2 2.2 Maintenance and Use of Common Area. The manner in which the Common Area shall be maintained shall be solely determined by Landlord. The use and occupancy by Tenant of the Premises shall include the right to use the Common Area (except areas used in the maintenance or operation of the Property), in common with Landlord and other tenants of the Property and their customers and invitees, subject to such reasonable, nondiscriminatory rules and regulations concerning the use of the Common Area as may be established by Landlord from time to time. Written notice of such rules and regulations and amendments and supplements thereto, if any, shall be given to Tenant thirty (30) days prior to their effective date. Tenant agrees to promptly comply with all such rules and regulations upon receipt of written notice from Landlord.
2.3 Control of and Changes to Common Area. Landlord shall have the sole and exclusive control of the Common Area, as well as the right to make reasonable changes to the Common Area. Landlord’s rights shall include, but shall not be limited to, the right to:
(i) restrain the use of the Common Area by unauthorized persons; (ii) cause Tenant to remove or restrain persons from any unauthorized use of the Common Area if they are using the Common Area by reason of Tenant’s presence in the Property; (iii) temporarily close any portion of the Common Area for repairs, improvements or alterations, to discourage noncustomer use, to prevent dedication or an easement by prescription, or for any other reason deemed sufficient in Landlord’s judgment; and (iv) reasonably change the shape and size of the Common Area, add, eliminate or change the location of improvements to the Common Area. Landlord may determine the nature, size and extent of the Common Area, as well as make changes to the Common Area from time to time which, in Landlord’s opinion, are deemed desirable for the Property.
3. TERM.
3.1 Term; Commencement Date. The “Initial Term” of this Lease shall be as set forth in Section 7 of the Basic Lease Information and shall commence as of the Commencement Date set forth in Section 7 of the Basic Lease Information. The Initial Term together with the Extension Term(s), if any, are collectively referred to herein as the “Term.”
4. RENT; SECURITY DEPOSIT.
4.1 Base Rent; Rent. All Rent under this Lease shall commence as of the Commencement Date. Rent shall be paid as set forth in this Section 4. Tenant shall pay to Landlord, at Landlord’s address for payment of Rent designated in Section 1 of the Basic Lease Information, or at such other address as Landlord may from time to time designate in writing to Tenant for the payment of Rent, the Base Rent designated in Section 8 of the Basic Lease Information, without notice, demand, offset or deduction, in advance, on the first day of each month of the Term. Upon execution of this Lease, Tenant shall pay to Landlord the first month’s Base Rent. If Base Rent is due for a period of less than a full month, it shall be prorated for such partial month on the basis of a thirty (30) day month. The term “Rent” means the Base Rent and any other amounts of any kind that become due and payable by Tenant to Landlord under this Lease, including deferred rent payments set forth in Section 4.1.1. The total monthly and annual rent owed is set forth in Exhibit C. Tenant’s obligation to pay Rent under this Lease survives the Term to the extent such obligation has not been fulfilled during the Term.
3 4.1.1 Payment of Deferred Rent. Tenant and Landlord agree that $39,767 in deferred rent that was unpaid during the prior lease due to the COVID-19 pandemic will be repaid in graduated monthly payments over the term of the lease as outlined in the table below.
Payments will be due with each monthly Base Rent payment. No interest will be charged on the payment of deferred rent except as set forth in Section 4.3, if payments are not received according to the schedule set forth below.
Lease Year Monthly Deferred Rent
Payment
Total Annual Deferred
Rent Payment
Sep 2026-Aug 2027 $300.00 $3,600.00
Sep 2027-Aug 2028 $500.00 $6,000.00
Sep 2028-Aug 2029 $700.00 $8,400.00
Sep 2029-Aug 2030 $900.00 $10,800.00
Sep 2030-Aug 2031 $913.92 $10,967.00
Total Repaid: $39,767.00
4.2 Application of Payments. All payments received by Landlord from Tenant shall be applied to the oldest obligation owed by Tenant to Landlord. No designation by Tenant, either in a separate writing, on a check or money order, or otherwise shall modify this clause or have any force or effect.
4.3 Late Charge and Interest. The late payment of any Rent will cause Landlord to incur additional costs, including administration and collection costs and processing and accounting expenses (“Delinquency Costs”). If Landlord has not received any installment of Rent within five (5) business days after such amount is due, Tenant shall pay a late charge of ten percent (10%) of the delinquent amount immediately. The ten percent (10%) late charge represents a reasonable estimate of the Delinquency Costs incurred by Landlord. In addition, all such delinquent amounts shall bear interest from the date such amount was due until paid in full at a rate per annum (“Applicable Interest Rate”) equal to the lesser of (i) the maximum interest rate permitted by Law, or (ii) five percent (5%) above the rate publicly announced by Bank of America, N.A. (or if Bank of America, N.A. ceases to exist, the largest bank then headquartered in the State of California) (“Bank”) as its “Reference Rate.” If the use of the announced Reference Rate is discontinued by the Bank, then the term Reference Rate shall mean the announced rate charged by the Bank which is, from time to time, substituted for the Reference Rate. Landlord and Tenant recognize that the damage which Landlord shall suffer as a result of Tenant’s failure to pay such amounts is difficult to ascertain and said late charge and interest are the best estimate of the damage which Landlord shall suffer in the event of late payment.
Landlord’s acceptance of late Rent, partial Rent and late charges does not equate with a waiver of Tenant’s default with respect to the overdue amount, or prevent Landlord from exercising any rights and remedies available under this Lease and/or by operation of Law.
4 4.4 Security Deposit. The cash sum specified under Section 9 of the Basic Lease Information, if any, shall be deposited with Landlord concurrently with Tenant’s execution of this Lease (“Security Deposit”). Landlord shall hold the Security Deposit as security for the performance of Tenant’s obligations under this Lease. Tenant is not entitled to any interest on the Security Deposit and Landlord shall not be liable therefor. If Tenant defaults on any provision of this Lease, Landlord may, at its election and without prejudice to any remedy it has under this Lease or by operation of Law, apply all or part of the Security Deposit to: (i) Rent or other sum in default; (ii) any amount that Landlord may spend or become obligated to spend in exercising Landlord’s rights under this Lease; (iii) unamortized costs of improvements paid for by Landlord, if any; (iv) unamortized costs of brokerage commissions, if any; or (v) any expense, loss or damage that Landlord may suffer because of Tenant’s default. Tenant waives the provisions of California Civil Code section 1950.7, and all Laws in force or that become in force after the date of execution of this Lease, that provide that Landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant, or to clean the Premises. Landlord may, in addition, claim those sums reasonably necessary to compensate Landlord for any other foreseeable or unforeseeable loss or damage caused by the act or omission of Tenant, or of Tenant’s officers, agents, employees, independent contractors, invitees, customers, licensees, assignees or subtenants (individually and collectively, “Tenant’s Parties”).
4.5 Restoration of Security Deposit; Return of Security Deposit. If Landlord applies any portion of the Security Deposit during the Term, Tenant shall, within ten (10) days after demand by Landlord, deposit with Landlord an amount sufficient to restore the Security Deposit to its original amount. If Tenant performs every provision of this Lease to be performed by Tenant, the unused portion of the Security Deposit, if any, shall be returned to Tenant or the last assignee of Tenant’s interest under this Lease within thirty (30) days following the expiration or termination of the Term.
4.6 Transfer of Security Deposit; Assignment or Encumbrance of Security Deposit. If Landlord disposes of its interest in the Premises, Landlord may deliver the remaining Security Deposit to Landlord’s successor in interest in the Premises and thereupon be relieved of further responsibility with respect to the Security Deposit. Tenant may not assign or encumber the Security Deposit without the prior written consent of Landlord. Any attempt to do so shall be void and shall not be binding on Landlord.
5. UTILITIES AND JANITORIAL SERVICES.
5.1 Landlord Utility and Service Costs. Landlord shall be responsible and directly contract and pay for the following utilities and services in connection with Tenant’s use or occupancy of the Premises: (i) water; (ii) sewage; (iii) the Landlord janitorial services described in Section 5.2 below; (iv) trash removal; and (v) HVAC (individually and collectively, the “Landlord Services”).
5.2 Janitorial Services. Landlord shall provide all janitorial services to common areas only. Tenant shall provide and pay for all janitorial services, including supplies and shampooing carpets, to the Leased Premises during this lease term.
5 5.3 Tenant Utility and Service Costs. Tenant, at Tenant’s sole cost and expense, shall be responsible and shall directly contract and pay for any and all utilities and services required or desired by Tenant in connection with its use or occupancy of the Premises, which are not expressly included within the definition of Landlord Services, including, but not limited to, electricity, gas, telephone, computer, internet, communications services, plumbing and drain clean out services, and alarm.
5.4 Conservation and Use Policies. Tenant, at Tenant’s sole cost and expense, shall comply with federal, state, or local governmental controls, rules, regulations, or restrictions on the use or consumption of energy or other utilities during the Term.
5.5 Exculpation of Liability. Landlord is not obligated to furnish any security patrol or any other services to Tenant, other than the Landlord Services expressly described above, and Landlord shall not be liable for any loss or damage suffered by Tenant or others, by reason of Landlord’s failure to furnish or election to discontinue providing any security patrol or other services. Landlord shall not be liable for any failure or interruption of any Landlord Service being furnished to the Premises, and no such failure or interruption shall entitle Tenant to terminate this Lease. Landlord makes no representation with respect to the presence, adequacy or fitness of the heating, air conditioning or ventilation equipment on or about the Premises to maintain temperatures which may be required for, or because of, any equipment of Tenant. The exculpation of liability under this Section 5.5 shall not apply to the extent claims are caused by Landlord’s gross negligence or willful misconduct.
6. TAXES.
6.1 Taxes. As used in this Lease “Taxes” means Possessory Interest Taxes and Personal Taxes. Tenant’s obligations for Taxes for the last full or partial year of the Term and for any prior unpaid Taxes shall survive the expiration or earlier termination of this Lease.
6.2 Possessory Interest Taxes. This Lease creates a possessory property interest in Tenant. Tenant’s property interest may be subject to property taxation, and Tenant or the party in whom the possessory interest is vested shall be responsible for payment of any and all property taxes levied on the interest (collectively, “Possessory Interest Taxes”).
6.3 Personal Taxes. Tenant shall pay directly to the taxing authority all taxes and assessments levied upon the trade fixtures, alterations, additions, improvements, partitions, cabling, wiring, furniture, equipment, inventories and other personal property located and/or installed on the Premises by or on behalf of Tenant (individually and collectively “Tenant’s Property”) and any Tenant Improvements (collectively, “Personal Taxes”).
6.4 Payment of Taxes. Tenant shall pay all Taxes prior to delinquency. To the extent any such taxes are not separately assessed or billed to Tenant by the taxing authority, Landlord shall deliver to Tenant copies of the assessment and tax bill. Tenant shall pay such amount directly to the taxing authority no later than ten (10) business days prior to the date on which such Taxes are due. Should Tenant fail to pay its Taxes, Landlord may elect to do so on Tenant’s behalf within five (5) days of Landlord’s demand therefor. Tenant shall reimburse
6 Landlord for such Taxes and any penalties and fines, together with interest at the Applicable Interest Rate, from the date Landlord tendered payment.
7. INSURANCE.
7.1 Landlord. Landlord may elect to self-insure, jointly-insure, or maintain insurance or an insurance equivalent (including, but not limited to, that offered to a municipality through and by a joint powers authority, a self-insurance pool of liability coverage authorized pursuant to California Government Code Section 6500, or similar collective) insuring the Property (excluding Tenant’s Property and any Tenant Improvements) on an occurrence basis against fire and extended coverage (including, if Landlord elects, “all risk” coverage) similar in type and coverage limits to that carried by Landlord on its other properties. At Landlord’s option, such insurance or insurance equivalent may be carried under any blanket or umbrella policies or other insurance or insurance equivalent which Landlord has in force for other buildings or projects.
Landlord may also carry such other insurance as Landlord may deem prudent or advisable, in such amounts and on such terms as Landlord shall determine. All such insurance or insurance equivalent maintained by Landlord pursuant to this Section 7.1 is referred to herein as “Landlord’s Insurance.” Landlord’s Insurance shall not, under any circumstances, include Tenant’s Property, any Tenant Improvements, or other items required to be covered by Tenant’s Insurance.
7.2 Tenant. Tenant shall, at Tenant’s expense, obtain and keep in force at all times during the Term the following “Tenant’s Insurance,” and shall be liable for all premiums, deductibles, and self-insured amounts, if any, in connection therewith. Tenant’s Insurance shall not have a deductible amount exceeding Five Thousand Dollars ($5,000).
7.3 Commercial General Liability Insurance. A policy of commercial general liability insurance (occurrence form) having a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate, providing coverage for, among other things, blanket contractual liability (including Tenant’s indemnification obligations under this Lease), premises liability, products and completed operations liability, owner’s protective coverage, broad form property damage, and bodily injury (including wrongful death) and advertising injury coverage. If necessary, Tenant shall provide for restoration of the aggregate limit.
7.4 Workers’ Compensation and Employer’s Liability Insurance. Workers’ compensation insurance, if required by Law, which complies with all applicable state statutes and regulatory requirements, and employer’s liability insurance coverage in statutory amounts.
7.5 Property Insurance. “All risk” property insurance including fire and extended coverage, sprinkler leakage, vandalism and malicious mischief coverage, covering damage to or loss of Tenant’s Property or any Tenant Improvements (together with, if the property of Tenant’s invitees is to be kept in the Premises, warehouser’s legal liability or bailee customers insurance insuring property belonging to invitees and located in or about the Premises), in an amount not less than the full replacement cost thereof. In the event that there shall be a dispute as to the amount which comprises full replacement cost, the decision of Landlord or the mortgagees of Landlord shall be presumptive.
7 7.6 Other Insurance. Any other form or forms of insurance as Landlord or the mortgagees of Landlord may reasonably require from time to time, in form, amounts and for insurance risks against which a prudent tenant would protect itself, but only to the extent such risks and amounts are available in the insurance market at commercially reasonable costs.
7.7 General.
7.7.1 Insurance Companies. Tenant’s Insurance shall be written by companies licensed to do business in California and having a “General Policyholders Rating” of at least A- VII (or such higher rating as may be required by a lender having a lien on the Premises) as set forth in the most current issue of “Best’s Insurance Guide.”
7.7.2 Certificates of Insurance. Tenant shall deliver to Landlord certificates of insurance for Tenant’s Insurance, in the form of the ACORD standard certificate of insurance, prior to the Commencement Date. Tenant shall, at least thirty (30) days prior to expiration of the policy, furnish Landlord with certificates of renewal or “binders” thereof. Each certificate shall expressly provide that such policies shall not be cancelable or otherwise subject to modification except after thirty (30) days’ prior written notice to the parties named as additional insureds as required in this Lease. If Tenant fails to maintain any insurance required in this Lease, Tenant shall be liable for all losses and costs resulting from said failure.
7.7.3 Additional Insureds. Landlord and any property management company of Landlord for the Premises shall be named as additional insureds on the commercial general liability policy required by Section 7.3. An additional insured endorsement naming such parties as additional insured(s) shall be attached to the certificate of insurance.
7.7.4 Primary Coverage. Tenant’s Insurance shall be primary, without right of contribution from any Landlord’s Insurance.
7.7.5 Umbrella/Excess Insurance. Any umbrella liability policy or excess liability policy shall provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. The limits of Tenant’s Insurance shall not limit Tenant’s liability under this Lease.
7.7.6 Waiver of Subrogation. Tenant waives any right to recover against Landlord for claims for damages to Tenant’s Property or any Tenant Improvements to the extent covered (or required by this Lease to be covered) by Tenant’s Insurance. This provision is intended to waive fully, and for the benefit of Landlord, any rights and/or claims which might give rise to a right of subrogation in favor of any insurance carrier. The coverage obtained by Tenant pursuant to this Lease shall include a waiver of subrogation endorsement attached to the certificate of insurance.
7.7.7 Notification of Incidents. Tenant shall notify Landlord within twenty- four (24) hours after the occurrence of any accident or incident on or about the Property or any portion thereof which could give rise to a claim against Landlord, Landlord’s Insurance, Tenant, or Tenant’s Insurance, except that Tenant shall not be obligated to give Landlord notice of any accident or incident which could give rise to a claim under Tenant’s workers’ compensation
8 insurance. Tenant’s notice shall be accompanied by a copy of any report(s) relating to the accident or incident.
7.7.8 Compliance With Insurance Requirements; Warranties. Tenant shall not do anything in the Premises, or bring or keep anything therein, or subject the Property or any portion thereof to any use which would damage the same or increase the risk of loss or fire, or violate Landlord’s Insurance, or Tenant’s Insurance, or which shall conflict with the regulations of the fire department or any Laws or with any insurance policy on the Premises or any part thereof, or with any rules or regulation established by any administrative body or official having jurisdiction. Tenant shall promptly comply with the reasonable requirements of any board of fire insurance underwriters or other similar body now or hereafter constituted.
8. INDEMNITY; LIABILITY EXEMPTION.
8.1 Indemnity. Except to the extent claims are caused by Landlord’s gross negligence or willful misconduct, Tenant shall indemnify, protect, defend, and hold harmless Landlord and its elected officials, officers, employees, volunteers, lenders, agents, representatives, contractors and each of their successors and assigns from and against any and all claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon, arising at any time during or after the Term as a result (directly or indirectly) of or in connection with (i) any default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; (ii) Tenant’s or Tenant’s Parties use of the Premises, the Property, or any portion thereof, or the conduct of Tenant’s business or any activity, work or thing done, permitted or suffered by Tenant or Tenant’s Parties in or about the Premises, the Property or any portion thereof; (iii) any act, error or omission of Tenant or Tenant’s Parties in or about the Property or any portion thereof; (iv) loss of, injury or damage to, or description of property (including but not limited to merchandise or inventory), including loss of use resulting from such loss, injury, damage, or destruction; or (v) any resulting economic loss, consequential damages, or exemplary damages (collectively, the “Indemnification”). Tenant shall provide such Indemnification by and through counsel reasonably acceptable to Landlord. The obligations of Tenant under this Section 8.1 shall survive the expiration or other termination of this Lease with respect to any claims or liability arising prior to such expiration or other termination.
8.2 Exemption of Landlord from Liability. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property including, but not limited to, Tenant’s Property and any Tenant Improvements, and injury to or death of persons in, upon or about the Premises, the Property, or any portion thereof, arising from any cause, and Tenant hereby waives all claims in respect thereof against Landlord, except to the extent such claims are caused by Landlord’s sole or active negligence or willful misconduct. Tenant hereby agrees that Landlord shall not be liable for injury to Tenant’s business or any loss of income therefrom or for damage to the property of Tenant, or injury to or death of Tenant, Tenant’s Parties or any other person in or about the Premises, the Property, or any portion thereof, whether such damage or injury is caused by fire, steam, electricity, gas, water or rain, or from the breakage, leakage or other defects of sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether said damage or injury results from conditions
9 arising within or about the Premises, the Property, or any portion thereof or from other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Tenant, except damage or injury caused solely by Landlord’s sole or active negligence or willful misconduct. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant or occupant, if any, of the Premises, the Property, or any portion thereof, or Landlord’s failure to enforce the terms of any agreements with parties other than Tenant.
9. REPAIRS AND MAINTENANCE.
9.1 Landlord’s Obligations. The Premises are being leased to Tenant in their current, existing, “AS-IS” condition. It is specifically understood and agreed that Landlord has no obligation and has made no promises to alter, remodel, improve, decorate or paint the Premises, construct or install any Tenant Improvements, or otherwise alter or improve the Premises, Property, or any portion thereof. Having occupied the Premises before entering this Lease with Landlord, Tenant is familiar with the existing condition of the Property and Premises, including any Tenant Improvements, and acknowledges that Landlord has made no representation or warranty regarding the condition thereof. Landlord, at its expense shall maintain the Building’s roof (including structure portions of the roof), foundation, and exterior walls, exterior windows, common areas, building systems including HVAC, plumbing, and electrical and any items in the common areas required for compliance with applicable laws.
9.2 Tenant’s Waiver. Notwithstanding anything in this Lease to the contrary, whether stated or implied in this Lease, Tenant waives and releases its rights, including its right to make repairs at Landlord’s expense, under California Civil Code sections 1932(1), 1941, and 1942 or any similar Laws.
9.3 Tenant’s Obligations. Tenant, at its expense, shall maintain the Premises in good order, condition and repair, including interior floor surfaces and floor coverings, interior walls and wall coverings, paintings, interior glass, doors, Tenant Improvements, Signs, and any items required for compliance with Laws. In the event Tenant fails, in the reasonable judgment of Landlord, to so maintain the Premises in good order, condition and repair, Landlord shall in its sole discretion, upon five (5) days’ written notice to Tenant, have the right but not the obligation to perform such maintenance, repairs or refurbishing at Tenant’s expense, provided Tenant fails to do so within such five (5) day period. If Landlord elects to undertake any such repairs or maintenance as provided above, then Tenant shall pay as additional Rent, Landlord’s actual costs paid or incurred in connection therewith.
10. ALTERATIONS.
10.1 Trade Fixtures; Alterations. Subject to the conditions and requirements of this Section 10, Tenant may install necessary trade fixtures, equipment and furniture in the Premises, provided that such items are installed and are removable without structural or material damage to the Premises or any Tenant Improvements. For purposes of this Lease, “Trade Fixtures” means specialty fixtures or equipment used in Tenant’s trade or business as identified by Tenant and agreed to by Landlord in writing. Tenant shall not construct, or allow to be constructed, any alterations, physical additions, or improvements in, about, or to the Premises without the prior
10 written consent of Landlord, which consent may be granted or denied in Landlord’s sole discretion. If Landlord approves proposed alterations, additions or improvements, Landlord’s consent may be conditioned upon Tenant’s establishing compliance with Laws and with Landlord’s reasonable requirements regarding selection of contractors and construction of improvements and alterations. Should Tenant make any alterations, additions, improvements without the prior written consent of Landlord, Landlord may, at any time during the Term of this Lease, require Tenant to remove any or all of the same and restore the Premises to their prior condition, at Tenant’s sole cost and expense.
10.2 Satellites and Antennae. Notwithstanding anything in this Lease to the contrary, Landlord and Tenant agree that it shall be reasonable for Landlord to withhold its consent to installation in or about the Premises or any portion thereof of equipment comprising or relating to relays, monopoles, satellite dishes, antennae, wireless telecommunications devices, transmitters, roof mounts, two-way radios, or similar apparatus (collectively, “Transmission Devices”).
10.2.1 Tenant will not place or allow any third party to place or maintain on the roof or on any exterior door, wall or windows (or within forty-eight inches (48”) of any windows) of the Premises any sign, banner, flag, awning or canopy, advertising matter or window coverings of any type without Landlord’s prior written consent. Tenant further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or window coverings as may be approved in good condition and repair at all times.
10.3 Signs. All signs, graphics, and awnings of every kind visible in or from public view or corridors, or the exterior of the Premises, installed or caused to be installed by, for the benefit of, or at the request of Tenant (“Signs”) shall be, at Tenant’s sole cost and expense, and subject to Landlord’s prior written approval, and subject to all applicable Laws. Tenant shall remove all such Signs prior to the termination of this Lease. Such installations and removals shall be made in such manner as to avoid injury or defacement of the Premises; and Tenant shall repair any injury or defacement, including discoloration caused by such installation or removal.
Tenant shall be responsible for all fees, costs and expenses associated with installation and removal of Signs. In the event any such fees, costs or expenses are incurred by Landlord (whether directly or indirectly), Landlord shall deliver to Tenant an invoice, with reasonable supporting documentation, and Tenant shall reimburse Landlord for those amounts within fifteen (15) days after receipt of such invoice.
10.4 Standard of Work. All work to be performed by or on behalf of Tenant shall be performed diligently and in a first-class, workmanlike manner, and in compliance with all applicable Laws and all insurance carrier requirements. Landlord shall have the right, but not the obligation, to periodically inspect such work and may require changes in the method or quality thereof. In no event shall such work materially obstruct access to the Property or any portion thereof.
