 16
Lithium Ion Battery Information
153. David Sprague, Berkeley Fire Chief

Asking Assistance with Criminal Justice and Accountability for Injury 154. Benjamin Stein

Keep Masks in Health Care + COVID Safety
155. Sophie

Wednesday Threat Alert at Urban Adamah
156. Adam Weisberg
157. Councilmember Harrison

URL’s Only
158. Vivian Warkentin
159. Kevin Burke
Supplemental Communications and Reports
Items received by the deadlines for submission will be compiled and distributed as follows. If no items are received by the deadline, no supplemental packet will be compiled for said deadline.

• Supplemental Communications and Reports 1
Available by 5:00 p.m. five days prior to the meeting.

• Supplemental Communications and Reports 2
Available by 5:00 p.m. the day before the meeting.

• Supplemental Communications and Reports 3
Available by 5:00 p.m. two days following the meeting.

Rev - 16

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
June 6, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Henry Oyekanmi, Director, Finance
Subject: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on June 6, 2023

RECOMMENDATION
Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval.

FISCAL IMPACTS OF RECOMMENDATION
Total estimated cost of items included in this report is $1,061,394.

CURRENT SITUATION AND ITS EFFECTS
On May, 6, 2008, Council adopted Ordinance No. 7,035-N.S. effective June 6, 2008, which increased the City Manager’s purchasing authority for services to $50,000. As a result, this required report submitted by the City Manager to Council is now for those purchases in excess of $100,000 for goods; and $200,000 for playgrounds and construction; and $50,000 for services. If Council does not object to these items being sent out for bid or proposal within one week of them appearing on the agenda, and upon final notice to proceed from the requesting department, the IFB (Invitation for Bid) or RFP (Request for Proposal) may be released to the public and notices sent to the potential bidder/respondent list.

PROJECT Fund Source Amount
West Berkeley Services
Center
128
011
CDBG
GS - DISCRETIONARY $1,061,394
Total: $1,061,394

Page 1 of 3 ends

Page 17 ends

Formal Bid Solicitations and Request for Proposals CONSENT CALENDAR Scheduled for Possible Issuance After Council June 6, 2023 Approval on June 6, 2023

BACKGROUND
On May 6, 2008, Council adopted Ordinance No. 7,035-N.S., amending the City Manager’s purchasing authority for services.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The Finance Department reviews all formal bid and proposal solicitations to ensure that they include provisions for compliance with the City’s environmental policies. For each contract that is subject to City Council authorization, staff will address environmental sustainability considerations in the associated staff report to City Council.

RATIONALE FOR RECOMMENDATION
Need for the services.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Darryl Sweet, General Services Manager, Finance, 510-981-7329 Attachments:
1: Formal Bid Solicitations and Request for Proposals Scheduled for Possible Issuance After Council Approval on April 25, 2023
a. West Berkeley Services Center
Note: Original of this attachment with live signature of authorizing personnel is on file in General Services.

Page 2 of 3 ends

Page 18 ends

NEXT 30 DAYS
DATE SUBMITTED: June 6, 2023
Attachment 1

SPECIFICATION
NO.

DESCRIPTION

OF GOODS /

SERVICES
BEING

PURCHASED
APPROX.

RELEASE DATE
APPROX. BID

OPENING DATE

INTENDED USE ESTIMATED
COST

BUDGET CODE TO

BE CHARGED
DEPT. / DIVISION CONTACT NAME
& PHONE
23-11604-C West Berkeley
Services Center
7/31/23 8/25/2023 Roof, Electrical,
Bathroom
Remodel, and
Other
Improvements
$ 1,061,394.00 YES
$936,360.00
128-54-623-677-
0000-000-444-
662110-
$125,034
011-54-623-677-
0000-000-444-
662110-
PW/Engineering Elmar Kapfer
981-6435
DEPT. TOTAL $1,061,394
TOTAL $1,061,394
1 of 1

Page 3 of 3 ends

Page 19 ends

Page 20 ends

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.ci.berkeley.ca.us/manager

CONSENT CALENDAR
June 6, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Director, Health, Housing, and Community Services Subject: Shelter Plus Care Program Renewal Grants

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or her designee to receive funds and execute any agreements and amendments resulting from the renewal of the following grants:

1. Two Shelter Plus Care grants from U.S. Department of Housing and Urban Development (HUD): a) $3,949,021 for Supportive Housing Collaborative Project (SHC) for the period June 1, 2023 through May 31, 2024; b) $2,327,914 for COACH Project (COACH) for the period of January 1, 2023 through December 31, 2023.

2. One federal Shelter Plus Care grant received via Alameda County in a not-to- exceed amount of $881,045 to provide tenant-based rental assistance to individuals who are chronically homeless and disabled from March 1, 2023 through February 28, 2024.

FISCAL IMPACTS OF RECOMMENDATION
The Department of Health, Housing, and Community Services’ Housing and Community Services division (HHCS/HCS) has administered Shelter Plus Care grants for many years as part of the City’s strategy to end homelessness. Each of the Shelter Plus Care grants and the grant from Alameda County provides funds for rental subsidies from the federal Department of Housing and Urban Development (HUD). Grant revenues are deposited and expensed out of Funds 347-Shelter+Care HUD, and 348-Shelter+Care County, respectively. With the exception of the required 25% service match, these grants fund 100% of the program costs. HUD allows up to 10% of each grant to be used to administer the rental subsidies, which supports HHCS/HCS’s grant-related administrative activities.

Page 1 of 4 ends

Page 21 ends

Shelter Plus Care Program Renewal Grants CONSENT CALENDAR June 6, 2023

Page 2 ends

CURRENT SITUATION AND ITS EFFECTS
Based on a national competition, HUD and Alameda County awarded funding to the City of Berkeley to renew three Shelter Plus Care grants that provide rental assistance to a minimum of 220 households. The City’s Shelter Plus Care Program provides federal rental subsidies that are matched by locally provided services to transition formerly homeless, disabled individuals and families into permanent, supportive housing. These grants currently provide tenant-based rental subsidies for approximately 300 households to rent from private property owners in Berkeley, Albany, Alameda, Oakland, and Emeryville.

Each of the participants in the program receives case management and other supportive services provided by one or more of the following agencies: Bay Area Community Services (BACS), Berkeley Food and Housing Project (BFHP); City of Berkeley Mental Health Division (BMH); City of Berkeley Aging Services Division (Aging); Bonita House, Inc.(Bonita); Building Opportunities for Self-Sufficiency (BOSS); East Bay AIDS Center (EBAC); Lifelong Medical Care (LLMC); and the Women’s Daytime Drop-In Center (WDDC).

BACKGROUND
Since 1995, the City of Berkeley Shelter Plus Care Program has been an important component of the continuum of housing available to disabled homeless families and individuals. The Shelter Plus Care Program is funded by HUD and the County of Alameda to provide housing subsidies for people who are homeless with a disability.

The program combines a rental subsidy with ongoing supportive services to assist chronically homeless individuals and families to obtain and maintain housing.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental impacts or opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
Acceptance of the three Shelter Plus Care renewal grants will assure that 300 homeless and disabled individuals and families in Berkeley continue to benefit from receiving ongoing rental assistance and the supportive services necessary to retain stable housing.

Page 2 of 4 ends

Page 22 ends

Shelter Plus Care Program Renewal Grants CONSENT CALENDAR June 6, 2023

Page 3 ends

ALTERNATIVE ACTIONS CONSIDERED
No alternative actions were identified that would be consistent with the City’s goal to house the most vulnerable members of the community.

CONTACT PERSON
Paul Chang, Community Services Specialist III HHCS, (510) 981-5446 Attachment:
1: Resolution

Page 3 of 4 ends

Page 23 ends

RESOLUTION NO. ##,###-N.S.

SHELTER PLUS CARE PROGRAM RENEWAL GRANTS
WHEREAS, the U.S. Department of Housing and Urban Development and the County of Alameda have awarded the City of Berkeley Health, Housing & Community Services Department the following three Shelter Plus Care grants: 1) a) $3,949,021 for Supportive Housing Collaborative Project (SHC) for the period June 1, 2023 through May 31, 2024; b) $2,327,914 for COACH Project (COACH) for the period of January 1, 2023 through December 31, 2023; and 2) One grant from the County of Alameda in a not to exceed amount of $881,045 to provide tenant-based rental assistance to individuals who are chronically homeless and disabled from March 1, 2023 through February 28, 2024; and WHEREAS, the combined total for the three grants is an estimated $7,157,980 to provide direct rental assistance, and of this amount approximately 10% is available to support the Health, Housing, and Community Services Department’s grant-related administrative activities (For the HUD grants budget, Fund 347-Shelter+Care. For the contract with Alameda County, Fund 348-Shelter+Care; and
WHEREAS, these Shelter Plus Care grants are an annual renewal of an existing program that provides rental subsidies and ongoing support services for more than 300 homeless and disabled individuals and families in Berkeley; and
WHEREAS, the rent subsidies provided through the City’s Shelter Plus Care Program are matched by services provided by the City’s Mental Health Division and Aging Services Division and seven community-based agencies that assist formerly homeless, disabled individuals and families to retain stable housing.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is hereby authorized to receive funds and execute any agreements and amendments resulting from the three grants awarded from the U.S.

Department of Housing and Urban Development and the County of Alameda for the City’s Shelter Plus Care Program as follows: 1) a) $3,949,021 for Supportive Housing Collaborative Project (SHC) for the period June 1, 2023 through May 31, 2024; b) $2,327,914 for COACH Project (COACH) for the period of January 1, 2023 through December 31, 2023; and 2) One grant from the County of Alameda in a not to exceed amount of $881,045 to provide tenant-based rental assistance to individuals who are chronically homeless and disabled from March 1, 2023 through February 28, 2024.

A signed copy of said documents, agreements and any amendments will be kept on file in the Office of the City Clerk.

Page 4 of 4 ends

Page 24 ends

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to:

1. Release a Request for Proposals (RFP) seeking a new owner/operator for Martin Luther King, Junior (MLK) House currently owned by Resources for Community Development (RCD); and

2. Consider the reallocation of $1,178,974 in 2021 Housing Trust Fund (HTF) Rehabilitation Funding initially awarded to RCD to the new owner/operator of MLK House as part of the transfer of property to help support rehabilitation of the existing housing.

SUMMARY
RCD intends to transfer MLK House to a new owner which requires approval by the City Council under an existing loan. After discussion with RCD, City staff recommends issuing an RFP to select a qualified owner/operator and further explore alternative supportive housing models for MLK House. Ultimately RCD would need to approve the recommended new owner, and has expressed willingness to work with the City as outlined in this report.

FISCAL IMPACTS OF RECOMMENDATION
This RFP may lead to the selection of a new owner/operator for MLK House. In December 2021, the City Council approved $1,178,974 from Fund 302 (Operating Grants-State), for the project to complete identified rehabilitation needs, which RCD now wishes for the new owner to complete. The Department of Health, Housing, and Community Services (HHCS) may return to City Council with a specific recommendation related to the selection of a new owner/operator and possible reallocation of funds.

CURRENT SITUATION AND ITS EFFECTS
MLK House is a 12-room, Single-Room Occupancy (SRO) permanent housing development that serves up to eleven (11) formerly homeless individuals. The property is owned by Resources for Community Development (RCD) and managed by RCD’s property management partner, the John Stewart Company (JSCo).

Page 1 of 6 ends

Page 25 ends

RFP for Martin Luther King Jr (MLK) House CONSENT CALENDAR June 6, 2023

Page 2 ends

In recent years and more so in the last two years of the pandemic, RCD/JSCo have experienced challenges in operating the property. The residents, who are referred through Alameda County’s Homestretch Coordinated Entry System (CES), are the highest need homeless individuals in the CES system, and many receive services from HHCS’ Mental Health Division (HHCS/MH). The tenants have higher service needs than was intended for the existing service design at MLK house. The lack of adequate supportive services for the residents has led to problems that have adversely affected the physical condition and security of the property. Although RCD’s property management partner JSCo is experienced in managing affordable rental housing, the level of oversight required by current MLK House residents no longer fits RCD and JSCo’s operations.

In September 2021, RCD initiated conversations with HHCS, with a proposal to transfer ownership of the property to a qualified operator at the earliest date possible. Under the City’s existing loan agreement executed on June 1, 2017, RCD is required to obtain City approval of any transfer or assignment of the City agreements related to the loan; including the DLA and Regulatory Agreement. Therefore, RCD proceeded with a search for a new owner with HHCS support.

After a year-long search, RCD presented a possible candidate that proposed a continuation of the existing program. While HHCS is in support of RCD’s plan to transfer the property to a qualified operator, staff continues to have concerns about the current model under which MLK House operates. For instance, there are concerns about the ability of CES-referred residents to live independently at this site without adequate social services and the appropriate program structure. CES prioritizes placing the clients with the highest needs (often those with the most severe mental health diagnoses) in housing.

The current program at MLK House does not meet the kind of assistance required by this population of severely and persistently mentally ill individuals. In addition, an effective supportive housing program would require a constant stream of funding to support intensive social services, maintenance, and care of the physical environment; in addition to programming that supports group living. Continuing to safely and sustainably operate MLK House in its current configuration would require annual funding from the City and/or other sources for rental subsidy and covering operating costs.

Given these concerns, staff could not support RCD’s recommendation without further exploring other options for the site, including consideration of other supportive housing/group living models. Through the proposed RFP, HHCS staff could vet new models that could potentially leverage other funding to support the services and programming that a high-needs population requires, or explore serving a different population more equipped for independent living with shared spaces.

Page 2 of 6 ends

Page 26 ends

RFP for Martin Luther King Jr (MLK) House CONSENT CALENDAR June 6, 2023

Page 3 ends

Issuing an RFP to select a new owner/operator for MLK House meets a Strategic Plan Priority of providing and maintaining affordable housing and support services for our most vulnerable community members.

BACKGROUND
MLK House is a two story, 12-room Single-Room Occupancy (SRO) rental property which was acquired and rehabilitated by RCD to provide housing for up to 11 formerly homeless adults. Residents have private bedrooms, but share bathroom and kitchen spaces.

The capital improvements that funding was approved for include roof repair, new gutter/downspout system, replacement of single-paned windows with double-paned windows, upgrades to common kitchen space and shared bathrooms, as well as some ADA and security features.

In February 2023, the City Council also approved allocation of $107,890 in Mental Health Services Act (MHSA) funds to hire additional on-site staff to increase staff presence. While a new operator/owner is being sought, the additional staff support is needed to achieve stability and safety for the residents and the property. The MHSA funds could be made available to the new owner/operator for continued staffing support.

The funding would need to be renewed annually and would need to be approved by the City Council through the MHSA Annual Action Plan process.

Currently, seven of the twelve rooms at MLK House are occupied by participants who receive rental subsidy from Shelter Plus Care and case management from Berkeley Mental Health. One room is being used as a field office for BMH case management staff at the recommendation of City staff. City Shelter Plus Care staff occasionally use the office space as well. The additional staff presence and oversight in recent months has helped to improve the security of the property and safety of the residents. Even with these improvements, the property continues to face vacancies as eligible applicants are able to find alternative housing more suited to their needs

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable direct environmental sustainability or climate impacts associated with the adoption of this recommendation. A future project would involve rehabilitating an existing, infill property.

RATIONALE FOR RECOMMENDATION
As detailed above, MLK House, in its current configuration, is not working well to support the tenants. Staff recommend that HHCS work with RCD to issue an RFP to select a new owner/operator with a new model. Staff would return to City Council with a

Page 3 of 6 ends

Page 27 ends

RFP for Martin Luther King Jr (MLK) House CONSENT CALENDAR June 6, 2023

Page 4 ends

selection of a new owner/operator and consideration of reallocating the $1.8M 2021 HTF Rehabilitation Loan to support capital improvements and much-needed repairs.

ALTERNATIVE ACTIONS CONSIDERED
After a year-long search for a new owner, RCD presented a possible candidate for consideration. Staff continues to have concerns with the current model and could not support RCD’s recommendation without further exploring other models suitable to the project’s size and configuration.

Therefore, staff recommend issuing a Request for Proposal to select a new owner/operator and alternative supportive housing models for the MLK House.

CONTACT PERSON
Lourdes Chang, Community Development Project Coordinator, HHCS, 981-5263 Attachments:
1: Resolution

Page 4 of 6 ends

Page 28 ends

RESOLUTION NO. ##,###-N.S.

ISSUING A REQUEST FOR PROPOSALS FOR A NEW OWNER FOR MARTIN

LUTHER KING JUNIOR (MLK) HOUSE
WHEREAS, Resources for Community Development (RCD) has operated MLK House since 1991, providing permanent housing for very low-income, formerly homeless individuals; and
WHEREAS, on June 1, 1991, the City entered into a loan agreement with RCD for a $128,126 loan which was authorized by City Council Resolution No. 55,859-N.S. for acquisition and rehabilitation of the property, and the June 1991 loan was amended in December 1991 to increase the amount by $150,000 for a total loan of $278,126 (“1991 Rehab Loan”), to complete the rehabilitation of the property authorized by City Council Resolution No. 56,211-N.S.; and
WHEREAS, on June 1, 2017, the City entered into a new loan agreement replacing the 1991 Rehab Loan with a loan equal to the outstanding principal on the Rehab loan, forgiving the accrued interest on the Rehab Loan and changing the interest rate to 0% and an approximate 30-year term to make the new loan co-terminus with the original regulatory agreement (City Council Resolution No. 67,480-N.S.); and WHEREAS, on December 14, 2021, by City Council Resolution No. 70,135-N.S., the City Council approved a funding reservation of $1,178,974, for the renovation of MLK House, and the execution of the loan documents for this new rehabilitation loan is on pause pending the transfer of MLK House to a new owner; and
WHEREAS, because the current residents who reside in MLK House require a higher level or services and oversight that is no longer in line with RCD’s operations, RCD intends to transfer the property to a new owner and operator experienced in providing permanent supportive housing; and
WHEREAS, under the City’s existing development loan agreement, RCD must obtain approval of the transfer of property; and
WHEREAS, City staff are in support of RCD’s transferring the property and recommend issuing a Request for Proposal (RFP) to select a qualified owner/operator and further explore other options, including consideration of supportive housing and group living models that could potentially leverage other funding that supports the services and programming that a high needs population requires, or explore serving a different population more equipped for independent living with shared spaces; and WHEREAS, RCD agrees with the City facilitating the selection of a new owner/operator and possible alternative housing models for MLK House through an RFP.

Page 5 of 6 ends

Page 29 ends

Page 2 ends

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is hereby authorized to issue a Request for Proposal (RFP) for selection of a new owner/operate for MLK House; and
BE IT FURTHER RESOLVED that City Manager is hereby authorized to include in the RFP consideration of including a reallocation of $1,178,974 in 2021 Housing Trust Fund Rehabilitation Funding initially awarded to RCD to the new owner/operator of MLK House as part of the transfer of property to help support rehabilitation of the existing housing.

Page 6 of 6 ends

Page 30 ends

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 • Tel: 510.981.6700 • TDD: 510.981.6903 • Fax: 510.981.6710 E-mail: [email protected] Website : http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
June 6, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks, Recreation, and Waterfront Subject: Grant Application: The Surrendered and Abandoned Vessel Exchange (SAVE) grant program of the California Division of Boating & Waterways

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or her designee to 1) Apply for and accept a grant in the amount of $60,000 from the California Division of Boating & Waterways (DBW) Surrendered and Abandoned Vessel Exchange (SAVE) grant program for the removal and disposal of anticipated abandoned vessels located at the Berkeley Marina; 2) Execute any amendments; and 3) Authorize a local match contribution of $6,000.

FISCAL IMPACTS OF RECOMMENDATION
The cost to remove and dispose of abandoned and derelict vessels at the Berkeley Marina through FY2026 is estimated at $66,000. The Parks, Recreation, and Waterfront Department will submit a grant application to the Division of Boating and Waterways SAVE grant program in the amount of $60,000 for this work, and will allocate a required minimum 10% local match, equivalent to $6,000. Funding for the match is subject to appropriation in the FY 2024 budget in the Marina Fund (Fund 608). If awarded, the grant will be deposited in the Boating and Waterways Fund (Fund 607).

CURRENT SITUATION AND ITS EFFECTS
Each year, approximately eight (8) vessels get abandoned by their owners at the Berkeley Marina because they lack funds to repair the vessels or they lack funds to pay for their dockage fees. Due to the age and neglect of the vessels, they have no value, are not sea-worthy, and are likely to sink. These vessels occupy slips in the Berkeley Marina that could otherwise be used to generate dockage revenue for the City, and these vessels are a visual blight on our Marina and harm our reputation. This new round of funding will assist us as we work to keep our docks clear of derelict vessels in

Page 1 of 3 ends

Page 31 ends

Grant Application: The SAVE grant program from DBAW CONSENT CALENDAR June 6, 2023

Page 2 ends

the coming year, and build upon the progress we make in removing derelict vessels via previous SAVE Grants.

BACKGROUND
Responsibility for derelict and abandoned vessels, unfortunately, often falls on public agencies. In 2020, the Berkeley Marina was awarded a SAVE grant for $130,000 of which we used 86% and removed twenty-five derelict vessels. In late 2020 the Berkeley Marina was awarded another SAVE grant for $42,000 of which 100% was used to remove 8 derelict vessels. In late 2021 the Berkeley Marina was awarded another SAVE grant for $42,000, which is currently being utilized. In late 2022 the Berkeley Marina was awarded another SAVE grant for $60,000. For the past 20 years, the Division of Boating and Waterways has provided grant funding assistance to public agencies throughout California, including the City of Berkeley, to properly remove, store, and dispose of abandoned, wrecked, or dismantled vessels or any other partially submerged objects that pose a substantial hazard to navigation, from navigable waterways or adjacent public property, or private property with the landowner’s consent.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Derelict, abandoned, and sunken vessels pose a navigational and environmental hazard to the waters of the Bay (e.g., they can leak oil fuel, oil coolant, paints and solvents, sanitary waste, etc.) Removal and proper disposal of these vessels contributes to the improvement to the health of the Bay waters.