10.5 Damage; Removal. Tenant shall repair all damage to the Premises, Property and any portions thereof caused by the installation or removal of Tenant’s Trade Fixtures or other work performed by or on behalf of Tenant. All alterations, improvements or additions that are now or in the future attached permanently to the premises shall be the property of Landlord and
11 remain with the premises at the termination of this lease. Upon the expiration or other termination of this Lease, Tenant shall perform any closure work, investigation and environmental remedial work required by the presence or suspected presence of any Hazardous Materials under Hazardous Materials Laws (as hereinafter defined) or by any other applicable Laws; provided, however, Landlord may require, upon written notice to Tenant no less than fifteen (15) days before the expiration or other termination of the Term, any such items (except Trade Fixtures) designated by Landlord to remain on the Premises, in which event they shall be and become the property of Landlord upon the expiration or other termination of this Lease. All such removals and restoration shall be accomplished in a good and workmanlike manner so as not to cause any damage to the Premises, the Property, or any portion thereof, whatsoever and in strict accordance with all applicable Laws.
10.6 Liens. Tenant shall promptly pay and discharge all claims for labor performed, supplies furnished and services rendered at the request of Tenant and shall keep the Premises and Property and all portions thereof free of all mechanics’ and materialmen’s liens in connection therewith. Tenant shall provide at least ten (10) business days’ prior written notice to Landlord before any labor is performed, supplies furnished or services rendered on or at the Premises and Landlord shall have the right to post on the Premises notices of non-responsibility. If any lien is filed, Tenant shall cause such lien to be released and removed within ten (10) days after the date of filing, and if Tenant fails to do so, Landlord may take such action as may be necessary to remove such lien, without the duty to investigate the validity of it, and Tenant shall pay Landlord such amounts expended by Landlord together with interest thereon, at the Applicable Interest Rate, from the date of expenditure.
10.7 Bonds. Landlord may require Tenant to provide Landlord, at Tenant’s sole cost and expense, lien, performance, and payment completion bonds in an amount equal to one and one-half times the estimated cost of any alterations, additions, or improvements to insure Landlord, the Premises and the Property against any liability for mechanic’s and materialmen’s liens, and to ensure completion of the work and payment of any contractors or subcontractors.
11. PREVAILING WAGES.
11.1 Prevailing Wages. Tenant acknowledges and agrees that any Tenant Improvements, repairs, maintenance, or alterations made by or on behalf of Tenant to the Premises, Property, or any portion thereof (“Improvement Work”), which will become Landlord’s property upon the expiration or termination of this Lease, whether paid for in whole or part by Landlord or which are considered to have been paid for in whole or part by Landlord, will constitute “[c]onstruction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds….” California Labor Code § 1720.
Accordingly, Tenant shall comply with applicable prevailing wage policies as set forth in the City of Berkeley Municipal Code, applicable California Labor Code requirements pertaining to “public works” (California Labor Code Section 1720 et seq., as amended from time to time and implementing regulations)), and other applicable Laws addressing the payment of prevailing wages in connection with any Improvement Work (collectively, “Prevailing Wage Laws”).
Tenant shall require the general contractor for any Improvement Work to submit, upon request by Landlord, certified copies of payroll records to Landlord and to maintain and make records available to Landlord and its designees for inspection and copying to ensure compliance with
12 Prevailing Wage Laws. Tenant shall also include in its general contractor agreement, and in all of its subleases and other contracts, a provision in a form acceptable to Landlord which obligates the general contractor and others as applicable, (i) to comply with, and to require that their respective subtenants, contractors and/or subcontractors comply with, Prevailing Wage Laws, and (ii) upon request by Landlord to submit certified copies of payroll records to Landlord and to maintain and make such payroll records available to Landlord and its designees for inspection and copying during regular business hours at the Premises or at another location within the City of Berkeley. Tenant shall defend, indemnify and hold harmless Landlord and its officers, officials, employees, volunteers, agents and representatives (collectively, “Indemnitees”) from and against any and all present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys’ fees and costs) (collectively, “Claims”), arising out of or in any way connected with Tenant’s obligation to comply with all such Prevailing Wage Laws, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726. Tenant hereby waives, releases and discharges forever the Indemnitees from any and all present and future Claims arising out of or in any way connected with Tenant’s obligation to comply with all Prevailing Wage Laws with respect to the Improvement Work.
12. PERMITTED USE AND PUBLIC TRUST TIDELANDS REQUIREMENTS.
12.1 Usage. The Premises shall be used only for the permitted uses set forth in Section 6 of the Basic Lease Information and for no other purpose whatsoever without the prior written consent of Landlord. Tenant’s execution of this Lease and entry of the Premises hereunder shall conclusively establish that the foregoing were at such time in satisfactory condition. Tenant, at Tenant’s expense, shall comply with all applicable Hazardous Materials Laws, statutes, laws, codes, rules, orders, zoning, ordinances, directions, regulations, regulations, permits, or other requirements of federal, state, county, municipal, or other governmental authorities having jurisdiction, now in force or which may hereafter be in force (individually “Law” and collectively “Laws”), which shall impose any duty upon Landlord or Tenant with respect to the use, occupancy, or alteration of the Premises. Tenant shall be responsible for obtaining a Berkeley Business License and any other permit or business license required by any governmental agency permitting Tenant’s use of the Premises. Landlord makes no representation concerning the availability of any permits or approvals required or permitted under this Lease. Tenant shall comply with the rules and regulations, including observance of prohibited uses (“Rules”), attached hereto as Exhibit B and incorporated by reference, together with such reasonable additional rules and regulations as Landlord may from time to time prescribe. Tenant shall not commit waste; overload the floors or structure of the Premises; permit any unreasonable odors, smoke, dust, gas, substances, noise, or vibrations to emanate from the Premises that are offensive or objectionable to Landlord or other tenants or occupants of the Property; take any action which would constitute a nuisance or would disturb, obstruct, or endanger Landlord or other tenants or occupants of the Property; take any action which would abrogate any warranties; or use or allow the Premises to be used for any unlawful purpose; and shall cooperate with Landlord and Landlord’s agents to prevent those actions. Landlord shall not be responsible for non-compliance by any other tenant or occupant with, or Landlord’s failure to enforce, any of the Rules or any other terms or provisions of such tenant’s or occupant’s lease.
13 12.2 Public Trust Tidelands Requirements. Tenant acknowledges that the Property is located on State tidelands held by the City of Berkeley in trust for the promotion of commerce, navigation, and fishery pursuant to that certain statutory grant from the State of California to the City of Berkeley, as set forth in Statutes 1913, Chapter 347, as amended (“Statutory Grant”).
Tenant agrees and covenants to use the Property in a manner consistent with the Statutory Grant and applicable public trust and tidelands requirements during the term of this Lease.
13. ENVIRONMENTAL MATTERS.
13.1 Environmental Compliance. Tenant shall, at its sole cost and expense, comply with all laws, codes, rules, orders, ordinances, directives, regulations, permits, or other requirements of federal, state, county, municipal or governmental authorities having jurisdiction, now in force or which may hereafter be in force (collectively, “Hazardous Materials Laws”) concerning the management, use, generation, storage, transportation, discharge or disposal of any and all pollutants, wastes, flammables, explosives, radioactive materials, hazardous or toxic materials, hazardous or toxic wastes, hazardous or toxic substances, carcinogenic materials or contaminants and all other materials governed, monitored, or regulated by any Federal, State or local Law or regulation, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Substances Account Act, and/or the Resources Conservation and Recovery Act. “Hazardous Materials” include asbestos, asbestos- containing materials, hydrocarbons, polychlorinated biphenyl (“PCB”) or PCB-containing materials, petroleum, gasoline, petroleum products, crude oil or any fraction, product or by- product thereof. Neither Tenant nor Tenant’s Parties shall use, handle, store, transport, treat, generate, release or dispose of any Hazardous Materials anywhere in, on, under or about the Premises or the Property. Tenant shall cause any and all Hazardous Materials brought onto, used, generated, handled, treated, stored, released or discharged on or under the Premises or the Property to be removed from the Premises and Property and transported for disposal in accordance with applicable Hazardous Materials Laws. Landlord shall have the right to enter the Premises from time to time to conduct tests, inspections and surveys concerning Hazardous Materials and to monitor Tenant’s compliance with its obligations concerning Hazardous Materials and Hazard Materials Laws. Tenant shall immediately notify Landlord in writing of:
(i) any release or discharge of any Hazardous Material; (ii) any voluntary clean-up or removal action instituted or proposed by Tenant; (iii) any enforcement, clean-up, removal or other governmental or regulatory action instituted or threatened; or (iv) any claim made or threatened by any person against Landlord, Tenant, the Premises, Property, or any portion thereof relating to Hazardous Materials or Hazardous Materials Laws. Tenant shall also supply to Landlord as promptly as possible, and in any event within five (5) business days after Tenant receives or sends same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Premises or Tenant’s use thereof and concerning Hazardous Materials or Hazardous Materials Laws. In the event Tenant institutes a cleanup or removal action, Tenant shall provide copies of all workplans and subsequent reports submitted to the governmental agency with jurisdiction to Landlord in a timely manner.
13.2 Tenant’s Indemnification. Except to the extent caused by Landlord’s gross negligence or willful misconduct, Tenant shall indemnify, defend and hold Landlord harmless from any claims, causes of action, liabilities, losses, damages, injunctions, suits, fines, penalties, costs or expenses (including attorneys’ fees and expenses and consultant fees and expenses)
14 relating to the presence of Hazardous Materials in, on, under, about, or emanating from the Premises, the Property, or any portion thereof, including, without limitation, any bodily injury, death, property damage, natural resource damage, decrease in value of the Premises, the Property, or any portion thereof, caused or alleged to have been caused by Tenant or Tenant’s Parties’ use, storage, handling, treatment, generation, discharge or release of Hazardous Materials in violation of Tenant’s obligations under this Lease, whether such claims, causes of action or liabilities are first asserted during the Term or thereafter, and including, without limitation, claims made against Landlord with respect to bodily injury, death or property damage sustained by third parties caused or alleged to have been caused by Tenant or Tenant’s Parties’ use, storage, handling, treatment, generation, discharge or release of Hazardous Materials.
14. DAMAGE AND DESTRUCTION.
14.1 Casualty. If, during the Term, the Premises is totally or partially destroyed from any cause rendering the Premises totally or partially inaccessible or unusable (“Casualty”), then Landlord shall have the right at Landlord’s option to give written notice to Tenant within ninety (90) days after the date of the occurrence of such Casualty of Landlord’s intention to either (i) repair such Casualty as soon as reasonably possible at Landlord’s expense; or (ii) terminate this Lease as of the date of the occurrence of such damage. If Landlord elects to repair the damage, and if the cost of such repairs does not exceed the amount of insurance proceeds received by Landlord from Landlord’s Insurance pursuant to Section 7 above, on account of such damage, and if the restoration can be made under then existing Laws and can be completed within one hundred eighty (180) days after obtaining all necessary permits therefor, then Landlord shall restore the Premises (excluding Tenant’s Property and any Tenant Improvements) to substantially the same condition as they were in immediately before destruction. If the restoration cannot be so made, then within fifteen (15) days after Landlord determines that the restoration cannot be made as stated in this Section 14.1, Tenant may terminate this Lease immediately by giving written notice to Landlord. If the existing Laws do not permit the restoration, either party may terminate this Lease by giving ninety (90) days prior written notice to the other party. In case of destruction, there shall be an abatement or reduction of Rent, between the date of destruction and the date of completion of restoration if restoration takes place, or the date of termination if the Lease is terminated, based on the extent to which the destruction actually and materially interferes with Tenant’s use of the Premises.
14.2 Tenant’s Fault. If the Premises, the Property, or any portion thereof, are damaged resulting from the negligence or breach of this Lease by Tenant or any of Tenant’s Parties, Rent shall not be reduced during the repair of such damage, Tenant shall have no right to terminate this Lease as provided in Section 14.1, and Tenant shall be liable to Landlord for the cost of the repair caused thereby to the extent such cost is not covered by insurance proceeds.
14.3 Repair Limitation. Notwithstanding anything in this Lease to the contrary, Landlord shall not be required to repair any injury or damage, by fire or other cause, to Tenant’s Property or any Tenant Improvements, if any, or to rebuild, repair or replace any decorations, alterations, partitions, fixtures, trade fixtures, additions or other improvements installed on the Premises by or for Tenant, unless and to the extent Landlord has received insurance proceeds from Tenant’s property insurance as provided in Section 7.5 above, and neither Tenant or Landlord has opted to terminate this Lease as provided in Section 14.1.
15 14.4 Waiver. The provisions of this Lease contain an express agreement between Landlord and Tenant that applies in the event of any Casualty. Tenant fully waives the provisions of any statute or regulation, including California Civil Code sections 1932(2) and 1933(4) (as amended from time to time, and successor statutes thereto) for any rights or obligations concerning a Casualty.
15. EMINENT DOMAIN.
15.1 Effect on Rights and Obligations. If any portion of the Premises is permanently taken by condemnation, this Lease shall remain in effect, except that Tenant may elect to terminate this Lease if 25% or more of the total square footage of the Premises (but expressly excluding parking areas, if any) is taken and if the remaining portion of the Premises is rendered unsuitable for Tenant’s continued use of the Premises. If Tenant elects to terminate this Lease, Tenant must exercise its right to terminate by giving written notice to Landlord within thirty (30) days after the nature and the extent of the taking have been finally determined, as of the date of termination, which date shall not be earlier than thirty (30) days nor later than ninety (90) days after Tenant has notified Landlord of its election to terminate; except that this Lease shall terminate on the date of taking if the date of taking falls on a date before the date of termination as designated by Tenant. If Tenant does not terminate this Lease within the thirty- (30) day period, this Lease shall continue in full force and effect, except that the Base Rent thereafter to be paid shall be reduced on a pro-rata basis. Tenant shall notify Landlord in writing of any condemnation or threatened condemnation within ten (10) days after Tenant receives notice of said action or threatened action.
15.2 Award. In connection with any condemnation, Landlord shall be entitled to receive all compensation and anything of value awarded, paid, or received in settlement or otherwise (“Award”) and Tenant hereby irrevocably assigns and transfers to Landlord all rights to and interests in the Award and fully waives, releases, and relinquishes any claim to, right to make a claim on, or interest in the Award, including any amount attributable to any excess of the market value of the Premises for the remainder of the Term over the present value as of the termination date of the Rent payable for the remainder of the Term (commonly referred to as the “bonus value” of the Lease).
16. DEFAULT.
16.1 Events of Default. Where “default” is used in this Lease with reference to Tenant, default refers to any breach of Tenant’s obligations under this Lease, however brief. Where Tenant’s default continues for the period specified below, it shall, at Landlord’s option, constitute an Event of Default giving rise to the remedies set forth in Sections 16.2 and 16.3 of this Lease. The occurrence of any of the following events shall, at Landlord’s option, constitute an “Event of Default”:
16.1.1 Abandonment of or vacating the Premises, or cessation of Tenant’s business operations therein, for a period of ten (10) consecutive calendar days;
16.1.2 Failure to pay Rent or other sums on the date when due and the failure continuing for a period of ten (10) days after such payment is due;
16 16.1.3 Failure to perform Tenant’s covenants and obligations hereunder (except default in the payment of Rent) where such failure continues for a period of thirty (30) days;
16.1.4 The making of a general assignment by Tenant for the benefit of creditors; the filing of a voluntary petition by Tenant or the filing of an involuntary petition by any of Tenant’s creditors seeking the rehabilitation, liquidation or reorganization of Tenant under any Laws relating to bankruptcy, insolvency or other relief of debtors and, in the case of an involuntary action, the failure to remove or discharge the same within sixty (60) days of such filing; the appointment of a receiver or other custodian to take possession of substantially all of Tenant’s assets or this leasehold; Tenant’s insolvency or inability to pay Tenant’s debts or failure generally to pay Tenant’s debts when due; any court entering a decree or order directing the winding up or liquidation of Tenant or of substantially all of Tenant’s assets; Tenant taking any action toward the dissolution or winding up of Tenant’s affairs; the cessation or suspension of Tenant’s use of the Premises; or the attachment, execution or other judicial seizure of substantially all of Tenant’s assets or this leasehold; or
16.1.5 The making of any material misrepresentation or omission by Tenant or any successor in interest of Tenant in any materials delivered by or on behalf of Tenant to Landlord or Landlord’s lender pursuant to this Lease.
16.2 Remedies.
16.2.1 Termination. In the event of the occurrence of any Event of Default, Landlord shall have the right to give a written termination notice to Tenant and, on the date specified in such notice (which date shall be at least three (3) business days following the date of delivery of such notice), this Lease shall terminate unless on or before such date all arrears of Rent and all other sums payable by Tenant under this Lease and all costs and expenses incurred by or on behalf of Landlord hereunder shall have been paid by Tenant and all other Events of Default at the time existing shall have been fully remedied to the satisfaction of Landlord (a) Repossession. Following termination, without prejudice to other remedies Landlord may have, Landlord may (i) peaceably re-enter the Premises upon voluntary surrender by Tenant or remove Tenant therefrom and any other persons occupying the Premises, using such legal proceedings as may be available; (ii) repossess the Premises or relet the Premises or any part thereof for such term (which may be for a term extending beyond the Term), at such rental and upon such other terms and conditions as Landlord in Landlord’s sole discretion shall determine, with the right to make reasonable alterations and repairs to the Premises; and (iii) remove all personal property therefrom. (b) Unpaid Rent. Landlord shall have all the rights and remedies of a landlord provided by applicable Laws, including the right to recover from Tenant: (i) the worth, at the time of award, of the unpaid Rent that had been earned at the time of termination, (ii) the worth, at the time of award, of the amount by which the unpaid Rent that would have been earned after the date of termination until the time of award exceeds the amount of loss of rent that Tenant proves could have been reasonably avoided, (iii) the worth, at the time of award, of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided, and
17 (iv) any other amount, and court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant’s default. The phrase “worth, at the time of award,” as used in (i) and (ii) above, shall be computed at the Applicable Interest Rate, and as used in (iii) above, shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
16.3 Cumulative. Each right and remedy of Landlord provided for herein or now or hereafter existing at Law or in equity, by statute or otherwise shall be cumulative and shall not preclude Landlord from exercising any other rights or remedies provided for in this Lease or now or hereafter existing at Law or in equity, by statute or otherwise. No payment by Tenant of a lesser amount than the Rent nor any endorsement on any check or letter accompanying any check or payment of Rent shall be deemed an accord and satisfaction of full payment of Rent; and Landlord may accept such payment without prejudice to Landlord’s right to recover the balance of such Rent or to pursue other remedies.
17. ASSIGNMENT AND SUBLETTING.
17.1 Landlord’s Consent. Tenant shall not assign, sublet or otherwise transfer, whether voluntarily or involuntarily or by operation of Law, this Lease, the Premises or any part thereof, without Landlord’s prior written approval, which Landlord may withhold in its sole absolute discretion, without any obligation to consider any proposed assignment, sublet or transfer in good faith or otherwise. Tenant’s attempted assignment/subletting without first obtaining Landlord’s written consent shall be void at Landlord’s election. Landlord’s consent to one assignment or subletting shall not be deemed a consent to subsequent assignments and/or sublettings. In the event Tenant shall assign or sublet the Premises or request the consent of Landlord to any assignment or subletting or if Tenant shall request the consent of Landlord for any other act Tenant proposes to do, Tenant shall pay to Landlord any attorneys’ fees incurred by Landlord in connection with each such request.
18. ESTOPPEL, ATTORNMENT AND SUBORDINATION.
18.1 Estoppel. Within ten (10) days after request by Landlord, Tenant shall deliver an estoppel certificate duly executed and acknowledged to any proposed mortgagee, beneficiary, purchaser, or Landlord, in a commercially reasonable form substantially similar to that requested and a statement certifying, without limitation: (i) the date of commencement of this Lease; (ii) the fact that this Lease is unmodified and in full force and effect (or, if there have been modifications hereto, that this Lease is in full force and effect, as modified, and stating the date and nature of such modifications); (iii) the date to which the rental and other sums payable under this Lease have been paid; (iv) the fact that there are no current defaults under this Lease by either Landlord or Tenant except as specified in Tenant’s statement; (v) no deposit of any nature has been made in connection with the Lease (other than deposits the nature and amount of which are expressly described in the Lease); and (vi) such other matters requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this Section 18 may be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the Premises, the Property, any portion thereof, or any interest therein. Tenant’s failure to deliver such statement within such time shall be conclusive upon Tenant that (i) this Lease is in full force and effect, without modification except as may be represented by Landlord; (ii) there are no uncured
18 defaults in Landlord’s performance; (iii) not more than one (1) month’s rental has been paid in advance; and (iv) no deposit of any nature has been made in connection with the Lease except as represented by Landlord.
18.2 Subordination. This Lease shall be subject and subordinate to all ground leases, CC&Rs, and the lien of all mortgages and deeds of trust which now or hereafter affect the Premises or the Property or Landlord’s interest therein, and all amendments thereto, all without the necessity of Tenant’s executing further instruments to effect such subordination; provided, however, that Tenant’s rights hereunder shall not be disturbed, except in accordance with the terms and provisions of this Lease. If requested, Tenant shall execute and deliver to Landlord within ten (10) days after Landlord’s request, whatever documentation that may reasonably be required to further effect the provisions of this Section 18.2.
18.3 Attornment. In the event of a foreclosure proceeding, the exercise of the power of sale under any mortgage or deed of trust or the termination of a ground lease, Tenant shall, if requested, attorn to the purchaser thereupon and recognize such purchaser as Landlord under this Lease. The transferee shall not be liable for any acts, omissions or defaults of Landlord that occurred before the sale or conveyance, or the return of any security deposit except for deposits actually paid to transferee, and except as reduced as expressly provided for in Section 4.4 of this Lease or by operation of Law.
19. RELOCATION WAIVER.
19.1 Waiver. Tenant fully releases and discharges Landlord (in its capacity as Landlord and otherwise as a municipal corporation) from all and any manner of rights, demands, liabilities, obligations, claims, or cause of actions, in Law or equity, of any kind or nature, known or unknown, now existing or hereinafter arising, which arise from or relate in any manner to the relocation of Tenant’s business operations, or the relocation of any person(s), business(es), or other occupant(s) located on within, on, or about, the Premises following the full or partial termination or expiration of Tenant’s leasehold interest in the Premises (collectively, “Relocation Claims”), including waiver and release of any relocation rights under Government Code sections 7260 et seq. or any federal Laws (collectively, “Relocation Assistance Law”).
Tenant acknowledges and agrees that the release and waiver set forth in this Section 19 is material consideration for Landlord’s agreement to enter into this Lease, and that, but for this release and waiver, Landlord would not have entered into this Lease. By releasing and forever discharging the Relocation Claims, Tenant expressly waives any rights under California Civil Code section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
20. REQUIRED ACCESSIBILITY DISCLOSURE
20.1 The City hereby advises Tenant that the Property has not undergone an inspection by a certified access specialist, and except to the extent expressly set forth in this Lease, The City shall have no liability or responsibility to make any repairs or modifications to the Property in
19 order to comply with accessibility standards. The following disclosure is hereby made pursuant to applicable California law:
20.1.1 “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject Property comply with all of the applicable construction- related accessibility standards under state law. Although state law does not require a CASp inspection of the subject Property, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject Property for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Property.” [Cal. Civ.
Code Section 1938(e)]. Any CASp inspection shall be conducted in compliance with reasonable rules in effect at the Building with regard to such inspections and shall be subject to The City’s prior written consent.
21. CITY NON-DISCRIMINATION ORDINANCE
21.1 Tenant hereby agrees to comply with the provisions of B.M.C. Chapter 13.26 as amended from time to time. In the performance of this Lease, Tenant agrees as follows:
21.2 Tenant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over 40), sex, pregnancy, marital status, disability, sexual orientation or AIDS.
21.3 Tenant shall permit the City access to records of employment, employment advertisements, application forms, EEO-1 forms, affirmative action plans and any other documents which, in the opinion of the City, are necessary to monitor compliance with this non- discrimination provision. In addition, Tenant shall fill out, in a timely fashion, forms supplied by the City to monitor this non-discrimination provision.
21.4 Tenant represents that it is subject to state and federal anti-discrimination laws, and maintains a policy of non-discrimination in admission, access, and treatment in its programs, activities, and employment, which fulfill the requirements of subdivision (a), above. Assuming, arguendo, that the requirements of Chapter 13.26 would otherwise apply, for purposes of this Lease the City agrees that the documentation contemplated in subdivision (b) will not be required of Tenant.
22. NON-DISCRIMINATION AGAINST PERSONS WITH DISABILITIES
22.1 If Tenant provides any aid, service or benefit to others on the City’s behalf, Tenant shall, in the provision of such aid, service or benefit, observe and comply with all applicable provisions of Title II of the Americans with Disabilities Act of 1990 and any amendments thereto. Tenant shall further observe and comply with all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination against individuals with disabilities or ensuring that individuals with disabilities are not excluded from participating in or receiving benefit, services or activities of the City.
20 22.2 If Tenant is or becomes a “public accommodation” as defined in Title III of the Americans with Disabilities Act of 1990, Tenant shall observe and comply with all applicable provisions of the Act and any amendments thereto, and all applicable federal, state, municipal and local laws, ordinances, codes and regulations prohibiting discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations offered by the Tenant. All Tenant’s activities must be in accordance with these laws, ordinances, codes, and regulations, and Tenant shall solely be responsible for complying therewith.
23. BERKELEY EQUAL BENEFITS ORDINANCE (EBO)
23.1 Tenant hereby agrees to comply with the provisions of the Berkeley Equal Benefits Ordinance, B.M.C. Chapter 13.29. If Tenant is currently subject to the Berkeley Equal Benefits Ordinance, Tenant will be required to provide all eligible employees with City mandated equal benefits during the term of this License, as defined in B.M.C. Chapter 13.29, as well as comply with the terms enumerated herein.
23.2 If Tenant is currently or becomes subject to the Berkeley Equal Benefits Ordinance, Tenant agrees to supply the City with any records the City deems necessary to determine compliance with this provision.
23.3 If Tenant fails to comply with the requirements of this Section, City shall have the rights and remedies described in this Section, in addition to any rights and remedies provided by law and equity. Tenant’s failure to comply with this Paragraph shall constitute default of the Lease.
23.4 In addition, at City’s sole discretion, Tenant may be responsible for liquidated damages in the amount of $50.00 per employee per day for each and every instance of violation of this Section. It is mutually understood and agreed that Tenant’s failure to provide its employees with equal benefits will result in damages being sustained by City; that the nature and amount of these damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damage amount is not intended as a penalty or forfeiture for Tenant’s breach.
24. BERKELEY LIVING WAGE ORDINANCE (LWO)
24.1 Tenant agrees to comply with Berkeley Municipal Code Chapter 13.27, the Berkeley Living Wage Ordinance (LWO). If Tenant employs six (6) or more part-time or full- time employees, and generates $350,000 or more in annual gross receipts, Tenant will be required to provide all eligible employees with City of Berkeley (City) mandated minimum compensation during the term of this Lease, as defined in B.M.C. Chapter 13.27, as well as comply with the terms enumerated herein.
24.2 Licensee shall be required to maintain all reasonable records and documents that would establish whether Licensee is subject to the LWO. If Licensee is subject to the LWO, as defined therein, Licensee shall be further required to maintain monthly records of those employees located on the Property. These records shall include the total number of hours
21 worked, the number of hours spent providing service on the Property, the hourly rate paid, and the amount paid by Licensee for health benefits, if any, for each of its employees providing services under the Lease. The records described in this paragraph shall be made available upon the City’s request. The failure to produce these records upon demand shall be considered a default, subject to the provisions contained in Paragraph 23 herein.
24.3 If Licensee is subject to the LWO, Licensee shall include the requirements of the ordinance, as defined in B.M.C. Chapter 13.27, in any and all sublicenses in which Licensee enters with regard to the subject Property. Sublicenses shall be required to comply with this ordinance with regard to any employees who spend 25% or more of their compensated time on the Property.
24.4 If Licensee fails to comply with the requirements of the LWO and this Lease the City shall have the rights and remedies described in this Paragraph, in addition to any rights and remedies provided by law or equity. Licensee’s failure to comply with this Paragraph shall constitute default of the Lease, upon which City may terminate this Lease pursuant to Paragraph
23. 24.5 In addition, at City’s sole discretion, Licensee may be responsible for liquidated damages in the amount of $50 per employee per day for each and every instance of an underpayment to an employee. It is mutually understood and agreed that Licensee’s failure to pay any of its eligible employees at least the applicable living wage will result in damages being sustained by the City; that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein is the nearest and most exact measure of damage for such breach that can be fixed at this time; and that the liquidated damage is not intended as a penalty of forfeiture for Licensee’s breach.
25. OPPRESSIVE STATES
25.1 In accordance with Resolution No. 59,853-N.S., Licensee certifies that it has no contractual relations with, and agrees during the term of this Lease to forgo contractual relations to provide personal services to, the following entities:
25.1.1 The governing regime in any Oppressive State.
25.1.2 Any business or corporation organized under the authority of the governing regime of any Oppressive State.
25.1.3 Any individual, firm, partnership, corporation, association, or any other commercial organization, and including parent-entities and wholly-owned subsidiaries (to the extent that their operations are related to the purpose of this Lease) for the express purpose of assisting in business operations or trading with any public or private entity located in any Oppressive State.
25.2 For purposes of this Lease, the Tibet Autonomous Region and the provinces of Ado, Kham, and V-Tsang shall be deemed Oppressive States. Licensee’s failure to comply with this paragraph shall constitute a default of this Lease and City may terminate this Lease. In the
22 event that City terminates this Lease due to a default under this provision, City may deem Licensee a non-responsible bidder for five (5) years from the date this Lease is terminated.
26. CONFLICT OF INTEREST PROHIBITED
26.1 In accordance with Government code section1090, Berkeley City Charter section 36, and the Berkeley Municipal Code (B.M.C.) Chapter 3.64, neither Licensee nor any employee, officer, director, partner or member of Licensee, or immediate family member of any of the preceding, shall have served with the City as an elected officer, an employee, or a City board, committee or commission member, who has directly or indirectly influenced the making of this Lease.
26.2 In accordance with Government Code section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee, employee or consultant of the Licensee, or immediate family member of the preceding, shall make or participate in a decision made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Licensee.
26.3 Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section87100 et seq., its implementing regulations, manuals and codes, Government Code section 1090, Berkeley City Charter section 36 and B.M.C. Chapter 3.64.
27. MISCELLANEOUS.
27.1 General.
27.1.1 Entire Agreement. This Lease sets forth all the agreements between Landlord and Tenant concerning the Property and the Premises, and there are no agreements either oral or written other than as set forth herein.
27.1.2 Time of Essence. Time is of the essence of this Lease.
27.1.3 This subsection intentionally deleted.
27.1.4 Severability. If any provision of this Lease or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Lease and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated.
27.1.5 Law. This Lease shall be construed and enforced in accordance with the Laws of the State of California, without reference to its choice of law provisions.
27.1.6 Interpretation. The titles to the sections of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease. As used in this Lease, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The
23 word “including” shall be construed as if followed by the words “without limitation.” This Lease shall be interpreted as though prepared jointly by both parties.
27.1.7 No Option. Submission of this Lease to Tenant for examination or negotiation does not constitute an option to lease, offer to lease or a reservation of, or option for, the Premises; and this Lease shall become effective and binding only upon the execution and delivery hereof by Landlord and Tenant.
27.1.8 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord and, subject to compliance with the terms of Section 17.
27.1.9 Third Party Beneficiaries. Nothing herein is intended to create any third party benefit.
27.1.10 Memorandum of Lease; Title. Landlord may elect to have either this Lease or a short form memorandum hereof recorded pursuant to the requirements of California Government Code section 37393. Tenant shall cooperate with Landlord in executing and acknowledging any such memorandum of lease. Upon the expiration or other termination of this Lease, Tenant shall immediately execute and deliver to Landlord a quitclaim deed to the Premises and the Property, as required, in recordable form, designating Landlord as transferee or grantee. Tenant shall not do any act which shall in any way encumber the title of Landlord in and to the Property or any portion thereof.
27.1.11 No Agency, Partnership or Joint Venture. Nothing contained herein nor any acts of the parties hereto shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture by the parties hereto or any relationship other than the relationship of landlord and tenant.
27.1.12 Merger. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof or a termination by Landlord shall not work a merger and shall, at the option of Landlord, terminate all or any existing subtenancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies.
27.1.13 Waiver. No waiver of any default or breach hereunder shall be implied from any omission to take action on account thereof, notwithstanding any custom and practice or course of dealing. No waiver by either party of any provision under this Lease shall be effective unless in writing and signed by such party. No waiver shall affect any default other than the default specified in the waiver and then such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant shall not be construed as a waiver of any subsequent breach of the same.
27.1.14 Limitation of Liability. The obligations of Landlord under this Lease are not personal obligations of Landlord; and Tenant shall look solely to the rents, issues, profits and other income generated by the Premises for satisfaction of any liability of Landlord and shall not look to other assets of Landlord nor seek recourse against the other assets of Landlord.
Whenever Landlord transfers its interest, Landlord shall be automatically released from further performance under this Lease and from all further liabilities and expenses hereunder and the
24 transferee of Landlord’s interest shall assume all liabilities and obligations of Landlord hereunder from the date of such transfer.
27.1.15 Notices. All notices to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or delivered by personal or courier delivery, to Landlord’s address and Tenant’s address set forth in Sections 1 and 2 of the Basic Lease Information, or to such other place as Landlord or Tenant may designate in a written notice given to the other party. Notices shall be deemed served upon the earlier of receipt or three (3) days after the date of mailing.
27.1.16 Brokerage Commission. Landlord and Tenant each represents that they have not been represented by any broker in connection with this Lease, and that no real estate broker’s commission, finder’s fee or other compensation is due or payable. Tenant agrees to indemnify and hold harmless Landlord from any claims or liability, including reasonable attorneys’ fees, in connection with a claim by any person for a commission, Finder’s Fee or other compensation based upon any statement, representation or agreement of Tenant.
27.1.17 Authorization. Each individual or entity executing this Lease on behalf of Tenant represents and warrants that he or she or it is duly authorized to execute and deliver this Lease on behalf of Tenant and that such execution is binding upon Tenant.
27.1.18 Holding Over. If, with Landlord’s express written consent, Tenant holds over the Premises or any part thereof after expiration or earlier termination of the Term, such holding over shall constitute a month-to-month tenancy on all the other terms and conditions of this Lease, except that Base Rent shall be equal to 125% of the Base Rent payable under this Lease for the last full month before the date of expiration or termination. This section shall not be construed as Landlord’s permission for Tenant to hold over. Acceptance of Rent by Landlord following expiration or termination shall not constitute a renewal of this Lease or extension of the Term, except as specifically set forth above. If Tenant remains in possession of the Premises after expiration or other termination of this Lease without Landlord’s express written consent, Tenant’s continued possession shall be on the basis of a tenancy at sufferance and Tenant shall pay as Base Rent during the holdover period an amount equal to one hundred fifty percent (150%) of the Rent payable under this Lease for the last full month before the date of expiration or termination. If Tenant fails to surrender the Premises upon expiration or other termination of this Lease, Tenant shall indemnify and hold Landlord harmless from and against all loss or liability resulting from or arising out of Tenant’s failure to surrender the Premises, including, but not limited to, any amounts required to be paid to any tenant or prospective tenant who was to have occupied the Premises after the expiration or other termination of this Lease and any related attorneys’ fees and brokerage commissions.
27.1.19 Surrender. Upon the expiration or other termination of this Lease or Tenant’s right to possession of the Premises, Tenant will surrender the Premises, together with all keys, broom-swept clean and in good condition and repair, reasonable wear and tear excepted.
Conditions existing because of Tenant’s failure to perform maintenance, repairs or replacements shall not be deemed “reasonable wear and tear.”
25 27.1.20 Joint and Several. If Tenant consists of more than one person, the obligation of all such persons shall be joint and several.
27.1.21 Covenants and Conditions. Each provision to be performed by Tenant hereunder shall be deemed to be both a covenant and a condition. This Lease shall be construed as though the covenants between Landlord and Tenant are independent and not dependent.
Tenant expressly waives the benefit of any statute to the contrary, and agrees that even if Landlord fails to perform its obligations under this Lease, Tenant shall not be entitled to make repairs or perform any acts at Landlord’s expense, or to any setoff against Rent or other amounts owing under this Lease against Landlord.
27.1.22 Force Majeure. For purposes of this Lease, the term “Force Majeure” shall mean and include the following: any delay caused by any action, inaction, order, ruling, moratorium, regulation, statute, condition or other decision of any governmental agency having jurisdiction over any portion of the Property, over any construction anticipated to occur thereon or over any uses thereof, or by fire, flood, inclement weather, energy shortage, strikes, lockouts or other labor or industrial disturbance, civil disturbance, order of any government, court or regulatory body claiming jurisdiction or otherwise, governmental preemption or curtailment in connection with a national emergency or in connection with any rule, order, guideline or regulation of any department or governmental agency, or by reason of the conditions of supply and demand which have been or are affected by a war or other emergency, acts of terrorism, act of public enemy, war, riot, sabotage, blockade, embargo, failure or inability to secure an adequate supply of water, electricity, fuel, materials, supplies or labor through ordinary sources by reason of shortages or priority, discovery of Hazardous Materials (as defined in paragraph
13.1), earthquake, or other natural disaster, or any cause whatsoever beyond the reasonable control (excluding financial inability) of the party whose performance is required.
27.1.23 Financial Statements. Upon ten (10) days prior written request from Landlord (which Landlord may make at any time during the Term but no more often than once in any calendar year, unless Tenant is in default), Tenant shall deliver to Landlord a current financial statement of Tenant and any guarantor of this Lease. Such statements shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer or general partner of Tenant (if Tenant is a corporation or partnership, respectively).
28. SANCTUARY CITY CONTRACTING
Tenant hereby agrees to comply with the provisions of the Sanctuary City Contracting Ordinance, B.M.C. Chapter 13.105. In accordance with this Chapter, Tenant agrees not to provide the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security with any Data Broker or Extreme Vetting Services as defined herein:
A. “Data Broker” means either of the following:
26 i. The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector business and government agencies; ii. The aggregation of data that was collected for another purpose from that for which it is ultimately used.
B. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services. Extreme Vetting does not include:
i. The City’s computer-network health and performance tools; ii. Cybersecurity capabilities, technologies and systems used by the City of Berkeley Department of Information Technology to predict, monitor for, prevent, and protect technology infrastructure and systems owned and operated by the City of Berkeley from potential cybersecurity events and cyber-forensic based investigations and prosecutions of illegal computer based activity.
[SIGNATURES FOLLOW ON NEXT PAGE]
27 IN WITNESS WHEREOF, City and Tenant have executed this Lease as of the date written on number four (4) of the basic lease information sheet.
Approved as to form: CITY OF BERKELEY
____________________________ By ______________________________ City Attorney City Manager
Registered by: Attest:
____________________________ _________________________________ City Auditor City Clerk
Tenant
International Child Resource Institute
By__________________ _
Ellie Mashour, Executive Director
TENANT INFORMATION:
Tax Identification No. ______________________
Incorporated: Yes _______ No _____
Certified Woman Business Enterprise: Yes ______No______ Certified Minority Business Enterprise: Yes ______No______ Certified Disadvantaged Business Enterprise: Yes ____ No______
28 EXHIBIT A-1
PROPERTY DESCRIPTION
The property is located within the Berkeley Waterfront in the City of Berkeley, CA. The premises include approximately 1,748 square feet comprising the southwestern portion of the 2nd floor of the building commonly known and referred to as 125-127 University Avenue, Berkeley, CA 94710.
Lease Agreement for 125-127 University Avenue – ICRI
EXHIBIT A-2
DEPICTION OF PREMISES
EXHIBIT B
2 EXHIBIT B
RULES AND REGULATIONS
Tenant shall comply with the following Rules and Regulations (individually and collectively, “Rules”). Landlord shall not be responsible to Tenant for the nonperformance of any of these Rules.
1. Locks; Keys. Tenant shall not alter any lock or install any new or additional locks or bolts on any doors or windows of the Premises without obtaining Landlord’s prior written consent. Tenant shall bear the cost of any lock changes or repairs required by Tenant. Two keys shall be furnished by Landlord for the Premises, and any additional keys required by Tenant must be obtained from Landlord at a reasonable cost to be established by Landlord.
2. Doors Opening to Public Corridors; Protection of Premises. All doors opening to public corridors, if any, must be kept closed at all times except for normal ingress to and egress from the Premises. Tenant shall assume all responsibility, including keeping doors locked and other means of entry to the Premises closed, for protecting the Premises from theft, robbery, and pilferage.
3. Floor Loads. Landlord may prescribe the weight, size, and position of all safes, machinery, equipment, fixtures or other heavy property (“Heavy Property”) brought into the Premises and the times and manner of moving those items within and out of the Premises.
Tenant shall not overload any floor in the Premises or use or operate any machinery, equipment, or other device, even though its installation may have been permitted, that in Landlord’s opinion is harmful to the Premises. If Tenant shall require Heavy Property, Tenant shall notify Landlord of such fact. If considered necessary by Landlord, Heavy Property must stand on supports that are adequate to distribute the weight properly and Tenant shall pay the cost of any necessary supports or structural bracing. Any damage to any property (whether or not belonging to Tenant), the Premises, the Property or any portion thereof, or its or their respective contents, or any harm to Tenant, its employees, agents, or any occupants or visitors caused by moving or maintaining any Heavy Property shall be the sole responsibility and expense of Tenant.
4. Requirements of Tenant. Any special requirements of Tenant not set forth as an obligation of Landlord under the Lease will be considered only upon written application to Landlord at Landlord’s address set forth in the Lease. Landlord’s employees shall not perform any work or do anything outside their regular duties unless under special instructions from Landlord.
5. Use of Plumbing Facilities; Responsibility for Damage. The plumbing facilities (including but not limited to restrooms, toilets, urinals, wash bowls, drains, and other apparatus) shall be used for no purpose other than that for which they were constructed, and no foreign substance of any kind shall be thrown into them. The expense of any breakage, stoppage, or damage resulting from violation of this rule shall be borne by Tenant.
6. Restrictions on Defacement; Maintenance of Premises. Tenant shall not mark, drive nails or screws into, or drill into the partitions, woodwork, or plaster, or in any way deface the
EXHIBIT B
3 Premises, the Property or any portion thereof, without Landlord’s prior written consent. Tenant shall maintain the Premises and all portions thereof in a safe, neat and clean condition.
7. Permitted Machines. No machines of more than one horsepower shall be installed, maintained, or operated on the Premises without Landlord’s prior written consent.
8. Flammable or Combustible Fluids or Materials; Foul or Noxious Gases or Substances; Nontoxic Materials. Tenant shall not use or keep, or allow to be used or kept, in or on the Premises, the Property, or any portion thereof, any kerosene, gasoline, or other flammable or combustible fluid, material, or any foul or noxious gas or substance. All materials, fabrics, and products used in Tenant’s furnishings, wall and floor coverings, and ceiling installations shall be nontoxic and subject to the prior approval of Landlord’s architect or engineer. Nothing contained here is intended or shall be construed to alter or diminish any obligations of Tenant under any portion(s) of its Lease addressing environmental matters and compliance, Hazardous Materials Laws, Hazardous Materials, or similar matters, or compliance with Laws. Any existing materials supplied or installed by Landlord in the Premises are exempt from this provision.
9. Cooking; No Use of Premises for Improper Purposes. No cooking shall be done or permitted on the Premises, except that Underwriters’ Laboratory (UL)-approved equipment and microwave ovens may be used in the Premises for heating food and brewing coffee, tea, hot chocolate, and similar beverages for employees and visitors. This use must be in accordance with all Laws. The Premises shall not be used for lodging, or for any improper, objectionable, or immoral purposes.
10. Exclusion or Expulsion. Landlord reserves the right to exclude or expel from the Property or any portion thereof any person who, in Landlord’s judgment, is under the influence of alcohol or drugs or commits any act in violation of any of these Rules.
11. Loitering Prohibited. Tenant and Tenant’s Parties shall not loiter in or about the Property for the purpose of smoking tobacco products or for any other purpose unrelated to Tenant’s use of the Premises.
12. Smoking; Illegal Substances. Smoking of tobacco products and use of illegal substances is strictly prohibited in or about the Property or any portion thereof.
13. Extermination. Tenant agrees not to permit the extermination of vermin to be performed in, on or about the Property or any portion thereof except at times and by a person or company reasonably designated by Landlord.
14. Obstructions. Tenant and Tenant’s Parties shall not in any way obstruct the sidewalks, entry passages, pedestrian passageways, driveways, entrances and exits to the Property, and they shall use the same only as passageways to and from the Premises. At no time shall Tenant or Tenant’s Parties be permitted to conduct work activity (except for normal loading and unloading of vehicles) nor store wooden pallets, boxes, goods or other materials outside the confines of Tenant’s Premises.
15. Disposal of Trash and Garbage. Tenant shall store all trash, garbage and refuse (“Trash”) within the interior of the Premises. Tenant shall not place or have placed in Trash
EXHIBIT B
4 boxes or receptacles any material that may not or cannot be disposed of in the ordinary and customary manner of removing and disposing of Trash in the vicinity of the Premises. Tenant shall comply fully with all applicable Laws when disposing of Trash.
16. Provision of Information to Tenant’s Employees. Tenant shall comply with requests by Landlord that Tenant inform Tenant’s employees and agents of items of importance to Landlord.
17. Prohibited Uses and Activities.
17.1 Any use, operation or activity which causes or produces the attraction of flies, insects, rodents or other animals, or the creation or emission of dust or dirt, without proper mitigating measures in place;
17.2 Any use, operation or activity which causes or produces any emission into the air of any (i) noxious, toxic, hazardous or corrosive fumes or gases; (ii) excessive smoke, dirt or dust; or (iii) pollutants in violation of any local, state or federal standards;
17.3. Any use, operation or activity which causes or produces any discharge of Hazardous Materials (as defined in Lease Section 13.1) into any sewer system or storm drain serving the Property in a manner that will result in any leaching into the soil, or release into the atmosphere or groundwater;
17.4. Hazardous or unsafe uses by reasons of danger of fire or explosion, or uses that will increase the fire hazard rating on the Property or other properties, or uses objectionable or offensive to adjoining properties;
17.5. Uses in violation of any applicable Laws;
17.6. Any construction, erection, or placement of ornamentation or other objects or equipment, permanently or temporarily, on the outside portions of the Property, whether such portion is improved or unimproved, except as specifically permitted by Landlord; and
17.7 Additional prohibited uses as determined by Landlord from time to time.
18. Conflict. In the event of any conflict between these Rules or any further or modified Rules from time to time issued by Landlord and the Lease provisions, the Lease shall govern and control.
19. Rule Changes; Waivers. Landlord reserves the right at any time to change or rescind any one or more of these Rules or to make such other and further reasonable Rules as, in Landlord’s judgment, may from time to time be necessary for the operation, management, safety, care and cleanliness of the Property or any portion thereof, for the preservation of good order therein, or for the convenience of other occupants and tenants of the Property, if any. Landlord may waive any one or more of these Rules for the benefit of any particular tenant(s). Landlord further reserve(s) all the rights reserved to it or them by the provisions of the Lease, by any CC&Rs, or by operation of Law. No waiver by Landlord shall be construed as a waiver of those Rules in favor of any other tenant or occupant of the Premises or Property, and no waiver shall prevent Landlord from enforcing those Rules against any other tenant or occupant of the Property.
EXHIBIT B
5 Landlord shall not be responsible to Tenant or to any other person for the non-observance or violation of the Rules by any other tenant, occupant, or other persons. Tenant shall abide by any additional rules or regulations which are ordered or requested by any governmental or military authority. Tenant shall be deemed to have read these rules and to have agreed to abide by them as a condition of Tenant’s use and occupancy of the Premises.
EXHIBIT B
1 EXHIBIT C
PAYMENT PROVISION
Tenant: International Child Rescue Institute (ICRI)
Property Address: 125-127 University Avenue, Berkeley, CA 94710 Lease Term: 5 years
Annual Rent Increase: 3%
Initial Term
Lease Year Monthly
Base Rent
Monthly
Deferred Rent
Repayment
Total Monthly
Rent
Total
Annual Rent
Sep 2026-Aug 2027 $4,370.00 $300.00 $4,670.00 $56,040.00 Sep 2027-Aug 2028 $4,501.10 $500.00 $5,001.10 $60,013.20 Sep 2028-Aug 2029 $4,636.13 $700.00 $5,336.13 $64,033.56 Sep 2029-Aug 2030 $4,775.21 $900.00 $5,675.21 $68,102.52 Sep 2030-Aug 2031 $4,918.47 $913.92 $5,832.39 $69,988.68 Total Rent $318,177.96
EXHIBIT B
2 EXHIBIT D
GUARANTY
Not applicable to this lease agreement.
NOTICE OF PUBLIC HEARING
BERKELEY CITY COUNCIL
LEASE AGREEMENT: INTERNATIONAL CHILD RESOURCE
INSTITUTE FOR 125-127 UNIVERSITY AVE. OFFICE SPACE
The public may participate in this hearing by remote video or in-person.