RATIONALE FOR RECOMMENDATION
The Parks, Recreation, and Waterfront Department has the primary responsibility for removing derelict and abandoned vessels from local waters. SAVE grants, allow the City to substantially leverage our existing funding for these projects, and safely remove potential environmental and navigational hazards from our waters. The swift removal of derelict vessels from our Marina via SAVE Funds prevents the accumulation of such vessels on our docks improves the attractiveness of the Berkeley Marina to existing and prospective slip holders.

CONTACT PERSON
Alexandra Endress, Waterfront Manager, 981-6737
Sean Crothers, Waterfront Supervisor, 981-6744
Attachments:

1. Resolution

Page 2 of 3 ends

Page 32 ends

RESOLUTION NO. ##,###-N.S.

GRANT APPLICATION: SURRENDERED AND ABANDONED VESSEL EXCHANGE (SAVE) GRANT PROGRAM OF THE STATE DIVISION OF BOATING AND

WATERWAYS
WHEREAS, each year, approximately eight (8) vessels get abandoned by their owners at the Berkeley Marina because they lack funds to repair the vessels or they lack funds to pay for their dockage fees. This number is expected to increase due to financial hardships of the Covid-19 pandemic. Due to the age and neglect of the vessels, they have no value, are not sea-worthy, and are likely to sink. These vessels occupy slips in the Berkeley Marina that could otherwise be used to generate dockage revenue for the City, and these vessels are a visual blight on our Marina and harm our reputation; and WHEREAS, responsibility for abandoned vessels, unfortunately, often falls on public agencies. For the past 20 years, the Division of Boating and Waterways has provided grants to public agencies, including the City of Berkeley, to remove, store, and dispose of abandoned, wrecked, or dismantled water vessels or any other partially submerged objects that pose a substantial hazard to navigation, from navigable waterways or adjacent public property, or private property with the landowner's consent; and WHEREAS, the Parks, Recreation and Waterfront Department has the primary responsibility for removing derelict and abandoned vessels from local waters. By applying for SAVE grants, the City is able to substantially leverage our existing funding for these projects, and safely remove potential environmental and navigational hazards from our waters; and
WHEREAS, the cost to remove and dispose of eight (8) abandoned and derelict vessels at the Berkeley Marina in FY2024 is estimated at $66,000. The Parks, Recreation and Waterfront Department will apply for $60,000 from the DBW SAVE grant program to remove these vessels, and must provide a minimum match of 10% (equal to $6,000).

Funding for the match is subject to appropriation in the FY 2024 budget in the Marina Fund (Fund 608). If awarded, the grant will be deposited in the Boating and Waterways Fund (Fund 607).

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or her designee is authorized to 1) submit a grant application to the California Division of Boating and Waterways 2022 SAVE grant program for $60,000; 2) accept any grants; 3) execute any resulting grant agreements and any amendments; and the City Council authorizes the implementation of the projects and appropriation of funding for related expenses, including $6,000 in local match from the Marina Fund, subject to securing the grant. A record signature copy of said agreements and any amendments to be on file in the Office of the City Clerk.

Page 3 of 3 ends

Page 33 ends

Page 34 ends

CONSENT CALENDAR
June 6, 2023
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 Amendments for As-needed Trees Services with Bay Area Tree, Hamilton Tree, Professional Tree, and West Coast Arborist

RECOMMENDATION
Adopt four Resolutions authorizing the City Manager to amend contracts with Bay Area Tree Specialists (31900202), Hamilton Tree Service (31900193), Professional Tree Care (31900212), and West Coast Arborists (31900218), for as-needed tree services, increasing the amount by $250,000 each.

FISCAL IMPACTS OF RECOMMENDATION
Funding for this contract amendment of $250,000 each for a total of $1,000,000 is available in the Fiscal Year (FY) 2023 and FY 2024 budget in the Parks Tax Fund (138-52-542-566- 0000-000-461-612990) and the Fire Fuel Abatement Fund (011-52-542-566-1001-000-461- 612990). The addition of $250,000 to each of the four contracts will increase the not-to- exceed total contract amount for each contract as follows: Bay Area Tree Specialists (NTE $1,050,000); Hamilton (NTE $750,000); Professional Tree (NTE $450,000); and West Coast Arborist (NTE $950,000).

CURRENT SITUATION AND ITS EFFECTS
The City currently has contracts with four tree service providers (Bay Area Tree Specialists, Hamilton Tree, Professional Tree, and West Coast Arborists) to perform various as-needed tree services, primarily consisting of tree and stump removals, tree pruning, and emergency response to storm damage throughout the city on the public right of way, street medians, pathways, and in public parks. To date, staff has identified trees that need to be removed and pruned to reduce fire fuel and improve public safety.

BACKGROUND
In April 2019, a Request for Qualifications (RFQ) was issued seeking qualified firms to provide tree services on an as-needed basis. The City determined that four tree service providers met the criteria described in the RFQ and issued contracts to the following: Bay Area Tree Specialists, Hamilton Tree, Professional Tree Care, and West Coast Arborists.

Page 1 of 6 ends

Page 35 ends

Contract Amendments for As-needed Trees Services with Bay Area CONSENT CALENDAR Tree, Hamilton Tree, Professional Tree, and West Coast Arborist June 6, 2023

Page 2 ends

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The maintenance of the urban forest and the prevention of destructive urban fires are essential in meeting the City’s Climate Action Goals over the long term.

RATIONALE FOR RECOMMENDATION
Staff has identified trees to be removed and pruned at various parks, on City paths, and along the public right of way which will reduce the fire fuel load and improve public safety.

The City does not have the in-house labor or equipment resources to complete these jobs in an efficient manner.

ALTERNATIVE ACTIONS CONSIDERED
None

CONTACT PERSON
Bruce Pratt, Parks Superintendent, 981-6632
Dan Gallagher, Senior Forestry Supervisor, 981-6687
Attachments:
1: Resolution - Bay Area Tree Specialists
2: Resolution - Hamilton Tree
3: Resolution - Professional Tree
4: Resolution - West Coast Arborist

Page 2 of 6 ends

Page 36 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 31900202 AMENDMENT: BAY AREA TREE SPECIALISTS FOR

AS-NEEDED TREE SERVICES
WHEREAS, in April 2019, a Request for Qualifications (RFQ) was issued seeking firms to provide tree services on an as-needed basis; and
WHEREAS, on May 28, 2019, the City determined that Bay Area Tree Specialists met the criteria described in the RFQ and executed contract no. 31900202; and WHEREAS, to-date, staff has identified trees to be removed and pruned to reduce the fire fuel load and other trees to be pruned to improve the health and safety of the urban forest; and
WHEREAS, funding for this contract amendment of $250,000 is available in the Fiscal Year (FY) 2023 and FY 2024 budget from the Parks Tax Fund (138) and the Fire Fuel Abatement Fund (011).

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager execute an amendment to Contract No. 31900193 with Bay Area Tree Specialists for as-needed tree services, increasing the amount by $250,000 for a not-to- exceed total contract amount $1,050,000. A record signature copy of said contract amendment to be on file in the Office of the City Clerk.

Page 3 of 6 ends

Page 37 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 31900193 AMENDMENT: HAMILTON TREE FOR

AS-NEEDED TREE SERVICES
WHEREAS, in April 2019, a Request for Qualifications (RFQ) was issued seeking firms to provide tree services on an as-needed basis; and
WHEREAS, on May 28, 2019, the City determined that Hamilton Tree met the criteria described in the RFQ and executed contract no. 31900193; and WHEREAS, to-date, staff has identified trees to be removed and pruned to reduce the fire fuel load and other trees to be pruned to improve the health and safety of the urban forest; and
WHEREAS, funding for this contract amendment of $250,000 is available in the Fiscal Year (FY) 2023 and FY 2024 budget from the Parks Tax Fund (138) and the Fire Fuel Abatement Fund (011).

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager execute an amendment to Contract No. 31900193 with Hamilton Tree for as-needed tree services, increasing the amount by $250,000 for a not-to-exceed total contract amount $750,000. A record signature copy of said contract amendment to be on file in the Office of the City Clerk.

Page 4 of 6 ends

Page 38 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 31900212 AMENDMENT: PROFESSIONAL TREE FOR

AS-NEEDED TREE SERVICES
WHEREAS, in April 2019, a Request for Qualifications (RFQ) was issued seeking firms to provide tree services on an as-needed basis; and
WHEREAS, on May 28, 2019, the City determined that Professional Tree met the criteria described in the RFQ and executed contract no. 31900212; and WHEREAS, to-date, staff has identified trees to be removed and pruned to reduce the fire fuel load and other trees to be pruned to improve the health and safety of the urban forest; and
WHEREAS, funding for this contract amendment of $250,000 is available in the Fiscal Year (FY) 2023 and FY 2024 budget from the Parks Tax Fund (138) and the Fire Fuel Abatement Fund (011).

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager execute an amendment to Contract No. 31900212 with Professional Tree for as-needed tree services, increasing the amount by $250,000 for a not-to-exceed total contract amount $450,000. A record signature copy of said contract amendment to be on file in the Office of the City Clerk.

Page 5 of 6 ends

Page 39 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 31900218 AMENDMENT: WEST COAST ARBORISTS, INC FOR

AS-NEEDED TREE SERVICES
WHEREAS, in April 2019, a Request for Qualifications (RFQ) was issued seeking firms to provide tree services on an as-needed basis; and
WHEREAS, on May 28, 2019, the City determined that West Coast Arborists met the criteria described in the RFQ and executed contract no. 31900218; and WHEREAS, to-date, staff has identified trees to be removed and pruned to reduce the fire fuel load and other trees to be pruned to improve the health and safety of the urban forest; and
WHEREAS, funding for this contract amendment of $250,000 is available in the Fiscal Year (FY) 2023 and FY 2024 budget from the Parks Tax Fund (138) and the Fire Fuel Abatement Fund (011).

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley authorizes the City Manager execute an amendment to Contract No. 31900218 with West Coast Arborist for as-needed tree services, increasing the amount by $250,000 for a not-to-exceed total contract amount $950,000. A record signature copy of said contract amendment to be on file in the Office of the City Clerk.

Page 6 of 6 ends

Page 40 ends

RECOMMENDATION
Adopt a Resolution accepting a cash donation in the amount of $7,105 for tree planting at Indian Rock Park and John Hinkel Park from the Bessemer Trust.

FISCAL IMPACTS OF RECOMMENDATION
The total value of purchasing approximately 40 new trees and associated supplies for Indian Rock Park and John Hinkel Park is $7,105. City staff will do the installation. The cash donation will be deposited into the Parks Tax Fund (Fund 138) donation revenue budget code 138-52-542-568-0000-000-000-481110 and is subject to appropriation in the FY 2024 Parks Tax Fund.

CURRENT SITUATION AND ITS EFFECTS
In 2022, the Bessemer Trust approached the Parks, Recreation and Waterfront (PRW) Department about a donation to help replant new trees after a mature oak tree failure in Monkey Island Park. After this successful community tree planting, the Bessemer Trust inquired about future projects. City staff provided options to help fund materials for tree planting at Indian Rock and John Hinkel Parks.

On February 22nd, approximately 10 trees were planted at Indian Rock Park with Urban Forestry staff and a group of community volunteers. On March 8th, approximately 20 trees were planted at John Hinkel Park with Urban Forestry staff and a group of community volunteers. Approximately 10 additional trees were planted at John Hinkel Park over the spring.

BACKGROUND
Per the City’s Expanded City Parks Donation Policy, individuals may donate to the City’s parks in selected locations subject to the approval of the Director of the PRW 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 Expanded City Parks Donation Policy as described in Resolution No. 66,831–N.S. and has approved the donation, subject to Council

Page 1 of 3 ends

Page 41 ends

Donation from the Bessemer Trust for Tree Planting CONSENT CALENDAR June 6, 2023

Page 2 ends

approval. The City’s Open Governance Ordinance 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.)

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
This donation covers the cost of planting 40 new trees in City parks, which helps the City advance Strategic Goal No. 7 to be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

RATIONALE FOR RECOMMENDATION
The donation allows the City to install approximately 40 new trees at Indian Rock Park and John Hinkel Park, which will benefit the general public.

CONTACT PERSON
Bruce Pratt, Parks Superintendent, 510-981-6632.

Attachments: 1: Resolution

Page 2 of 3 ends

Page 42 ends

RESOLUTION NO. -N.S.

DONATION FROM THE RORICK FAMILY TRUST FOR STRAWBERRY CREEK WHEREAS, on December 17, 2013, Council adopted the Expanded City Parks Donation Policy (Resolution No. 66,831–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 Bessemer Trust, wishes to donate for tree planting at Indian Rock Park and John Hinkel Park with a cash donation of $7,105; and WHEREAS, per the City’s Expanded City Parks Donation Policy, individuals may donate 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 Expanded City Parks Donation Policy as described in Resolution No. 66,831–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 $7,105 for tree planting at Indian Rock Park and John Hinkel Park from the Bessemer Trust is hereby accepted.

Page 3 of 3 ends

Page 43 ends

Page 44 ends

CONSENT CALENDAR
June 6, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Department of Planning and Development Subject: Contract: Rebuilding Together East Bay North for Just Transition Pilot Program

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or their designee to award a contract and execute any amendments, extensions, or change orders with Rebuilding Together East Bay North (RTEBN) in an amount not to exceed $1,500,000 to develop and implement a Just Transition Pilot Program over a two-year period.

FISCAL IMPACTS OF RECOMMENDATION
The $1,500,000 in project funds for this contract was allocated in FY 2023 in budget code 011-53-583-611-0000-000-441-612990. The amount requested for the contract is a not-to-exceed (NTE) amount.

CURRENT SITUATION AND ITS EFFECTS
On January 31, 2023, the City of Berkeley released a Request for Proposals (RFP) Specification Number 23-11586-C to develop and implement a Just Transition Residential Electrification Pilot Program (Just Transition Pilot).

The City received valid proposals from three organizations for this solicitation. Staff reviewed and assessed the proposals according to the selection criteria in the RFP, including the organizations’ references, cost proposals, qualifications, project approaches, abilities to meet program goals, and overall qualities of the responses.

Based on a thorough review, staff recommends awarding a contract to Rebuilding Together East Bay North (RTEBN) for a total amount of not to exceed $1,500,000.

RTEBN’s proposal included a partnership with the Construction Trades Workforce Initiative (CTWI) to bolster its connection to workforce training and recruiting, and placing traditionally underrepresented people in the construction trades and union careers. The team was selected for its long history and successful track record in serving low-income Berkeley residents, ability to leverage additional funds, connections to construction trades, apprenticeship and pre-apprenticeship programs, and an existing pipeline of potential clients and buildings that could be served as part of this program.

Page 1 of 38 ends

Page 45 ends

Contract for Just Transition Pilot Program CONSENT CALENDAR June 6, 2023

Page 2 ends

The Just Transition Pilot is a Strategic Plan Priority Project, advancing the City’s goals to foster a dynamic, sustainable, and locally-based economy; create a resilient, safe, connected, and prepared city; and be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

This action also fulfills the goals set forth in two previous City Council referrals regarding building electrification generally and a Just Transition Pilot specifically (described in more detail below), and upon adoption of the attached resolution staff will deem those referrals completed.

BACKGROUND
On June 14, 2022, City Council approved a budget referral and Resolution No. 70,414- N.S. (Attachment 2) establishing a Pilot Existing Building Electrification Installation Incentives and Just Transition Program (Just Transition Pilot). On November 30, 2021, Berkeley City Council approved a budget referral for $1,500,000 for the Just Transition Pilot, of which $400,000 is allocated for administrative costs to run the program. The program was funded with a transfer of funds from the American Rescue Plan Fund as part of the FY 2022 Annual Appropriations Ordinance (AAO).

The establishment of both the Pilot Climate Equity Fund (approved by City Council on July 27, 2021) and the Just Transition Pilot are consistent with actions outlined in the Berkeley Existing Building Electrification Strategy (BEBES), approved by Council on November 30, 2021. A central principle of the strategy was the development of pilot programs that address the following Equity Guardrails that were developed for BEBES in collaboration with the community:
 Maximize Access to Health, Safety & Mobility Benefits: Proposed projects should prioritize the benefits of building and transportation electrification including health, safety, and comfort to those most impacted by climate change.  Maximize Access to Economic Benefits: Proposed projects should leverage incentives and financing, reduce costs when possible, and support high-road job opportunities prioritizing disadvantaged communities.
 Maximize Ease of Participation: Proposed projects should be easy for community members to access, and should be integrated with other programs and services when possible.
 Promote Housing Affordability & Anti-Displacement: Proposed programs should support housing preservation and tenant protections, and not displace renters or homeowners.

The Just Transition Pilot Program will provide the direct installation of building electrification measures in existing affordable housing buildings and/or for low-to- moderate income households (at or below 120% of the Area Median Income, or AMI).

Electrification measures include replacing gas water heating, HVAC, electrical upgrades and cooking equipment with systems that run on clean electricity. The Just Transition

Page 2 of 38 ends

Page 46 ends

Contract for Just Transition Pilot Program CONSENT CALENDAR June 6, 2023

Page 3 ends

Pilot requires that electrification upgrades be completed by pre-qualified contractor(s) who meet minimum labor standards, as a way to ensure that residential electrification construction work also provides equitable benefits to workers. The objective of labor standards is to advance high-road, family-sustaining jobs that pay living wages, with comprehensive benefits and opportunities for career advancement for a diverse workforce.

The goals of the Just Transition Pilot include:
 Expand high-road workforce opportunities in the low-rise residential building sector by aggregating projects and/or buildings;
 Advance economic opportunities for residential building electrification contractors and workers, particularly Black, Indigenous, and people of color (BIPOC) and women contractors and BIPOC and women workers, by creating high-road job labor standards, trainings, and inclusive recruitment pathways;  Improve occupant health, comfort and energy affordability for low-to-moderate income (at or below 120% AMI) Berkeley residents with high quality installations of efficient electrification measures in homes; and
 Reduce community-wide greenhouse gas emissions by converting residential gas systems to clean electricity.

Staff conducted extensive research to inform program design through interviews with key stakeholders and through active participation in the Bay Area regional High Road Training Partnership (HRTP)1. Staff also presented to and received valuable input from the Berkeley Environment and Climate Commission (ECC) on September 28, 2022, the City Council Facilities, Infrastructure, Transportation, Environment & Sustainability (FITES) Policy Committee on November 3, 2022, and the Commission on Labor on November 30, 2022. Other City Departments and Divisions also gave input, as did external partners including construction trades unions, energy retrofit contractors, workforce development nonprofits and pre-apprenticeship programs, and community organizations serving low-income people and disadvantaged communities.

On November 27, 2018, City Council submitted a Short-Term Referral to Draft Ordinance Amending Berkeley Municipal Code Chapter 7.52, Reducing Tax Imposed for Qualifying Electrification, Energy Efficiency and Water Conservation Retrofits (Attachment 3). While this referral proposed funding for building electrification for new home buyers, the Just Transition Pilot, along with the Climate Equity Resilient Homes Retrofit Program approved by Council on April 26, 2022, provide building electrification benefits to disadvantaged communities, thereby achieving the aims of this referral in a way that meets the equity guardrails adopted by Council as part of Berkeley’s Existing Building Electrification Strategy.
1 https://cwdb.ca.gov/initiatives/high-road-training-partnerships/

Page 3 of 38 ends

Page 47 ends

Contract for Just Transition Pilot Program CONSENT CALENDAR June 6, 2023

Page 4 ends

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
This funding focuses on making energy upgrades to the homes of low-income community members who are often hit first and worst by climate change and its impacts, and providing benefits to the construction workers and contractors who make those upgrades. This contract will further advance the City’s climate and resilience goals and demonstrate the City’s commitment to a Just Transition framework.

Specifically, it will foster greenhouse gas emission reductions and health benefits by helping our community transition its buildings away from fossil fuels to clean electricity, and strengthen community resilience to adapt to the impacts of climate change all while building a diverse high-road workforce focused on clean energy solutions.

RATIONALE FOR RECOMMENDATION
The contract directly responds to the goals set forth in the Council-adopted Existing Buildings Electrification Strategy, Council Referral from November 2018 (Attachment 3), Council Referral from November 30, 2021 (Attachment 4), and Council-adopted Resolution No. 70,414-N.S. (Attachment 2). Funding this project will help the City of Berkeley implement the Climate Action Plan and the Resilience Strategy, advance the work of the Berkeley Equitable Building Electrification Strategy, be responsive to the Declaration of a Climate Emergency and Just Transition framework, and help Berkeley to become a fossil fuel-free community.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Jordan Klein, Director, Planning and Development Department, 510-981-7534 Billi Romain, Manager, Office of Energy & Sustainable Development, Planning Department, 510-981-7432
Attachments:
1: Resolution: Contract - Rebuilding Together East Bay North 2: Resolution No. 70,414-N.S. Establishing a Pilot Existing Building Electrification Installation Incentives and Just Transition Program (adopted June 14, 2022) 3: November 27, 2018, City Council Agenda – Item 24: Short-Term Referral to City Manager and Office of Energy and Sustainable Development to Draft Ordinance Amending Berkeley Municipal Code Chapter 7.52, Reducing Tax Imposed for Qualifying Electrification, Energy Efficiency and Water Conservation Retrofits
4: November 30, 2021 City Council Agenda – Item 21: Referral to the City Manager the design of a companion Resilient Homes Equity Pilot Program that would provide funding for home retrofit improvements to low-income residents

Page 4 of 38 ends

Page 48 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT: REBUILDING TOGETHER EAST BAY NORTH FOR JUST TRANSITION

PILOT PROGRAM
WHEREAS, the City of Berkeley has determined that supporting building electrification programs and providing climate and resilience benefits to low-income Berkeley residents along with advancing high-road jobs for a diverse workforce is a priority; and WHEREAS, the City of Berkeley released a Request for Proposals on January 31, 2023 (Specification No. 23-11586-C); and
WHEREAS, a selection committee reviewed the proposals and determined that Rebuilding Together East Bay North, in partnership with the Construction Trades Workforce Initiative (CTWI), was the best qualified team to provide the services needed for developing and implementing a Just Transition Pilot Program for a cumulative amount not-to-exceed $1,500,000; and
WHEREAS, the cost of the contracted service of an amount not-to-exceed $1,500,000 is covered by budget code 011-53-583-611-0000-000-441-612990; and WHEREAS, on June 2, 2009, the Berkeley City Council adopted the Berkeley Climate Action Plan to reduce greenhouse gas emissions by 80% of Berkeley’s 2000 emissions level; and
WHEREAS, on April 1, 2016, the City of Berkeley released its Resilience Strategy; and WHEREAS, on June 12, 2018, the Berkeley City Council declared a Climate Emergency and proposed a goal of becoming Fossil Fuel-Free City; and WHEREAS, on July 23, 2019, Berkeley City Council adopted a Prohibition of Natural Gas Infrastructure in New Buildings (BMC Chapter 12.80); and WHEREAS, on July 27, 2021, Berkeley City Council adopted a resolution establishing a Climate Equity Action Fund as a repository of city, regional, state, and federal funds related to climate equity for income-qualified households with a preference for households at or below 50% of Area Median Income; and
WHEREAS, on November 30, 2021, Berkeley City Council adopted the Berkeley Existing Buildings Electrification Strategy; and
WHEREAS, on November 30, 2021, Berkeley City Council adopted a resolution establishing a Pilot Existing Building Electrification program, including installation

Page 5 of 38 ends

Page 49 ends

Page 2 ends

incentives and just transition program to assist with the transition to zero-carbon buildings; and
WHEREAS, on December 14, 2021, the Berkeley City Council adopted the commitment to a Just Transition from the Fossil Fuel Economy to ensure that all Berkeleyans have access to good paying jobs and equitable living standards free from the fossil fuel economy; and
WHEREAS, on June 14, 2022, Berkeley City Council adopted Resolution No. 70,414- N.S. establishing the Pilot Existing Building Electrification Installation Incentives and Just Transition Pilot Program; and
WHEREAS, Berkeley’s Strategic Plan sets the goals of fostering a dynamic, sustainable, and locally-based economy; creating a resilient, safe, connected, and prepared city; and being a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or their designee is authorized to award a contract and execute any amendments, extensions, or change orders with Rebuilding Together East Bay North for an amount not to exceed $1,500,000, for a two-year period from contract execution.