Notice is hereby given by the City Council of the City of Berkeley that a public hearing will be conducted by said city council of the City of Berkeley at which time and place all persons may attend and be heard upon the following:
The Department of Parks, Recreation & Waterfront is proposing that the Council adopt an Ordinance executing a lease agreement with International Child Resource Institute to lease a 1,748-square foot office space in the City-owned building at 125-127 University Ave. in the Berkeley Waterfront. The rent will be $4,370 per month, escalating 3% annually, and will be deposited in the Marina Fund.
The hearing will be held on July 14, 2026, at 6:00 PM in the School District Board Room, located at 1231 Addison Street, Berkeley CA 94702.
For further information, please contact Scott Ferris at 510-981-6711.
A copy of the agenda material for this hearing will be available on the City’s website at https://berkeleyca.gov/ as of July 2, 2026. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.
Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk. 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 at (510) 981-6900 or
[email protected] for further information.
If you challenge the above in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Berkeley at, or prior to, the public hearing. Background information concerning this proposal will be available at the City Clerk Department and posted on the City of Berkeley webpage at least 12 days prior to the public hearing.
Posted: July 2, 2026
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing 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 July 2, 2026.
__________________________________________
Mark Numainville, City Clerk
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
July 14, 2026
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Wahid Amiri, Interim Director, Department of Public Works Subject: Levy and Collection of Fiscal Year 2027 Street Lighting Assessments
RECOMMENDATION
Conduct a public hearing and upon conclusion adopt two Resolutions confirming the assessments for the Berkeley Street Lighting Assessment District No. 1982-1 and the Street Lighting Assessment District 2018, approving the Engineer’s Reports, and authorizing the levying and collection of assessments in Fiscal Year 2027.
FISCAL IMPACTS OF RECOMMENDATION
On June 16, 2026, Council adopted Resolutions No. 72,321 –N.S. (District No. 1982-1) and Resolution No. 72,322–N.S. (District 2018) declaring the City’s intent to levy and collect FY 2027 assessments for Berkeley Street Lighting Assessment District No. 1982-1 and Street Lighting Assessment District 2018, collectively referred to herein as the Districts; preliminarily approving the Engineer’s Reports for the Districts; and setting a public hearing for the July 14, 2026 Council Meeting.
The attached Resolutions confirm the assessments, approve the final Engineer’s Reports, and authorize the levy and collection of assessments in Fiscal Year 2027. The assessments are to be filed with the Alameda County Auditor and included on the County’s assessment roll. After collection by the County, the total amount of the assessment minus a county collection fee is paid to the City of Berkeley. The revenue is posted in the Street Light Assessment District Fund (Fund 142).
A summary of forecasted FY 2027 revenue and expenditures for the Districts is shown in Table 1.
22
Levy and Collection - FY 2027 Street Lighting Assessment Districts PUBLIC HEARING July 14, 2026
Table 1: FY 2027 Street Light Assessment Revenue & Expenditures Forecast Street Lighting Program Expenditures $ 2,640,223
Projected Assessments
Street Light Assessment District 1982-1 $ 1,445,789
Street Light Assessment District 2018 $ 979,145
Misc. Revenue $ 59,827
Projected Net Assessments $ 2,484,760
From Street Light Assessment Fund Reserves $ (155,463)
Allowable annual adjustments of the 2018 District assessment rates are expected to raise revenues over the coming years. The amount funded from reserves reflects past years' work and funding fluctuations. Reserves are the accumulated balance in the street lighting assessment fund (Fund 142), which can only be used for street lighting maintenance or improvements. The California Energy Commission loan for the citywide LED retrofit was fully repaid in FY 2026, eliminating approximately $370,000 in annual debt service beginning in FY 2027.
Staff anticipate the fund will have a balance of approximately $2.3 million at the end of FY 2026, which is adequate to support the projected FY 2027 deficit of approximately $155,463. Capital expenditures in FY 2027 include $200,000 for design and construction of the Streetlight Pole Replacement and Painting project, which addresses streetlight poles identified for replacement or repair. While the fund remains structurally stable, annual operating cost growth is expected to outpace assessment revenue growth in the near term, and staff will continue to monitor the fund balance and adjust capital project timing as needed.
CURRENT SITUATION AND ITS EFFECTS
The proposed FY 2027 rates for Assessment District 1982-1 (1982 District) are incorporated into the Engineer’s Report (Attachment 3) and reflect no changes to assessment rates in FY 2027. Accordingly, this action is exempt from the notice, protest, and hearing requirements of State Proposition 218 as set forth in Government Code Section 53753.5 (Article XIII D, Sec. 5). Any increase or change in formula for the assessments would make the annual assessment subject to procedures and approval process of Proposition 218 (Government Code Section 53750-53754). Table 2 details prior year and proposed FY 2027 assessment rates for this district.
Levy and Collection - FY 2027 Street Lighting Assessment Districts PUBLIC HEARING July 14, 2026
Table 2: Street Lighting Assessment District No. 1982-1 Rate Schedule
Rate Category
Assessment
FY 2026
Proposed
Assessment
FY 2027 Unit
Residential and
Institutional
$ 0.0108 $ 0.0108 BSF1
Industrial and Utility $ 0.0216 $ 0.0216 BSF
Commercial $ 0.0432 $ 0.0432 BSF
The assessment for Street Lighting Assessment District 2018 (2018 District) is subject to an annual adjustment tied to the Consumer Price Index-U for the San Francisco Bay Area as of December of each succeeding year (the “CPI”), with a maximum annual adjustment not to exceed 3%. For the period beginning in December 2024 and ending in December 2025, the CPI increased by 3.04%, therefore, the assessment CPI adjustment for Fiscal Year 2027 may not exceed 3%. As approved by voters, the total annual adjustment may be calculated by taking the sum of the 1982-1 District and 2018 District assessments and multiplying the sum by the allowable CPI increase. Calculating the adjustment in this manner allows for including a 1982-1 District adjustment as part of the 2018 District adjustment. The CPI adjustment of 3% is applied to the combined total of the 1982-1 and 2018 District assessments, resulting in a total effective rate increase of approximately
7.49% for the 2018 District.2
These rate increases and the methodology used in their calculation for the 2018 District are in accordance with the voter approved measure; therefore, the proposed adjustments are exempt from the notice, protest, and hearing requirements of State Proposition 218 as set forth in Government Code Section 53753.5 (Article XIII D, Sec. 5). Table 3 details the proposed FY 2027 assessment rates for this district. Additional information regarding the annual adjustment and the corresponding rate increases is included in the 2018 District Engineer’s Report (Attachment 4).
1 Building Square Footage (BSF)
2 Bureau of Labor Statistics, Data Series CUUSS49BSA0
Levy and Collection - FY 2027 Street Lighting Assessment Districts PUBLIC HEARING July 14, 2026
Table 3: Street Lighting Assessment District 2018 Rate Schedule Rate Category
Assessment
FY 2026
Proposed
Assessment
FY 2027 Unit
Residential
Single Family $ 19.08 $ 20.51 parcel
Multi-Family<5 units $ 15.26 $ 16.41 unit
Multi-Family 5 or more units $ 11.45 $ 12.31 unit
Condominium $ 15.26 $ 16.41 parcel
Mobile Home $ 9.54 $ 10.26 unit
Multiple SFR on parcel $ 19.08 $ 20.51 unit
Non-Residential
General Commercial $ 286.20 $ 307.65 acre
Industrial / Warehouse $ 28.62 $ 30.77 acre
Auto Repair $ 190.80 $ 205.10 acre
Hotel / Motel / Boarding $ 190.80 $ 205.10 acre
Hospital $ 119.25 $ 128.19 acre
Retirement Home $ 23.85 $ 25.64 acre
School / Day Care $ 42.93 $ 46.15 acre
Medical / Dental / Vet $ 238.50 $ 256.38 acre
Church $ 14.31 $ 15.38 acre
Mortuary $ 4.77 $ 5.13 acre
Recreational $ 47.70 $ 51.28 acre
Parking / Transportation $ 95.40 $ 102.55 acre
Mini Storage $ 14.31 $ 15.38 acre
Office $ 71.55 $ 76.91 acre
Bank $ 238.50 $ 256.38 acre
Park / Open Space / Agriculture $ 0.95 $ 1.03 acre
Vacant Not assessed
Revenue from the assessments will provide needed funding for installing, maintaining, and servicing public lighting facilities, including but not limited to streetlights, traffic signals, and related electrical facilities. The improvements and services support the Strategic Plan goals of creating a resilient, safe, connected, and prepared city and providing state-of-the-art, well-maintained infrastructure, amenities, and facilities.
BACKGROUND
The Berkeley Street Lighting Assessment District No. 1982-1 was established under the Landscaping and Lighting Act of 1972 (Streets and Highway Code Section 22620-22631) on July 27, 1982 (Resolution No. 51,449-N.S.)3. The Street Lighting Assessment District 3 State of California legislation (Streets & Highways §22500) allows local governmental agencies to form Landscape & Lighting Maintenance Districts. A 1972 Act Landscaping and Lighting District is a flexible
Levy and Collection - FY 2027 Street Lighting Assessment Districts PUBLIC HEARING July 14, 2026
2018 was established under the same Act on June 12, 2018 (Resolution No. 68,482- N.S.). The Act requires the City Council to hold a public hearing each year to consider adoption of an annual budget and approve changes to the Engineer’s Report. At this hearing owners of assessed properties within the district are allowed to make an oral or written protest against the annual levy.
During the course of, or upon conclusion of the public hearing, City Council may order changes in any of the matters provided in the respective Engineer’s Report, including changes in improvements; zones within the assessment district; and the proposed district diagram, or the proposed assessment, as long as any proposed changes are less than the proposed annual levy. With the incorporation of any changes made by Council to the Engineer’s Report, it is then adopted upon supporting vote by Council confirming the diagrams, assessments, and levying assessments for the coming Fiscal Year.
The City’s Engineering Division has filed the FY 2027 Engineer’s Reports for the assessment districts with the City Clerk. Copies of the Engineer’s Reports with FY 2027 assessments will be available for review on the City’s Website4 after this Council Action, and at the reference desk of the main branch of the Berkeley Public Library and at the City Clerk’s Office.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The City exclusively uses LED (light emitting diode) street lighting. LED lights achieve the City’s illumination standards and last longer than high-pressure sodium lamps, reducing maintenance costs, and providing environmental benefits by reducing the level of greenhouse gases emitted, reducing the level of toxic materials disposed, and maximizing energy efficiency.
RATIONALE FOR RECOMMENDATION
Failure to conduct a public hearing and adopt the Resolutions would result in non- compliance of the requirements set forth in the Landscaping and Lighting Act of 1972 thus preventing the City from levying assessments in FY 2027. The District assessments are needed to establish financial sustainability for the Program and to avoid significant reductions in service.
ALTERNATIVE ACTIONS CONSIDERED
No alternatives were considered. Failing to meet these requirements would prevent the City from collecting assessments for the Districts in FY 2027. tool used by local government agencies to pay for landscaping, lighting and other improvements and services in public areas. It is based on the concept of assessing only those properties that benefit from improvements financed, either directly, or indirectly through increased property values. http://www.californiataxdata.com/pdf/1972LLact.pdf
4 https://berkeleyca.gov/city-services/report-pay/property-taxes
Levy and Collection - FY 2027 Street Lighting Assessment Districts PUBLIC HEARING July 14, 2026
CONTACT PERSON
Wahid Amiri, Interim Director, Department of Public Works, (510) 981-6396 Pejman Mehrfar, Manager of Engineering, Public Works, (510) 981-6439 Terrence Salonga, Supervising Civil Engineer, Public Works, (510) 981-6447 Attachments:
1: Resolution – Levy and Collection – Street Lighting Assessment District 1982-1 2: Resolution – Levy and Collection – Street Lighting Assessment District 2018 3: Engineer's Report - Street Lighting Assessment District 1982-1 Fiscal Year 2027 4: Engineer's Report - Street Lighting Assessment District 2018 Fiscal Year 2027 5: Public Hearing Notice
RESOLUTION NO. ##,###-N.S.
LEVY AND COLLECTION OF FY 2027 ASSESSMENTS FOR STREET LIGHTING ASSESSMENT DISTRICT 1982-1
WHEREAS, the Council of the City of Berkeley adopted Resolution No. 72,321-N.S. declaring the City’s intent to levy and collect assessments for FY 2027, approving the preliminary Engineer’s Report, dated May 2026, for the Berkeley Lighting Assessment District 1982-1, and setting a public hearing for July 14, 2026; at a regular Council Meeting; and
WHEREAS, the City Clerk published notice of the public hearing 10 days prior to the public hearing in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Government Code Section 6061 in a newspaper with general circulation; and
WHEREAS, a public hearing was held on Tuesday, July 14, 2026 at the regular City Council meeting; and all interested persons were afforded the opportunity to hear and be heard or file a written protest with the Clerk; and
WHEREAS, the Council considered all public comments received against the levy of an annual assessment at the same rate as was levied in FY 2026 and the assessment follows the Landscape and Lighting Act of 1972.
NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley approves the final Engineer’s Report dated May 2026 and authorizes the levy and collection of assessments within Berkeley Street Lighting Assessment District No. 1982-1 for FY 2027.
The area of Land to be assessed is located in the City of Berkeley, Alameda County.
BE IT FURTHER RESOLVED that improvements to be made in this assessment district are generally described as maintenance or servicing of existing and future public lighting facilities, including, but not limited to streetlights, traffic signals, and related electrical facilities; and the installation and construction of public lighting including but not limited to grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk, paving, irrigation, and drainage as needed for the installation of public lighting or related electrical facilities.
RESOLUTION NO. ##,###-N.S.
LEVY AND COLLECTION OF FY 2027 ASSESSMENTS FOR STREET LIGHTING ASSESSMENT DISTRICT 2018
WHEREAS, the Council of the City of Berkeley adopted Resolution No. 72,322-N.S. declaring the City’s intent to levy and collect assessments for FY 2027, approving the preliminary Engineer’s Report, dated June 2026, for the Street Lighting Assessment District 2018, and setting a public hearing for July 14, 2026; at a regular Council Meeting; and
WHEREAS, the City Clerk published notice of the public hearing 10 days prior to the public hearing in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Government Code Section 6061 in a newspaper with general circulation; and
WHEREAS, a public hearing was held on Tuesday, July 14, 2026 at the regular City Council meeting and all interested persons were afforded the opportunity to hear and be heard or file a written protest with the Clerk; and
WHEREAS, the Council considered all public comments received against the levy of an annual assessment at the proposed assessment rate of TWENTY DOLLARS AND FIFTY-ONE CENTS ($20.51) per single-family equivalent benefit unit; and WHEREAS, the proposed annual assessment adjustment is in accordance with formulas established when the assessment district was formed and the assessment follows the provisions of Proposition 218 (Article XIII D of the California Constitution) and the Landscape and Lighting Act of 1972.
NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley approves the final Engineer’s Report dated June 2026 and authorizes the levy and collection of assessments within Street Lighting Assessment District 2018 for FY 2027. The area of land to be assessed is located in the City of Berkeley, Alameda County.
BE IT FURTHER RESOLVED that that improvements to be made in this assessment district are generally described as maintenance or servicing of existing and future public lighting facilities, including, but not limited to streetlights, traffic signals, and related electrical facilities; and the installation and construction of public lighting including but not limited to grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk, paving, irrigation, and drainage as needed for the installation of public lighting or related electrical facilities.
ATTACHMENT 3
1 CITY OF BERKELEY
STREET LIGHTING
ASSESSMENT DISTRICT No. 1982-1
ENGINEER’S REPORT
on the
Levy of an Assessment
for
Fiscal Year 2027
May 2026
Prepared by
TERRENCE SALONGA, PE
CITY OF BERKELEY
DEPARTMENT OF PUBLIC WORKS
ENGINEERING DIVISION
STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3 2 TABLE OF CONTENTS
BACKGROUND .................................................................................................................................................. 3 PLANS AND SPECIFICATIONS ....................................................................................................................... 3 METHODOLOGY ................................................................................................................................................ 3 ESTIMATE OF COSTS ....................................................................................................................................... 3 DIAGRAM ............................................................................................................................................................ 4 ASSESSMENT .................................................................................................................................................... 5 APPENDIX A: FY 2027 ASSESSMENT ROLL ................................................................................................ 7
LIST OF TABLES
Table 1- FY 2027 Street Light Fund Forecast ............................................................................................... 4
STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3
3 BACKGROUND
By its Resolution 51,230 N.S., adopted April 6, 1982, the Berkeley City Council initiated proceedings under the provisions of Division 15, Part 2, of the California Streets and Highways Code, entitled “Landscaping and Lighting Act of 1972”. The required public hearing was held on July 20, 1982, at which time the Council ordered the improvements and the formation of the assessment district, and confirmed the diagram and assessment. The district so formed was designated the “City of Berkeley Street Lighting Assessment District 1982-1”. Assessments have been levied for the 1983 through 2026 fiscal years.
This report was prepared and filed pursuant to Division 15, Part 2, of the California Streets and Highway Code Section 2250, and is exempt from Government Code Section 53753 since the proposed assessment for FY 2027 will not be increased.
PLANS AND SPECIFICATIONS
The plans and specifications for this assessment district were prepared and filed with the Engineer’s Report for the 1983 fiscal year, which plans and specifications are incorporated herein by this reference thereto.
METHODOLOGY
The benefit to individual parcels within the Assessment District was established in 1982 based on the median light intensity a parcel receives. Parcel’s Land Use Code (LUC) is used to categorize the parcels. The assessment is calculated by multiplying the building square footage on the parcel times the rate of its category. The rate structure has three categories: 1) Residential and Institutional, 2) Industrial, 3) Commercial. An industrial area has twice the median light intensity of a residential area and a commercial area has four times the median light intensity; therefore, the rates are two and four times higher, respectively, than the residential rate. The rates are:
Residential and Institutional $0.0108/Building Square Footage Industrial and Utility $0.0216/Building Square Footage
Commercial $0.0432/Building Square Footage
ESTIMATE OF COSTS
The improvements to be made in this assessment district are generally described as the maintenance or servicing of existing and future public lighting facilities, including, but not limited to street lights, traffic signals, and related electrical facilities; and the installation and construction of public lighting including grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalks, paving, irrigation, and drainage as needed for the installation of public lighting or related electrical facilities.
STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3
4 An estimate of costs for the maintenance of the improvements is provided in the fiscal year (FY) 2027 Street Light Assessment Fund (Fund 142) forecast provided below.
Table 1- FY 2027 Street Light Fund Forecast
Expenses
Personnel Expenses $ 733,653
Other Operating Expenses $ 1,342,181
Capital Expenses $ 564,389
Total Expenses $ 2,640,223
Assessments & Other Revenue
Street Light Assessment District 1982-1 $ 1,445,790
Street Light Assessment District 2018 $ 979,145
Misc. Revenue $ 59,827
Total Revenue $ 2,484,760
Deficit – From Reserves $ (155,463)
DIAGRAM
The diagram for this assessment district was prepared and filed with the Engineer’s Report for the 1983 fiscal year.
STREET LIGHTING ASSESSMENT DISTRICT No. 1982-1 ATTACHMENT 3 5 ASSESSMENT
Except as described below, the assessments to be made against the assessable lots and parcels of land within this assessment district are contained in the “2025 Assessment Roll” for this district, which roll is filed herewith and incorporated herein by this reference thereto.
Said assessment roll filed herewith is based on data contained in the City’s 2026 Library Tax tape and the County Assessor’s 2026 maps. In the event that data contained in the 2026 Library Tax tape and 2026 maps, when issued, conflict therewith, assessments to be made against the affected parcels for this 2027 Fiscal Year shall be based upon the revised data contained in said 2027 tape and 2027 maps.
Dated: ______________ ___________________________
Terrence Salonga, RCE 82615
Engineer of Work
May 7, 2026
STREET LIGHTING ASSESSMENT DISTRICT 1982-1 ATTACHMENT 3 7 APPENDIX A: FY 2027 ASSESSMENT ROLL
An Assessment Roll (a listing of all parcels assessed within the City of Berkeley Street Lighting Assessment District 1982-1 and the amount of the assessment) has been filed with the City Engineer, and is, by reference, made part of this report and will be available for public inspection during normal office hours.
Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference, made part of this report.
These records shall govern all details concerning the description of the lots or parcels.
FY 2027
City of Berkeley
Street Lighting Assessment District 2018
June 2026
(This Page Intentionally Left Blank)
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Page i
CITY OF BERKELEY
City Council
Adena Ishii, Mayor
Rashi Kesarwani, District 1
Terry Taplin, District 2
Ben Bartlett, District 3
Igor Tregub, District 4
Shoshana O’Keefe, District 5
Brent Blackaby, District 6
Cecilia Lunaparra, District 7
Mark Humbert, District 8
City Manager
Paul Buddenhagen
Public Works Department
Wahid Amiri, Interim Public Works Director
Ricardo Salcedo, Associate Civil Engineer
City Attorney
Farimah Brown
Engineer of Work
John Bliss, P.E., SCI Consulting Group
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Page ii
TABLE OF CONTENTS
Introduction ...................................................................................................... 1 Overview ...................................................................................................................... 1 Assessment Formation Process .................................................................................... 2 Legal Requirements ...................................................................................................... 2 Proposition 218 2
Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority 3
Dahms v. Downtown Pomona Property 4
Bonander v. Town of Tiburon 4
Beutz v. County of Riverside 5
Golden Hill Neighborhood Association v. City of San Diego 5 Compliance with Current Law 5
Plans and Specifications .................................................................................... 6 Fiscal Year 2027 Budget .................................................................................... 8 Method of Assessment ................................................................................... 10 Discussion of Benefit .................................................................................................. 10 Special Benefit ............................................................................................................ 11 Improved Visibility and Safety 11
Improved Access, Navigation and Traffic Safety 11
Improved Community Character and Vitality 11
General Versus Special Benefit .................................................................................. 12 Quantification of General Benefit .............................................................................. 12 Calculation of General Benefit 13
Calculation of the Current General Benefit Contribution from the City 15 General Benefit is More than Offset by City Contribution 15 Method of Assessment ............................................................................................... 15 Residential Traffic 16
Non-Residential Traffic 16
Darkness 17
Single-Family Equivalents 17
Annual Assessment Increase ...................................................................................... 18 Duration of Assessment ............................................................................................. 19 Appeals and Interpretation ........................................................................................ 19
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Page iii
Assessment Statement ................................................................................... 20 Assessment Diagram ....................................................................................... 22 Appendix A – SANDAG Trip Generation Tables ............................................... 23 Appendix B – Assessment Roll ........................................................................ 25
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Page iv
List of Tables
Table 1 – FY 2027 Budget Summary ................................................................................... 8 Table 2 – General Benefit for Arterial Streets .................................................................. 14 Table 3 – Calculation of General Benefit .......................................................................... 14 Table 4 – Single-Family Equivalent Rates .......................................................................... 18 Table 5 – Maximum Single-Family Equivalent Rate Calculation ....................................... 19
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Page v
List of Figures
Figure 1 – Assessment Diagram ........................................................................................ 22
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Introduction
Overview
The City of Berkeley (“City”) provides maintenance and servicing of certain publicly- owned street lights throughout the City. In order to fund the installation, maintenance and operation (the “Services”) of these improvements (“Improvements”), the City formed a city-wide street light assessment district in 1982. The rates for the 1982 assessment district have never been increased. Revenues from these assessments are placed into the streetlight fund (Fund 142).
In time, the financial outlook of the Streetlight fund began to cause concern as the costs increased for energy, labor and materials, while the revenue remained relatively static.
Accordingly, the Streetlight fund no longer had enough funds to fund the Street light program. As a result, beginning in Fiscal Year 2006
1 the Streetlight fund began to receive
a subsidy from the City’s General Fund in order to balance revenues with expenditures.
However, because of other demands on the General Fund, that subsidy ended beginning Fiscal Year 2018. The modest fund balance was sufficient for Fiscal Year 2018 to cover that year’s anticipated expenses, but under those conditions it was expected to be depleted during Fiscal Year 2019. To establish financial sustainability for the Streetlight fund and avoid significant reductions in service levels, in 2018 the City conducted a funding measure to increase the assessment revenue for street light services.
With the passage of Proposition 218 in 1996, any increase in assessments must be approved by the affected property owners through a specified ballot proceeding. In addition, Proposition 218 and related subsequent court decisions create strict criteria for how assessments can be apportioned to the various properties, and the existing 1982 assessment structure may not be adequately consistent with these newer criteria.
While the 1982 assessment structure may continue as a “grandfathered” assessment, any increase must be implemented in accordance with Proposition 218 and court decisions. For this reason, a new district, Street Lighting Assessment District 2018 (“District”), was formed separately, leaving the 1982 assessment structure in place, as is.
The District was formed and the assessments levied pursuant to Part 2 of Division 15 of the California Streets and Highways Code, commonly known as the Landscape and Lighting Act of 1972 (“Act”), and Article XIIID of the California Constitution (“Article”).
1 Fiscal years are referenced in this Report by the year that fiscal period ends. For example, Fiscal Year 2006 would cover the period from July 1, 2005 through June 30, 2006.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Assessment Formation Process
This Engineer’s Report (“Report”) describes the Street Ligh ting Assessment District 2018 (“District”), along with the boundaries, a description of the facilities and public improvements to be improved, serviced and maintained by the assessments (the "Improvements”), and the proposed assessments for Fiscal Year 2027 (“Assessments”).
At its meeting on April 3, 2018, the City Council passed a resolution directing that a notice of assessment and assessment ballot be mailed to property owners within the District whose property receives special benefit from the Improvements. The notice included a description of the Improvements to be funded by the Assessments, the proposed assessment amount for each parcel owned, and an explanation of the method of completing and submitting the ballot. Ballots were mailed on or about April 11, 2018.
On May 29, 2018, a public hearing was be held for the purpose of allowing public testimony regarding the proposed Assessments. At the Public Hearing, the public had the opportunity to speak on the issue, voice an y concerns or protests, and obtain further information about the proposed Assessments.
The returned ballots were then tabulated, a nd the ballot results were announced at the City Council meeting on June 12, 2018. It was determined that the assessment ballots submitted in opposition to the proposed Assessments did not exceed the assessment ballots submitted in favor of the Assessments (each ballot was weighted by the proportional financial obligation of the prop erty for which the ballot was submitted), so the Council was able to take action to approve the levying of Assessments for Fiscal Year 2019. The Assessments were confirmed and approved, and the Assessment information was submitted to the County Auditor/Controller. The County Auditor/Controller included the Assessments on the property tax roll beginning in Fiscal Year 2019. Assessments may now be continued by the City Council from year to year.
Legal Requirements
Proposition 218
This Assessment District was formed consiste nt with Proposition 218, The Right to Vote on Taxes Act, which was approved by the voters of California on November 6, 1996 and is now codified as Articles XIIIC and XIIID of the California Constitution. Proposition 218 provides for benefit assessments to be levied to fund the cost of providing services, improvements, as well as maintenance and operation expenses to a public improvement which benefits the assessed property.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Proposition 218 describes a number of impor tant requirements, including property- owner balloting for the imposition, increase and extension of assessments, and these requirements are satisfied by the process used to establish this Assessment District.
Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority
In July 2008, the California Supreme Court decided Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority (“SVTA”), the most significant court case clarifying the substantive assessment require ments of Proposition 218. Several of the most important elements of the decision included further emphasis that:
Benefit assessments are for special benefits to property, not general benefits. The services and/or improvements funded by assessments must be clearly defined.
Assessment districts must be drawn to contain all parcels that receive a special benefit from a proposed public improvement.
Assessments paid in each assessment district must be proportional to the special benefit received by each such parcel from the improvements and services funded by the assessment.
This Engineer’s Report and the process used to establish the Assessments are consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution based on the following factors:
1. The District is narrowly drawn to include only the properties that receive special benefit from the specific Improvements. Thus, zones of benefit are not required, and the assessment revenue derived from real property in the District is extended only on the Improvements in the District.
2. The Improvements which will be constructed and maintained with Assessment proceeds in the District are located in close proximity to the real property subject to the Assessment. The Improvements provide illumination to streets and sidewalks enabling improved access to th e residents of such assessed property.
The proximity of the Improvements to the assessed parcels and the improved access and increased safety provided to the residents of the assessed parcels by the Improvements provides a special benefit to the parcel being assessed pursuant to the factors outlined by the Supreme Court in that decision.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
3. Due to their proximity to the assessed parcels, the Improvements financed with Assessment revenues in the District benefit the properties in that District in a manner different in kind from the benefit that other parcels of real property in the area derive from such Improvements, and the benefits conferred on such property in the District are more extensive than a general increase in property values.
4. The assessments paid in the District are proportional to the special benefit that each parcel within the District receives from the Improvements because:
a) The costs of the specific lighting Improvements and maintenance and utility costs in the District are specified in this Report; and
b) Such Improvement and maintenance costs in the District are allocated among different types of property located within the District and equally among those properties which have similar characteristics, such as single- family residential parcels, multi-family residential parcels, commercial parcels, industrial parcels, etc.
Dahms v. Downtown Pomona Property
On June 8, 2009, the Court of Appeal amende d its original opinion upholding a benefit assessment for property in the downtown ar e a o f t h e C i t y o f P o m o n a i n D a h m s v .
Downtown Pomona Property (“Dahms”). On July 22, 2009, the California Supreme Court denied review. In Dahms the Court upheld an assessmen t that was 100% special benefit (i.e. 0% general benefit) on the rationale that the services and improvements funded by the assessments were directly provided to property in the assessment district. The Court also upheld discounts and exemptions from the assessment for certain properties.
Bonander v. Town of Tiburon
On December 31, 2009, in Bonander v. Town of Tiburon (“Bonander”), the Court of Appeal overturned a benefit assessment approved by property owners to pay for placing overhead utility lines underground in an area of the Town of Tiburon. The Court invalidated the assessments primarily on the grounds that the assessments had been apportioned to assessed property based in part on relative costs within sub-areas of the assessment district instead of the overall cost of the improvements and the overall proportional special benefits.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Beutz v. County of Riverside
On May 26, 2010 the Court of Appeals issued a decision in Steven Beutz v. County of Riverside (“ Beutz”). This decision overturned an assessment for park maintenance in Wildomar, California, primarily because the general benefits associated with improvements and services was not explicitly calculated, quantified and separated from the special benefits.
Golden Hill Neighborhood Association v. City of San Diego On September 22, 2011, the Court of Appeal issued a decision in Golden Hill Neighborhood Association v. City of San Diego appeal. This decision overturned an assessment for street and landscaping maintenance in the Greater Golden Hill neighborhood of San Diego, California. The Court described two primary reasons for its decision. First, like in Beutz, the Court found the general benefits associated with services were not explicitly calculated, quantified and separated from the special benefits. Second, the Court found that the City failed to record the basis for the assessment on its own parcels.
Compliance with Current Law
This Engineer’s Report is consistent with th e requirements of Articles XIIIC and XIIID of the California Constitution and with the SVTA decision because the Improvements to be funded are clearly defined; the Improvements are directly available to and will directly benefit property in the District; and the Improvements provide a direct advantage to property in the District that would not be received in absence of the Assessments.
This Engineer’s Report is consistent with Beutz, Dahms and Greater Golden Hill because the Improvements will directly benefit property in the District and the general benefits have been explicitly calculated and quantified and excluded from the Assessments. The Engineer’s Report is consistent with Bonander because the Assessments have been apportioned based on the overall cost of the Improvements and Services and proportional special benefit to each property.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Plans and Specifications
The work and Improvements to be undertaken by the City and the cost paid from the levy of the annual assessment provide special benefi t to assessor parcels within the District defined in the Method of Assessment herein. Consistent with the Act, the Improvements are generally described as follows:
The installation, maintenance, and servicing of local street lights in close proximity to certain lots and parcels which provide a direct special benefit to such lots or parcels.
The installation, maintenance, and servicing of peripheral street light structures which provide a special benefit to all the assessable parcels within the District whether or not such parcels are in close proximity to such lighting.
The installation or construction of public lighting facilities, or the acquisition of any new improvements.
Plans and Specifications for the Improvements for the District are voluminous and are not bound in this Report but by this reference are incorporated and made a part of this Report. The Plans and Specifications are on f ile in the Public Works Engineering Office where they can be made available for public inspection.
Article XIII D of the California Constitution defines "maintenance and servicing expenses" as, "the cost of rent, repair, replacement, rehabilitation, fuel, power, electrical current, care and supervision necessary to properly operate and maintain a permanent public improvement.” The Improvement funding includes, but is not limited to, the removal, repair, replacement or relocation of light standards, poles, bulbs, fixtures and appurtenances, electrical energy, supplies, engineering and incidental costs relating to the maintenance and servicing of the local lighting improvements benefiting the parcels within the District.
The Improvements to be maintained and serviced within the District are to be part of the local street light system of the City of Berkeley that confers special benefit to the District's parcels. The specific location of local street light Improvements within the City can be found in the Streetlight Condition Assessment by Tanko Lighting, which is on file in the office of the Director of Public Works, where it is available for public inspection.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
The Improvements to be maintained and serviced within the District include City-owned street lights within the right of way of the local public streets located within the boundaries of the District. These lights are all within close proximity to the parcels within the District identified as receiving local lighting benefit in the Method of Assessment, and, as such, provide special benefit to these parcels.
All street light maintenance will be performed by the City of Berkeley or its contractors.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Fiscal Year 2027 Budget
A summary budget for fiscal year 2027 for th e maintenance of the Improvements is provided below. The full Itemized budget for the Assessment District is voluminous and is not bound in this report but by reference is incorporated and made a part of this report.
The Itemized budget is on file in the Department of Public Works where it is available for public inspection.
Table 1 – FY 2027 Budget Summary
FY 2027
Revenue
1982 Assessment Dist 1,445,789$
SLAD 2018 Assessments 1 979,145
Misc. Revenue 59,827
TOTAL REVENUE 2,484,760$
Expenses
Personnel Expenses
Personnel 733,653
Other Operating Expenses
Non-Personnel 1,304,814
County Collection Fee 37,367
Other Operating Subtotal 1,342,181$
Capital Expenses
Capital Expenses 564,389
Capital Subtotal 564,389$
TOTAL EXPENSES 2,640,223$
To (from) General Fund and/or Reserves (155,463)$
Budget Allocation to Parcels
Total Street Light 2018 Assessments 1 979,145$
Total Street Light 2018 SFEs 47,741.757
Assessment per SFE 2 20.51$
Notes on the Budget:
1. The Act requires that proceeds from the Assessments must be deposited into a special fund that has been set up for the revenues and expenditures of the District. Moreover, funds raised by the Assessment shall be used only for the purposes stated within this Report. Any balance remaining at the end of the Fiscal Year, June 30, must be carried over to the next Fiscal Year. The City may also establish a reserve fund for contingencies and special projects, as well as a capital improvement fund for accumulating funds for
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
larger capital improvement projects or capital renovation needs. Any remaining balance would either be placed in the reserve fund, the capital improvement fund, or would be used to reduce future years' assessments.
2. The rate shown here is for a Single-Family Equivalent (“SFE”), which is a single-family home or its equivalent. For the definition of the term SFE and rates for other types of property, see the section titled, “Method of Assessment” and the sections following it in this report.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Method of Assessment
This section of the Engineer’s Report includes an explanation of the benefits derived from the installation, maintenance and servicing of the Improvements throughout the District and the Assessment methodology used to apportion the total Assessment to properties within the District.
The District consists of all assessor parcel s within the boundaries as defined by the Assessment Diagram and the parcels identifi ed by the Assessor Parcel Numbers listed with the levy roll included with this Report. The parcel list includes all assessable privately and publicly owned parcels within the boundaries. The method used for apportioning the Assessment is based on the proportional special benefits to be derived by the properties in the District over and above general benefits conferred on real property or to the public at large. The apportionment of special benefit is a two-step process: the first step is to identify the types of special benefit arising from the Improvements and the second step is to allocate the Assessments to property based on the estimated relative special benefit for each type of property.
Discussion of Benefit
In summary, the Assessments can only be levied based on the special benefit to property.
This benefit is received by property over and above any general benefits. Moreover, such benefit is not based on any one property owner’s use of the Improvements or a property owner’s specific demographic status. With reference to the requirements for Assessments, Section 22573 of the Act states:
The net amount to be assessed upon lands within an assessment district may be apportioned by any formula or method which fairly distributes the net amount among all assessable lots or parcels in prop ortion to the estimated benefits to be received by each such lot or parcel from the improvements.
Proposition 218, as codified in Article XIIID of the California Constitution, has confirmed that Assessments must be based on the special benefit to property:
No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Special Benefit
Street lighting is an optional improvement, not required by state or federal law, that is an enhancement over and above requisite infrastr ucture, and thus is a special benefit. The majority of the benefits of the street lights are received by the benefited property, with a small portion of the benefits received by the general public on major streets only. This portion received by the general public is captured and quantified in the following section.
The factors that determine special benefit conferred on parcels are detailed below:
Improved Visibility and Safety
Well maintained, effective street lighting provides special benefit to proximate parcels, within range of the light, because it allows fo r safer and improved use of the property in the evenings, early morning, and at night. Street lighting provides special benefit because it increases neighborhood safety and, at least indirectly, reduces the likelihood of crime on the proximate parcels. Over time, the Impr ovements continue to confer a particular and distinct special benefit upon parcels within the District because of the nature of the Improvements. The proper maintenance of th e street lights and appurtenant facilities increases visibility and local human presence and, in many situations, helps reduce property-related crimes, especially vandalism, against assessed properties in the District.
Improved Access, Navigation and Traffic Safety
Well maintained, effective street lighting enha nces ingress, egress and accessibility of all forms to the assessed parcels in the evening, early morning, and at night by increasing visibility. Improved visibility also helps prev ent local automobile, bicycle, and pedestrian traffic accidents related to the assessed parcels. This benefit includes a reduction in accidents during non-daylight hours.
Improved Community Character and Vitality
Well maintained, effective street lighting promotes evening and nighttime social interaction of residents and customers of businesses and industry. This creates a positive atmosphere and enhanced community image in the evening and at night for the assessed parcels.
All of the above-mentioned items also contribute to a specific enhancement to each of the parcels within the District. The proximate street lights ma ke each parcel safer, more visible, more accessible, more useful, more valuable and more desirable; and this further strengthens the basis of these Assessments.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
General Versus Special Benefit
The proceeds from the Assessments are used to fund the described Improvements and increased levels of maintenance to the other City facilities that serve and benefit the properties in the District. In absence of the Street Lighting Assessment District 2018, such Improvements would not be properly maintained . Therefore, the District’s purpose is to ensure that the necessary and beneficial public facilities for property in the District are properly maintained, operated and repaired over time. The Assessments will ensure that street lighting and associated improvements within and adjacent to the District are functional, well maintained and effective. These public resources directly benefit the property in the District and will confer distinct and special benefits to the properties within the District.
The Improvements and Services are specifically designed, located and created to provide additional and improved resources for property inside the District and not the public at large although the Improvemen ts maintained by the Services may be available to the general public. Other properties that are outside the District do not enjoy the unique proximity and other special benefit factors described previously. These Improvements and Services are of special benefit to properti es located within the District because they provide a direct advantage to properties in the District that would not be provided in the absence of the Assessments. Any general benefits to surrounding properties outside of the Assessment District, if any, are collateral and conferred concomitantly.
Quantification of General Benefit
Although the analysis used to support these assessments concludes that the benefits are solely special, as described above, consideration is made for the suggestion that a portion of the benefits are general. General benefits cannot be funded by these assessments. The funding for general benefits must come from other sources.
The maintenance and servicing of these Improv ements is also partially funded, directly and indirectly, from other sources, including the City of Berkeley, Alameda County, and the State of California. This funding comes in the form of grants, development fees, special programs, and general funds, as well as direct maintenance and servicing of facilities (e.g. curbs, gutters, streets, draina ge systems, etc.). This funding from other sources more than compensates for general bene fits, if any, received by the properties within the Assessment District.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
In the 2009 Dahms case, the Court upheld an assessm ent that was 100% special benefit on the rationale that the services funded by the assessments were directly provided within the assessment district. It is also important to note that the improvements and services funded by the assessments in Pomona are similar to the improvements and services funded by the Assessments described in this Engineer’s Report and the Court found these improvements and services to be 100% special benefit. Also similar to the assessments in Pomona, the Assessments desc ribed in this Engineer’s Report fund Improvements and Services directly provided within the District and every benefiting property in the District enjoys proximity and access to the Improvements. Therefore, Dahms establishes a basis for minimal or zero general benefits from the Assessments.
Nonetheless, possible general benefits have been liberally calculated below and then shown to be more than offset by resources from non-assessment sources.
Calculation of General Benefit
The Illumination Engineering Society of North America provides a widely-used standard for street lighting which has become the de-facto industry standard. This standard specifies footcandle requirements as a measurement of illumination at the roadway level, which are different for local, collector , and major streets using three levels (low/medium/high) of pedestrian activity. The three street classifications and pedestrian activity levels are described below with a discussion of their general benefit contribution from the street light system.
Local Streets – a street that is used to gain access to the property bordering it. The street lights on local streets primarily serve the adjacent property owner. Therefore, per industry standard, the street lights on local streets have no general benefit component.
Collector Streets – low to moderate capacity roads which serve to move traffic from local streets to arterial roads. Similar to local str eets, collector streets are primarily used by local residents and per industry standard are also deemed to have no general benefit component. This street classification will be used as the baseline for this analysis.
Arterials – high capacity streets that serve as the principal network for through traffic flow. These routes connect areas of principal traffic generation and important regional roadways traversing the City. As such, this traffic includes a significant number of drivers from outside the District and the street lig ht Improvements may confer some general benefit on those drivers.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
On average, arterial streets require a 45% increase in lighting levels from the baseline collector streets.2 This increase in lighting reinforces the special benefits to the abutting properties as defined above: increased visibility and safety; improved access, navigation and traffic safety; and improved community ch aracter and vitality. In addition to these benefits, the through traffic flow, which includes drivers from outside the District, receives the additional benefit of reduction in nighttime accidents due to enhanced lighting. The degree to which each of these benefits can be considered general benefit is shown in Table 2 below.
Table 2 – General Benefit for Arterial Streets
The general benefit from arterial streets must be combined with the general benefit from all other streets in the District. Each cate gory of street has its unique general benefit weight, prorated by center line miles of streets. This calculation is shown in Table 3 below.
Table 3 – Calculation of General Benefit
2 Based on values from the Illumination Engineering Society of North America, “American National Standard Practice for Roadway Lighting.”
Benefit Factor
Relative
Weight
General
Benefit
Contribution
Relative
General
Benefit
Improved Nighttime Visibility and Safety 25 0% 0.0%
Improved Access, Navigation and Traffic
Safety 25 50% 12.5%
Improved Community Character and Vitality 25 0% 0.0%
Reduction in Nighttime Accidents 25 75% 18.8%
General Benefit on Arterial Streets from Improved Lighting 31.3% Street Classification
General
Benefit
Weight
General
Benefit
Local 158 73.1% 0% 0.0%
Collector 37 17.1% 0% 0.0%
Arterial 21 9.7% 31.3% 3.0%
TOTAL 216 100% 3.0%
Centerline Miles
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
As a result, the City of Berkeley will contribute at least 3.0% of the total budget from sources other than the Assessm ent. This contribution offsets any general benefits from the Assessment Services.
Calculation of the Current General Be nefit Contribution from the City This general benefit contribution is the sum of the following components:
The City of Berkeley owns, maintains, rehabilitates and replaces curb and gutter along the border of the Assessment District improvements. This curb and gutter serves to support, contain, retain, manage irrigation flow and growth, and provide a boundary for the Improvements. The contribution from the City of Berkeley toward general benefit from the maintenance, rehabilitation, and replacement of the curb and gutter is conservatively estimated to be 1%.
The City of Berkeley owns and maintains a storm drainage system along the border of the District’s Improvements. This system serves to prevent flooding and associated damage to the Improvements and to manage urban runoff including local pollutants loading from the Improvements. The contribution from the City of Berkeley toward general benefit from the maintenance and operation of the local storm drainage system is conservatively estimated to be 1%.
The City of Berkeley owns and maintains lo cal public streets throughout the District.
These public streets provide access to the Improvements for its enjoyment as well as efficient maintenance. The contribution from the City of Berkeley toward general benefit from the maintenance of local public streets is conservatively estimated to be 1%.
The value of the construction of the existing street light Improvements can be quantified and monetized as an annuity. Since this construction was performed and paid for by funds other than these Assessments, this “annuity” ca n be used to offset general benefit costs and is conservatively estimated to contribute 25%.
General Benefit is More than Offset by City Contribution Therefore, the total general benefit is liberally quantified at 3.0%, which is more than offset by the total non-assessment contribution toward general benefit of 28%.
Method of Assessment
As previously discussed, the proposed Assessments will provide comprehensive Improvements that will clearly confer specia l benefits to properties in the proposed District. The allocation of special benefits to property is partially based on the type of property and the size of property.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. To determine the special benefit received by individual parcels, the use of that parcel must be considered. Each category of property can benefit from street lights in a unique way, and those characteristics must be quantified. As noted above, the special benefit factors are as follows:
Improved visibility and safety
Improved access, navigation and traffic safety
Improved community character and vitality
The basis for apportioning Assessments is tr affic generated to and from a particular parcel. This is used because the amount of traffic generated by a parcel is directly proportional to, and effectively models, the relative quantity of the three special benefit factors. For instance, the more people that come and go from a site, the more the site benefits from the improved visibility and safety. The same reasoning applies to the other special benefit factors.
Residential Traffic
The typical single-family residence (“SFR”) generates approximately ten vehicular trips per day. Condominium units generate approx imately eight trips per day and apartment units generate approximately six trips per day per unit. The trip generation rates that are used for each land use are based on the trip generation rates published by the San Diego Association of Governments and the Encinitas Ranch Austin Foust Traffic Study. The trip generation rates are included in Appendix A of this report.
Non-Residential Traffic
Trip generation for non-residential parcels vary depending on their designated land use as well as size of parcel. The trip generation data for non-residential land uses are based on trips per acre. For instance, a commercial parcel on two acres typically will have twice the traffic of a commercial parcel on one acre. It follows that the two-acre parcel will then receive twice the benefit from the street lighting as the one-acre parcel. Various land uses were grouped into categories with similar traffic characteristics, resulting in the fee categories shown later in this report.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Darkness
Non-residential parcels typically do not operate all night long. The average period of darkness is 12 hours, but non-residential uses will only operate for approximately three hours of that time. For that reason, a non-resi dential darkness factor of (3 ÷ 12 =) 25% is applied to those parcels. For two non-resi dential categories, the darkness factor is different, as shown below:
Offices and banks typically close earlier than other non-residential uses so they are assigned a darkness factor of 12.5%.
Hotels, motels and boarding houses typically have activity further into the night than other non-residential uses, so they are assigned a darkness factor of 50%.
Non-residential trip generation is then adjusted for the darkness factor for each rate category.
Single-Family Equivalents
The SFR category is used as the baseline for calculating the special benefit for all other land uses and sizes. Each rate category is a ssigned a single-family equivalent (“SFE”) rate using the following formula:
ADT x Darkness Factor
ADT for SFR
SFE Rate=
Where:
ADT = Average Daily Trips for each category
ADT for SFR = ADT for single-family residential, which is used as a baseline figure for SFE rate
SFE Rate = SFEs per unit shown (parcel, [living] unit, or acre) The results of these calculations for each rate category are shown in Table 4 below.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Table 4 – Single-Family Equivalent Rates
.