BE IT FURTHER RESOLVED that a record signature copy of said contract and any amendments will be on file in the Office of the City Clerk.

Page 6 of 38 ends

Page 50 ends

ATTACHMENT 2

Page 7 of 38 ends

Page 51 ends

Page 8 of 38 ends

Page 52 ends

Page 9 of 38 ends

Page 53 ends

Kate Harrison
Councilmember, District 4
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7140 TDD: 510.981.6903 E-Mail: [email protected]

REVISED

AGENDA MATERIAL
for Supplemental Packet 2
Meeting Date: November 27, 2018
Item Number: 24
Item Description: Short-Term Referral to City Manager and Office of Energy and Sustainable Development to Draft Ordinance Amending
Berkeley Municipal Code Chapter 7.52, Reducing Tax Imposed for Qualifying Electrification, Energy Efficiency and Water Conservation Retrofits
Submitted by: Councilmember Harrison
Added Councilmember Hahn as a cosponsor.

ATTACHMENT 3

Page 10 of 38 ends

Page 54 ends

Kate Harrison
Councilmember District 4
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 981-6903 E-Mail: [email protected]

CONSENT CALENDAR
November 27, 2018
To: Honorable Mayor and Members of the City Council
From: Councilmembers Harrison, and Davila and Hahn
Subject: Short-Term Referral to City Manager and Office of Energy and Sustainable Development to Draft Ordinance Amending Berkeley Municipal Code Chapter

7.52, Reducing Tax Imposed for Qualifying Electrification, Energy Efficiency and Water Conservation Retrofits

RECOMMENDATION
Short-term referral to the City Manager and the Office of Energy and Sustainable Development to draft an ordinance amending Berkeley Municipal Code (BMC) Chapter

7.52, reducing tax imposed for qualifying electrification, energy efficiency, and water conservation retrofits.

BACKGROUND
The City of Berkeley faces climate change and water usage emergencies. A recent UN Intergovernmental Panel on Climate Change report highlighted the immediacy of the climate emergency, suggesting that in order to keep warming under 1.5 degrees Celsius, carbon emissions would need to be cut 45% by 2030.1 Though California is no longer in extreme drought, Berkeley is still categorized as abnormally dry, almost 50% of the state is in moderate drought or worse, and we can expect to face major droughts in the future.2
The City is already leading the state and nation in pursuing stricter green building standards through the adoption of stretch and reach codes (codes beyond the minimum imposed by the state) favoring sustainable buildings and time of sale energy audits, but progress is still hindered by a significant lack of financial incentives to encourage the replacing and phasing-out of energy inefficient, carbon and water-intensive infrastructure in new and existing buildings. For example, even though electric heat pump water heaters can prevent significant carbon emissions and save money on heating bills, the relatively higher
purchase and installation costs associated with heat
pumps as compared to gas-fired heaters remains a major disincentive.

1 IPCC Press Release, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5ºC approved by Governments, 8 October 2018,
http://www.ipcc.ch/pdf/session48/pr_181008_P48_spm_en.pdf 2 National Integrated Drought Information System, Drought in California, https://www.drought.gov/drought/states/california.

Page 11 of 38 ends

Page 55 ends

Short-Term Referral to City Manager and Office of Energy and Sustainable Development to Draft Ordinance Amending Berkeley Municipal Code Chapter 7.52, Reducing Tax Imposed for Qualifying Electrification, Energy Efficiency and Water Conservation Retrofits

CONSENT CALENDAR
November 27, 2018

Page 2 ends

The City has identified building retrofits as a key part of reducing emissions and energy and water usage. To achieve the ambitious sustainability goals set by the Council, the City cannot rely solely upon the market, state, federal and utility level incentives. It would do well to explore offering significant financial incentives to subsidize the transition towards sustainable building, including expanding the existing transfer tax subsidy for seismic retrofits to include qualifying sustainability retrofits.

Following the devastating 1989 Loma Prieta earthquake, the Council passed Ordinance 6072-NS in 1991 to reduce up to one-third of the transfer tax imposed on property owners who seismically retrofit any structure which is used exclusively for residential purposes, or any mixed use structure which contains two or more dwelling units.

In
passing the ordinance, forward-looking leaders acted independently of the state and federal government to subsidize critical building improvements in anticipation of relatively infrequent but exceedingly devastating earthquake emergencies. The seismic retrofit subsidy program offers a model for
accelerating opportunities to address the
major emergencies of our time.

This referral asks the City Manager and Office of Energy & Sustainable Development (OESD) to develop amendments to BMC Chapter 7.52 that expand the existing seismic retrofit subsidy in order to include appropriate reductions in transfer tax imposed on sales of property for qualifying electrification, energy efficiency, and water conservation retrofits.

According to a 2018 City Manager report, 737 Berkeley residences were transferred in 2017.3
In drafting the ordinance, staff should consider existing City sustainability goals such as the 2009 Berkeley Climate Action Plan, and the framework for a just and equitable transition as set out in the Climate Emergency Declaration.

Staff should tailor the
subsidy to be commensurate with the emergency at hand and should design it to result in quantifiable reductions in emissions as well as energy and water waste.

OESD staff recently issued a request for proposals (RFP) for expert analysis identifying a set of measureable policies and programs to transition Berkeley's building stock to efficient and 100% clean energy.
4 The resulting analysis report should help inform staff in determining which types of greenhouse gas reduction measures transfer tax reductions could fund. Additionally, within the context of the City’s sustainability goals

3 Placing a Measure on the November 6, 2018 Ballot to Increase the Transfer Tax on Property Sales to Pay for General Municipal Services Including Funding Homeless Services, City Manager, July 31, 2018, https://www.cityofberkeley.info/Clerk/City_Council/2018/07_Jul/Documents/2018- 07- 31_Item_05_Placing_a_Measure_on_the_November_6.aspx
4 Request for Proposals (RFP) Specification No. 19-11256-C for Pathway to Clean Energy Buildings Report: Existing Building Program Evaluation and Recommendations, OESD, October, 10, 2018, https://www.cityofberkeley.info/uploadedFiles/Finance/Level_3_-_General/19-11256-C%20- %20RFP%20Pathway%20to%20Clean%20Energy%20Building%20Report_revd%201017.pdf .

Page 12 of 38 ends

Page 56 ends

CONSENT CALENDAR
November 27, 2018

Page 3 ends

and the RFP analysis, staff should specifically consider developing and codifying definitions of qualifying improvements, including but not limited to:

 Electric service panel upgrades for the purpose of transitioning to electric appliances
 Transitioning home appliances to efficient electric versions, e.g. replacing gas burning appliances and systems such as fossil fuel HVACs, cooktops and ovens, washers and dryers, and water heaters.

Solar or other clean energy generation installations
 Electric vehicle charging stations
 Building weatherization upgrades in coordination with the Building Energy Saving Ordinance (BESO)
 Graywater recapture systems
 Water efficient fixtures and irrigation systems
T
he seismic retrofit program was limited to residential and mixed use buildings, but staff should consider the appropriateness and effectiveness of extending the subsidy program to commercial and/or industrial properties for the purpose of achieving city- wide sustainability goals. It should also review whether the existing requirement for completing seismic retrofits following property transfers is appropriate for the sustainability retrofits outlined in this referral.

Finally, staff should attempt to estimate the carbon, electrical, and water savings that are likely to result from adoption of their proposal, and determine whether alternatives exist which, at a similar cost the city, would result in greater reductions.

This referral is compatible with OESD’s 2017 Climate Action Report update suggesting that the Council take bold steps to meet Berkeley’s 2050 emission reduction goals. The report highlighted the urgency of identifying resources for incentivizing electrification measures, building efficiency, generation of renewable electricity, and transitioning buildings and vehicles away from fossil fuel.5

5 Berkeley Climate Action Plan Update, Office of Energy and Sustainable Development, December 7, 2017, https://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_- _Energy_and_Sustainable_Development/2017-12-
07%20WS%20Item%2001%20Climate%20Action%20Plan%20Update.pdf

Page 13 of 38 ends

Page 57 ends

CONSENT CALENDAR
November 27, 2018

Page 4 ends

FINANCIAL IMPLICATIONS
Possible reduction in tax revenue, the magnitude of which is dependent on which retrofits are found to be qualifying.

ENVIRONMENTAL SUSTAINABILITY
Incentivizing electrification, energy efficiency, and water savings is directly in line with the City’s climate and environmental goals.

CONTACT PERSON
Councilmember Kate Harrison, Council District 4, (510) 981-7140 Attachments:

1. BMC Section 7.52.060

Page 14 of 38 ends

Page 58 ends

7.52.060 Exceptions.

A. Any tax imposed pursuant to this chapter shall not apply to any instrument in writing given to secure a debt.

B. Any deed, instrument or writing to which the United States, or any agency or instrumentality thereof, any state or territory, or political subdivision thereof, is a party shall be exempt from any tax imposed pursuant to this chapter when the exempt agency is acquiring title.

C. Any tax imposed pursuant to this chapter shall not apply to the making, delivery, or filing of conveyances to make effective any plan of reorganization or adjustment:

1. Confirmed under the Federal Bankruptcy Act, as amended;

2. Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subdivision (m) of Section 205 of Title 11 of the United States Code, as amended;

3. Approved in an equity receivership proceeding in a court involving a corporation, as defined in subdivision (3) of Section 506 of Title 11 of the United States Code, as amended; or

4. Whereby a mere change in identity, form or place of organization is effected.

Subdivisions 1 to 4, inclusive, of this section shall only apply if the making, delivering or filing of instruments of transfer of conveyance occurs within five years from the date of such confirmation, approval or change.

D. Any tax imposed pursuant to this chapter shall not apply to the making or delivering of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of 1954; but only if:

1. The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of Section 79k of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935;

2. Such order specifies the property which is ordered to be conveyed;

3. Such conveyance is made in obedience to such order.

Page 15 of 38 ends

Page 59 ends

Page 2 ends

1. In the case of any realty held by a partnership, no levy shall be imposed pursuant to this chapter by reason of any transfer of an interest in a partnership or otherwise, if:

a. Such partnership (or another partnership) is considered a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1954; and

b. Such continuing partnership continues to hold the realty concerned.

2. If there is a termination of any partnership within the meaning of Section 708 of the Internal Revenue Code of 1954, for purposes of this chapter, such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination.

3. Not more than one tax shall be imposed pursuant to this chapter by reason of a termination described in subdivision 2, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination.

1. Any tax imposed pursuant to this chapter shall not apply to any transfer of property from one spouse or domestic partner to the other in order to create a joint tenancy or tenancy in common of their common residence.

2. Any tax imposed pursuant to this chapter shall not apply to any transfer of property from one spouse to the other in accordance with the terms of a decree of dissolution or in fulfillment of a property settlement incident thereto; provided, however, that such property was acquired by the husband and wife or husband or wife prior to the final decree of dissolution. Any tax imposed pursuant to this chapter also shall not apply to any transfer from one domestic partner, as that term is used in the City of Berkeley’s policy establishing domestic partnership registration, to another, where (1) prior to such transfer an affidavit of domestic partnership has been filed with the City Clerk pursuant to Section IV of the City of Berkeley’s policy establishing domestic partnership registration; (2) subsequent to the filing of such affidavit of domestic partnership, either or both domestic partner(s) files a statement of termination with the City Clerk pursuant to Section V of the domestic partnership policy; (3) such transfer of real property is made pursuant to a written agreement between the domestic partners upon the termination of their domestic partnership; and (4) the real property was acquired by either or both domestic partner(s) prior to the filing of the statement of termination.

Any tax imposed pursuant to this chapter shall not apply to transfers, conveyance, lease or sub-lease without consideration which confirm or correct a deed previously recorded or filed.

Page 16 of 38 ends

Page 60 ends

Page 3 ends

H. Any tax imposed pursuant to this chapter shall not apply to transfers recorded prior to the effective date of the ordinance codified in this chapter.

I. The tax imposed pursuant to this chapter shall not apply with respect to any deed, instrument, or writing to a beneficiary or mortgagee, which is taken from the mortgagor or trustor as a result of or in lieu of foreclosure; provided, that such tax shall apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost foreclosure. Consideration, unpaid debt amount and identification of grantee as beneficiary or mortgagee shall be noted on said deed, instrument or writing or stated in an affidavit or declaration under penalty of perjury for tax purposes.

J. Reserved.

1. Up to one-third of the tax imposed by this chapter shall be reduced, on a dollar for dollar basis, for all expenses incurred on or after October 17, 1989 to "seismically retrofit" either any structure which is used exclusively for residential purposes, or any mixed use structure which contains two or more dwelling units.

2. The term "seismically retrofit" within the meaning of this chapter means any of the following:

a. That work which is needed and directly related to make the structure capable of withstanding lateral loads equivalent to the force levels defined by Chapter 23 of the 1976 Uniform Building Code;

b. Replacement or repair of foundations; replacement or repair of rotted mud sills; bracing of basement or pony walls; bolting of mud sills to standard foundations; installation of shear walls; anchoring of water heaters; and/or securing of chimneys, stacks or water heaters;

c. Corrective work on buildings which fit the criteria in subsection K.1, which are listed on the City of Berkeley inventory of potentially hazardous, unreinforced masonry buildings when such work is necessary to meet City standards or requirements applicable to such buildings;

d. Any other work found by the building official to substantially increase the capability of those structures, specified in subsection K.1, to withstand destruction or damage in the event of an earthquake.

3. The work to seismically retrofit structures as provided herein shall be completed either prior to the transfer of property or as provided in subsection K.4.

Page 17 of 38 ends

Page 61 ends

Page 4 ends

4. If the work to seismically retrofit the structures provided for herein is to be performed after the transfer of property which is subject to the tax imposed by this chapter, upon completion of such work and certification by the building official as to the amount of the expenses of such work the City Manager or his/her designee may refund such expenses not to exceed one-third of the tax imposed to the parties to the sale in accordance with the terms of such sale. Any remaining tax shall be retained by the City.

5. From the date of the recordation of the transfer document, the applicant shall have one year to complete all seismic retrofit work and submit a seismic retrofit verification application to the codes and inspection division of the City of Berkeley. If the work is not completed at the end of one year, that portion which has been completed may be credited to the applicant upon submission of a seismic retrofit verification application and substantiating documentation, as required by the codes and inspections division of the City of Berkeley, showing the dollar amount of work completed up to that date. All other monies remaining in escrow will be returned to the City of Berkeley upon written request by the Finance Department.

6. Within the one-year period established by paragraph 5, an applicant may request, and the City Manager may approve, an extension of up to one year. The City Manager or his/her designee may grant such an extension only for good cause.

The decision of the City Manager or his/her designee shall be entirely within his or her discretion and shall be final.

a. "Good cause" includes (i) the inability of the applicant, after a prompt and diligent search to find and retain the services of an architect, engineer, contractor or other service provider whose services are necessary for the seismic retrofit work; (ii) unforeseen and unforeseeable circumstances such as a significant change in the scope of the seismic retrofit work due to circumstances in the field which could not reasonably have been known earlier; and (iii) serious illness or other extraordinary and unforeseeable circumstances that prevented the timely commencement or completion of the seismic retrofit work.

b. "Good cause" does not include (i) ignorance of the applicable City ordinances or regulations concerning the seismic retrofit rebate provided in this chapter or state or local laws relating to the standards with which seismic retrofit work must comply; or (ii) any delays which were within the control or responsibility of the applicant.

Page 18 of 38 ends

Page 62 ends

Kate Harrison
Councilmember District 4

CONSENT CALENDAR
November 30, 2021
To: Honorable Mayor and Members of the City Council
From: Councilmember Harrison (Author), Councilmember Bartlett (Co-Sponsor) Subject: Budget Referral and Resolution Establishing a Pilot Existing Building Electrification Installation Incentives and Just Transition Program with Pre- Qualified Contractors Meeting Minimum Labor Standards to Assist New Property Owners, Renters and Existing Property Owners with Transition to Zero-Carbon Buildings

RECOMMENDATION

1. Adopt a Resolution establishing:
a. a referral to Office of Energy and Sustainable Development (OESD) staff to design and launch a two-year Pilot Existing Building Electrification Installation Incentives and “Just Transition” Program, using pre-qualified contractors meeting minimum labor standards to assist new property owners, renters and existing property owners with transition to zero-carbon plumbing, HVAC, cooking, and related electrical systems, with a preference first for assisting existing affordable housing buildings and assisting households at or below 120% of the Area Median Income; and
b. an annual process for the Energy (or successor) Commission and the Facilities, Infrastructure, Transportation, Environment & Sustainability Policy Committee (FITES), in consultation with community and labor groups, to provide input to staff and Council about eligible categories of fund
expenditures to maximize equitable emissions reductions and impacts for eligible households while leaving the mechanisms for doing so to staff discretion.

2. Send copies of the Resolution and letters to members of the California Public Utilities and Energy Commissions, Governor Newsom, State Senator Skinner, and Assemblymember Wicks conveying urgent support for a statewide approach to rapidly contract the natural gas distribution system in a way that is safe, economical for remaining customers, and that provides a just transition for affected workers, including gas utility and extraction workers.

Page 1 of 20 ends

ATTACHMENT 4Page 19 of 38

Page 63 ends

Budget Referral and Resolution Establishing a Pilot Existing Building Electrification Installation Incentives and “Just Transition” Program with Pre-Qualified Contractors Meeting Minimum Labor Standards to Assist New Property Owners, Renters and Existing Property Owners with Transition to Zero-Carbon Buildings

CONSENT CALENDAR
November 30, 2021
2 3. Refer to the November, 2021 AAO budget process:
a. $1,500,000 of general fund monies from the American Rescue Plan Act allocation and other sources as appropriate as seed funding for the two-year pilot, inclusive of staff costs, for FY 2022.

POLICY COMMITTEE RECCOMENDATION
Action: 15 speakers. M/S/C (Arreguín/Harrison) to send the item to Council with a qualified positive recommendation including the following amendments:

Recommendation 2. That part of the recommended funding source is American Rescue Plan dollars and;
Recommendation 1a. Modifying the end of the last sentence to “with a preference first for affordable housing projects and assisting households at or below 120% the area median income.”
Vote: Ayes – Harrison, Arreguín; Noes – None; Abstain – Droste; Absent - None.

CURRENT SITUATION, EFFECTS, AND RATIONALE FOR RECOMMENDATION The world is facing a grave climate emergency, requiring municipalities to rapidly transition towards zero carbon economy by 2030. Transitioning Berkeley’s economy will require significant investment on the part of both government and residents. It is in the public interest to establish a direct install financial incentive and “just transition” program using pre-qualified contractors meeting minimum labor standards to assist new property owners, renters and existing property owners with the transition to zero-carbon buildings. This item establishes the general scope of a two-year Existing Building Electrification Incentive Program Pilot and refers to staff to design an equitable program with $1,500,000 for FY22, inclusive of staffing costs, and contingent on the availability of excess equity, from the General Fund. It also asks the Energy (or successor) Commission and FITES Committee, in consultation with community groups, to provide input to staff and Council on at least an annual basis about categories of fund expenditures that would provide the most benefit for lower-income households, maximize equitable emissions reduction impacts, and support residential construction contractors who will reliably perform high-quality work and provide high-road careers for workers. The establishment of this program is consistent with staff and Council goals and budgetary priorities.

BACKGROUND
According to the best available science, a 50% reduction in emissions must happen worldwide by 2030 or earlier in order to delay extremely catastrophic warming. To meet the U.N.’s global 2050 target to keep emissions as close as possible to 1.5 degrees Celsius,

Page 2 of 20 ends

Page 64 ends

CONSENT CALENDAR
November 30, 2021
3 wealthy nations and cities must approach zero by 2030.1 As a result of the scientific and economic realities of climate change, and despite the people of Berkeley’s average relative wealth, it is not realistic to expect the owners and renters of the city’s approximately 46,000 residential housing units to electrify their buildings in a decade without significant government co-investment. Low-carbon technology can often be out of reach of many lower-income households and, without direct assistance, many will be left behind. Transitioning Berkeley’s economy will require significant investment on the part of both residents and the government. Following Berkeley’s 2019 landmark prohibition on natural gas infrastructure, staff have released a Draft Berkeley Existing Buildings Electrification Strategy that is currently unfunded.

Although the City recently invested $600,000 to seed the Climate Equity Action Fund, the funding is extremely limited and may not be enough for certain electrification retrofit projects.

Additional investments would significantly lower Berkeley’s carbon emissions, at least 37% of which are from buildings, and provide residents with a plethora of health and safety benefits that will likely outweigh upfront costs. The program can be crafted in a way that supports good paying jobs, for example including unionized contractors, workforce development and local hire requirements. The transition to a zero-carbon city thus has the potential to uplift both workers and residents.

Existing Buildings Electrification Strategy
In January 2021, the City’s Office of Energy and Sustainable Development reported to the Energy Commission that the cost of electrifying the City’s entire low-rise building stock (approximately 36,000 units, or 90% of all Berkeley buildings and 65% of floor area) would be between $700 and $880 million. An additional $120 million is needed for efficiency improvements and solar.
1 IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R.

Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)].

World Meteorological Organization, Geneva, Switzerland, 32 pp. https://www.ipcc.ch/sr15/chapter/spm/.

Page 3 of 20 ends

Page 65 ends

CONSENT CALENDAR
November 30, 2021
4 Cleary, this relatively modest pilot program paired with the Climate Equity Action Fund would only make a small dent in the City’s retrofit challenge, perhaps facilitating 400- 500 retrofits per year. However, the success of this pilot program will likely spur the Council and residents to seek additional federal, state and local funds to expand the program in subsequent years. The expertise and lessons learned through this pilot will help guide future efforts aimed at closing the 46,000 gas-powered residential unit challenge.

Since 2018, the Council has explored opportunities to increase public investment in building electrification retrofits. Councilmember Harrison’s November 27, 2018 referral, following the passage of the Climate Emergency Declaration, requested that the City Manager draft an ordinance expanding eligibility for the existing Seismic Transfer Tax Rebate Program to include electrification and other resiliency measures. Staff

Page 4 of 20 ends

Page 66 ends

CONSENT CALENDAR
November 30, 2021
5 subsequently presented the draft ordinance to Council in July of 2020 at the outset of the COVID-19 pandemic with a recommendation to take no action for a year due to COVID-19-related fiscal uncertainty, and the item was held over at the Facilities, Infrastructure, Transportation, Environment & Sustainability Policy Committee (FITES).

At the same time, staff also presented to FITES a related referral to design a companion Resilient Homes Equity Pilot Program that would provide funding for home retrofit improvements to low-income residents. FITES and Council agreed to move the Resilient Homes Equity Pilot Program design and research process forward in November, 2020. The program remains underfunded.

In early 2021, Councilmember Harrison’s office and the FITES Committee worked with City staff to explore opportunities to fund retrofits through general fund transfer tax revenues and establishing a cap on total and per beneficiary allocations. In working with the City Manager, Councilmember Harrison concluded that while the existing transfer tax rebate system is a good vehicle for allocating at point of sale, it does not necessarily provide funding for existing property owners who may need to replace a broken appliance or who want to make voluntary retrofits. A better vehicle is a two-year direct install pilot; this requires fewer staff resources to administer and builds on significant staff experience and expertise administering incentive programs.

This item is a companion to the Seismic Transfer Tax Rebate model in the form of a budget referral and resolution establishing two-year pilot incentive program funded via general fund allocations, which are currently partially funded by transfer tax revenue.

Existing Building Electrification Direct Install Incentive and Just Transition Program Pilot
This item proposes a direct install incentive and Just Transition pilot program that is consistent with recent workforce-focused building decarbonization developments initiatives at the state, regional and local levels that benefit labor, minimize cost, and maximize climate benefits.

On February 22, 2021 the California Workforce Development Board announced a $8.9 million grant as part of the High Road Training Partnership (HRTP) for “sector-based workforce development projects in several industries and areas that are critical to the state’s strategy for a just recovery from the COVID-19 pandemic and economic crisis while addressing climate change and community resilience.”2 According to the 2 California Workforce Development Board, “CWDB Announces Grants to Invest in Building Back Better with Equity, Climate and Jobs, February 22, 2021, https://cwdb.ca.gov/wp- content/uploads/sites/43/2021/03/CWDB-PressRelease-HRTP-Open-FINAL-021821_ACCESSIBLE.pdf

Page 5 of 20 ends

Page 67 ends

CONSENT CALENDAR
November 30, 2021
6 California Workforce Development Board, “high road” employers include those firms “that compete based on quality of product and service achieved through innovation and investment in human capital, and can thus generate family-supporting jobs where workers have agency and voice.”3
Bay Area-based Rising Sun Center for Opportunity received $600,000 from the grant to launch a “High Road to Residential Building Decarbonization” project to convene more than 20 Bay Area cities, government agencies, unions, employers, and advisors.4 The City of Berkeley along with the Construction Trades Workforce Initiative (CTWI), the non-profit arm of the Building & Construction Trades Councils of Alameda and Contra Costa Counties, were invited to participate in ongoing discussions about ensuring equitable access to high-road jobs in the building decarbonization industry.

To date, these and other ongoing collaborative efforts have been extremely productive—in May 2021 CTWI and the Alameda County Building Trades Council provided helpful feedback and recommendations to the City’s OESD staff regarding the City’s Existing Buildings Electrification Strategy. However, the state grant did not include funding to do the physical work of electrification retrofits. Significantly, CTWI and Trades Council committed to:
“…supporting the City of Berkeley in its goals of reducing greenhouse gas emissions while ensuring that people who live and work in Berkeley—especially those from historically disadvantaged populations—have access to high-road, family-sustaining careers in union construction associated with existing building electrification and decarbonization.”5 In addition, their key recommendations to the City of Berkeley’s building electrification strategy include:

1. Address decarbonization overall—building electrification as well as energy efficiency measures—when planning strategies for a “Just Transition” in consultation with all crafts affected, including but not limited to Sheet Metal, Electricians, Carpenters, Plumbers and Pipefitters.

2. Create programs and identify funding sources to incentivize Berkeley property owners to replace, upgrade and install systems that will achieve energy efficiency goals.
3 California Workforce Development Board, “High Road Training Partnerships,” Rising Sun Center for Opportunity, “Rising Sun Convenes Partnership to Promote Equitable Job Access in the Bay Area’s Post- Carbon Economy,” March 29, 2021, https://cwdb.ca.gov/initiatives/high-road-training-partnerships/. 4 https://risingsunopp.org/wp-content/uploads/Rising-Sun-HRTP-Press-Release.pdf. 5 CTWI Policy Recommendations City of Berkeley Existing Buildings Electrification Strategy.

Page 6 of 20 ends

Page 68 ends

CONSENT CALENDAR
November 30, 2021
7 3. Require the use of pre-qualified residential construction contractors who will reliably perform high-quality work and provide high-road careers for workers.

4. Link disadvantaged Berkeley residents to training programs that prepare them to enter and succeed in union construction careers by working with and budgeting for ongoing City funding for local Multi-Craft Core Curriculum (MC3) workforce partners, school districts/community colleges and CBOs to develop and sustain a long-term pipeline of work in the residential building retrofit market that carries high-road labor standards.

5. Develop public education campaigns and resources to promote new City programs and the benefits of energy efficient systems and appliances; provide information on systems and requirements; and link property owners to a list of pre-qualified contractors.

Since this item was deferred to the November AAO following the June 2021 budget process, Councilmember Harrison’s office has engaged with the CTWI and the Trades to expand the item to incorporate specific recommendations to further refine the proposed incentive program and to enhance benefits to workers and residents.

This Budget Referral and Resolution now support each of the above CTWI and Trades recommendations.

With respect to recommendations 1-3, the $1.5 million budget allocation would create a “direct install” incentive program. Direct install programs eliminate the need for households to find and manage their own contractors, and therefore can achieve significant cost savings. They also equitably eliminate or reduce the amount of upfront money needed by property owners to conduct retrofits, and eliminate the need to retroactively apply or wait for rebates (e.g., at tax time etc.). For example, the Sacramento Municipal Utility District (SMUD) recently reported the following significant advantages of direct install strategies to the California Energy Commission:
“SMUD has achieved significant societal cost savings by using direct installation in low-income single-family homes. For example, SMUD’s average low-income direct installation cost for a heat pump water heater is $2,200 whereas for our market rate program, in which SMUD incentivizes $2,500 and the customer is responsible for hiring a contractor, the average total cost is close to $3,800. The cost savings may be even greater if the direct-install contractor is able to go door-to- door and convert multiple adjacent homes. Direct installation has only been used for low-income programs to date but could be equally beneficial when applied to any home or neighborhood.

While labor costs associated with direct installation can be greater given prevailing wage

Page 7 of 20 ends

Page 69 ends

CONSENT CALENDAR
November 30, 2021
8 considerations, direct installation can nevertheless be cost-competitive for the utility in sufficient volume.” 6
Further, OESD’s draft electrification strategy recommends direct install programs because they streamline permitting and lower barriers to residents:
“One of the major hurdles many community members face is lack of knowledge regarding incentives and rebates for electric equipment. When an appliance like a hot water heater breaks, there is rarely time to conduct extensive research on the programs available. This action would tie these resources directly to the permit for the appliance. When a permit is pulled for a heat pump hot water heater, that incentive would be given directly to the installer. This would lower the upfront costs for consumers and further incentivize electrification. Furthermore, this action would help remove the procedural inequities currently experienced by marginalized communities who may not have the time to conduct research or resources to pay the full price of the equipment while they wait for rebates to arrive.”7
Such a direct install program could also include energy efficiency upgrades if paired with utility-based and regional incentives for insulation and other building envelope improvement programs potentially employing the labor of additional trades.

Importantly for workers, the direct install program would incorporate pre-qualified contractors meeting minimum quality and labor standards, similar to the City’s existing project labor agreements. The City would also achieve economies of scale on permitting and inspection processes and ensure workers are properly trained and licensed/certified. Staff should consider the following pre-qualification requirements:

1. Certification that the contractor is in compliance with all applicable licensing, bonding, and insurance requirements;

2. Certification that the Contractor participates in, makes training fund contributions to, and sponsors apprenticeships from a state-approved apprenticeship program that partners with an MC3 pre-apprenticeship program;

3. Certification that the contractor provides family health benefits and pension benefits to its workers;

4. Certification that the contractor has not been convicted of, fined, or penalized for any violation of wage, labor, safety, or building standard requirements within the last five years;
6 Sacramento Municipal Utility District, “SMUD Comments on Building Decarbonization and Energy Efficiency,” 21-IEPR-06 and Building Decarbonization, July 27, 2021, https://efiling.energy.ca.gov/GetDocument.aspx?tn=239016&DocumentContentId=72448 7 OESD, Draft Existing Buildings Electrification Strategy, April, 2021, https://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_- _Energy_and_Sustainable_Development/Draft_Berkeley_Existing_Bldg_Electrification_Strategy_202104

15.pdf

Page 8 of 20 ends

Page 70 ends

CONSENT CALENDAR
November 30, 2021
9 5. Certification that no surety firm has had to complete a contract or pay for completion of a contract on behalf of the contractor or subcontractor within the last five years;

6. Certification that the contractor has not had any licenses revoked within the past five years;

7. Certification that the contractor is not ineligible to bid, be awarded or subcontract on a public works project pursuant to either Labor Code section 1777.1 or Labor Code section 1777.7;

8. Certification that the contractor has not been cited for any serious, willful or repeat OSHA violations within the last five years as defined under Title 8 of the California Code of Regulations.

9. Certification that the contractor has a Better Business Bureau rating of “B” or higher.

With respect to recommendation 4, the Resolution also refers to staff to design the program in consultation with labor partners to facilitate apprenticeship opportunities for Berkeley residents, including historically disadvantaged populations. The program would be integrated into the City’s website and existing communications channels pursuant to recommendation 5.

The item also supports the concept of “just transition” off fossil fuels and towards a zero- carbon economy. According to a report by the Climate Equity Network, a just transition includes moving away from fossil fuels “in a manner that protects workers and communities economically dependent on the fossil fuel industry” and involves “those who have historically been excluded from the jobs and economic benefits of the extractive economy and expand the populations who have access to future jobs and economic opportunities.”8
While the City of Berkeley and Alameda County are not known for their petroleum extraction industries, the Alameda County Building Trades include Pipefitters, who stand to lose natural gas infrastructure installation and maintenance jobs over time as part of the City’s implementation of the natural gas prohibition (BMC 12.80) ordinance and other electrification initiatives. A 2019 UCLA Luskin Institute study found that 3,100- 3,600 jobs statewide could be lost as a result of new construction electrification policies alone. Meanwhile, the study estimated a statewide increase of 64,232-104,060 building 8 The Climate Equity Network, “A Roadmap to an Equitable Low-carbon Future: Four Pillars for a Just Transition, April, 2019,
https://dornsife.usc.edu/assets/sites/242/docs/Just_Transition_Final_Report_2019.pdf

Page 9 of 20 ends

Page 71 ends

CONSENT CALENDAR
November 30, 2021
10 electrification jobs, including retrofits.9 By partnering with organized labor through this pilot program, the City can help support impacted workers new work opportunities and workforce development opportunities, including the electrification of existing buildings.

At the same time, the City acknowledges that absent state leadership and a statewide just transition framework, electrification can adversely impact the livelihoods of gas utility infrastructure and extraction workers and low-income gas customers. Therefore, this item sends copies of the Resolution and letters to members of the California Public Utilities and Energy Commissions, Governor Newsom, State Senator Skinner, and Assemblymember Wicks conveying urgent support for a statewide approach to rapidly contract the natural gas distribution system in a way that is safe, economical for remaining customers, and that provides a just transition for affected workers, including gas utility and extraction workers.

In addition, this item supports expanding opportunities to historically excluded populations in Berkeley through labor apprenticeship programs that recruit directly from impacted populations. It also would provide electrification benefits to lower and moderate-income residents with a preference for those at or below 120% of the Area Median Income.

Budgetary Opportunities
Many economic and public health indicators suggest that the City is entering a more optimistic phase in the pandemic, to include the influx of substantial–but temporary– federal stimulus monies through the 2021 American Rescue Plan Act and the anticipation of a fairly rapid rebound in revenues to pre-pandemic levels. Transfer tax revenues for FY21 are estimated at $20 million (compared with $20 million in FY 19) and the city expects to receive a one-time two-year allocation of approximately $66 million from the 2021 American Rescue Plan Act.

As a result, it is in the public interest to revisit the July 2020 item to see how the City can best move forward with providing residents with critical greenhouse gas reduction incentives in order to address our larger and longer-term crisis: climate change.

According to recent 2020 transfer tax data from OESD, on average between 2014-2019, 845 residential units were transferred per year, generating approximately an average of $4.6 million total per year in eligible rebates for the Seismic Transfer Tax Program. The 9 UCLA Luskin Center, “California Building Decarbonization: Workforce Needs and Recommendations,” November, 2019, https://innovation.luskin.ucla.edu/wp-
content/uploads/2019/11/California_Building_Decarbonization.pdf.

Page 10 of 20 ends

Page 72 ends

CONSENT CALENDAR
November 30, 2021
11 city has approximately 46,000 occupied housing units, with the vast majority being gas- powered.

Currently, the Council approved amount in transfer tax revenues is allocated to the General Fund (as in the past, at $12.5 million) and some portion is typically set aside for capital projects (generally at $2 million). For the first year of this pilot program this item proposes to allocate a total of $1.5 million in excess Transfer Tax equity which would be inclusive of staff’s administrative costs.10 On adoption of this proposal, total transfer tax expenditures would amount to approximately $17 million, including the $12.5 million typically allocated to the General Fund programs and the $2 million to capital programs.

While the program will ultimately be designed by OESD staff through administrative regulation, this item also includes a resolution officially establishing the program and providing general parameters for how staff should allocate the proposed $1.5 million retrofit fund. This program and the $1.5 million allocation were originally included as a line item in the Planning & Development Department’s Fiscal Year 2022 proposed budget.

New property owners are most likely to remodel their units shortly completing the purchase. Thus, the Draft Berkeley Existing Buildings Electrification Strategy recommends allocating some portion of the fund for transferees of residential properties within two years of point of sale. The City is also exploring opportunities to adopt certain mandatory electrification requirements for transferees of new buildings through its BESO program.

Equitably supporting existing property owners and renters whose appliances, e.g., their water heater, break down suddenly, and those who wish to embark upon voluntary electrification projects to include new appliances, electrical work (e.g., panel upgrades) are also elements of the Building Electrification strategy. This part of the program would be similar to Marin County’s Electrify Marin program which provides residents with income-qualified incentives for building electrification and panel upgrades. Since 2019, Marin has disbursed over $100,000 in rebates.

Electrify Marin
10 This amount would be in addition to the separate $600,000 Climate Equity Action incentive fund proposed by Councilmember Harrison, Mayor Arreguín, and Councilmembers Taplin and Robinson.

Page 11 of 20 ends

Page 73 ends

CONSENT CALENDAR
November 30, 2021
12 These incentives would be paired with rebates available through BayRen and EBCE, which are helpful but fall far short of the actual cost. For example, BayRen and EBCE offer $2,000 for water heaters, which typically cost approximately $5,000-$10,000 when one includes the cost of potential electrical and panel upgrades. Berkeley’s incentive program is also needed to pay for space heating electrification, and needed panel and other electrical upgrades for which there are currently no incentives. Electrical, panel and space heating upgrades are typically the most expensive part of any electrification project.

Staff have indicated that they believe an additional incentive of approximately $2,500 per property owner would be significant to persuade many property owners to electrify.

Alternatives Considered
FITES discussed whether to expand this program beyond building electrification to include fire safety and resilience upgrades. However, at this time, fire programs have separate revenue sources and greenhouse gas reduction is a top priority given the need to reduce emissions to near zero by 2030 per the 2018 IPCC report. For example, fire safety measures have received generous support from the voters through Measure FF, whereas climate is still severely underfunded. In addition, global warming is one of the chief causes of increased fire threats.

FINANCIAL IMPLICATIONS
This item would result in a one-time investment of $1,500,000 from excess equity to provide initial funding for a two-year Existing Building Electrification Incentive Program Pilot to assist property owners and renters with the transition to a zero-carbon economy.

This investment includes staff costs to run the program and to provide support for implementation of the Berkeley Existing Building Electrification Strategy (BEBES): a temporary 2-year FTE, estimated at $200,000 per year, for a total of $400,000.

ENVIRONMENTAL SUSTAINABILITY
Supporting incentives for building decarbonization will complement and accelerate

Page 12 of 20 ends

Page 74 ends

CONSENT CALENDAR
November 30, 2021
13 Berkeley’s ongoing efforts to reduce carbon emissions at an emergency and equitable pace in line with the Climate Action Plan, Climate Emergency Declaration, and Existing Building Electrification Strategy.

CONTACT PERSON
Councilmember Kate Harrison, Council District 4, 510-981-7140

ATTACHMENTS

1. Resolution

Page 13 of 20 ends

Page 75 ends

RESOLUTION NO. ##,###-N.S.

RESOLUTION ESTABLISHING A PILOT EXISTING BUILDING ELECTRIFICATION

INSTALLATION INCENTIVES AND JUST TRANSITION PILOT PROGRAM WHEREAS, the world is facing a grave climate emergency, requiring municipalities to rapidly and justly transition towards a zero-carbon economy by 2030; and WHEREAS, transitioning Berkeley’s economy will require significant investment on the part of both government and residents as staff have estimated that converting Berkeley’s approximately 46,000 residential housing units will likely cost hundreds of millions of dollars; and
WHEREAS, low-carbon technology and infrastructure can often be out of reach for many households and, without direct assistance, many will be left behind; and WHEREAS, moderate and lower-income communities are most impacted by global climate change and have the least financial ability to address it; and WHEREAS, City’s Draft Existing Building Electrification Strategy cites the importance of ensuring equity in access to carbon-free technology; and WHEREAS, by partnering with labor the City of Berkeley can cost effectively meet its goals of reducing greenhouse gas emissions while supporting elements of a just transition such as ensuring that people who live and work in Berkeley—especially those from historically disadvantaged populations—have access to high-road, family-sustaining careers in union construction associated with existing building electrification; and WHEREAS, the program would help support Pipefitters and other tradespeople who may be acutely impacted by Berkeley’s building electrification policies; and WHEREAS, direct install programs using pre-qualified contractors meeting quality and labor standards eliminate the need for households to find and manage their own contractors, and therefore can achieve significant cost savings and socioeconomic benefits; and
WHEREAS, it is in the public interest to establish a two-year Existing Building Electrification Direct Install and Just Transition Incentive Program to assist residents with transitioning from a carbon-based city; and
WHEREAS, in adopting this building electrification Pilot Program, the City of Berkeley simultaneously supports local and statewide electrification at an emergency pace (2030) and continued safe, affordable, and reliable natural gas service for Berkeley and California customers who remain on gas service in the interim; and WHEREAS, despite offering opportunities for certain trades, absent state leadership and a statewide just transition framework, electrification can adversely impact the livelihoods of gas utility infrastructure and extraction workers and low-income gas customers; and

Page 14 of 20 ends

Page 76 ends

WHEREAS, the City of Berkeley urges the State of California, through the California Public Utilities Commission and the California Energy Commission, to adopt a statewide approach to rapidly contract the natural gas distribution system in a way that is safe, economical for remaining customers, and that provides a just transition for gas utility and extraction workers.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager establish an Existing Building Electrification Installation Incentives and Just Transition Program to invest in zero-carbon plumbing, HVAC, cooking, and related electrical system retrofits as follows, to be further defined by staff:

1. a preference first for assisting existing affordable housing buildings and assisting households at or below 120% of the Area Median Income such as:
a. transferees of residential property to include appliance retrofits and electrical upgrades as appropriate;
b. existing residential property owners and renters, including rent-controlled tenants, pursuing electrification retrofits or replacing broken or outdated appliances, to include electrical upgrades as appropriate.