Landuse Category ADT
Darkness
Factor
Adj
ADT SFE Rate Unit
Residential
Single Family 10 1 10 1.000 parcel
Multi-Family < 5 units 8 1 8 0.800 unit
Multi-Family 5 or more units 6 1 6 0.600 unit
Condominium 8 1 8 0.800 parcel
Mobile Home 5 1 5 0.500 unit
Multiple SFR on parcel 10 1 10 1.000 unit
Non-Residential
General Commercial 600 0.25 150 15.000 acre
Industrial / Warehouse 60 0.25 15 1.500 acre
Auto Repair 400 0.25 100 10.000 acre
Hotel / Motel / Boarding 200 0.5 100 10.000 acre
Hospital 250 0.25 62.5 6.250 acre
Retirement Home 50 0.25 12.5 1.250 acre
School / Day Care 90 0.25 22.5 2.250 acre
Medical / Dental / Vet 500 0.25 125 12.500 acre
Church 30 0.25 7.5 0.750 acre
Mortuary 10 0.25 2.5 0.250 acre
Recreational 100 0.25 25 2.500 acre
Parking / Transportation 200 0.25 50 5.000 acre
Mini Storage 30 0.25 7.5 0.750 acre
Office 300 0.125 37.5 3.750 acre
Bank 1000 0.125 125 12.500 acre
Park / Open Space / Agriculture 2 0.25 0.5 0.050 acre
Vacant 0 na
Annual Assessment Increase
The Assessment is subject to an annual adju stment tied to the San Francisco-Oakland- Hayward Consumer Price Index-U as of December of each succeeding year (“CPI”), with a maximum annual adjustment not to exceed 3%. In order for the City’s dedicated Streetlight fund revenue sources to satisfy cost requirements into the future, the maximum rate per SFE is calculated based upon the sum of the 1982 assessment and the Street Light Assessment District 2018 Assessment.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Table 5 – Maximum Single-Family Equivalent Rate Calculation FY 2026 FY 2027
2018 District Maximum for FY 25 908,515.40$ 908,515.40$ 1982 District Maximum for FY 25 1,445,788.78$
Total for FY 25 2,354,304.18$
Maximum Increase of 3.00% of Total for FY 27 70,629.13$ FY 26 Maximum Assessment 979,144.53$
Total SFEs 47,741.757
FY 27 Maximum Rate per SFE 20.51$
Duration of Assessment
The Assessments may be continued every year after their formation, so long as the public Improvements need to be maintained and improved and the City requires funding from the Assessments for these Improvements in the District. As noted previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment.
Appeals and Interpretation
Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information be ing used to apply the foregoing method of assessment, may file a written appeal with the City of Berkeley Public Works department.
Any such appeal is limited to correction of an assessment during the then current or, if before July 1, the upcoming fiscal year. Upon the filing of any such appeal, the City of Berkeley City Engineer or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Engineer or his or her designee finds that the assessment should be modified , the appropriate changes shall be made to the assessment roll. If any such changes are approved after the assessment roll has been filed with the County for collection, the City Engineer or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Engineer or her or his designee shall be referred to the Public Works Director and the decision of the Public Works Director shall be final.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Assessment Statement
WHEREAS, on April 21, 2026, the City Council of the City of Berkeley, County of Alameda, California, adopted a Resolution initiating proceedings for the levy of Assessments for fiscal year 2027 within the Street Light Assessment District 2018, pursuant to the provisions of the Landscaping and Lighting Act of 1972 and Ar ticle XIIID of the California Constitution (collectively “the Act”);
WHEREAS, the City of Berkeley directed the undersigned Engineer of Work to prepare and file a report presenting an estimate of costs, a diagram for the Assessment District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the Assessment District, to which the description of the proposed Improvements therein contained, reference is hereby made for further particulars; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act and the order of the City Council of the City of Berkeley, hereby make the following assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the Assessment District.
The amount to be paid for the Improvements and the expense incidental thereto to be paid by the City of Berkeley Street Lighting Assessment District 2018 for the fiscal year 2027 are generally as listed in Table 1.
As required by the Act, an Assessment Diagram is hereto attached and made a part hereof showing the exterior boundaries of the City of Berkeley Street light Assessment District 2018. The distinctive number of each parcel or lot of land in the City of Berkeley Street light Assessment District 2018 is its Assessor Parcel Number appearing on the Assessment Roll.
And I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the costs and expens es incident thereto, upon the parcels and lots of land within the City of Berkeley Street Lighting Assessment District 2018, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set fo rth in the cost estimate and method of assessment hereto attached and by reference made a part hereof.
The Assessments are made upon the parcels or lots of land within the City of Berkeley Street Lighting Assessment District 2018 in proportion to the special benefits to be received by the parcels or lots of land from the Improvements.
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor's Maps of the County of Alameda for the fiscal year 2027. For a more particular description of said property, reference is hereby made to the deeds and maps on file and of record in the office of the County Recorder of the County.
I hereby place opposite the Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the fiscal year 2027 for each parcel or lot of land within the City of Berkeley Street Lighting Assessment District 2018.
Dated: May 5, 2026
E n g i n e e r o f W o r k
By ______________________________
John Bliss, License No. C52091
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Assessment Diagram
The boundaries of the City of Berkeley Street light Maintenance Assessment Districts and Annexations are displayed on the Assessment Diagram below.
Figure 1 – Assessment Diagram
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Appendix A – SANDAG Trip Generation Tables
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
City of Berkeley
Street Lighting Assessment District 2018
FY 2027
Appendix B – Assessment Roll
An Assessment Roll (a listing of all parcels a ssessed within the City of Berkeley Street Lighting Assessment District 2018 and the amount of the assessment) has been filed with the City Engineer, and is, by reference, made pa rt of this report and will be available for public inspection during normal office hours.
Each lot or parcel listed on the Assessment Ro ll is shown and illustrated on the latest County Assessor records and these records are, by reference made part of this report.
These records shall govern all details concerning the description of the lots or parcels.
FY 2027 STREET LIGHTING ASSESSMENT DISTRICTS
NOTICE OF PUBLIC HEARING
BERKELEY CITY COUNCIL
STREET LIGHTING ASSESSMENTS
NOTICE IS HEREBY GIVEN that at its meeting on Tuesday, July 14, 2026, the Berkeley City Council will conduct a public hearing to consider the levy of the street lighting assessments.
Berkeley Street Lighting Assessment District 1982-1:
No increase is proposed for Street Lighting Assessment District 1982-1 rates in FY 2027. The assessment rates will remain as follows:
Rate Category
Assessment
Rate Unit
Residential and Institutional $ 0.0108 Bldg. Sf
Industrial $ 0.0216 Bldg. Sf
Commercial $ 0.0432 Bldg. Sf
Assessments under this district are determined by building square footage and rates.
Street Lighting Assessment District 2018:
In accordance with the voter-approved measure, Street Lighting Assessment District 2018 is subject to an annual assessment adjustment equal to the annual change in the Bay Area Consumer Price Index (CPI), up to a maximum of 3%. For the period beginning in December 2024 and ending in December 2025, the CPI increased by 3.04%; therefore, the CPI adjustment for Fiscal Year 2027 may not exceed 3.00%. As approved by voters, the total annual adjustment may be calculated by taking the sum of the 2018 District assessment and the Berkeley Street Lighting Assessment District 1982-1 assessment and multiplying the sum by the allowable CPI increase.
Calculating the adjustment in this manner allows for the inclusion of a 1982-1 District adjustment as part of the 2018 District adjustment. The cumulative total adjustment results in 2018 District assessment rate increases of approximately 7.49%.
Rate Category Assessment
FY 2026
Proposed
Assessment
FY 2027
Unit
Residential
Single Family $ 19.08 $ 20.51 parcel
Multi-Family<5 units $ 15.26 $ 16.41 unit
Multi-Family 5 or more units $ 11.45 $ 12.31 unit
Condominium $ 15.26 $ 16.41 parcel
Mobile Home $ 9.54 $ 10.26 unit
Multiple SFR on parcel $ 19.08 $ 20.51 unit
Non-Residential
General Commercial $ 286.20 $ 307.65 acre
Industrial / Warehouse $ 28.62 $ 30.77 acre
Auto Repair $ 190.80 $ 205.10 acre
Hotel / Motel / Boarding $ 190.80 $ 205.10 acre
Hospital $ 119.25 $ 128.19 acre
Retirement Home $ 23.85 $ 25.64 acre
School / Day Care $ 42.93 $ 46.15 acre
Medical / Dental / Vet $ 238.50 $ 256.38 acre
Church $ 14.31 $ 15.38 acre
Rate Category Assessment
FY 2026
Proposed
Asse
ssment
FY 2027
Unit
Mortuary $ 4.77 $ 5.13 acre
Recreational $ 47.70 $ 51.28 acre
Parking / Transportation $ 95.40 $ 102.55 acre
Mini Storage $ 14.31 $ 15.38 acre
Office $ 71.55 $ 76.91 acre
Bank $ 238.50 $ 256.38 acre
Park / Open Space / Agriculture $ 0.95 $ 1.03 acre
Vacant Not assessed
Assessments under the 2018 District are based on single-family equivalent units assigned to each land use category as well as the number of parcels, units or acres, as applicable to each category.
Detailed calculation methodology of the adjustment and the corresponding rate increase are included in the Street Lighting Assessment District 2018 Engineer’s Report for FY 2027. Copies of the Engineer’s Report are on file at the Public Works Engineering Office.
Public Hearing Information
The hearing will be held on, July 14, 2026 at 6:00 p.m. at a regular council meeting. The Council will consider all objections or protests, if any, to the proposed assessment. At the public hearing any interested person may present written or oral testimony.
A copy of the agenda material for this hearing will be available on the City’s website at berkeleyca.gov as of July 2, 2026. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.
FY 2027 Assessment Rolls for both street lighting districts will be available for review at the City Clerk’s Office at 2180 Milvia Street, 1st Floor.
Written comments should be mailed to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704 or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
For further information, please contact Terrence Salonga, Supervising Civil Engineer at (510) 981- 6447.
Published: July 3, 2026 – The Berkeley Voice
City Clerk shall publish a notice at least 10 days prior to the date of the public hearing with the date, hour, and place of the public hearing for annual levy and collection of assessments in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Section 6061 of the Government Code. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted on the display case located near the walkway in front of the Council Chambers at 2134 Martin Luther King Jr. Way, as well as on the City’s website, on July 2, 2026. ___________________________________
Mark Numainville, City Clerk
1 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
Rashi Kesarwani
Councilmember, District 1
ACTION CALENDAR
July 14, 2026
TO: Honorable Mayor and Members of the City Council
FROM: Councilmember Rashi Kesarwani (Author)
SUBJECT: Resolution Rescinding Resolution No. 51,408-N.S.
Restricting the Use of Air Support and Canine Units
And Updating Mutual Aid Policies
RECOMMENDATION
Adopt a resolution to rescind Resolution No. 51,408-N.S. which currently restricts the use of helicopters and police canine units by the Berkeley Police Department (BPD) and to update policies authorizing BPD to deploy these resources through mutual aid agreements directly with external agencies. Under the revised policy framework, mutual aid requests for air support resources will require pre-deployment approval by the Watch Commander or their designee and will be followed by post-deployment notification to the City Manager, comprehensive incident documentation, and annual public reporting to the City Council and Police Accountability Board. The policy will continue to explicitly prohibit the use of canines for crowd control and will codify additional categorical prohibitions on canine deployments for low-level offenses.
POLICY COMMITTEE RECOMMENDATION
On Monday, March 23, 2026, the Public Safety Policy Committee took the following action: 11 speakers. M/S/C (Blackaby/O’Keefe) to send the item with a Qualified Positive recommendation to Council that includes: 1) clarifying Section 3(a) to more clearly define the purposes for which the canine team may be deployed, and 2) attaching the communication from the Police Accountability Board to the agenda item for consideration by the full City Council. Vote: All Ayes.
This staff report incorporates both elements of the Committee's qualified positive recommendation: the canine deployment purposes have been clarified, with both authorized uses and categorical prohibitions specified, and the March 17, 2026 letter from the Police Accountability Board is attached for the Council's consideration.
23a
2 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
CURRENT SITUATION AND ITS EFFECTS
Resolution No. 51,408-N.S., passed on July 15, 1982, establishes the current framework governing when BPD may request helicopter and canine mutual aid from outside law enforcement agencies. As written, the resolution permits canine mutual aid only to apprehend specified suspects, locate missing persons, or locate crime scenes, and explicitly prohibits canine use in crowd control. It permits helicopter mutual aid only to assist in disaster response, rescue efforts (excluding hostage rescue), and locating missing persons. In every case, the resolution requires pre- deployment approval by the City Manager, or by the Chief of Police if the City Manager is not immediately available. This item proposes both modernizing the approval process and updating the list of permitted purposes to reflect current operational best practices.
In practice, the 1982 canine apprehension authority is rarely usable in the incidents for which canine support would be most appropriate. It requires BPD to simultaneously confirm a threat to human life, that the suspect is armed, that the suspect is in a controlled and contained area, and that no one else is present– conditions that almost never align at the moment a request must be made. A residential burglary with a barricaded suspect, a high-risk warrant on a subject with a documented firearms history, and pursuit of a violent fleeing felon each fail at least one of these elements, leaving BPD unable to request canine assistance in many of the very scenarios where it would reduce risk to officers, bystanders, and suspects.
The 1982 resolution also contains no authority for canine explosives detection–a defensible omission at the time–but a meaningful gap given Berkeley's role as host to frequent large public events and demonstrations. BPD has no in-house explosives detection capability and relies on mutual aid from the Alameda County Sheriff's Office or other regional partners. Under the current resolution, those requests run through the same multi-step pre-approval chain during incidents for which delay carries direct public-safety consequences.
This item proposes that the authorized uses, and the corresponding categorical prohibitions, be clarified as follows:
Canine teams may be deployed to locate or apprehend a suspect in any of the following circumstances:
● The suspect is wanted for a violent felony; or
● There is a reasonable belief that the suspect possesses a weapon likely to cause serious bodily injury; or
● The suspect is wanted in connection with a residential burglary; or ● The deployment supports the service of a warrant on a subject who is wanted for a violent felony, has a documented history of violent offenses, has a documented history involving firearms, or has a documented history of felony evasion or physical assault against law enforcement.
Canine teams may also be deployed for purposes not involving the apprehensions of a suspect, including:
● Locating crime scenes or physical evidence;
● Locating missing persons; or
● Detecting explosives.
3 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
Canine teams shall not be deployed in any of the following circumstances:
● Infractions;
● Misdemeanor offenses not involving a weapon likely to cause serious bodily injury;
● Flight from an officer absent any additional factor that would independently justify canine deployment under this resolution;
● Thefts that escalate to a robbery solely as a result of a suspect's resistance to the victim's effort to stop the theft, absent the use of a weapon or actions causing great bodily injury;
● Stolen vehicle incidents involving a named suspect or that are civil in nature; and
● Crowd control.
Under this proposal, the Berkeley Police Department may request and deploy helicopter assistance from external law enforcement agencies with whom mutual aid agreements exist, for any of the following purposes:
● To assist in disaster response;
● To assist in rescue efforts;
● To locate missing persons;
● When the safety of law enforcement personnel is in jeopardy and aerial presence may reduce that hazard;
● To aid in the apprehension of a suspected fleeing felon whose continued freedom represents an ongoing threat to the community;
● To locate a person who is missing and whose continued absence constitutes a serious health or safety hazard; and
● To provide aerial coordination during a vehicle pursuit, where such coordination can reduce collision risk to bystanders or improve incident resolution.
The 1982 resolution also requires the pre-approval of the City Manager in order to deploy both helicopters and canine units, which imposes a time-intensive effort during emergency situations. 1 Limiting the Department’s ability to quickly deploy hinders response times and reduces operational flexibility. This limitation can compromise both the public and officer safety by preventing rapid access to resources that could significantly enhance situational awareness of the high-risk incident as well as on- scene effectiveness.
While BPD requests helicopter mutual aid approximately 4–5 times per year and canine mutual aid approximately 8–10 times per year, these requests are not routine.
Each one represents a critical incident in which on-scene supervisors have determined that the resource is operationally necessary to protect life, most often an armed suspect who has fled containment, a missing child or at-risk adult whose location is rapidly becoming unrecoverable, a suspicious device requiring explosives detection, or a vehicle pursuit in which aerial coordination materially reduces collision risk to bystanders. In these incidents, the current multi-step pre-approval process, Sergeant to Watch Commander to Patrol Captain to Chief to City Manager and then back down the chain of command typically consumes 20 to 30 minutes before a request can even 1 See attachment 2, Resolution No. 51,408-N.S. as found in the annotated agenda from the July 15, 1982 City Council meeting.
4 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
be transmitted to a mutual aid partner. Those minutes are not administrative; they are operational. Containment perimeters fail in that window. Scent tracks cool. Suspects reach freeways and residential interiors. People at risk move further from rescue.
Further, over the course of at least the last five years, and likely longer, there has never been an occasion where the City Manager has denied such a request from the Chief of Police. The infrequency of these requests is not an argument against modernizing the approval process; it is the reason modernization is justified. When BPD needs these resources at all, the need is acute, time-bound, and life-safety driven.
To address the time sensitivity and public safety concerns inherent with these types of incidents, requests for helicopters and canine mutual aid will require pre-deployment approval by the on-duty Watch Commander or their designee. Following deployment, the Watch Commander or designee will notify the Chief of Police who will provide post- deployment notification to the City Manager. This structure preserves a sworn supervisory check on every deployment while eliminating the procedural delay associated with City Manager approval mid-incident.
BACKGROUND
Resolution No. 51,408-N.S. was originally enacted on July 15,1982, in response to concerns about the use of specialized law enforcement resources from outside agencies within Berkeley. The values that motivated its adoption: local oversight, narrow tailoring of authorized uses, and explicit prohibition of canine deployment in crowd control, remain sound and are preserved in this proposal. The procedural mechanism it created, however, no longer reflects current operational practice or the broader accountability architecture now in place, which includes Lexipol aligned policy manuals, body-worn camera coverage, Police Accountability Board review of complaints, and the City’s Surveillance Technology Use and Community Safety Ordinance (BMC Chapter 2.99). BPD does not own helicopters or maintain a canine unit; all such resources are obtained through mutual aid through mutual aid agreements with regional partners, including the Oakland Police Department, the Alameda County Sheriff’s Office, the East Bay Regional Park District Police, and the Emeryville Police Department.
PROPOSED CHANGES AND RATIONALE FOR RECOMMENDATION
Resolution No. 51,408-N.S. is recommended for rescission so BPD can match the operational tempo of the incidents in which mutual aid air and canine support are actually requested. The number of such requests is small, but each request is made because the on-scene supervisor has already concluded that ground resources alone cannot safely resolve the incident in the time available. Updating the city policy framework to permit Watch Commander pre-approval, rather than City Manager pre- approval, aligns Berkeley with regional mutual aid best practices, with current professional standards for law enforcement, and with the City’s own updated mutual aid agreements with other law enforcement agencies adopted on July 22, 2025. 2 2 July 22, 2025 Public Hearing: Memorandum of Understanding (MOU) Compendium: Agreements with Other Law Enforcement Agencies and Private Organizations; https://berkeleyca.gov/sites/default/files/documents/2025-07-
5 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
Replacing pre-deployment City Manager approval with a post-deployment notification preserves the City Manager’s visibility into every deployment while removing a procedural delay that does not change the outcome of the approval decision; it only shortens the window in which the resource can still be operationally useful to victims, bystanders, officers, and the community. Expanding the listed purposes for air support to align with current professional standards ensures that when mutual aid is activated, its permitted uses reflect modern operational practice rather than the 1980s era restrictions. Updating the policy modernizes Berkeley’s law enforcement capabilities while preserving accountability through pre-deployment supervisory approval, post- deployment notification, comprehensive documentation, and annual public reporting.
FISCAL IMPACTS
No significant new expenditures are expected from this rescission. Any costs incurred for mutual aid support will be managed through established reimbursement agreements. The policy revision is anticipated to deliver operational benefits without imposing undue financial burden on the City.
CONTACT PERSON
Rashi Kesarwani, Councilmember, District 1 (510) 981-7110
ATTACHMENTS
1) Resolution
2) Resolution No. 51,408-N.S.
3) March 17, 2026 letter from Chair Cayetano, Police Accountability Board 22%20Item%2016%20Memorandum%20of%20Understanding%20%28MOU%29%20Compendium.p df
6 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
RESOLUTION NO. ##,###-N.S.
RESOLUTION MODERNIZING BERKELEY POLICE DEPARTMENT POLICIES
GOVERNING THE USE OF MUTUAL AID HELICOPTER AND CANINE SUPPORT
RESOURCES
WHEREAS, Resolution No. 51,408-N.S., adopted on July 15, 1982, imposes outdated procedural restrictions that delay the Berkeley Police Department’s ability to request mutual aid air support and canine resources from outside law enforcement agencies during critical law enforcement operations; and
WHEREAS, these restrictions hinder the Berkeley Police Department’s ability to secure essential resources in high-risk incidents, thereby reducing operational flexibility and potentially compromising public and officer safety; and WHEREAS, mutual aid agreements with external agencies providing access to helicopter support as well as police canine units are now standard practice nationwide, enhancing situational awareness, effective suspect apprehension, and search-and- rescue capabilities; and
WHEREAS, requests for mutual aid air support and canine resources are infrequent, averaging approximately 4 to 5 helicopter requests and 8 to 10 canine requests per year, each such request arises from an active life-safety incident in which procedural delay measurably increases risk to victims, bystanders, officers on scene, and the surrounding community; and
WHEREAS, replacing the existing requirement for pre-deployment City Manager approval with a structure of pre-deployment Watch Commander approval and post- deployment notification to the City Manager will facilitate rapid response during emergencies while ensuring accountability through sworn supervisory review, comprehensive documentation, and annual public reporting to the City Council and the Police Accountability Board;
NOW, THEREFORE, BE IT RESOLVED BY THE BERKELEY CITY COUNCIL THAT:
1. Resolution No. 51,408-N.S. is rescinded in full. All prior limits on the use of outside helicopter support and police canine units are nullified.
2. The Berkeley Police Department may request and deploy canine teams from external law enforcement agencies only as follows:
a. Authorized deployments involving suspect apprehension. Canine teams may be deployed to locate or apprehend a suspect when any of the following is true:
i. The suspect is wanted for a violent felony; or
ii. There is a reasonable belief that the suspect possesses a weapon likely to cause serious bodily injury; or
iii. The suspect is wanted in connection with a residential burglary; or
7 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
iv. The deployment supports service of a warrant on a subject who is wanted for a violent felony, has a documented history of violent offenses, has a documented history involving firearms, or has a documented history of felony evasion or physical assault against law enforcement.
b. Authorized deployments not involving suspect apprehension. Canine teams may be deployed to locate crime scenes or physical evidence, to locate missing persons, or to detect explosives.
c. Categorical prohibitions. Canine teams shall not be deployed in connection with: infractions; misdemeanor offenses not involving a weapon likely to cause serious bodily injury; flight from an officer absent an independent justification under this section; thefts that escalate to robbery solely from a suspect’s resistance to the victim’s effort to stop the theft, absent use of a weapon or actions causing great bodily injury; stolen vehicle incidents involving a named suspect or that are civil in nature; or crowd control.
3. The Berkeley Police Department may request and deploy helicopter assistance from external law enforcement agencies with whom mutual aid agreements exist, for any of the following purposes:
a. To assist in disaster response;
b. To assist in rescue efforts;
c. To locate missing persons;
d. When the safety of law enforcement personnel is in jeopardy and aerial presence may reduce that hazard;
e. To aid in the apprehension of a suspected fleeing felon whose continued freedom represents an ongoing threat to the community; f. To locate a person who is missing and whose continued absence constitutes a serious health or safety hazard; and
g. To provide aerial coordination during a vehicle pursuit, where such coordination can reduce collision risk to bystanders and improve incident resolution.
4. The Berkeley Police Department may enter into and use mutual aid partnerships with outside agencies for all helicopter support and canine deployments described in this resolution.
5. The former requirement for pre-deployment City Manager approval is replaced with the following framework:
a. Pre-deployment supervisory approval. Each deployment of mutual aid helicopter support or canine resources under this resolution shall require the pre-deployment approval of the on-duty Watch Commander or their designee.
b. Post-deployment notification. Within 72 hours of any deployment, the Chief of Police or a designee shall notify the City Manager in writing.
The notification shall include the date, time, and location of the deployment; the requesting BPD supervisor and the assisting agency; the operational purpose; and a brief summary of the outcome.
8 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
c. Incident documentation. All deployments shall be documented in the originating incident report consistent with existing Berkeley Police Department records practices.
d. Annual public reporting. Annually, the Chief of Police shall transmit to the City Council and the Police Accountability Board a public report summarizing all deployments of mutual aid helicopter support and canine resources during the preceding calendar year, including aggregate counts by category of use, assisting agencies utilized, and any incidents resulting in injury or formal complaint.
March 17, 2026
VIA ELECTRONIC MAIL [Email]
Hon. Members of the Public Safety Policy Committee
[email protected]
2180 Milvia Street
Berkeley, California 94704
Re: PAB Response to the Proposed Resolution Rescinding Resolution No. 51,408- N.S.
Restricting the Use of Air Support and Canine Units and Updating Mutual Aid Policies
Honorable Chair Blackaby and Members of the Public Safety Policy Committee:
On behalf of the Police Accountability Board (PAB), I would like to first express our appreciation to the Public Safety Policy Committee (PSPC) for granting the PAB additional time to review this item. The PAB met on March 11, 2026, to discuss the proposal, directing its review to two key questions:
1. Whether the PAB supports, opposes, or declines to comment on replacing the requirement for City Manager (or Chief of Police) approval of helicopter or canine (K9) use with an after - action notification to the City Manager.
2. Whether the PAB supports, opposes, or declines to comment on the proposed expansion and revision of the list of permissible uses for helicopters.
City Manager Approval vs. After-Action Notification for Helicopter and K9 Use After reviewing the proposal to remove City Manager (or, in the City Manager’s absence, Chief of Police) approval for both helicopters and K9 deployments, the PAB does not support this change. The PAB’s position is based on the following considerations:
• Lack of Demonstrated Need: The PAB believes that no evidence has been presented showing that the current process imposes an undue burden on the Berkeley Police Department (BPD) that would warrant such a change in approval procedures. The PAB understands that requests for helicopter support occur approximately 4–5 times per year, Joshua Cayetano | Chair
Police Accountability Board
[email protected]
while canine units are requested about 8–10 times annually, most often for search operations, which does not indicate a frequency that would necessitate modifying the existing approval framework.
• Preservation of Oversight: The existing approval requirement provides an important oversight safeguard prior to the deployment of specialized policing resources. Replacing that requirement with an after-action notification reduces that oversight. • General Concern About Reduced Oversight: The PAB notes a pattern of expanding police tools and/or authorities without sufficient justification or oversight.
Expansion of Permissible Uses for Helicopters
The PAB does not support the proposed expansion and revision of the list of permissible uses for helicopters. The PAB’s position is based on the following considerations:
• Lack of Demonstrated Need : The proposal did not include supporting data, operational analysis, or documented incidents demonstrating a need to broaden the circumstances under which helicopters may be deployed.
• Relationship with Proposed Drone Technology : The City is currently considering a proposal regarding the use of police drone technology. While the PAB acknowledges that drones would not be capable of performing all functions that a helicopter can provide, some of the expanded uses contemplated for helicopters appear to overlap with operations described in the drone proposal.
• Need for Clear Policy Rationale: Any expansion of permissible helicopter use should be supported by a clearly articulated operational rationale and relevant data regarding current deployment practices to ensure that these resources are used only when necessary and in a manner consistent with the City’s objectives.
Conclusion
For the reasons outlined above, the PAB respectfully opposes the proposed rescission of City Manager approval for helicopter and K9 deployments, as well as the proposed expansion of permissible helicopter uses. The Board emphasizes the importance of maintaining appropriate oversight and requiring a clearly demonstrated operational need for changes to these longstanding policies. The PAB appreciates the opportunity to provide its input and looks forward to continuing to work with all stakeholders to ensure that policies governing specialized police resources remain effective, accountable, and transparent.
Respectfully submitted,
Joshua Cayetano, Chair
Police Accountability Board
Cc: Paul Buddenhagen, City Manager
David White, Deputy City Manager
Jennifer Louis, Chief of Police
Jen Tate, Deputy Chief of Police
Jose Murillo, Acting Director of Police Accountability
Peace and Justice
Commission
ACTION CALENDAR
July 14, 2026
(Continued from April 21, 2026)
To: Honorable Mayor Ishii and Members of the Berkeley City Council From: Peace and Justice Commission
Submitted by: Pastor Dwayne Phillips, Chairperson, Peace and Justice Commission Subject: Social Justice Implications of Proposed Use of Controlled Weapons and Other Policing Tools
RECOMMENDATION
Adopt a Policy approving the following actions with regard to the appropriateness of certain chemical weapons and other tools:
1. Retain the existing 2020 bans on chemical weapons (CS and OC), and the 1982 bans on police dogs and helicopters.
2. Retain the 1997 requirement for public reporting of each use of pepper spray.
3. Request the City Manager to engage an academic institution such as UC Berkeley, UCSF, or Stanford to study the health impacts of tear gas and other chemical weapons and canine support, potential short-term and long-term impacts on vulnerable populations and possible alternatives to the use of chemical weapons that provide officer safety, suspect safety, and safety to the general public.
SUMMARY
The Peace and Justice Commission recommends applying a social justice lens to policing decisions that could have a significant impact on the lives of Berkeley’s residents and visitors, including disparate impact on marginalized, low-income, disabled, elder, and community members of color.
It is the Commission’s perspective that human rights must be prioritized above administrative convenience. The Commission further finds that in an era of great polarization, it is essential to build bridges among disparate constituencies, listen to people with diverse points of view, and create solutions that serve all the people in Berkeley. For that reason, we propose that the City Manager request academic support for an independent study of health effects of the proposed weapons and tools.
23b
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 2 FISCAL IMPACTS OF RECOMMENDATION
No significant fiscal impact on the City.
CURRENT SITUATION AND ITS EFFECTS
As of the date of this writing, Council members have introduced several resolutions for consideration bearing on BPD chemical weapons and other tools. Three items are currently pending in city council process:
1. “Proposed Resolution Rescinding Berkeley Police Department’s Pepper Spray Reporting Requirement.” This proposal has passed through the Public Safety Committee with a qualified positive recommendation, and has been placed on the March 10 city council agenda.1 [NOTE: Council passed an amended version of this proposal on March 10.]
On February 11, the Police Accountability Board (PAB) recommended to Council to continue the requirement for the submission of use of pepper spray reports. The PAB demonstrates that while the proposed resolution is predicated on the existence of redundant reporting, other reports lack narrative information and/or are inaccessible.2
2. “Resolution to Amend Berkeley City Council’s 2020 Direction to Reinstate Berkeley Police Department’s Use of Tear Gas in Limited Situations and Lift the COVID-19 Moratorium on the Use of Smoke and Oleoresin Capsicum (OC) Spray:” This proposal has passed through the Public Safety Committee with a qualified positive recommendation.3 The Police Accountability Board sent a memorandum to the Public Safety Committee questioning the necessity of resuming use of these chemical agents given how infrequently Berkeley has used them over several decades.4
1 March 10 2026 City Council agenda, item 17, https://berkeleyca.gov/sites/default/files/2026-02/2026-03- 10%20Item%2017%20Resolution%20Rescinding%20Berkeley%20Police%20Department%E2%80%99s. pdf
2 “Re: Resolution Rescinding Berkeley Police Department’s Pepper Spray Reporting Requirement,” Police Accountability Board, Feb. 23 2026, berkeleyca.gov/sites/default/files/2026-02/2026-02- 23%20PAB%20Letter%20to%20Council_%20Use%20of%20Pepper%20Spray%20Reporting%20%281%
29.pdf
3 Public Safety Policy Committee Jan. 29 2026 agenda, item 4, 29, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2026-02- 19%20Agenda%20Packet%20-%20Public%20Safety.pdf
4 “Proposed Resolution to Reinstate Berkeley Police Department’s Use of Tear Gas and Related Chemical Agents,” Police Accountability Board, Jan. 26 2026,
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 3 3. “Resolution Rescinding Res. No. 51,408-N.S. Restricting the Use of Air Support and Canine Units and Updating Mutual Aid Policies”: Scheduled for hearing at the Public Safety Committee at its next meeting.5 As of March 9, the resolution is yet to be evaluated by the PAB.
The PAB’s February 11 regular meeting included a table prepared by the Office of the Director of Police Accountability (ODPA). This table describes the key differences between the existing and proposed policies with regard to police dogs and helicopters. The table can be found at https://bit.ly/CopterDogProvisions. The ODPA gave this interpretation of the table:
“The table … shows that the primary changes concern the approval process for requesting helicopter and canine use and the circumstances under which helicopter assistance may be requested through mutual aid agreements.
“The previously permissible uses of helicopter assistance were limited to clearly defined humanitarian and emergency purposes, including disaster response, rescue efforts excluding hostage situations, and locating missing persons….
“The proposal introduces new, explicitly enforcement-oriented justifications, including felony suspect pursuits, vehicle chases, and deployments intended to reduce risk to officers, that go beyond the scope of the earlier permissions. Taken together, the proposed resolution reflects a shift in emphasis from primarily emergency assistance toward authorizing helicopter use as a tactical law enforcement tool, should it be adopted.”6
At the March 9 2026 meeting, the commission took the following action:
https://berkeleyca.gov/sites/default/files/2026-02/2026-02- 23%20PAB%20Letter%20to%20Council_%20Use%20of%20Pepper%20Spray%20Reporting%20%281%
29.pdf
5 Public Safety Policy Committee Jan. 29 2026 agenda, item 3, 21, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2026-02- 19%20Agenda%20Packet%20-%20Public%20Safety.pdf
6 “Police Accountability Board Meeting Agenda Packet,” Feb. 11, 2026, 82-83, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-attachments/2026-02- 11%20PAB%20AGENDA%20PACKET.pdf
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 4 Action: M/S/C (Lippman/Taylor) to adopt the following recommendation: Adopt a Policy approving the following actions with regard to the appropriateness of certain chemical weapons and other tools:
1. Retain the existing 2020 bans on chemical weapons (CS and OC), and the 1982 bans on police dogs and helicopters.
2. Retain the 1997 requirement for public reporting of each use of pepper spray.
3. Request the City Manager to engage an academic institution such as UC Berkeley, UCSF, or Stanford to study the health impacts of tear gas and other chemical weapons and canine support, potential short-term and long-term impacts on vulnerable populations and possible alternatives to the use of chemical weapons that provide officer safety, suspect safety, and safety to the general public.
Ayes: Commissioners Phillips, Marasovic, Taylor, Sani, Morizawa, Lippman, McNeil and Press
Noes: Commissioner Fink
Abstain: Commissioners Yasavul, Weisberg, Elias, Mencher and Lee
Absent: Commissioner Cassidy
Excused: None
BACKGROUND
The resolutions currently under consideration by the city council amend or replace ordinances and policies approved by the council in previous years. The existing ordinances and policies include:
On July 15 1982, the City Council passed Resolution 51,408-N.S., establishing a policy for police use of dogs and helicopters from other law enforcement agencies, requiring prior approval by the City Manager, and only for specified purposes, excluding crowd control. See the 1982 policy referenced in Footnote 5.
On September 16 1997, the City Council established a policy that “every time pepper spray is used by the Police Department a Use of Pepper Spray Report similar to the Use of Force Report currently in effect will be completed and sent" to the Council and the Police Review Commission. See the 1997 policy referenced in Footnote 1.
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 5 On June 6 2020, in the wake of the murder of George Floyd by Minneapolis police, the City Council established a permanent ban on the use of CS (tear gas) and a moratorium on the use of OC (pepper spray) and smoke. The moratorium was in part due to the effect of the COVID-19 pandemic which caused respiratory distress to large numbers of people. It was also a step toward addressing over-policing and the use of military-style weaponry on civilians.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Physicians for Human Rights states that chemical irritants including both CS (“tear gas” and OC (pepper spray) can spread to affect people other than the intended target.7 CS often has a wide spray pattern. OC is considered more targeted than CS, but wind can affect the direction of the fumes to affect bystanders and even the user.8
RATIONALE FOR RECOMMENDATION
1. Pepper Spray (OC) reporting.
The Peace and Justice Commission supports the PAB letter calling for the continuation of pepper spray use reporting. We would add that if the BPD intends to continue or even expand use of pepper spray, it is to their benefit that the community understand the context of its usage.
2. “Tear gas” (CS), Pepper Spray (OC), and Smoke
This is a complex proposal covering multiple chemical weapons.
The Peace and Justice Commission recommends Council retain the ban on CS (“tear gas”) and the moratorium on OC and Smoke for these four reasons:
A. CS and OC are dangerous weapons that are properly considered “less-lethal,” not “non-lethal.”
B. CS and OC are particularly dangerous to the health of people with disabilities, especially respiratory or environmental sensitivities, and also those suffering from mental or behavioral disorders.
7 “Health Impacts of Crowd-Control Weapons: Chemical Irritants (Tear Gas and Pepper Spray),” Physicians for Human Rights, Jan. 1 2017, https://phr.org/our-work/resources/health-impacts-of-crowd- control-weapons-chemical-irritants-tear-gas-and-pepper-spray/ 8 “Pepper Spray Safety Precautions,” Sept. 12, 2024, https://www.divasfordefense.com/blogs/self- defense-articles-educational-material/pepper-spray-handling-safety- precautions?srsltid=AfmBOops00prGllerpYmjsPYnV5EIGesRj1WXJWr9Xrs5B8cuD6Hwos6
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 6 C. Approval of chemical weapons such as CS for any use opens the door to the possibility of use for other purposes and in other manners.
D. Berkeley’s Precautionary Principle ordinance requires showing that actions do no harm to human health or the environment.
Dangers of CS (“tear gas”), particularly to people with disabilities Over decades of research, scientists have shown a strong potential harm from CS use in policing. An Oakland Police Department policy warns, “Chemical agents can produce serious injuries, or even death,” and officers are to “use the minimum amount of chemical agent needed to obtain compliance.” Further, “the use of hand-thrown chemical agents or pyrotechnic gas dispersal devices may present a risk of permanent loss of hearing or serious bodily injury from shrapnel.” The common and incorrect term “tear gas” makes CS seem trivial. It is actually not even a gas but an aerosol, made up of ultra-fine particles, or UFPs. Aerosols are dangerous to lung health because, according to the U.S. National Library of Medicine, “The small size of UFPs allows them to penetrate deep into the respiratory tract, causing effects from mild respiratory issues to cardiovascular and respiratory mortality, lung cancer, neurological diseases, and mutagenic or carcinogenic impacts…. Substantial evidence links [ultrafine particulate matter] exposure to increased hospital admissions and premature deaths among vulnerable populations, particularly the elderly and those with pre‐existing conditions.”9
Potential for non-compliant or unauthorized uses of CS
The Commission appreciates the exception to ban use of CS in crowd control.
However, good policy is necessary but not sufficient for good practice. Once a weapon is acquired and approved for limited use, it is almost inevitable that it will be 9 Damiati, “Aerosol Pollutants and Health: Role of Size and Chemical Composition,” Sept. 26 2025, https://pmc.ncbi.nlm.nih.gov/articles/PMC12466196/#:~:text=In%20densely%20populated%20areas%2C %20aerosols,COPD%20%5B31%2C%2032%5D.
For more on the effect of CS on the lung, particularly on “people with preexisting respiratory conditions, see:
American Lung Association, Jan. 20 2026, https://www.lung.org/clean-air/outdoors/what-makes-air- unhealthy/toxic-air-pollutants/tear-gas
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 7 used for out-of-policy use. As an example, we refer to the last large-scale use of CS, the police response to Black Lives Matter protests in December 2014.
On December 6, BPD drove a largely peaceful march almost a mile down Telegraph from the UC campus past the Oakland city line. The direction from BPD command to the officers was to “Get’Um Running!” To implement this direction, officers shot less- lethal projectiles into the crowd, hit marchers with batons, and launched some 50 cans of CS gas, such a large amount that they nearly exhausted their supply. The Police Review Commission’s (PRC) after-incident report stated:
“The crowd complied with officer demands to move south, but the police continued to pursue them, deploying CS gas at six intersections on Telegraph and using raised batons and baton jabs. No evidence of dangerous crowd activity has been provided to the commission to justify these repeated uses of force.
“The combination of repeated CS gas exposure along with the lengthy walk was extremely impactful, and there were reports of protestors suffering physical and emotional injuries as a result. The marchers were driven over the city line into Oakland around 1:30 AM.”10 For context, in 1991, after an earlier scandal regarding police action against protestors in People’s Park, the City enacted a policy that “no crowd could be forced to move faster than they were reasonably capable of moving.” But in 2014, the use of mass quantities of CS along with baton strikes were ordered explicitly to drive protestors on a forced run all the way to Oakland.
As Physicians for Human Rights has observed, “The physical symptoms of chemical irritants often result in disorientation and agitation, which can lead to a state of fear, anxiety, and panic.”11 The 2014 use of CS was an escalation, not a move toward de- escalation, and made compliance with police orders extremely difficult.
Therefore, while CS use in crowd control was still legal in 2014, the manner of its use was contrary to City policy of that day. This recent history shows that stated policy is not enough to ensure that this department, when in possession of dangerous military armaments, will use them appropriately.
10 “Report of Investigation Into the Response to Protest on December 6, 2014,” Berkeley Police Review Commission, Dec. 1 2015,
https://berkeleyca.gov/sites/default/files/2026-01/2015-12-01-Item-32a-Report-of-Investigation.pdf 11 “Health Impacts of Crowd-Control Weapons: Chemical Irritants (Tear Gas and Pepper Spray),” Physicians for Human Rights, Jan. 1 2017, https://phr.org/our-work/resources/health-impacts-of-crowd- control-weapons-chemical-irritants-tear-gas-and-pepper-spray/
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 8 Issues with OC (pepper spray) and smoke; the deadly and racially biased history of OC
The risk of OC should not be cavalierly dismissed by claiming, as the council proposal does, that “the specific health concerns that necessitated the temporary moratorium on smoke and OC spray are no longer present.” The ACLU reported in 1998 that in the first five years since the approval of its use by police, at least 33 people had died in California after being sprayed and restrained. Nearby Antioch paid the family of 29- year-old Derek Wallace $362,000 after their officers subdued him with the spray.12 A Berkeley freelance journalist mapped the use of pepper spray in the mid 1990s and found that they largely affected Black men, in low-income, minority neighborhoods, and primarily an area in South Berkeley, centered on Alcatraz and Sacramento, dubbed the “Pepper Spray Triangle.”13
Berkeleyans have long memories. The author of the resolution speaks of a “large- scale riot” in 2014 in which BPD was compelled to use tear gas on residents.
Demonstrators for Black Lives Matter remember a largely peaceful march which was provoked by a police gauntlet in which many were beaten with batons. For many in the community, time has not abated the blow. Today, with the federal government at war with the people, may be the worst time to suggest restarting use of CS/tear gas.
Smoke also cannot be called a safe police tool. Health impacts are dependent on the chemicals in the smoke, pre-existing health conditions, location of the smoke, and other police tactics applied. According to medical experts, hexachloroethane smoke is “demonstrably more dangerous” than tear gas. This chemical agent should be studied and proven safe before approved for police use.14
There appear to be no constraints on the use of either OC or smoke in the proposal before council.
12 Heredia, “Antioch Settles Pepper Spray Case For $362,000 / 29-year-old man died after police subdued him,” SF Chronicle, Feb 11 1998, https://www.sfgate.com/news/article/antioch-settles-pepper- spray-case-for-362-000-3013916.php
13 East Bay Express, Dec. 12, 1997
14 Foster, “The US Government Keeps Using Dangerous Chemicals on Protesters,” Mother Jones, Feb. 19, 2026, https://www.motherjones.com/politics/2026/02/ice-facility-portland-what-chemicals-used-tear- gas-hc-smoke-
protests/#:~:text=The%20smoke%20releases%20zinc%20chloride,and%20cancer%20with%20repeated %20exposure
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 9 The Commission reminds the Council of the Precautionary Principle that it adopted in 2006. The Principle is an approach to decision-making that prioritizes preventing harm to human health and the environment. The Principle shifts the burden of proof, requiring actions to be proven safe, rather than waiting for proof of damage to restrict them. We recommend that lacking proof of safety, the proposal to authorize CS, pepper spray, and smoke should not be approved.15
Given the prevalence of Long COVID, Berkeley’s rapidly aging population, the large number of environmentally sensitive residents, and the city’s legacy as the birthplace of disability rights, it is neither sensitive nor appropriate for the proposal to state that the emergency is over and the health conditions that necessitated the moratorium are no longer present.
3. “Air Support” (police helicopters) and “Canine Support” (police dogs) The Peace and Justice Commission shares the ODPA’s concerns about the shift in emphasis in use of helicopters from emergency assistance to tactical law enforcement.
Police helicopters provoke concern in a number of communities for “unhealthy noise pollution, inefficient spending and instances of bias by over-policing certain neighborhoods. Officers in the LAPD often disgracefully go so far as to call the helicopters ‘ghetto birds,’ sociologist Sarah Brayne wrote in her book Predict and Surveil.”16
Berkeley restricted use of police dogs in the aftermath of their brutal use particularly in the South, but across the country as well.17 In the last two decades, at least two lawsuits were settled by Hayward, one for $1.5 million.
One dog is said to have bitten about 30 people, two or three of them uninvolved bystanders, one an 89-year-old who died of his wounds.18 The issues raised above with regard to chemical agents, about the Precautionary Principle, building trust between the people and the city government, and the possibility of out-of-policy use, apply also to helicopters and dogs.
15 BMC Chapter 12.29, Precautionary Principle, March 21, 2006, berkeleyca.gov/sites/default/files/documents/Precautionary%20Principle%20Ordinance%20-%206911.pdf 16 McQuarrie, “‘Ghetto birds’: California has yet to reckon with longstanding bias from police helicopters,” CalMatters, July 3 2024, https://calmatters.org/commentary/2024/07/california-longstanding-bias-police- helicopters/
17 Dowd, “The Violent, Racist History of K-9 Units,” Vice, Sept. 7 2022, https://www.vice.com/en/article/k9-unit-history/
18 Parr, “Hayward to pay $1.5 million to settle police dog attack suit,” East Bay Times, Jul. 17 2013, https://www.eastbaytimes.com/2013/07/17/hayward-to-pay-1-5-million-to-settle-police-dog-attack-suit/
Adopt a Policy approving the following actions with ACTION CALENDAR regard to the appropriateness of certain chemical weapons and other tools July 14, 2026 10 The Commission is also concerned about the removal of required pre-approval by the City Manager for both dog and helicopter deployment. When taken as a pattern, the removal of this check combined with the refusal of the police chief to fully cooperate with the PAB/ODPA’s City Charter-mandated requests for department records, the chronic under-appointing of the PAB, and the vacant position of Director of Police Accountability, the City risks a public perception that it no longer values civilian oversight.
ALTERNATIVE ACTIONS CONSIDERED
None
CITY MANAGER
Given that these policy matters are in the process of coming before the City Council, the City Manager will address them as they are heard by the City Council and recommends taking no action on them prior to the items being before the City Council.
CONTACT PERSON
Tasha Tervalon, Assistant to the City Manager, Commission Secretary, City Manager’s Office, 510-981-7000
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
1 Rashi Kesarwani
Councilmember, District 1
ACTION CALENDAR
July 14, 2026
TO: Honorable Mayor and Members of the City Council FROM: Councilmember Rashi Kesarwani (Author)
SUBJECT: Resolution Reinstating the Berkeley Police Department’s Ability to Use Tear Gas for Critical Life-Threatening Incidents Only and Lifting the COVID-19 Moratorium on Smoke and Oleoresin
Capsicum (OC) Spray
RECOMMENDATION
Adopt a resolution amending the Berkeley City Council's June 9, 2020 direction regarding smoke, OC spray, and tear gas to allow the Berkeley Police Department (BPD) Special Response Team (SRT) to use tear gas under circumstances in which there is a significant risk of injury or death, maintain the prohibition on the use of tear gas solely for crowd control, and lift the temporary moratorium on the use of smoke and OC spray.
POLICY COMMITTEE RECOMMENDATION
On Thursday, February 19, 2026, the Public Safety Policy Committee adopted the following action: M/S/C (O’Keefe/Blackaby) to send the item with a Qualified Positive recommendation to Council that includes:
1) Making the resolution text explicit regarding permissible uses and policy limitations (particularly defining “critical incident” and excluding crowd control use),
2) Clarifying and attaching relevant use policies for public transparency, and 3) Developing an appropriate after-action reporting framework aligned with existing reporting and Transparency Hub practices.
The Police Accountability Board submitted a memo to the Committee expressing concern about the proposal, noting the infrequency of historical use and significant liability associated with chemical agents. The limitations identified in this resolution, restricting tear gas exclusively to SRT deployments in non-crowd critical incidents, directly address those concerns.
CURRENT SITUATION AND ITS EFFECTS
The Moratorium on the Use of Tear Gas, Smoke, and OC Spray Was Driven by Health-Related Concerns During the COVID-19 Pandemic. On June 9, 2020, the Berkeley City Council banned the use of tear gas under any circumstances by the
24a
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
2 Berkeley Police Department (BPD) and outside law enforcement agencies when providing mutual aid support in the City of Berkeley. 1 This action also placed a temporary moratorium on the use of smoke and OC spray. This action was largely driven by health-related concerns associated with COVID-19, a respiratory infection.
Since this action was taken in June 2020, a COVID-19 vaccine is widely available and
89.4 percent of Alameda County residents are fully vaccinated, as of March 2023.2 As a result, serious infection and hospitalization rates have dropped, and the public health state of emergency has long since ended. Therefore, the specific health concerns that supported the temporary moratorium on smoke and OC spray are no longer present.
The combination of the reduced risk and the rare use of these tools make it appropriate to reevaluate this decision.