2. a nexus with high-road jobs, including:
a. use of pre-qualified residential construction contractors that will reliably perform high-quality work and provide high-road careers for workers and meet minimum labor standards;
b. consideration of leveraging other local, regional, state or federal climate or energy efficiency incentives, such as building efficiency, to maximize climate benefits and to include other crafts, including but not limited to Sheet Metal, Electricians, Carpenters, Plumbers and Pipefitters; c. linking Berkeley residents who are disadvantaged or disproportionately impacted by climate and environmental injustices to training programs (including apprenticeships) that prepare them to enter and succeed in union construction careers by working with and budgeting for ongoing City funding for local Multi-Craft Core Curriculum (MC3) workforce partners, school districts/community colleges and CBOs to develop and sustain a long-term pipeline of work in the residential building retrofit market that carries high-road labor standards.

BE IT FURTHER RESOLVED that the Berkeley Energy Commission, or successor, and the Facilities, Infrastructure, Transportation, Environment & Sustainability Policy Committee, in consultation with community groups, provide input to staff and Council on at least an annual basis about eligible categories of fund expenditures to maximize equitable emissions reductions and impacts for eligible households.

BE IT FURTHER RESOLVED that any unexpended funds shall carry over from year to year.

Page 15 of 20 ends

Page 77 ends

BE IT FURTHER AND FINALLY RESOLVED that copies of this Resolution and letters will be sent to members of the California Public Utilities and Energy Commissions, Governor Newsom, State Senator Skinner, and Assemblymember Wicks.

Page 16 of 20 ends

Page 78 ends

California Public Utilities Commission
San Francisco Headquarters
505 Van Ness Avenue
San Francisco, CA 94102
Re: Urgent Need for Statewide Just Transition for Gas Utility and Extraction Workers and Berkeley’s Resolution Establishing a Pilot Existing Building Electrification Installation Incentives and Just Transition Pilot Program Dear Honorable Commissioners:

As the Berkeley City Council adopts and implements policies phasing out natural gas from new buildings and incentivizing electrification in existing buildings occupied by lower-income residents, it writes to convey its urgent support for a statewide approach to rapidly contract the natural gas distribution system in a way that is safe, economical for remaining customers, and that provides a just transition for affected workers, including gas utility and extraction workers.

The world is facing a grave climate emergency, with the latest science warning that California and municipalities must rapidly and justly transition towards a zero-carbon economy by 2030. California’s existing decarbonization policies such as executive order B-55-18 and AB-3232 operate within a 2045 timeline, and are therefore dangerously out of sync with the latest science. It is therefore critical that the Commission and state leaders consider moving up these timelines while also providing funding and plans to facilitate a timely transition that supports all affected workers.

Despite the issuance of critical grants through the California Labor and Workforce Development Agency to support ongoing discussions between labor and municipalities with regard to electrification and other ongoing state-led initiatives, California currently lacks robust plans, funding, and just transition frameworks for workers who are directly impacted by electrification policies. These issues are directly within the jurisdiction of the California Public Utilities and California Energy Commissions.

As a municipality, the City of Berkeley is in the process of decarbonizing its building stock and supporting just transition elements for affected trades as feasible, but is ultimately limited in its ability to adequately support all affected workers, including gas utility and extraction workers. Berkeley looks to the State for its leadership on this critical issue.

For example, the City of Berkeley is in the process of implementing an Existing Building Electrification Strategy and a $1.5 million two-year pilot program to incentivize direct install electrification projects in lower-income households using minimum labor standards and prequalified contractors. In adopting this pilot, the City simultaneously supports local and statewide electrification at an emergency pace (2030) and continued safe and reliable natural gas service for Berkeley and California customers who remain

Page 17 of 20 ends

Page 79 ends

on gas service in the interim. While this pilot program has the potential to benefit and support many regional tradespeople who may be acutely impacted by Berkeley’s building electrification policies, without state leadership gas utility and extraction workers may be adversely impacted over time.

To this end, Berkeley believes that the State must quickly adopt statewide policies supporting gas utility workers and interim gas ratepayers, including but not limited to:
 establishing programs to retain highly skilled gas utility workers through the transition period;
 incentivizing senior workers to retire at the right time and retrain junior workers;  establishing a fund for gas worker retention and transition including bridges to retirement for older workers with wage replacement, retraining, and job placement assistance for younger workers;
 targeting subsidies and direct install electrification programs for vulnerable, historically disadvantaged, and low-income gas ratepayers;  adopting policies that stabilize utility bills for customers who remain on gas service in the interim;
 engaging stakeholders such as ratepayer advocates, labor, the utilities, and other experts in long-term planning to rapidly decommission and contract the natural gas distribution system in California with an emphasis for including all remaining gas customers, especially those low-income and disadvantaged gas customers.

Thank you for your consideration and leadership on this important issue.

Sincerely,
The Berkeley City Council
CC:

Governor Gavin Newsom
Senator Nancy Skinner
Assemblymember Buffy Wicks

Page 18 of 20 ends

Page 80 ends

California Energy Commission
715 P Street
Sacramento, CA 95814
Re: Urgent Need for Statewide Just Transition for Gas Utility and Extraction Workers and Berkeley’s Resolution Establishing a Pilot Existing Building Electrification Installation Incentives and Just Transition Pilot Program Dear Honorable Commissioners:

Page 19 of 20 ends

Page 81 ends

support many regional tradespeople who may be acutely impacted by Berkeley’s building electrification policies, without state leadership gas utility and extraction workers may be adversely impacted over time.

Thank you for your consideration and leadership on this important issue.

Sincerely,
The Berkeley City Council
CC:

Governor Gavin Newsom
Senator Nancy Skinner
Assemblymember Buffy Wicks

Page 20 of 20 ends

Page 82 ends

CONSENT CALENDAR
June 6, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Contract No. 32000020 Amendment: Rincon Consultants, Inc. for On-Call Planning and Environmental Services

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32000020 with Rincon Consultants, Inc. to prepare an addendum to the 2023-2031 Housing Element Update Environmental Impact Report (EIR) for the Southside Zoning Implementation Program, increasing the contract amount by $61,000 to a new total not- to-exceed contract amount of $2,061,000.

FISCAL IMPACTS OF RECOMMENDATION
This contract provides for on-call planning and environmental review services, including environmental analysis in accordance with the California Environmental Quality Act (CEQA). Funding for the proposed amendment to this contract is available in the FY 2023 budget, from the General Fund (011). No other funding is required.

CURRENT SITUATION AND ITS EFFECTS
Staff propose increasing the amount of the contract to enable Rincon Consultants, Inc. to prepare an addendum to the 2023-2031 Housing Element Update EIR for the Southside Zoning Implementation Program, pursuant to CEQA Guidelines Section 15164. This work is necessary to evaluate the potential environmental effects of the zoning modifications proposed under Program 27 of the Housing Element – Priority Development Areas (PDAs), Commercial and Transit Corridors, Southside Plan Area.

BACKGROUND
The City has worked with planning and environmental consultants since 2005 to provide expedited processing of land use applications and environmental analysis. The City issued a Request for Proposals in September 2018 and selected Rincon Consultants as one of 12 on-call consultants. On June 25, 2019, the City Manager entered into a contract with Rincon Consultants, Inc. to provide these services for a contract period of three years in amount not to exceed $1,000,000 (Resolution No. 69,005-N.S.).

On May 18, 2022, the City extended the contract for a period of three years to complete the Scope of Services, for a new termination date of June 30, 2025.

Page 1 of 3 ends

Page 83 ends

Contract No. 32000020 Amendment:

Rincon Consultants for On-Call Planning and Environmental Services CONSENT CALENDAR June 6, 2023

Page 2 ends

On January 31, 2023 the City Council approved an amendment to the contract with Rincon Consultants to add additional authority for general planning and environmental review services of $1,000,000, to a new not-to-exceed total amount of $2,000,000 (Resolution 70,681-N.S.).

The Housing Element Update EIR evaluated the potential environmental effects of an additional 1,000 units compared to existing zoning capacity in the Southside Plan Area.

Staff has refined that assumption based on additional community outreach and input received from the Planning Commission since certification of the EIR, and anticipates that the proposed zoning amendments could facilitate more than 1,000 additional units, requiring additional environmental review under CEQA.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
The City is satisfied with the services provided by Rincon Consultants to date under this contract, and the proposed amendment will provide the consultant with additional capacity to provide needed services to complete the Southside Zoning Implementation Program.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Jordan Klein, Director, Planning and Development Department, 510-981-7534 Steven Buckley, Manager, Land Use Division, 510-981-7411 Attachment:
1: Resolution

Page 2 of 3 ends

Page 84 ends

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 32000020 AMENDMENT: RINCON CONSULTANTS FOR ON-CALL

PLANNING AND ENVIRONMENTAL SERVICES
WHEREAS, the Planning Department issued a Request for Proposals in September 2018 (Spec No. 18-11251-C) for land use and environmental planning consultants; and WHEREAS, based on written proposals received, staff selected Rincon Consultants to provide such services; and
WHEREAS, on June 25, 2019 the City Council adopted Resolution 69,005-N.S., authorizing the City manager to enter a contract in an amount not-to-exceed $1,000,000 with Rincon Consultants to provide such services; and
WHEREAS, the City extended the contract for a period of three years, for a new termination date of June 30, 2025; and
WHEREAS, on January 31, 2023 the City Council adopted Resolution 70,681-N.S., further amending the contract with Rincon Consultants to add additional spending authority of $1,000,000, to a new not-to-exceed total amount of $2,000,000; and WHEREAS, an Addendum to the 2023-2031 Housing Element Update EIR (State Clearinghouse No. 2022010331) must be prepared to evaluate the potential environmental effects with implementation of the Southside Zoning amendments project (Program 27 of the Housing Element Update), pursuant to CEQA Guidelines Section 15164; and
WHEREAS, this scope and budget will require work from Rincon Consultants which exceeds its current contract funding; and
WHEREAS, additional funding in the amount of $61,000 is current available in the General Fund (011) for this work.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32000020 with Rincon Consultants to prepare an Addendum to the 2023-2031 Housing Element Update EIR for an additional amount of $61,000, to a new total contract not-to-exceed amount of $2,061,000, for the period extending through June 30, 2025.

BE IT FURTHER RESOLVED, that a record signature copy of said contract and any amendments will be on file in the Office of the City Clerk.

Page 3 of 3 ends

Page 85 ends

Page 86 ends

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-6750 ● TDD: (510) 981-6903 E-mail: [email protected] Website: http://www.berkeleyca.gov/your-government/city-audits

CONSENT CALENDAR
June 6, 2023
To:

From:

Honorable Mayor and Members of the City Council
Auditor Jenny Wong (Author), Mayor Jesse Arreguin (Co-Sponsor), Councilmember Rashi Kesarwani (Co-Sponsor), Councilmember Kate Harrison (Co-Sponsor), Councilmember Susan Wengraf (Co-Sponsor)
Subject: Berkeley City Auditor Whistleblower Program

RECOMMENDATION
Adopt a resolution to support and endorse the City Auditor’s plan to implement a Whistleblower Program. Consistent with the implementation plan, the City Auditor is currently requesting authorization to hire one additional Audit Manager.

FISCAL IMPACTS OF RECOMMENDATION
The fully burden costs for a full time Audit Manager is between $219,629 and $287,525. Initial costs associated with hiring an Audit Manager are offset by salary savings within the Auditor’s budget, resulting in no net increase to the Fiscal Years 2023 and 2024 Adopted Budget. The ongoing costs of increased personnel, as well as other resources required to effectively implement a Whistleblower Program, will be presented to Council as part of the Fiscal Year 2025-2026 budget.

A whistleblower program could reduce the financial impacts associated with undetected fraud in the City. The City Auditor shall explore options for expanding the general fund budget to support start-up and ongoing costs, which will vary based on the City’s desired level of service.

Budget expansions would come from the general fund, as hotline operations will be overseen by the City Auditor.

CURRENT SITUATION AND ITS EFFECTS
Currently, there is no formal avenue available to Berkeley residents to report concerns regarding City fraud, waste, and/or abuse. While City employees can file claims of fraud, waste, and/or abuse to a hotline or Ethics Committee managed by Human Resources, the current structure lacks independence. Without an independent body to oversee this process, employees may be hesitant to come forward.

BACKGROUND
State legislation encourages cities to specifically focus on fraud, waste, and/or misuse of city resources through whistleblower programs led by City Auditors. In 2009, California Government Code Section 53087.6 went into effect, which enabled local government auditors to establish whistleblower programs and to provide whistleblower protections. Local auditors are authorized under Section 53087.6 to create whistleblower programs with the approval of their respective legislative bodies, and have discretion in how to operate their programs. The code

Page 1 of 4 ends

Page 87 ends

does not authorize an Ethics Committee or Human Resources to manage whistleblower complaints.

California cities have established whistleblower programs including Oakland, San Francisco, Sacramento, San Diego, and Long Beach, with information publicly available. Each city has a webpage where people can find information such as how to submit a complaint, and what happens to a complaint once submitted.

A whistleblower program could significantly reduce costs associated with fraud and increase the City’s accountability for taxpayer money. The Association of Certified Fraud Examiners’ (ACFE) 2020 Report to the Nations on Occupational Fraud and Abuse maintains that a typical organization is estimated to lose 5 percent of its annual revenues to fraud.1 If City losses due to fraud align with these estimates, fraud may have cost the City as much as $21.4 million in revenue per year from 2012 to 2021. The City’s actual loss due to fraud is unknown; however, the longer fraud remains undetected, the greater the financial losses.

ENVIRONMENTAL SUSTAINABILITY
Opportunities to lessen environmental impacts could result from detection of fraud, waste, or misuse in Berkeley government.

RATIONALE FOR RECOMMENDATION
The Auditor’s Office is uniquely positioned to manage a whistleblower program. The Berkeley City Auditor maintains a level of structural independence well-suited for a whistleblower program, as they are elected by the public and do not report to the City Manager or Council.

The City Auditor is well-positioned due to their role in providing objective information on the operations of government programs, assisting managers in carrying out their responsibilities, and helping ensure full accountability to the public, among other reasons.

The addition of an Audit Manager position within the City Auditor’s Office would allow the Auditor to devote resources to begin implementing a Whistleblower Program.

CONTACT PERSON
Jenny Wong, City Auditor, City Auditor’s Office, 510-981-6750 Attachments:
1: Resolution
2: City Auditor’s Whistleblower Program Implementation Plan 1https://acfepublic.s3-us-west-2.amazonaws.com/2020-Report-to-the-Nations.pdf, pages 4 and 14

Page 2 of 4 ends

Page 88 ends

RESOLUTION NO. ##,###-N.S.

BERKELEY CITY AUDITOR WHISTLEBLOWER PROGRAM
WHEREAS, it is critical for the City of Berkeley to implement a Whistleblower Program to aid in identifying, reducing, and preventing fraud, waste, and abuse of City resources.

WHEREAS, The Auditor’s Office is uniquely positioned to manage a whistleblower program due to the independence of the office.

WHEREAS, California Government Code Section 53087.6 enables local government auditors to establish whistleblower programs and to provide whistleblower protections with the approval of their respective legislative bodies.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley to adopt a resolution to support and endorse the City Auditor’s plan to implement a Whistleblower Program, which will establish an independent mechanism for employees and the public to report complaints of fraud, waste, and abuse of city resources and resources for the Auditor to respond to alleged complaints.

BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorized the City Auditor to hire one Audit Manager to oversee the Whistleblower Program.

Page 3 of 4 ends

Page 89 ends

Berkeley City Auditor Whistleblower Program
Implementation Plan
Resources Reporting Mechanism Response Mechanism Education and Awareness
Program Launch
Hire Whistleblower
Program Manager
Determine appropriate
methods and platforms
for whistleblower
reporting
Design a process for
responding to and
referring complaints
Develop written
procedures and
educational material
Receive and respond to
complaints according to
established procedures
ActivityDetermine funding
needed for remaining
steps of the
implementation plan
and ongoing
operations
Design intake forms and
procedures
Obtain necessary access
rights to data systems for
investigations
Disseminate educational
materials
Develop mechanisms for
ongoing assessments of
program effectiveness
including the
development of metrics
to benchmark across
time or against similar
organizations
Resources Reporting Mechanism Response Mechanism Education and Awareness
Program Launch
Outcome
Staff and funding
secured to successfully
manage program
Multiple channels for
employees and outside
parties to report
complaints 24 hours a
day, 365 days of the
year
Ability to prioritize,
investigate, refer, and
follow up on complaints
received
Potential whistleblowers
understand how the
program works, why it is
important, and how they
will be supported
A more accountable
Berkeley government
through the prevention
and investigation of
suspected fraud, waste,
and abuse.

Phase 1 Phase 2 Phase 3 Phase 4 Phase 5

Page 4 of 4 ends

Page 90 ends

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
June 6, 2023
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín
Subject: Referral to City Manager and City Attorney: Tenant Habitability Plan and Amendments to Relocation Ordinance

RECOMMENDATION
1) Refer to the City Manager and City Attorney to review and develop proposed amendments to the Berkeley Municipal Code to require a Tenant Habitability Plan for major construction or renovation at tenant occupied properties.

Proposed language modeled after the City of Los Angeles’ Tenant Habitability Plan requirements is attached for consideration. The City Manager should also return with information on the costs and staffing needs for implementation for future budget discussions.
2) Refer to the City Manager and City Attorney recommendations from the 4x4 City Council/Rent Board Joint Committee on Housing for amendments to the City’s Relocation Ordinance, BMC Chapter 13.84 to strengthen and improve enforcement of the ordinance.

POLICY COMMITTEE RECOMMENDATION
On May 1, 2023, the Land Use, Housing, & Economic Development Committee adopted the following action: M/S/C (Robinson/Humbert) to forward the item to Council with a positive recommendation that the City Council approve the item with the Author’s updated recommendations as follows:
1) Refer to the City Manager and City Attorney to review and develop proposed amendments to the Berkeley Municipal Code to require a Tenant Habitability Plan for major construction or renovation at tenant occupied properties.

Proposed language modeled after the City of Los Angeles’ Tenant Habitability Plan requirements is attached for consideration. The City Manager should also return with information on the costs and staffing needs for implementation for future budget discussions. The committee further recommends that the City Manager establish an interdepartmental working group, including staff from Planning, HHCS, and the Rent Board.
2) Refer to the City Manager and City Attorney recommendations from the 4x4 City Council/Rent Board Joint Committee on Housing for amendments to the City’s Relocation Ordinance, BMC Chapter 13.84 to strengthen and improve enforcement of the ordinance.

Page 1 of 55 ends

Page 91 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 2 ends

Vote: All Ayes.

BACKGROUND
Relocation Ordinance
The Relocation Ordinance, Berkeley Municipal Code Chapter 13.84, which was adopted in 1986, is the primary tool for tenants who are displaced from their home due to mandated or voluntary code-compliance repairs that requires the tenant to temporarily vacate their home. After a lengthy review process which included input from community stakeholders and City commissions, the Ordinance was substantially amended in 2011.

Since its inception, the purpose of the Ordinance has always been “…to provide relocation services and require property owners to make certain payments to ..tenant households temporarily relocated as a result of code enforcement…or voluntary code compliance…” (B.M.C. 13.84.010). The Ordinance applies to all residential households and provides few exceptions when work is mandated (B.M.C. 13.84.020B [definition of household and unit], 13.84.020C, 13.84.030B [definition of natural disaster which exempts property owners from complying with the Ordinance]).1 The following section describes how the Ordinance operates in theory and in practice as well as difficulties and concerns that have arisen since it’s most recent 2011 implementation.

1. Eligibility
*Application:

Initially, the City’s Relocation Ordinance is only available to parties if either the City determines the unit cannot be safely occupied while City-mandated code compliance work is being undertaken or if it is determined that voluntary code compliance work or fumigation work initiated by the owner necessitates the tenant temporarily vacating their unit (B.M.C. 13.84.030A; 13.84.060A, C).
* Practice:

In practice, the triggering aspect of the Ordinance is one of its greatest blind spots. It is understood throughout the City that there will hardly ever be a circumstance that, when asked, the Building Official will opine that the tenant must vacate in order for code compliance work to be done. This aspect of the Ordinance’s administration is relevant since the scenario that usually occurs is when either the owner wishes to have the tenant vacate and the tenant doesn’t want to, or the tenant wants to vacate and the owner doesn’t believe the work requires the tenant to vacate. It is noted that parties are sometimes able to work out these differences and voluntarily comply with the 1 It is noted that there has been some misunderstanding of the Ordinance’s applicability within the City. It is important to note that the Ordinance applies to all residential tenancies and not just those covered by the City’s Rent Stabilization and Good Cause for Eviction Ordinance and that fires that are not a “natural event” such as a “forest fire” do implicate and trigger the Ordinance.

Page 2 of 55 ends

Page 92 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 3 ends

Ordinance’s requirements or agree to other terms that are mutually acceptable. This is often done however after substantial counseling, guidance and direction from City staff.2

2. Property Owner Responsibilities
*Application:

Once the Ordinance is triggered and there is no dispute between the owner and tenant regarding the applicability of the Ordinance, the owner is responsible for providing relocation payments directly to the tenant household (13.84.040). Under the Ordinance, payments fall into one of two categories; work that is to be completed in less than thirty days and work that will take thirty days or more.

For work to be done in less than thirty days all tenant households are to receive a per diem rate currently set at anywhere from $120 to $166 per day depending on size of household with increases of $15 per day for additional household members above three (13.84.070). The rate can increase per Council resolution.

For work that is anticipated to take longer than thirty days the household receives a flat $400 dislocation allowance, moving and storage costs as well as rent differential if the tenant finds a comparable unit with a higher rent. The rent differential however may not exceed a ceiling established annually by the Rent Board and is based on the number of bedrooms in the unit (13.74.070B). In lieu of either the per diem payments or rent differential payments, the owner may offer an alternative unit to the tenant household that is comparable to the unit being vacated. The rent, when offered, cannot exceed the tenant’s rent from the unit being vacated and the vacating tenant always has the right to return (13.84.070G). The landlord is not obligated to offer the tenant alternative housing and the burden in finding alternative housing lies with the tenant. *Practice:

The primary disconnect that has surfaced regarding the distinction between the two categories of eligibility (thirty days or less versus thirty days or more) is the difficulty tenants have in actually finding short-term housing when the repairs are anticipated to take longer than thirty days. Staff has repeatedly been informed by tenants seeking short-term, temporary housing that it is scarce and hard to find. While sublets can be found, temporary housing for only a month or two is most often found within the student community and usually only for the summer months.

Another concern raised by tenants when entering the short-term housing market is the that the rental price often exceeds the rent differential ceilings established by the City.

This results in the tenant paying the excess difference out of pocket. Finally, given the 2 It is noted that properties that are damaged due to fire are the exception to these scenarios since fire- damaged buildings will often be yellow or red tagged by the Fire Marshall, thus, in theory, automatically triggering the Ordinance since by the very nature of the City’s actions, the unit and/or property is not currently habitable.

Page 3 of 55 ends

Page 93 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 4 ends

vagaries of the work being done at the tenants’ unit, it is often difficult, if not impossible, for the tenant seeking housing to truthfully inform the new landlord just how long their tenancy is going to be. While there is no legal obligation on the part of a tenant to divulge such information prior to renting, may tenants have shared with staff the dilemma this issue often presents.

When the work is anticipated to be less than thirty days, tenants experience different difficulties. Initially, tenants state that the current per diem rates are lagging behind actual hotel rates. Staff has not been able to confirm this and a more recent survey has not been done.

Also of note is the fact that most hotel rooms do not have adequate cooking facilities thus the tenant household must rely on food that does not require full cooking facilities such as oven/stove. This results in a higher per diem expense from the household which already does not include a separate per diem for food cost. As a result of the inherent problems with tenants staying in hotels, many have turned towards short-term rentals such as Airbnb and VRBO. These however often exceed the City’s per diem rate and, by their very nature, are limited to stays of fourteen days or less.3 Finally, we believe that the voluntariness of an owner offering a vacant unit to a tenant being relocated should be amended and made compulsory. Given the difficulties in finding alternative housing if an owner has a vacant unit elsewhere in the City it should be offered to the tenant as part of the Ordinance.

3. Challenges/Appeals
*Application:

When the code enforcement work is mandated by the City and the City has deemed the unit uninhabitable while the work is being done, the tenant or owner may dispute this determination by seeking a hearing with the Housing Advisory Commission (“HAC”) (B.M.C. 13.84.050). To the best of our knowledge appeals of this nature are extremely rare since most commonly the determination by the City in these instances often are the result of a fire at the property resulting in the building being either yellow or red tagged.

When the work is of a voluntary nature to bring the unit/property into code compliance the appeal process is more problematic.

If the tenant disagrees with a landlord contention that the tenant must vacate, or if either party disputes the amount of the relocation benefits to be paid or any other terms of the Ordinance, the parties must first engage in some form of conflict resolution/mediation.

As part of its services, the Rent Board offers mediations to try and resolve Relocation Ordinance disputes (B.M.C. 13.84.100).
3 While the City’s Short-term Rental Ordinance allows stays of up to 90 days, any stay longer than fourteen days converts the occupancy to a potential rent-controlled tenancy, thus many owners limit stays to fourteen days or less (B.M.C. 23C.22 et seq.)

Page 4 of 55 ends

Page 94 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 5 ends

Only after such efforts have been made with no result, an owner can seek a hearing with the Housing Advisory Commission. Such request must be filed within five days after conflict resolution has occurred (B.M.C. 13.84.100A2).

If a tenant disagrees with the owner’s demand that the tenant vacates, a request is to be filed with the Building Official also within five days of completion of conflict resolution.

Upon receipt, the Building Official is then empowered to determine whether relocation is necessary. That decision is final (B.M.C. 13.84.100A3). *Practice:

In practice, one of the problems lies with the fact that owner challenges to a tenant’s right to relocation benefits must first flow through the HAC. Depending on when the HAC is meeting, an inordinate amount of time may pass prior to such hearing. Given the immediacy of the situation, with a tenant moving out, either into a hotel or longer-term temporary housing and seeking immediate relocation payments to cover the move, this built-in delay creates extreme burdens on the tenant household if the owner is, in fact, challenging the tenants’ right to the benefits.

The central concern however with the appeal process lies in the fact that, in most cases, if a tenant wishes to move but the owner feels such a move is not necessary, there is no mechanism for a tenant to seek that type of determination. The actual issue of relocation only rises to the forefront when the owner claims it is necessary when obtaining permits to do the work.4
When the Ordinance was last discussed in detail at this committee, former Rent Board commissioner Igor Tregub raised a number of salient points on this issue. Mr. Tregub voiced concerns, which are shared by us, that there are many scenarios wherein a tenant would need to vacate even though the work contemplated could, technically, be done with the tenant remaining in the unit. Mr. Tregub offered compelling hypotheticals such as a tenant who is suffering from illness or severe allergies to dust or mold but is still forced to remain in the unit; a tenant who works from home but now cannot since the repair work would severely disrupt the tenant’s use during the day; a senior or disabled tenant whose daily life would be severely impacted if they had to remain in the unit while such substantial repair work was done.

We have heard from staff working on the Ordinance that these are real-life situations which have occurred over the years and is one of the central driving forces behind this effort to revamp and reimagine how the Ordinance operates. 4 One of the flaws of the Ordinance and the City’s processes is that while certain permits have a small box for owners to check stating relocation is required, this box is hardly ever checked and owners then unilaterally proceed to demand the tenant move. In addition, City staff has made clear that they do not have the resources to review permits in order to ascertain whether relocation would be required. Thus, the entire Ordinance and its administration appears to be hamstrung right at the offset since owners rarely trigger it at the time required, the City doesn’t review the permits in real time to determine relocation and the tenant has no recourse under the Ordinance to seek relocation if the owner isn’t requesting it.

Page 5 of 55 ends

Page 95 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 6 ends

4. City Involvement in Relocation Payments
*Application:

While the Ordinance anticipates City involvement for issues such as actual determination of the need to vacate, setting the relocation rates and building in an appeal process, enforcement of the Ordinance largely remains up to the parties.

In cases where an owner fails to make required relocation benefits to the tenant, the City may provide such payment and then seek reimbursement from the owner (B.M.C.

13.84.080). Should this occur, the City is then able to assess a lien on the owner’s property in order to recover the costs incurred (B.M.C. 13.84.080A). *Practice:

In practice this have never happened. We are aware of at least one case where the owner acknowledged the application of the Ordinance, made some initial payments but then refused to continue as required. Tenants in this building asked the City to provide payment as allowed under the Ordinance but the City balked claiming there was no money in the City’s budget to allow for such disbursement. This is problematic and is also one of the points raised when the Ordinance was last discussed in detail. We believe that, at a minimum, this should change and the City should be either be mandated to make payments or the funds need to be provided to make payments when determined. The City, through its assessments and liens is in a much better place to recover these funds than a tenant who is in the midst of relocating, not having the bare resources to pay for such moving expenses and is thus compelled to file a lawsuit which can take years to collect what is legally owed them.

Overview
A review of the Relocation Ordinance shows an Ordinance that was improved back in 2011 but through design and administration has several crucial flaws that need addressing. The actual benefits need to be increased, offering another vacant unit to a displaced tenant should be compulsory, the City should provide payments when the owner refuses, tenants should have a mechanism to trigger the ordinance as opposed to just owners and the requirements for a tenant vacating need to be drastically expanded to cover scenarios other than the technical nature of the work being contemplated.

In response a staff proposal making fixes to the Relocation Ordinance, in December 2019, the 4x4 Joint Committee on Housing made the following recommendation:

Amendments to Relocation Ordinance:
(Tregub/Alpert) Carried: 6-0-0-2. Absent: Robinson, Harrison.

Refer to Council the following recommendations:

Page 6 of 55 ends

Page 96 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 7 ends

a. Amend the Relocation Ordinance to specify and broaden the parties who can trigger the Ordinance, including tenants in question. b. Increase the per diem reimbursement rates to current market rate and index regular increases to cost of living increases.
c. Institute a new, or strengthen an existing, appeals body to adjudicate appeals related to the Relocation Ordinance.
d. Maintain City involvement by establishing a revolving fund, possible with U1 funds, with which the City can pay tenants’ relocation costs and seek reimbursement from owners who will not pay tenants directly. e. Amend the Relocation Ordinance to consider tenants’ health conditions and chemical sensitivities, and the needs of differently abled tenants in determining whether the Ordinance is triggered.
f. Explore how Los Angeles created and implemented their Habitability Plan to learn about best practices that could be incorporated into Berkeley’s Relocation Ordinance.
g. Specify a City Department that will lead the administration, enforcement, and outreach efforts related to the Relocation Ordinance. h. Explore whether a permit form can be created or existing forms can be amended to help determine if a project triggers the Relocation Ordinance at the time project permits are applied for.
i. Cross-check the Relocation Ordinance with the Demolition Ordinance to identify gaps and ensure compatibility between the two in an effort to make tenants whole.

Despite the 4x4’s vote in December 2019, the proposal never made it to Council due to the pandemic which halted pending legislation in order to focus on the City’s response to COVID-19. Now that the Emergency Operations Center has disbanded and City employees have returned to their normal duties, these recommendations are being presented to Council with the goal of referring it to City staff for additional review.

Tenant Habitability Plan
As mentioned in the 4x4’s recommendations for amendments to the Relocation Ordinance, recommendation (f) calls for learning how to incorporate a Tenant Habitability Plan (THP). This will help resolve concerns about disputes on when a tenant needs to temporarily vacate a unit by establishing objective standards and processes for such an action. This can also be used as a tool to mitigate impacts on adjacent residences in infill developments, which are becoming more commonplace.

Page 7 of 55 ends

Page 97 ends

Tenant Habitability Plan & Relocation Ordinance CONSENT CALENDAR June 6, 2023

Page 8 ends

A THP would be required for construction and substantial repairs, such as the replacement of any structural, electrical, plumping or mechanical system that requires a permit under the Berkeley Municipal Code. It also includes abatement of hazardous materials, such as lead paint and asbestos, and repairs required by a Building Official in Notice of Violation. This work is most likely to restrict use, access, and peaceful enjoyment of the property.

A THP would provide general identification information for the property owner, general contractor, and affected tenants to maintain proper communication. It will provide a description of the scope of work to be undertaken, including an estimate timeline of the project and its impacts on each unit, and how it would impact each unit (including impacts on personal property, such as the removal of furniture to complete the project).

It will identify mitigation measures that would be adopted. If tenants are to remain in place, the landlord shall voluntarily reduce the tenants’ rent to compensate for any disruption. If a tenant is not satisfied with the outcome, they can file a petition to the City.

There are several Departments that could administer the THP requirements, including the Permit Service Center, Housing Code Enforcement/Rental Housing Safety Program Staff, HHCS, and the Rent Board. The City Manager should review what Department is best suited to be the main point of reference as a part of this referral. The responsible agency would review the THP within five days. If there are deficiencies in the plan, they will provide the property owner written indications of what needs to be planned, in which the property owner would be able to make amendments. Both the property owner and tenant would have an opportunity to appeal the determining agency’s determination regarding the THP. A draft of a THP, which is based off the program created by the City of Los Angeles in 2005, can be found in Attachment 1.

FINANCIAL IMPLICATIONS
Staff time involved in reviewing the Tenant Habitability Plan proposal and amendments to the Relocation Ordinance. If adopted additional funding and increased staffing would be needed as well as coordination with other departments to implement proposals.

ENVIRONMENTAL SUSTAINABILITY
No identifiable environmental effects

CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1: Draft language of Tenant Habitability Plan
2: Memo Provided to 4x4 Committee on Tenant Habitability Plan (THP) Proposal

3. PowerPoint Presentation to 4x4 Committee on THP
4: City of Los Angeles Tenant Habitability Program, Section 152.00 of LA Municipal Code
5: Current Copy of the Relocation Ordinance, BMC Chapter 13.84

Page 8 of 55 ends

Page 98 ends

Page 9 of 55 ends

Page 99 ends

DRAFT

19.40.125 Tenant Habitability Plan

1251 – Purpose and Intent

In its adoption of Section 19.40.125 et seq. of this Code, the City recognizes that construction and repairs on Rental Units or adjacent to such Rental units can create hardships on tenants; especially those who are senior citizens, persons on fixed incomes and low and moderate-income households. The City also recognizes that there is a shortage of decent, safe, and sanitary affordable housing in Berkeley. The City further declares, in its adoption of section 19.40.125 et seq. of this Code, that it is in the public interest of the people of Berkeley to protect and promote the existence of sound and wholesome residential buildings, dwelling units, and neighborhoods by the adoption and enforcement of such standards, regulations, and procedures as will remedy the existence or prevent the development or creation of dangerous, substandard, or unsanitary and deficient residential buildings and dwelling units.

However, both preventative maintenance as well as code enforcement related maintenance sometimes involves the replacement or substantial modification of major building systems or the abatement of hazardous materials and, by its very nature, such work generally makes rental units untenantable, as defined by California Civil Code Section 1941.1, on a temporary basis.

Additionally, through the passage of AB 68, AB 670, AB 881, SB 13, and SB 9 ______________ the State of California has passed several laws which have streamlined the ability to build on lots and in and next to residential units that are already occupied by residential housing. These provisions have recently been extended to include not only units built in owner- occupied lots but also investment properties owned by developers who are not local to the area.

This article is adopted to facilitate landlord investment in renovations and the construction of new housing without subjecting tenants to either untenantable housing conditions during such renovation work or forced permanent displacement. The tenant habitability program requires landlords to mitigate such temporary untenantable conditions, either through actions to ensure that tenants can safely remain in place during construction, or through the temporary relocation of tenants to alternative housing accommodations. These two options should not be regarded as mutually exclusive but rather as complementary approaches that might be appropriate to different stages of the renovation process.

1252 – Definitions

The following words and phrases, whenever used in this article, shall be construed as defined in this section. Words and phrases not defined here shall be construed as defined in Section

13.76.040 of this Code if defined in that section.

Construction means construction on tenant occupied buildings, lots, or adjacent units. This includes elective upgrades that do not arise to Substantial Repairs but require permits,

Page 10 of 55 ends

Page 100 ends

construction of entirely new units or division or creation of additional units from already existing residential units.

Emergency Repairs. Repairs that must be completed in less than 48 hours shall be exempt from the habitability plan process.

Repairs in Response to Notice of Violation means repairs that must be completed to correct a notice of violation.

Notice of Construction on Occupied Buildings

Notice of Substantial Repairs or Construction means a written notice, served by the landlord upon a tenant or tenant household at least 60 days prior to the commencement of any substantial repairs or Construction that uses a form established by the [responsible agency], and advises the tenant of forthcoming Substantial Repairs or Construction, the impact of such work on the tenant, and measures the landlord will take to mitigate the impact on the tenant.

Substantial Repairs means work performed either on a rental unit or on the building containing the rental unit that brings the unit into compliance with the Housing Code by making substantial repairs and that cannot be made while the tenant lives there improves the property by prolonging its useful life or adding value, and involves either or both of the following:

1. Replacement or substantial modification of any structural, electrical, plumbing or mechanical system that requires a permit under the Berkeley Municipal Code.

2. Abatement of hazardous materials, such as lead-based paint and asbestos, in accordance with applicable federal, state and local laws.

3. Repairs required by Building Official in Notice of Violation pursuant to 19.40.100

Temporary Relocation means the payment of relocation costs or the providing of a comparable rental unit in accordance with a Tenant Habitability Plan and Berkeley’s Relocation Services and Pavements For Residential Tenant Households Ordinance (Berkley Mun. Code § 13.84.010 et seq.) The temporary relocation of a tenant from his/her permanent place of residence shall not constitute the voluntary vacation of the unit and shall not terminate the status and rights of a tenant, including the right to reoccupy the same unit, upon the completion of the Primary Renovation Work and any Related Work.

1253 – Procedure for Undertaking Substantial Repairs and Construction on Occupied Properties

1253.1 Building Permits

A. No landlord shall undertake Substantial Repairs or commence Construction on Property without first obtaining all necessary permits, pursuant to this Code.

Page 11 of 55 ends

Page 101 ends

B. The Planning Department shall only clear a landlord's application for a permit for Substantial Repairs or Construction on Occupied Properties if all of the following conditions have been met:

1. The landlord has submitted a Tenant Habitability Plan to the [responsble agency], in accordance with sections 1253.2 and 1253.3, which the [responsible agency] finds to adequately mitigate the impact of the Substantial Repairs or Construction upon affected tenants; and

2. The landlord has submitted a declaration documenting service to affected tenants of both a Notice of Substantial Repairs and a copy of the non-confidential portions of the Tenant Habitability Plan in accordance with section 1254.

3. The landlord has paid any plan submission fee established by regulation under Berkeley Municipal Code section 13.76.060(F).

1253.2 Tenant Habitability Plan

A. At a minimum, a Tenant Habitability Plan shall provide the following information, together with any other information Berkeley’s [responsible agency]deems necessary to ensure that the impact of Substantial Repairs and Construction or any related work upon affected tenants is adequately mitigated:

1. Identification of the landlord, the general contractor responsible for the Substantial Repairs or Construction, and any specialized contractor responsible for hazardous material abatement, including but not limited to lead-based paint and asbestos.

2. Identification of all affected tenants including the current rent each tenant pays and the date of each tenant's last rent increase. In accordance with California Civil Code Sec. 1798 et seq., information regarding tenants shall be considered confidential.

3. Description of the scope of work covering the Substantial Repairs or Construction. Such description shall address the overall work to be undertaken on all affected units and common areas, the specific work to be undertaken on each affected unit, an estimate of the total project cost and time, and an estimate of the cost and time of renovation for each affected unit.

4. Identification of the impact of the Substantial Repairs or Construction on the habitability of affected rental units, including a discussion of impact severity and duration with regard to noise, utility interruption, exposure to hazardous materials, interruption of fire safety systems, inaccessibility of all or portions of each affected rental unit, and disruption of other tenant services.

Page 12 of 55 ends

Page 102 ends

5. Identification of the mitigation measures that will be adopted to ensure that tenants are not required to occupy an untenantable dwelling, as defined in California Civil Code Section 1941.1. Such measures may include the adoption of work procedures that allow a tenant to remain on-site and/or the temporary relocation of tenants. If due to a declared state of emergency, childcare, eldercare, documented disabilities or work schedule or place of work that makes 8:00 - 5:00 pm Monday through Friday a grave burden, then a reasonableness standard shall be used reflecting the tenant's specific situation.

6. Identification of the impact of the Substantial Repairs or Construction on the personal property affected tenants, including work areas which must be cleared of furnishings and other tenant property, and the exposure of tenant property to theft or damage from hazards related to work or storage.

7. Identification of the mitigation measures that will be adopted to secure and protect tenant property from reasonably foreseeable damage or loss.

8. Identification of a phone number and email address of a responsible party who will be responsive to tenant complaints regarding the execution of the Substantial Repairs.

9. If tenants are to remain in place, the landlord shall voluntarily reduce the tenants’ rent to compensate the tenant for any disruption to their tenancy. If a tenant feels the landlord’s rent reduction is inadequate, the tenant may file a petition with Berkeley’s Rent Program under section 11.100.070(c) or pursue any other legal remedy.

1253.3 Plan Acceptance
A. The [responsible agency] shall make a determination regarding the adequacy of a landlord's Tenant Habitability Plan within five working days of the [responsible agency]’s receipt of the plan for review. The [responsible agency] shall accept those plans which meet the requirements of section 1251.2 of this section and which it determines, with reference to the standards set forth in California Civil Code Section 1941.1, and in accordance with any applicable regulations or guidelines adopted under section 13.76.060(F)., will adequately mitigate the impacts of Substantial Repairs upon tenants. The Tenant Habitability Plan may allow for the temporary disruption of major systems during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. While brief periods of scheduled untenantability between 8:00 and 5:00 am may be acceptable, a tenant’s tenancy shall not be substantially disrupted for extended periods or in a manner that would be unreasonably disruptive to the tenant. In determining whether a disruption is reasonable, the [responsible agency] shall consider any relevant issue raised by the tenant, such as the tenant working from home, sleeping during the day, etc. At no point shall tenants

Page 13 of 55 ends

Page 103 ends

be exposed to toxic or hazardous materials including, but not limited to, lead-based paint and asbestos.

B. The[responsible agency]’s acceptance of a Tenant Habitability Plan shall be subject to the landlord having no outstanding balances due for rent registration or code enforcement fees.

C. The [responsible agency]shall provide landlords with written indications of deficiencies which must be addressed whenever a Tenant Habitability Plan is determined to be inadequate. A landlord may submit an amended plan in order to correct identified deficiencies.

D. Landlords and tenants may appeal the [responsible agency]’s determination regarding a Tenant Habitability Plan to a hearing officer.

The appeal shall be made in writing, upon appropriate forms provided by the [responsible agency], and shall specify the grounds for appeal, such as the plan being overly disruptive or that a temporary relocation should or should not be provided. The appeal shall be filed within 15 calendar days of the service of the Building Division's determination. The requested hearing shall be held within 30 calendar days of the filing of the appeal following the procedures adopted under. The hearing officer shall issue a written decision within ten calendar days of the hearing on the appeal, with a copy of the decision served on the landlord and the tenants by first class mail, postage prepaid, or in person.

1253.4 Notice of Substantial Repairs or Construction

A. Notice of Substantial Repairs or Construction shall be written in the language in which the original lease was negotiated and shall provide the following information:

1. The estimated start and completion dates of any Substantial Repairs associated with the accepted Tenant Habitability Plan.

2. A description of the Substantial Repairs to be performed and how it will impact that particular tenant or household.

3. Whether temporary relocation will be required, and if so, a notice concerning tenants’ rights under Berkeley’s Fair Rent, Just Cause For Eviction and Homeowner Protection Ordinance (section 13.100 et seq.) and Berkeley’s Relocation Ordinance (section 11.102 et seq.)

4. Instructions that tenants with questions should consult the landlord or the Rent Board.

5. Notice of a tenant's right to reoccupy the units under the existing terms of tenancy upon completion of Notice of Substantial Repairs

Page 14 of 55 ends

Page 104 ends

6. Notice that the tenant may appeal the [responsible agency]’s acceptance of a Tenant Habitability Plan provided such request is submitted within 15 days of the tenant's receipt of the Notice of Substantial Repairs

7. Notice that a tenant can make complaints to the responsible party identified in section 1253.2 (A)(1).

8. A disclaimer in at least 24 point bold font on the first page of the notice stating “THIS IS NOT AN EVICTION NOTICE. IF YOU IF YOU HAVE QUESTIONS CONCERNING YOUR RIGHTS AS A TENANT CALL 510-981-_______.

1254 – Notice and Service Requirements

After the [responsible agency] accepts the Tenant Habitability Plan, a landlord shall serve a copy of the Tenant Habitability Plan, Notice of Substantial Repairs or Construction, and a summary of the provisions of this article on the tenant. Service of these items shall be provided in the manner prescribed by Section 1162 of the California Code of Civil Procedure and at least 60 days prior to the date on which the Substantial Repairs or Construction are scheduled to begin.

1255 - Notices of Violation

A. Habitability Plan submittal requirement upon finding of substandard housing pursuant to 19.40.090

1. Building Officials shall include in Notice of Violation pursuant to 19.40.1002 whether Habitability Plan must be submitted;

2. Building Official shall require submittal of Habitability Plan anytime owner or agent of owner has failed to apply for permits or submit a Habitability Plan when it would have been required and all Construction or repairs shall be halted until compliance is obtained.

If such pause in construction leaves the rental unit substandard, temporary relocation may be triggered.
1256 - Remedies

A. A landlord who fails to abide by the terms of an accepted Tenant Habitability Plan shall be denied individual rent adjustments under Section 13.76.120 of this Code, absent extenuating circumstances.

B. In any action by a landlord to recover possession of a rental unit under section

13.76.130(A)(7), the tenant may raise as an affirmative defense the failure of the landlord to comply with any provisions contained in this article. It shall be a complete defense to an unlawful detainer that a tenant’s appeal under section 1253.3(D) is pending at the time

Page 15 of 55 ends

Page 105 ends

of filing the unlawful detainer complaint, or was decided less than fourteen days before the filing of the Unlawful Detainer unlawful detainer complaint.

C. Any person who willfully or knowingly with the intent to deceive, makes a false statement or representation, or knowingly fails to disclose a material fact in any plan or notice required under this article, or in any declaration, application, hearing or appeal permitted under this article, including oral or written evidence presented in support thereof, shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of this chapter shall be punished by a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months or both.

D. Nothing in this article shall be construed to deprive a person of due process rights guaranteed by law, including, but not limited to, a right to appeal the [responsible agency]’s determination regarding a Tenant Habitability Plan to a hearing officer.

E. The remedies provided by this article are in addition to any other legal or equitable remedies and are not intended to be exclusive. In addition to potentially other violations, a landlord’s failure to provide, or bad faith deviation from a Tenant Habitability Plan shall be actionable as a failure to “exercise due diligence in completing repairs” pursuant to section 13.79.060(C)(7).

Page 16 of 55 ends

Page 106 ends

Jesse Arreguin
Mayor
Leah Simon-Weisberg
Chair, Berkeley Rent Board
Berkeley Rent Stabilization
Tenant Habitability Plan for City of Berkeley Proposal Discussion What is the purpose of Tenant Habitability Plan:

1. Prevent permanent displacement when substantial repairs are needed;

2. Allow and facilitate substantial repairs while requiring mitigation of the possible negative impact on tenants of said repairs

3. Prevention of unsafe and harassing approaches to construction whether for the purposes of new construction or substantial repairs while tenants remain at property.

4. Create objective standards and processes to best prevent unsafe and harassing approaches to construction.

5. Respond to the recent phenomena of infill projects where tenants are in occupancy. (Harper Street)
When does a landlord need to fill out a tenant habitability plan? Situations of work inside, outside or adjacent to occupied unit:

1. Planned Repair by landlord

2. Planned Construction by landlord

3. Requested Repairs by tenant

4. Emergency Repairs

5. Tenant complains about unsafe or nuisance construction Timeframes for notification can be different for the different kinds of work Option 1) An approved tenant habitability plan is required before any work is done to a property with a building that has one or more residential dwelling units.

(Simple
check-box if no buildings are tenant occupied).

Page 17 of 55 ends

Page 107 ends

Option 2) RHSP definition: An approved tenant habitability plan is required before any work to any dwelling which is rented, leased, let or hired out to be occupied for consideration.

What “work” should trigger the requirement that the landlord must fill out form and provide mitigation?
Menu of Options:

1. Any work requiring a permit.

2. Substantial repair and mediation: seismic retrofits, elevator repairs, and when hazardous materials such as lead paint or asbestos are being remediated.

3. Any work in the following section:

Berkeley Code Sections Referenced:

Berkeley Code sections that could be referenced: Title 19 – Buildings and Construction.
● Berkeley Building Code BMC Chapter 19.29
● Berkeley Residential Code BMC Chapter 19.30
● Berkeley Electrical Code BMC Chapter 19.32
● Berkeley Mechanical Code BMC Chapter 19.34
● Berkeley Plumbing Code BMC Chapter 19.36
● BMC Chapter 19.38: Seismic Hazard Mitigation Program for Unreinforced Masonry Buildings
● BMC Chapter 19.39: Potentially Hazardous Buildings Containing Soft, Weak, or Open Front Stories
● BMC Chapter 19.50: Elevators-buildings with ten or more units and two or more stories

4. Requiring habitability plan submittal when a property with a tenant occupied structure receives a notice of violation for code violations including unpermitted work and other housing code violations. In Berkeley work without permit can be cited by either a building inspector or a housing inspector, both of which are in the Planning Department.

5. Requiring mitigations when work is being done adjacent to a tenant’s unit for a sustained period of time.

Page 18 of 55 ends

Page 108 ends

permanently removed due to ADU construction. Building permits are required for all ADUs so no specific requirement for ADUs needs to be included to cover this situation.

Who should Administer the program?
Berkeley Departments that could administer habitability plan requirements:
● Permit Service Center (within Planning Department)
● Housing Code Enforcement and Rental Housing Safety Staff (both are also within Planning Department)
● HHCS (as long as they are involved in Relocation Ordinance) ● Rent Board, Rent Board Hearings unit best to assist with hearing/complaint process
2

Page 19 of 55 ends

Page 109 ends

UPDATE ON TENANT HABITABILITY

AND PLAN IMPLEMENTATION
Revise Berkeley B.M.C. Chapter 13.84 (“Relocation
Ordinance”) to better protect tenants during construction due to necessary repairs, new construction of ADUs and other additional housing units.
4x4 Housing T ask Force, July 12, 2022
Jesse Arreguin
Mayor
Leah Simon-Weisberg
Chair
Berkeley Rent
Stabilization

Page 20 of 55 ends

Page 110 ends

REVIEW

1. We reviewed memo
accessing the gaps in our
relocation ordinance
when tenants are facing
repairs in their units and
construction

2. Reviewed
Recommendations

Page 21 of 55 ends

Page 111 ends

Goals for next
meeting

Page 22 of 55 ends

Page 112 ends

Reminder of what a Tenant
Habitability Plan

Page 23 of 55 ends

Page 113 ends

Step 1
Provide THP to
permitting agency
Step 2
5 days for agency to
approve or deny based
on objective standards
Step 3
Landlord may apply for
permit
Step 4
Approved THP served on tenant 60 days before
work can commence with Notice of Primary
Renovation Work;
THP plan, summary of plan and relocation option
if work will last more than 30 days.

Step 5
Construction begins!

Page 24 of 55 ends

Page 114 ends

Tenant Habitability Plan
City of Berkeley Proposal

Page 25 of 55 ends

Page 115 ends

What is the purpose of
Tenant Habitability Plan:

1. Prevent permanent displacement
when substantial repairs are
needed;

2. Allow and facilitate substantial repairs
while requiring mitigation of the
possible negative impact on tenants
of said repairs

3. Prevention of unsafe and harassing
approaches to construction whether
for the purposes of new construction
or substantial repairs while tenants
remain at property.

4. Create objective standards and
processes to best prevent unsafe and
harassing approaches to
construction.

5. Respond to the recent phenomena of
infill projects where tenants are in
occupancy. (Harper Street)

Page 26 of 55 ends

Page 116 ends

Context and
consideration:S
Situations of work inside,
outside or adjacent to
occupied unit:

1. Planned Repair by
landlord

2. Planned Construction by
landlord

3. Requested Repairs by
tenant

4. Emergency Repairs

5. Tenant complains about
unsafe or nuisance
construction

Page 27 of 55 ends

Page 117 ends

Lorem Ipsum
Lorem Ipsum
Lorem Ipsum
Lorem Ipsum
Lorem Ipsum
Lorem Ipsum
Adjacent
No notice necessary
but rebuilding is a
different
Planned
Lorem Ipsum
Lorem Ipsum
Types of Repairs
Complaint
Emergency
Construction
Repairs
Code Enforcement
In unit
Planned
Permit needed ?
Always require THP?
Requested by Tenant
Code Enforcement

Page 28 of 55 ends

Page 118 ends

When does a landlord need to fill out a tenant habitability plan? Situations of work inside, outside or
adjacent to occupied unit:

1. Planned Repair by landlord

2. Planned Construction by landlord

3. Requested Repairs by tenant

4. Emergency Repairs

5. Tenant complains about unsafe or
nuisance construction
Timeframes for notification can be
different for the different kinds of
work
Option 1) An approved tenant habitability
plan is required before any work is done to
a property with a building that has one or
more residential dwelling units. (Simple
check-box if no buildings are tenant
occupied).

Option 2) RHSP definition: An approved
tenant habitability plan is required before
any work to any dwelling which is rented,
leased, let or hired out to be occupied for
consideration.

Page 29 of 55 ends

Page 119 ends

What “work” should trigger the
requirement that the landlord must
fill out form and provide
mitigation?

Page 30 of 55 ends

Page 120 ends

●

1. Any work requiring a
permit

2. Substantial repair and
mediation: seismic
retrofits, elevator repairs,
and when hazardous
materials such as lead
paint or asbestos are
being remediated
Menu of Work

Page 31 of 55 ends

Page 121 ends

●
Berkeley Code Sections Referenced:

3. Any work in the following section:

Page 32 of 55 ends

Page 122 ends

●
Menu 4. Requiring habitability plan submittal when
a property with a tenant occupied structure
receives a notice of violation for code
violations including unpermitted work and
other housing code violations. In Berkeley
work without permit can be cited by either a
building inspector or a housing inspector,
both of which are in the Planning
Department.

5. Requiring mitigations when work is being
done adjacent to a tenant’s unit for a
sustained period of time.

6. Requiring a habitability plan for work
on properties that have a structure
with a dwelling unit will cover the ADU
situations we heard about where a
tenant could not access their unit or
tenant parking spaces were temporarily
or permanently removed due to ADU
construction. Building permits are
required for all ADUs so no specific
requirement for ADUs needs to be
included to cover this situation.

Page 33 of 55 ends

Page 123 ends

Page 34 of 55 ends

Page 124 ends

Direction for next
steps?

Page 35 of 55 ends

Page 125 ends

Page 36 of 55 ends

Page 126 ends

Page 37 of 55 ends

Page 127 ends

Page 38 of 55 ends

Page 128 ends

Page 39 of 55 ends

Page 129 ends

Page 40 of 55 ends

Page 130 ends

Page 41 of 55 ends

Page 131 ends

Page 42 of 55 ends

Page 132 ends

Page 43 of 55 ends

Page 133 ends

Page 44 of 55 ends

Page 134 ends

13.84.010

13.84.020

13.84.025

13.84.030

13.84.040

13.84.050

13.84.060

13.84.070

13.84.080

13.84.090

13.84.100

13.84.110

13.84.120
Chapter 13.84

RELOCATION SERVICES AND PAYMENTS FOR RESIDENTIAL TENANT

HOUSEHOLDS
Sections:

Purpose.

Definitions.

Notice.

Eligibility for relocation services and assistance.

Owner responsibilities.

Relocation payment and appeals procedures for code enforcement activity.

Relocation payment procedures for voluntary code compliance.

Relocation and other payments.

City’s involvement in relocation payments.

Move-back option.

Conflict resolution and appeal procedures for voluntary code compliance.

Private right of action.

Severability.

13.84.010 Purpose.

The purpose of this chapter is to provide relocation services and require property owners to make certain payments to residential tenant households temporarily relocated as a result of code enforcement activities or voluntary code compliance in order to alleviate hardships associated with such relocations; to facilitate the correction of code violations; and to protect the health, safety and welfare of Berkeley residents. (Ord. 7212-NS § 1 (part), 2011)

13.84.020
Definitions.

A. "Code enforcement" or "code enforcement activity" means an activity or activities initiated by the City to require an owner to bring the property into compliance with applicable laws including, but not limited to, actions by the Building Official or Fire Marshal after a fire ordering relocation.

B. "Household" or "tenant household" for purposes of this chapter means one or more individuals entitled to the occupancy of a rental unit or room who share living expenses.

Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 1 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 45 of 55 ends

Page 135 ends

C. "Natural disaster" means any natural event which results in damage to property, such as, but not limited to, an earthquake, flood, or forest fire.

D. "Owner" means a person, persons, corporation, partnership or any other entity possessing ownership of a property individually, jointly, in common or in any other manner or their agent or assignee.

E. "Relocate" or "relocation" means the required vacating of a residential unit or room by a tenant household and the moving temporarily into another unit or room as a result of repairs required to bring the building or a portion thereof which contains a residential unit or room occupied by the tenant household into code compliance whether such repairs are undertaken because of code enforcement or through voluntary code compliance as defined below.

F. "Residential unit" or "unit" means a building or portion of a building designed for, or occupied exclusively by, one or more persons living as a household.

G. "Room" means a room in a hotel or boarding house or a rented room in a private dwelling occupied by a tenant household for at least thirty (30) consecutive days.

H. "Voluntary code compliance" means actions voluntarily initiated by an owner to achieve compliance with applicable laws including, but not limited to, fumigation, as well as to seismically retrofit a building on the inventory of potentially hazardous soft story buildings established under Chapter

19.39 so as to remove it from
such inventory under Section 19.39.080.B if such retrofit is required by the City. (Ord. 7456-NS § 1, 2016: Ord. 7212-NS § 1 (part), 2011)

13.84.025 Notice.

Whenever any notice or other communication is required by this chapter to be served on, provided, given or delivered to, or filed with any person, that notice or communication may be communicated by personal delivery, certified mail, first class mail, e-mail, or any other similar method that will provide a written record of the notice or communication. (Ord. 7212-NS § 1 (part), 2011)

13.84.030
Eligibility for relocation services and assistance.

A. A tenant household shall be eligible for relocation assistance and payments pursuant to this chapter if the City determines that the condition of a building or portion thereof is such that a unit or room cannot be safely occupied by that tenant household while the building or portion thereof is being brought into code compliance and if such condition was not primarily or entirely created by the tenant household occupying the unit or room.

B. A tenant household shall not be eligible for relocation assistance and payments pursuant to this chapter if the required relocation of the tenant household is the result of an earthquake or other natural disaster. (Ord. 7212-NS § 1 (part), 2011)
Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 2 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 46 of 55 ends

Page 136 ends

13.84.040 Owner responsibilities.

A. The owner shall be responsible for providing relocation payments directly to the tenant household required to relocate pursuant to this chapter. The owner is also responsible for complying with Section 13.76.130 (rent stabilization and eviction for good cause ordinance).

B. If the owner or the City determines that relocation is necessary, the owner shall provide a written notice of temporary relocation to any affected tenant households thirty (30) days in advance of the required relocation unless the City orders abatement that requires relocation in less than thirty (30) days and, in such case, the owner shall provide a notice within ten (10) days of the City’s abatement order. Such notice shall summarize the repairs to be undertaken and the estimated duration of relocation. Any such notice which the owner serves upon a tenant household shall refer to and shall be accompanied by a copy of this chapter and the City’s request for relocation payment form. Nothing in this section shall relieve the owner of their obligation to serve any notice that would otherwise be required pursuant to state or local law.

C. The owner shall notify the tenant household when repairs are completed and permit the tenant household to reoccupy the residential unit or room as per Section

13.84.090. The tenant household shall retain all rights of tenancy that existed prior to relocation, except as set forth in Section 13.84.070.G.2. (Ord. 7212-NS § 1 (part), 2011)

13.84.050 Relocation payment and appeals procedures for code enforcement activity.

A. Whenever a building or portion thereof which contains a residential unit or room is declared in violation of any law, the Building Official or Fire Marshal, as appropriate, shall determine whether the repairs necessary to abate the violation(s) can reasonably be accomplished without relocation of the tenant household in possession of the unit or room. Such determination shall be served in the same manner as the notice of violation. The absence of an express determination that relocation is required shall be deemed a determination that relocation is not required.

B. Any affected tenant household or owner who disputes a determination made by the Building Official or Fire Marshal under subsection A of this section may file a written request for a hearing by the Housing Advisory Commission. Such request for hearing must be filed within ten (10) days of the date of the notice from the Building Official or Fire Marshal.

C. Appeals of determinations by the Building Official or Fire Marshal of the necessity to relocate due to an imminent threat to life and safety shall not delay enforcement of the vacation ordered by the Building Official or Fire Marshal.

D. The determination by the Building Official or Fire Marshal that a tenant household is required to relocate pursuant to this chapter shall not relieve the owner of their obligation to provide a notice of temporary relocation pursuant to Section

13.84.040. Any such notice which the owner serves upon a tenant household shall refer to and shall be accompanied by a copy of this chapter, and the City’s request for relocation payment form. Nothing in this Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 3 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 47 of 55 ends

Page 137 ends

section shall relieve the owner of their obligation to serve any notice that would otherwise be required pursuant to state or local law.

E. Each tenant household which has been served with a notice of temporary relocation from the owner indicating that relocation is required in accordance with the notice of violation shall complete a request for relocation payment form to calculate the amount of the initial payment to which the household is entitled pursuant to Section

13.84.070. The tenant household shall serve the completed request for relocation payment to the owner within thirty (30) days after receipt of the notice of temporary relocation.

F. Within five business days after receipt of the tenant household’s completed request for relocation payment form, the owner shall make the initial relocation payment directly to the tenant household as per Section

13.84.070, or follow the conflict resolution and appeal procedure as specified in Section 13.84.100. (Ord. 7212-NS § 1 (part), 2011)

13.84.060 Relocation payment procedures for voluntary code compliance.

A. Whenever an owner applies for a building permit to bring a residential unit or room into code compliance, the owner shall be required to specify whether repairs will necessitate the tenant household occupying the unit or room to relocate.

B. The City shall provide the owner with a notice containing information about the tenant household’s relocation rights pursuant to this chapter, as well as a copy of this chapter and a City contact number where additional information can be obtained.

C. If the owner determines that relocation may be necessary to undertake repairs to bring the property into code compliance or as a result of fumigation, the owner shall serve all affected tenant households with a notice of temporary relocation, a copy of this chapter, and a copy of the City’s request for relocation payment form. These documents shall be provided to tenants at least thirty (30) days in advance of the required relocation. Nothing in this section shall relieve the owner of their obligation to serve any notice that would otherwise be required pursuant to state or local law.

D. If the tenant household disagrees with the owner’s determination of the necessity to relocate, the tenant household may follow the conflict resolution and appeals procedure as specified in Section

13.84.100.

E. The Building Official must receive acknowledgment(s) of receipt by the tenant household(s) of the documents required by subsection C of this section before the City will issue the building permits necessary to undertake repairs. Such acknowledgment may be in the form of the tenant household’s signature asserting receipt, or other proof substantiating that a notice was delivered to the affected tenant household(s).

F. Each tenant household which has been served with the notice required by subsection C of this section or the Building Official’s determination pursuant to Section

13.84.100.A.3 shall complete a request for relocation
payment form to calculate the amount of the initial payment to which the household is entitled pursuant to Section 13.84.070. The tenant household shall notify the owner of the amount of payment to which the tenant household is entitled within thirty (30) days of receipt of the notice from the owner.

Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 4 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 48 of 55 ends

Page 138 ends

G. Within ten (10) days after receipt of the tenant household’s completed relocation payment form, the owner shall make the initial relocation payment directly to the tenant household as per Section 13.84.070.K or follow the conflict resolution and appeal procedure as specified in Section 13.84.100.

H. The relocation of a tenant household pursuant to this chapter shall not terminate the tenancy of the relocated household. The relocated household shall have the right to reoccupy the unit or room from which it was relocated as soon as the unit or room is ready for reoccupancy, except as set forth in Section 13.84.070.G.2. (Ord. 7212-NS § 1 (part), 2011)

13.84.070 Relocation and other payments.

A. Households to be relocated for twenty-nine (29) consecutive days or less, including households covered under section 13.84.040.B, shall be entitled to the following relocation payments:

1. A per diem payment to compensate for hotel or motel accommodations and meals. Such payment amount shall be established by City Council resolution and be based upon tenant household size.

2. Reimbursement for daily boarding costs for pets lawfully occupying the unit or room from which the tenant household was relocated at the date of relocation if the tenant household’s temporary accommodation does not accept pets. The tenant household shall receive reimbursement for reasonable boarding costs. The maximum reimbursement rate shall be established by City Council resolution. The tenant household must provide proof of the actual boarding costs incurred in order to receive reimbursement from the owner. For purposes of this section, "pets" shall exclude any pet that is customarily kept in an enclosure such as a cage, terrarium or aquarium, and the number of pets lawfully occupying a unit or room shall be the number specifically permitted by written agreement.

3. The initial relocation payment shall be due within ten (10) days of the owner’s receipt of the tenant household’s request for relocation payment. If the period of relocation is less than ten (10) days, the initial relocation payment shall include the per diem payment for the full period. If the period of relocation exceeds ten (10) days, the initial relocation payment shall include either:
(a) A lump sum per diem payment for the full period of relocation; or (b) The per diem payment for a minimum of ten (10) days, with subsequent payment contingent upon verification of hotel costs incurred by the tenant household. Such payments are due to the tenant household immediately upon owner’s receipt of documentation verifying the household’s expenses. If the tenant household does not incur hotel costs, it is only entitled to receive a meal allowance for each member of the household during the remaining period of relocation.

B. Households to be relocated for a period of thirty (30) consecutive days or longer shall be entitled to relocation payments that include all of the following:

1. A one-time dislocation allowance to help defray incidental relocation expenses. The amount of the dislocation allowance shall be established by City Council resolution.

Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 5 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 49 of 55 ends

Page 139 ends

2. The household’s choice of reimbursement for actual moving and storage expenses or a fixed payment, subject to the following requirements:
(a) If a fixed payment is chosen, no documentation of expenses is necessary. The amount of the fixed payments shall be established by City Council resolution. (b) Reimbursement for actual documented moving and storage expenses shall include both moving costs to the replacement unit(s) and moving costs back to the original unit. Moving costs shall consist of actual reasonable costs of moving, including transportation of personal property, packing and unpacking, insurance of personal property while in transit, compensation for any damage occurring during moving, storage of personal property, disconnection and reconnection of utility services and any additional reasonable costs associated with the required moving. Payments for a one-way move shall not exceed rates established in the fixed residential moving cost schedule approved by the Federal Highway Administration and published in the federal register on a periodic basis.

3. If the rental costs incurred by the tenant household during the period of relocation exceed the amount of rent being paid on the unit or room to be vacated, the household shall be eligible for a rent differential payment. The rent differential payment shall be equal to the difference between the rent paid on the unit or room to be vacated and the rent paid for a unit or room temporarily leased during the period of relocation, with the following restrictions:
(a) The rent differential payment shall not exceed a ceiling established annually by the City based on the average market rent statistics gathered and published by the rent stabilization program for the prior calendar year.
(b) The ceiling for the rent differential payment shall be based on the bedroom size of the unit or room to be vacated, with the exception of payments for relocation from rooms which shall be calculated on the same basis as payment for relocation from a studio apartment. (c) The rent differential payment for a tenant household receiving a rental subsidy shall be based on the amount of rent paid by the tenant household for the unit or room leased by the tenant household during the period of relocation. The owner may coordinate with the entity providing the subsidy to assure the continuity of the rental subsidies during the period of relocation.

4. Reimbursement for the documented utility cost(s) that the tenant household incurs in their replacement housing, if the owner had been paying that particular utility cost for the vacated unit or room.

C. The initial relocation payment pursuant to subsection B of this section shall be due within ten (10) days of the owner’s receipt of the tenant household’s request for relocation payment, and shall include:

1. The dislocation allowance;

2. Either the fixed payment for moving and storage costs if applicable, or payment for moving costs based on a reasonable estimate from a qualified professional mover; Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 6 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 50 of 55 ends

Page 140 ends

3. The rent differential payment for one month or, if the relocation is anticipated to exceed ninety (90) days, then the initial payment shall include the rent differential payment for the first three-month period.

D. Subsequent payments for rent differential, utilities and storage costs pursuant to subsections B.2.b through B.4 of this section, when applicable, shall be made on a monthly basis thereafter. Such payments shall be made at least seven days in advance of when the tenant household’s monthly rental payment is due. Instead of monthly payments the owner may make one lump sum payment for the full amount due for the rent differential payments to the tenant household. If the tenant household qualifies for reimbursement for monthly storage or utilities costs, these payments continue on a monthly basis or upon receipt by the owner of documentation that verifies the household’s expenses.

E. Payments pursuant to subsections
B.2.b through B.4 of this section, when applicable, shall continue until such time that the unit from which the tenant household was relocated is available for occupancy or the tenant household has notified the owner of their intent to permanently vacate the unit.

F. If the tenant household has not been offered the opportunity to reoccupy the unit from which it relocated within six months from the date of their relocation, the tenant household shall be entitled to receive an additional dislocation allowance payment. The tenant household must provide written request for the additional dislocation payment to the owner which includes confirmation of their intent to reoccupy the unit. Such payment is due within ten (10) days after receipt of the tenant household’s request. Acceptance of such payment does not constitute a tenant household’s relinquishment of any tenancy rights.

G. 1. In lieu of the per diem payments in subsection A of this section, or rent differential and utility payments in subsections B.3 and B.4 of this section, the owner may offer an alternate rental unit or room to the tenant household that is comparable to the unit or room being vacated and is owned by the owner. The amount of rent paid by the household for such unit or room shall not exceed the rent being paid on the unit or room from which the tenant household relocated. If the tenant household accepts the owner’s offer, the tenant household does not relinquish its right to reoccupy the unit or room from which it is being relocated unless the tenant household provides written notice surrendering possession of the unit or room. A tenant household that accepts an alternate unit or room is entitled to receive the dislocation allowance in subsection B.1 of this section and compensation for moving and storage costs if applicable as provided in subsection B.2 of this section.

2. If the tenant household does not timely notify the owner of its intent to reoccupy the unit or room under Section 13.84.090 and seeks to remain in its alternate unit, it thereby surrenders its right to reoccupy the unit or room from which it has relocated and terminates its tenancy of that unit or room, and the rent for the alternate unit or room shall not be limited by this chapter and may be increased to an amount otherwise permissible by Chapter

13.76. Nothing in this section limits the owner’s right to evict a tenant household pursuant to Section 13.76.130.A.11.

H. A tenant household that is relocated for thirty (30) days or more shall not be responsible for any rent due on the unit or room from which it was relocated during the period of relocation and failure to pay rent during this period shall not constitute relinquishment of tenancy rights.

Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 7 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 51 of 55 ends

Page 141 ends

I. The owner and tenant household may mutually agree upon temporary housing and relocation payments other than that provided by this chapter. Such agreement shall be in writing and signed by both the owner and tenant household with a copy provided to the City’s Housing and Community Services Department.

J. If a tenant household’s actual relocation period is shorter than the period for which the owner has paid, the tenant household must repay the overpaid amount to the owner within thirty (30) days of receiving written notice from the owner of the overpayment. If the tenant household has incurred a financial obligation to pay rent, utilities, or storage costs during the remaining period of their relocation, these costs may be deducted from the amount to be repaid to the owner, subject to the provisions of subsection B of this section.

K. All payments to tenant households under this chapter shall be made to those persons in the tenant household from whom the owner has received rental payments during the immediately preceding rental period, in the same proportion in which such payments were made. The owner shall have no liability or other obligation with respect to further division or allocation of such payments among the members of the tenant household.

Nothing in this section shall be construed to affect the determination of the actual number of tenants in the tenant household for purposes of Chapter

13.76. L. The size of a tenant household shall be determined based on the number of individuals entitled to occupy the unit or room at the time a determination of the Building Official is served under Section 13.84.050 or a notice of temporary relocation is served under Section 13.84.060.C.

M. Upon receipt of the full relocation payment under this chapter and a notice of temporary relocation, the tenant household shall relocate within thirty (30) calendar days. Failure to relocate pursuant to such notice may entitle the landlord to issue a notice to vacate and be a basis for good cause eviction pursuant to Section

13.76.130.A.7.a.

N. The City Council shall by resolution adopt a reasonable reimbursement rate for the following based upon surveys of prevailing costs for services, subject to limitations set forth in this chapter and any additional limitations set forth in the resolution:

1. Per diem rates for hotel accommodations and meal allowance pursuant to subsections A.1 and A.3 of this
section;

2. Maximum boarding costs for pets pursuant to subsection A.2 of this section;

3. Dislocation allowance pursuant to subsections B.1 and F of this section;

4. Fixed payments for moving and storage pursuant to subsection B.2 of this section. (Ord. 7456-NS § 2, 2016: Ord. 7212-NS § 1 (part), 2011)

13.84.080 City’s involvement in relocation payments.

The City may provide payment required by Section 13.84.070 to tenant households in situations where the owner fails or refuses to pay for required relocation costs. The City shall recover from the owner all costs incurred as a result of making such payments. In order for the City to consider such payments, a request must be made by the Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 8 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 52 of 55 ends

Page 142 ends

tenant household to the City Manager or their designee within twenty (20) days from the owner’s failure or refusal to make the required payments as required in Sections 13.84.050.F and 13.84.060.G.

A. Upon receipt of a request from a tenant household the City shall mail a written notice to the owner of the owner’s obligation under this chapter to provide relocation assistance and payment and the time when payment is required. The notice shall also specify that failure to make required payments may result in the City making such payments and recovering the costs of doing so from the owner through a special assessment lien on the owner’s property that shall include an administrative lien fee.

B. If within ten (10) days of the receipt of the notice provided pursuant to subsection A of this section the owner continues to fail or refuse to make the necessary payments, the City may make the required relocation payment to the household. The City shall then bill the owner for the amount of payment, plus any administrative and other costs it would not have otherwise incurred. If the owner does not pay the City within a thirty (30) day period, the City may recover the costs as a special assessment lien on the owner’s property along with an administrative lien fee in accordance with Chapter

1.24. The City Manager or their designee shall notify the owner. (Ord. 7212-NS § 1 (part), 2011)

13.84.090 Move-back option.

A. The relocation of a tenant household pursuant to this chapter shall not terminate the tenancy of the relocated household. The relocated household shall have the right to reoccupy the unit or room from which it was relocated as soon as the unit or room is ready for reoccupancy, and the tenant household shall retain all rights of tenancy that existed prior to the displacement.

B. If a household wishes to avail itself of this option, it must inform the owner of its current address during the period of relocation.

C. For tenant households displaced for thirty (30) consecutive days or more, owners shall notify the tenant household at least thirty (30) days in advance of the availability of the unit or room. Within ten (10) days of receipt of the notice of availability, a tenant household must notify the owner if it wishes to reoccupy the unit or room.

The owner must hold the unit or room vacant at no cost to the tenant household for thirty (30) days from the date the tenant household’s written notice of its intent to reoccupy the unit or room is received.

D. For households displaced for twenty-nine (29) consecutive days or less and receiving a per diem payment, owners shall notify the household at least one day in advance of the availability of the unit or room. The household shall be entitled to receive a per diem payment for up to twenty-four (24) hours after receiving such notice that the unit or room is ready for occupancy. Within ten (10) days of receipt of the notice of availability from the owner, the household must notify the owner of its intent to reoccupy the unit or room.

E. A unit or room shall be deemed to be permanently surrendered and the tenancy terminated when the tenant household provides notice in writing to the owner that it does not intend to reoccupy the unit or room from which it was relocated or does not notify the owner of its intent to reoccupy the unit or room. If the owner has not made relocation payments as required by this chapter and the unit or room becomes permanently vacated, then it shall be presumed that the surrender of the right of possession of the unit or room was involuntary unless the owner Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 9 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 53 of 55 ends

Page 143 ends

has received a written notice from the tenant household permanently surrendering its right to their unit or room. (Ord. 7212-NS § 1 (part), 2011)

13.84.100 Conflict resolution and appeal procedures for voluntary code compliance.

A. Appeals under this chapter related to voluntary code compliance shall be filed as set forth below. Appeal procedures related to code enforcement activity are addressed in Section 13.84.050.

1. If the tenant household disputes the owner’s determination of the necessity for relocation, or either party disputes the amount of relocation payments or other terms of the relocation, the City may refer the parties to a conflict resolution or mediation service provided through the Rent Stabilization Board or any other appropriate entity upon request by both parties for such referral in lieu of an appeal to the Building Official per subsection
A.3 of this section. The purpose of such referral shall be the negotiation of a mutually acceptable agreement pertaining to the terms of the relocation. If no agreement is reached, then either party may follow the appeals procedure as set forth in this section. Nothing in this chapter shall preclude the parties from meeting on their own at any time, with or without a mediator, in an attempt to resolve their disagreements.

2. If the owner disagrees with the tenant household’s claim for relocation payments, and such disagreement cannot be resolved through conflict resolution or mediation, then the owner may file a written request for a hearing by the Housing Advisory Commission as to the amount of the claim, or their responsibility for relocation assistance pursuant to this chapter. Such request must be filed within five business days of the conclusion of mediation or within ten (10) days of the owner’s receipt of the tenant household’s claim of relocation payments as set forth in Section

13.84.050.E or 13.84.060.F, whichever comes later.

3. If the tenant household disagrees with the owner as to the necessity to relocate, and such disagreement cannot be resolved through conflict resolution or mediation, the tenant household may request in writing that the Building Official make a determination. Such request must be filed within five business days of the conclusion of mediation, or within ten (10) days of the tenant household’s receipt of the relocation notice in Section

13.84.060.C, whichever comes later. The Building Official shall determine whether relocation is necessary and the owner shall serve all affected tenant households with a copy of the Building Official’s determination. This decision shall be final.

B. All hearings conducted before the Housing Advisory Commission shall be scheduled for the next available meeting unless a postponement is agreed upon by all parties. The Commission may convene a special meeting if delay of a hearing until the next regularly scheduled meeting would create a hardship. The owner and all affected tenant households shall be notified of the time and place of the hearing at least ten (10) days before the date of hearing. The Commission shall render its decision on any such appeal within ten (10) days after the hearing on the appeal is closed. The Commission’s decision shall be final.

C. Nothing in this chapter shall in any way preclude or limit any aggrieved party from seeking judicial review after such person has exhausted the administrative remedies provided by this chapter. However, it shall be conclusively Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 10 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 54 of 55 ends

Page 144 ends

The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Disclaimer: The City Clerk’s Office has the official version of the Berkeley Municipal Code. Users should contact the City Clerk’s Office for ordinances passed subsequent to the ordinance cited above.

City Website: www.berkeleyca.gov
Code Publishing Company
presumed that a litigant has not exhausted their administrative remedies as to any issue which is not raised in the administrative proceedings authorized herein. (Ord. 7212-NS § 1 (part), 2011)

13.84.110 Private right of action.

Any tenant that believes that the provisions of this chapter have been violated shall have the right to file an action for injunctive relief and/or damages. Treble damages may be awarded for willful failure to comply with the payment obligations established by this chapter and for actual damages incurred by a household as a result of the owner’s willful failure to offer the relocated household the opportunity to reoccupy the unit from which it relocated. In any action brought under this chapter, the court may award reasonable attorney fees to any prevailing party. (Ord. 7212-NS § 1 (part), 2011)

13.84.120
Severability.

If any provision of this chapter is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, the remaining provisions of the chapter shall not be invalidated. (Ord. 7212-NS § 1 (part), 2011) Ch. 13.84 Relocation Services and Payments for Residential Tenant Households | Berkeley Municipal Code Page 11 of 11 The Berkeley Municipal Code is current through Ordinance 7830-NS, passed July 26, 2022.

Page 55 of 55 ends

Page 145 ends

Page 146 ends

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
June 6, 2023
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín, Councilmembers Kate Harrison, Sophie Hahn, and Rigel Robinson
Subject: Amendments to the COVID-19 Emergency Response Ordinance

RECOMMENDATION
Adopt first reading of an Ordinance amending Berkeley Municipal Code (BMC) Chapter

13.110, the COVID-19 Emergency Response Ordinance to adjust the required timeline to provide documentation proving that non-payment of rent was for a Covered Reason for Delayed Payment if an Unlawful Detainer is served.

BACKGROUND
The City of Berkeley first declared a local emergency on March 3, 2020 in response to the COVID-19 pandemic. 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. Pursuant to Government Code section 8630(b) and Berkeley Municipal Code section 2.88.040.A.1, on March 10, 2020, the City Council ratified the Proclamation of Local Emergency with the passage of Resolution No. 69,312-N.S. That proclamation is set to expire on May 20, 2023.

Before May 1, 2023, the only residential evictions that could take place in the City of Berkeley were to stop an imminent threat to the health and safety of other occupants. On February 27, 2023, the City Council adopted changes to Chapter 13.110 to create a Transition Period for the Eviction Moratorium. During this Transition Period, which lasts from May 1, 2023 through August 31, 2023, two additional types of evictions are allowed:

Owner move-in evictions where the owner only owns one rental property in the City of Berkeley; and evictions for non-payment of rent where the tenant has not provided documentation establishing a Covered Reason for Delayed Payment. Starting on September 1, 2023, the Eviction Moratorium will be fully lifted and all just cause evictions will be allowed.

As currently written, BMC 13.110.020.C(3) and BMC 13.110.040.C states that a tenant must provide documentation showing that they have a Covered Reason for Delayed Payment prior to the expiration of the notice to terminate tenancy. This refers to a three- day notice, meaning that the documentation must be submitted within that timeframe. In many cases, three days does not provide enough time to compile and produce such

Page 1 of 10 ends

Page 147 ends

Amendments to COVID-19 Emergency Response Ordinance CONSENT CALENDAR June 6, 2023

Page 2 ends

documentation, especially in low-income households who may work multiple jobs to make ends meet. This issue was brought up at the May 2, 2023 meeting of the 4x4 Joint Committee of the City Council and Rent Board. To resolve this, references to timelines for responses are removed. Additionally, BMC 13.110.040.C is updated to encourage tenants to provide such documentation in advance. Doing so would prevent an Unlawful Detainer from being served in the first place, preventing undue stress on all parties involved. This language was modeled after the ordinance recently adopted in the City of Oakland.

Other minor amendments to Chapter 13.110 include updating the Findings and Purposes based on recent developments since Chapter 13.110 was last amended.

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.

FISCAL IMPACTS OF RECOMMENDATION
None.

CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1: Ordinance

Page 2 of 10 ends

Page 148 ends

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. That 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, September 14, 2021, December 14, 2021, February 8, 2022, March 22, 2022, May 10, 2022, June 28, 2022, July 26, 2022, September 20, 2022, November 3, 2022, December 13, 2022, and January 31, 2023, and March 21, 2023 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.

Page 3 of 10 ends

Page 149 ends

Page 2 ends

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 during the transition period thereafter, 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.

While COVID-19 remains prevalent in the community, the City has made significant progress in addressing the impacts of COVID-19, including a reduction in the rates of hospitalization and death, as well as a citywide vaccination rate of at least ninety-four percent (94%).

Governor Gavin Newsom has also announced thatended the statewide COVID-19 State of Emergency will end on February 28, 2023. President Joe Biden has announced that ended the nationwide COVID-19 State of Emergency will end on May 11, 2023.

Page 4 of 10 ends

Page 150 ends

Page 3 ends

Based on the current conditions in the City of Berkeley related to COVID-19, and to stay consistent with state actions, the City Manager has recommended that the City Council terminate the local emergency.

The effect of this chapter suspending the statutory basis for eviction due to nonpayment of rent remains in effect throughout the Covered Period, which concludes on the expiration of the local emergency. BMC Section 13.110.030.A allows the City Council to extend the duration of the Covered Period by resolution.

This ordinance makes further amendments to Chapter 13.110 to permit lawful owner- move in evictions pursuant to BMC Section 13.76.130.A.9 and to establish a Transition Period until August 31, 2023, during which time specified evictions would be allowed to take place.

13.110.020 Prohibited Conduct
A. During the Covered Period, no Landlord or Lender shall evict or attempt to evict a Resident of residential real property, or otherwise require a residential 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, except that a Landlord may serve a lawful notice pursuant to Section 13.76.130.A.9. after March 1, 2023, and such notice may form the basis of an unlawful detainer complaint beginning May 1, 2023.

C. During the Transition Period, no Landlord or Lender shall evict or attempt to evict a Resident of residential real property, or otherwise require a residential Tenant to vacate unless at least one of the following conditions is met:

1. Recovery of possession of real property is necessary to stop an imminent threat to the health and safety of other occupants; or

2. Owner Move-in Eviction. The Landlord seeks to recover possession of a residential unit for their own use and occupancy as their principal residence and the Landlord fully complies with all “Owner Move-in Eviction” requirements set forth in Berkeley Municipal Code section 13.76.130.A.9. However, a Landlord may not recover possession of any residential unit in this manner unless the Landlord owns only one residential property in the City of Berkeley. Notice for this exclusive reason may be served beginning March 1, 2023 and may be the basis for an unlawful detainer complaint beginning May 1, 2023.; or

3. The Landlord or Lender seeks to recover possession of real property following the tenant’s default in payment of rent that came due after the expiration of the Covered Period and for which tenant did not provide to the Landlord or Lender documentation establishing a Covered Reason for Delayed Payment as set forth in Berkeley Municipal Code section 13.110.040.C. Any notice to terminate tenancy served pursuant to this

Page 5 of 10 ends

Page 151 ends

Page 4 ends

section must inform the tenant of their rights to submit documentation establishing a Covered Reason for Delayed Payment as set forth in Berkeley Municipal Code section

13.110.040.C. Notwithstanding any other notice requirements identified in Berkeley Municipal Code section 13.110.040.C, a A tenant who asserts a Covered Reason for Delayed Payment during the Transition Period shall provide landlord all required documentation prior to the expiration of the notice to terminate tenancy as set forth in Berkeley Municipal Code section 13.110.040.C.

D. For the duration of the Covered Period, if a residential tenant has a Covered Reason for Delayed Payment, the tenant may terminate a lease or rental agreement with 30 day 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 at the end of April 30, 2023.

B. “Transition Period” means the period of time beginning with May 1, 2023 and ending on August 31, 2023.

C. "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.

D. “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.

E. “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.

Page 6 of 10 ends

Page 152 ends

Page 5 ends

F. "Landlord" includes owners, lessors, or sublessors of either residential 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 residential property. “Tenant” includes a former trustor or homeowner who has lost title the real property in which they reside after a Trustee’s sale.

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 Covered Period, or after the Transition Period if the tenant establishes a Covered Reason for Delayed Payment. . 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. Landlords are encouraged to work with local agencies that will be making rental assistance available for qualifying tenants.

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 July 31, 2023, 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. It is recommended, butA Tenant is not required for a Tenant 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 oyaction for possession of the subject rental unit. This provision shall not be construed to waive any obligation to respond to lawful discovery requests or to waive any right to seek additional time permitted by the California

Page 7 of 10 ends

Page 153 ends

Page 6 ends

Code of Civil Procedure. A declaration sworn under penalty of perjury shall constitute documentation for the purpose of this requirement.

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 and Transition 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 nonpayment 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

Page 8 of 10 ends

Page 154 ends

Page 7 ends

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).

Page 9 of 10 ends

Berkeley City CouncilJune 6, 2023

Berkeley City Council
June 6, 2023