Existing BPD Policies Govern Use of Tear Gas, Smoke, and OC Spray. BPD Policy 300 (Use of Force), Policy 303 (Control Devices and Techniques), and Policy 428 (First Amendment Assemblies) governed the use of these tools before the Council’s June 2020 action, and they will resume that role if the Council approves this item under consideration.3 A summary of each of the three relevant policies is provided below.
Policy 300 (Use of Force)
Policy 300 establishes the overarching framework governing any use of force, including tear gas and OC spray, and its protections remain fully in place regardless of any change to the 2020 ban. Under Policy 300, all uses of force must be objectively reasonable, objectively necessary, and proportional to the circumstances. Officers are required to attempt de-escalation before resorting to force, and the policy explicitly requires that force be minimized at all times.
Every deployment of tear gas or OC spray constitutes a Level 3 use of force, triggering mandatory documentation requirements: the involved officer must prepare a written report articulating why the use of force was objectively reasonable and necessary, an uninvolved supervisor must respond to the scene when feasible, conduct an investigation, photograph injuries, identify witnesses, and review body-worn camera footage. The Chief of Police reviews all use-of- force reports and makes a finding of whether the use was within policy. Reports are retained for at least five years and reported publicly on a quarterly basis to the Police Accountability Board and annually to the City Council.
Policy 303 (Control Devices and Techniques)
Policy 303 governs the specific conditions under which chemical agents, including tear gas and OC spray, may be deployed, and incorporates the requirements of California Penal Code Section 13652 directly into BPD policy.
Under Policy 303, kinetic energy projectiles and chemical agents may only be used by officers who have received POST-certified crowd control training, and 1 June 9, 2020 4:00pm Special Meeting Annotate Agenda:
https://berkeleyca.gov/sites/default/files/city-council-meetings/06- 09%20Annotated%20Agenda%204pm.pdf p. 5 of 13.
2 According to the Vaccine Dashboard on the Alameda County website, 89.4% of the county has been fully vaccinated as of March 2023: https://www.alamedaca.gov/RESIDENTS/ALERTS-COVID- 19/Vaccine/Vaccine-Dashboard
3 See Berkeley Police Department Law Enforcement Manual for details of each policy:
https://berkeleyca.gov/sites/default/files/documents/RELEASE_20240301_T161429_Berkeley%20PD %20Policy%20Manual.pdf. Each is additionally attached.
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
3 only when objectively reasonable to defend against an active threat to life or serious bodily injury or to bring an objectively dangerous and unlawful situation safely under control. Before deployment, de-escalation must have been attempted and failed; repeated, audible announcements of intent to deploy must be made from multiple locations and in multiple languages where appropriate; and persons must be given a reasonable opportunity to disperse. Officers must make an objectively reasonable effort to distinguish individuals engaged in violent acts from those who are not, and chemical agents must be targeted accordingly — never fired indiscriminately into a crowd. Use must be proportional and minimized to reduce incidental impact on bystanders, journalists, and medical personnel. Medical assistance must be provided promptly when safe to do so. Separately, Policy 303 expressly reiterates that tear gas remains prohibited for crowd control — only SRT use in critical, non- crowd incidents is authorized under the proposed resolution.
Policy 428 (First Amendment Assemblies)
Policy 428 provides additional protections specifically applicable to crowd situations where smoke and OC spray may be deployed. Under Policy 428, the use of any chemical agent in a crowd context is subject to the direction of the Field Commander, who determines both the type and quantity of agents to be used and must continuously re-evaluate whether their use remains necessary.
The policy prohibits the use of chemical agents against individuals engaged only in passive resistance and bars their use solely due to a curfew violation, verbal threat, or noncompliance with a directive — consistent with California Penal Code Section 13652. Officers must issue dispersal orders prior to forcibly dispersing a crowd absent exigent circumstances, and must make reasonable efforts to provide medical resources and extract individuals in distress.
Following any crowd incident in which smoke or OC spray is deployed, Policy 428 requires a comprehensive After Action Report documenting arrests, injuries, property damage, personnel costs, and a full inventory of all less-lethal munitions deployed. Additionally, for OC spray deployments in crowd situations, a public summary must be posted to the department's website within 60 days of the incident, extendable to 90 days for good cause, per Policy 428 Section 428.14(c) and California Penal Code Section 13652.1.
State Law Adds Further Guardrails for the Use of Tear Gas. Since 2020, the California Legislature has added new language that clearly articulates the circumstances under which chemical agents, including tear gas, may be used.
California Penal Code Section 13652 (AB 48, effective January 1, 2022) prohibits the use of chemical agents to disperse any assembly, protest, or demonstration except where objectively reasonable to defend against an active threat to life or serious bodily injury, and requires that the use be proportional, targeted at individuals engaged in violence rather than at a crowd indiscriminately, and preceded by de-escalation efforts where feasible. The law also expressly prohibits use solely in response to a curfew violation, verbal threat, or noncompliance with a directive. These legislative updates are already reflected in the Department’s broader use-of-force framework.4 4 On September 20, 2021, Governor Newsom signed Assembly Bill 48 into law, adding California Penal Code Section 13652 (restrictions on the use of chemical agents and kinetic energy projectiles) and Section 13652.1 (public reporting requirements) both effective January 1, 2022. See:
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB48)(https://leginfo.legi
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
4 Subsequent to the temporary ban, on July 26, 2022, the Council approved BPD Policy 709, Military Equipment, which authorized the continued funding, acquisition, and use of military equipment including tear gas (CS and OC canisters) in accordance with Assembly Bill 481. The Council's 2022 approval of Policy 709, which encompasses tear gas in BPD's military equipment inventory, demonstrates that the Council understood the 2020 action as a restriction on the use of tear gas, not a directive to eliminate it from the Department's inventory altogether.
Tear Gas for Life-Threatening Situations and the Use of Smoke and/or OC Spray in a Crowd Situation Allows Officers to Respond Without Escalating to Higher Levels of Force . Officers tasked with deploying tear gas are members of the Department's Special Response Team (Special Weapons and Tactics/SWAT), who train annually with certified Department instructors and have received specific training on the safe and proper use of this equipment. Although an essential law enforcement tool, tear gas is reserved for high-risk, low-frequency events—armed standoffs, hostage situations, high-risk warrant service, and encounters where shots have been fired. Restricting its use to the Special Response Team ensures this capability is available for precisely the dangerous scenarios where it is needed most, enabling officers to prompt suspect compliance and limit a subject's capacity to inflict harm without requiring physical breach or escalation to lethal force. OC spray and smoke serve an analogous function in crowd situations: interrupting active violence, creating distance between opposing groups, and allowing officers to respond proportionally rather than escalating to higher levels of force.
De-Escalation and Minimizing Levels of Force. Tear gas allows officers to influence behavior, compel compliance, and interrupt active violence without physical contact or escalating to a higher level of force, including lethal force. By creating distance and slowing an encounter, it reduces the likelihood of serious injury for officers, suspects, and bystanders alike. Authorizing tear gas for SRT tactical incidents is directly consistent with the City and Department commitment to de-escalation.
Tactical Effectiveness in Critical Incidents. For the use of these tools, a critical incident is defined as a rapidly evolving or complex, high-risk event in which the subject poses a threat to life or substantial risk of serious bodily injury, and conventional tactics are unlikely to resolve the situation safely. These incidents typically involve armed, barricaded, or violent individuals who are actively resisting lawful commands and have demonstrated the capacity and intent to cause harm. In barricade and hostage situations, tear gas provides a standoff capability that physical entry cannot; gas can permeate rooms, reach behind cover, and enter through small openings. This enables resolution of prolonged, high-risk incidents faster and more safely than the alternatives (physical breach or extended standoffs), which carry significantly higher risks to all parties. Tear gas also enables safe extractions, allowing officers to remove hostages or injured individuals while a suspect is suppressed.
Risk to the City and Accountability. Without this industry-standard tool, BPD's SRT faces critical gaps in its ability to safely manage armed standoffs, hostage situations, slature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=13652. This law embodies many principles currently in BPD’s Policies 300 (Use of Force), 303 (Control Devices and Techniques), and 428 (First Amendment Assemblies) and aligns with the community’s and the department’s values related to the use of force.
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
5 and active-threat incidents, creating unnecessary risk for officers, the community, and the City. Every deployment of tear gas requires supervisor authorization and is subject to policy review, documentation, and the use-of-force framework established under Policies 300, 303, and 428. This limitation also restricts BPD’s ability to serve as a full partner in regional mutual aid responses.
Smoke and OC Spray: De-Escalation and Safety in Crowd Situations Like tear gas in critical incidents, smoke and OC spray serve as lower-level force options that support de-escalation and officer and public safety specifically in crowd contexts. Smoke can create a visual barrier, interrupt active violence between groups, and allow officers to reposition or withdraw without direct physical engagement. OC spray allows officers to respond to targeted acts of violence with a proportional, less- lethal tool rather than escalating to physical force or impact weapons. Together, these tools give officers the ability to manage volatile situations more safely, reduce the likelihood of injury on all sides, and maintain tactical options that support de-escalation rather than requiring an immediate escalation of force. The following examples illustrate how each tool would be used:
Examples by Tool
The following examples illustrate the types of incidents for which each tool may be deployed.
Tear gas: for use in critical incidents only (not crowd control):
Armed barricaded suspect refusing to exit an enclosure; Suspect shooting at officers during a high-risk SRT warrant service; Hostage rescue situations; and
Other high-risk situations presenting an imminent threat of death or serious bodily injury, such as injured officer or citizen rescue where a suspect must be suppressed.
Smoke: for use in crowd situations involving active violence:
Violence between two opposing groups;
Officers repositioning away from a violent crowd; and Directing a crowd away from an area of active violence.
OC Spray: for targeted use in crowd situations:
A specific individual committing violence against another person; and A specific individual committing violence against an officer.
After Action Documentation and Reporting of Incidents
All deployments of tear gas and OC spray are classified as Level Three (chemical agent) uses of force and are subject to the reporting requirements outlined in Policy 300. Policy 300 requires that all uses of force be documented promptly, completely, and accurately in an appropriate report. The officer must articulate the factors perceived and why the use of force was objectively reasonable and necessary under the circumstances. Upon receiving notification of a use of force, an uninvolved supervisor, when feasible, shall determine the appropriate level of reporting, investigation, documentation, and review. After an incident, an uninvolved supervisor, when feasible, will respond to the scene, conduct an investigation, and complete a Use of Force Investigation Report. The supervising officer is expected to:
Obtain the basic facts from the involved officers;
Ensure any injured parties are examined and treated;
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
6 After initial medical assessment and/or first aid has been rendered, ensure that photographs have been taken of any injuries or areas corresponding to complaints of pain;
Identify witnesses not already included in related reports; Review and approve all related reports; and
Review body-worn camera footage related to the incident.
In addition to the internal use of force documentation required under Policy 300, California Penal Code Section 13652.1 requires the Department to publish a summary of each tear gas or OC spray deployment for crowd control on the Department’s website. This public reporting requirement does not apply to smoke, which is not a chemical agent under that statute.5
Reporting Requirements for Smoke and OC Spray in a Crowd Situation Both smoke and OC spray, if used within the context of a crowd situation, are governed under Policy 428 (First Amendment Assemblies, attached) and are subject to the post- event reporting requirements stipulated in section 428.14. Those requirements apply to all less-lethal munitions deployed in a crowd context, including smoke and OC spray, and require documentation of arrests, injuries, property damage, personnel costs, and the inventory of all less-lethal munitions deployed, including smoke and chemical agents.
In addition, for OC spray deployments specifically, Policy 428, section 428.14(c) and California Penal Code Section 13652.1 require that the BPD prepare and publish a public summary on the Department's website within 60 days of the incident, extendable to 90 days for good cause. That summary must include the information required under Penal Code Section 13652.1. Smoke is not a chemical agent under PC 13652 and is not subject to this public posting requirement; however, its use will be documented and publicly available through the Policy 428 post-event report.
As a new commitment established by this item: upon posting of any required public summary to the Department website, the Department shall notify the City Manager, who will provide this information to the City Council and to the Police Accountability Board within ten days of notice.
Tear gas and OC spray deployments will also be reported under Use of Force on the Transparency Hub and as well as annually via the Berkeley Municipal Code 2.100 Police Equipment Ordinance. Additionally, the City Council's March 11, 2026, resolution requires BPD to enhance Use of Force level definitions on the Transparency Hub and include clear navigational guidelines so the public can easily access information on chemical agent use, including tear gas and OC spray.
BACKGROUND
Tear Gas Has Been Deployed for One Special Response Team Incident Over the Last 40 Years. The Department reserves the use of chemical agents and smoke for limited, high-risk situations where it is necessary to safely resolve dangerous incidents
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
7 and protect the public, officers, and property. Because the use of tear gas is reserved for these types of situations, the department has deployed this tool on only limited occasions over the last +40 years: once in response to a barricaded subject and twice in response to crowd violence. In all instances, the objective was to compel movement out of a building or away from officers, to achieve resolution of a critical incident. A brief summary of each incident follows:
In the early 2000s, the Special Response Team used tear gas during a warrant service involving an armed individual who refused to surrender. The deployment created the conditions needed for officers to take the suspect into custody without injury.
In December 2014, the Department used tear gas during a large-scale civil unrest in Berkeley. Officers were assaulted with rocks and bottles, and despite repeated warnings and lawful orders to disperse, the violence escalated. Tear gas, smoke, and OC spray were deployed to stop the assaults and ongoing property destruction. Multiple officers were injured during the incident. In May 2020, Berkeley officers responded to an Oakland Police Department mutual-aid request and were deployed in Oakland during the civil unrest following the murder of George Floyd. Officers were assigned to protect OPD’s main station when several thousand individuals attempted to force their way to the station with the intention of destroying it. Officers came under attack from rocks, bottles, Molotov cocktails, and commercial-grade fireworks. Tear gas and less-lethal munitions were deployed to protect officers from the life- threatening assaults they were facing while protecting critical infrastructure.
The Department has deployed smoke on several occasions in conjunction with the incidents described above. Smoke was deployed during the December 2014 civil unrest and during the May 2020 Oakland mutual aid response alongside tear gas.
Additionally, on August 27, 2017, an officer deployed a smoke canister into a crowd actively engaged in violent confrontations to interrupt the violence and compel the group to disperse.
Police Review Commission Supported the Use of Tear Gas Only by the Special Response Team in a 6-1-1 Vote on September 23, 2020. The Police Review Commission evaluated the moratorium enacted by the City Council and recommended a revision to the tear gas policy to allow the Special Response Team to use it during tactical operations.6 The motion read as follows:
303.6 TEAR GAS GUIDELINES Tear gas may only be used by trained members of the Special Response Team during SRT tactical operations (e.g., during barricaded subject operations or responding to armed attacks during an SRT operation), in accordance with Policy 300, to protect people from the risk of serious bodily injury or death.
The above paragraph notwithstanding, as per City Council policy (June 9, 2020), the use of tear gas by any employees of the Berkeley Police Department, including the Special Response Team, is prohibited in crowd control and crowd management situations.
6 Police Review Commission Regular Meeting Minutes, Sept. 23, 2020, https://records.cityofberkeley.info/PublicAccess/paFiles/cqFiles/index.html
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
8 When practicable, fire personnel should be alerted or summoned to the scene prior to deployment of tear gas by SRT, in order to control any fires and to assist in providing medical aid or gas evacuation if needed.
ENVIRONMENTAL SUSTAINABILITY
There are no significant or lasting environmental concerns regarding the use of tear gas, smoke, or OC spray at the frequency and in the contexts contemplated by this item. Tear gas disperses quickly once air circulation improves, and the compounds break down without leaving persistent residue in soil or water. OC spray is derived from natural capsicum, is biodegradable, and does not present persistent environmental concerns. Expired OC canisters are disposed of in accordance with standard hazardous materials protocols. Smoke canisters produce particulate matter at the point of detonation; however, dispersal is rapid and there are no known persistent soil, water, or air quality impacts from the limited tactical deployments contemplated by this item.
The infrequency of use (tear gas has been deployed three times in over 40 years, smoke on a similarly limited basis) and the contained or outdoor environments in which these tools would be deployed further minimize any environmental impact. No significant or lasting environmental impacts are anticipated from adoption of this resolution.
RATIONALE FOR RECOMMENDATION
Both the California Commission on Peace Officer Standards and Training (CA POST) and the National Tactical Officers Association (NTOA) consider tear gas basic required equipment for SWAT teams. Its value lies in providing a less-lethal option that creates distance between officers and dangerous subjects, reducing the need for close- quarters force or lethal action. The 2020 ban was not premised on opposition to tactical use, but on COVID-19 respiratory concerns and crowd control misuse, neither of which applies to the narrow Special Response Team authorization proposed here.
FISCAL IMPACTS
The fiscal impacts of adopting this resolution are minimal; equipment costs associated with this recommendation pertain to inventory replacement depleted during trainings or through use or due to expiration. Replacement costs are approximately $2,000 annually. Training costs will be nominal as associated fees will be reincorporated into existing budgeted training sessions.
CONTACT PERSON
Rashi Kesarwani, Councilmember District 1 (510) 981-7110
Attachments:
1. Resolution
2. Berkeley Police Department Law Enforcement Services Manual Policy 300:
Use of Force
3. Berkeley Police Department Law Enforcement Services Manual Policy 303:
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
9 Control Devices and Techniques
4. Berkeley Police Department Law Enforcement Services Manual Policy 428:
First Amendment Assemblies
5. Policy 709 Military Equipment
6. BPD Special Order 2020-0007: Prohibition on Tear Gas, Pepper Spray, and Smoke
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
10 RESOLUTION NO. ##,###-N.S.
RESOLUTION REINSTATING THE BERKELEY POLICE DEPARTMENT'S ABILITY
TO USE TEAR GAS FOR LIFE-THREATENING CIRCUMSTANCES AND LIFTING THE COVID-19 MORATORIUM ON SMOKE AND OLEORESIN CAPSICUM (OC) SPRAY
WHEREAS, on June 9, 2020, the Berkeley City Council placed a temporary ban on the use of smoke and OC spray, and a permanent ban on the law enforcement use of tear gas; and
WHEREAS, the temporary ban on smoke and OC spray was enacted due to respiratory concerns associated with the COVID-19 pandemic, and the state of emergency for the pandemic has since ended; and
WHEREAS, on July 26, 2022, two years after the June 9, 2020 ban on the use of tear gas, the Berkeley City Council approved Berkeley Police Department Policy 709, Military Equipment, which authorized the continued funding, acquisition, and use of military equipment including tear gas, pursuant to Assembly Bill 481, reflecting the Council's understanding that the 2020 action restricted the deployment of tear gas rather than directing its removal from the Department's inventory; and WHEREAS, access to tear gas enables the police department to resolve dangerous and high-risk situations with less force, in a manner that supports safer outcomes for all; and
WHEREAS, the Berkeley Police Department seeks a limited, narrow use of tear gas exclusively by members of the Special Response Team when responding to critical incidents, defined as rapidly evolving or complex, high-risk events posing a significant threat of death or serious bodily injury in which conventional tactics are unlikely to resolve the situation safely, including but not limited to: armed barricaded suspects refusing to exit an enclosure; suspects shooting at officers during a high- risk warrant service; hostage rescue situations; and other potential high-risk situations outside these categories that present a threat to officer or public safety.
This authorization expressly does NOT include use for crowd control; and WHEREAS, the use of smoke and OC spray by the Berkeley Police Department is governed by Policies 300 (Use of Force), 303 (Control Devices and Techniques), and 428 (First Amendment Assemblies). OC spray is authorized as a use of force, and smoke as a non-force tactical tool, in crowd situations to address: violence between opposing groups; violence committed by a specific individual against another person or an officer; directing a crowd away from an area of active violence; or when distance is needed for officers repositioning away from a violent crowd; and WHEREAS, the Berkeley Police Department Policies 303 (Control Devices and Techniques), 300 (Use of Force), and 428 (First Amendment Assemblies) ensure proper use and oversight, consistent with California Penal Code Section 13652(b); NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the June 9, 2020, ban on the use of tear gas is hereby modified to authorize the Berkeley Police Department's Special Response Team to use tear gas when responding to critical incidents as defined that pose a significant threat to public or
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7110 TDD: 510.981.6903 Fax: 510.981.7111 E-Mail: [email protected]
11 officer safety, and excluding its use solely for crowd control, in accordance with Policies 300, 303, and 428, and that the temporary moratorium on the use of smoke and OC spray is hereby lifted.
Policy
300
Berkeley Police Department
Law Enforcement Services Manual
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 1
Use of Force
300.1 SANCTITY OF LIFE
The Berkeley Police Department’s highest priority is safeguarding the life, dignity, and liberty of all persons. Officers shall demonstrate this principle in their daily interactions with the community they are sworn to protect and serve. The Department is committed to accomplishing this mission with respect and minimal reliance on the use of force by using rapport-building communication, crisis intervention, and de-escalation tactics before resorting to force. Officers must respect the sanctity of all human life, act in all possible respects to preserve human life, do everything possible to avoid unnecessary uses of force, and minimize the force that is used, while still protecting themselves and the public.
300.1.1 PURPOSE AND SCOPE
This policy sets forth criteria governing the use of force. All officers are responsible for knowing and complying with this policy and conducting themselves in a manner that reflects the Berkeley Police Department's Use of Force Core Principles. Violations of this policy may result in disciplinary action, including and up to termination, and may subject the officer to criminal prosecution. Supervisors shall ensure that all personnel in their command know the content of this policy and operate in compliance with it.
300.1.2 USE OF FORCE STANDARD
In dealing with suspects, officers shall use alternatives to physical force whenever reasonably possible. In all cases where physical force is used, officers shall use a minimum amount of force that is objectively reasonable, objectively necessary, and proportional to effectively and safely resolve a conflict.
The United States Supreme Court in Graham v. Connor
, 490 U.S. 386 (1989), held that, in order to
comply with the U.S. Constitution, an officer’s use of force must be objectively reasonable under the totality of circumstances known to the officer at the time. Additionally, Penal Code section 835(a) imposes further restrictions on an officer’s use of force. But these standards merely set the minimum standard for police conduct, below which an officer’s conduct would be regarded as unlawful.
In fulfilling this Department’s mission to safeguard the life, dignity, and liberty of officers themselves and all members of the community they are sworn to protect and serve, this policy requires more of our officers than simply not violating the law. As a result, this policy is more restrictive than the minimum constitutional standard and state law in two important respects.
First, it imposes a higher duty upon officers to use a minimal amount of force objectively necessary to safely achieve their legitimate law enforcement objective. And, second, this policy imposes a stricter obligation on officers to exert only such force that is objectively proportionate to the circumstances, requiring a consideration of the seriousness of the suspected offense, the availability of de-escalation and other less aggressive techniques, and the risks of harm presented to members of the public and to the officers involved.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 2
Additionally, Penal Code section 835(a) imposes further restrictions on an officer’s use of force. 300.1.3 CORE PRINCIPLES
A. DE-ESCALATION AND FORCE MINIMIZATION. Every officer’s goal, throughout an encounter with a member of the public, shall be to de-escalate wherever possible and resolve the encounter without resorting to the use of force. Wherever possible, officers shall employ de-escalation techniques to increase the likelihood of voluntary compliance with law enforcement requests or directives and, thereby, decrease the likelihood that a use of force will become necessary during an incident. Further, in any encounters that do call for applying force, officers must always use a minimal amount of force that is objectively reasonable and objectively necessary to safely achieve their legitimate law enforcement objective.
B
. PROPORTIONALITY. When determining the appropriate level of force, at all times officers shall balance the severity of the offense committed and the level of resistance based on the totality of the circumstances known to or perceived by the officer at the time. It is particularly important that officers apply proportionality and critical decision making when encountering a subject who is unarmed or armed with a weapon other than a firearm.
C. MINIMIZING THE USE OF DEADLY FORCE. Deadly force may only be used when it is objectively reasonable that such action is immediately necessary to protect the officer or another person from imminent danger of death or serious bodily harm. Officers shall not use deadly force if it is objectively reasonable that alternative techniques will eliminate the imminent danger and ultimately achieve the law enforcement purpose with less risk of harm to the officer or to other persons
D. DUTY TO INTERCEDE. Whenever possible, officers shall intervene when they know or have reason to know that another officer is about to use, or is using, unnecessary force. Officers shall promptly report any use of unnecessary force and the efforts made to intervene to a supervisor.
E. VULNERABLE POPULATIONS. Officers should be particularly sensitive when considering the use of force against vulnerable populations, including children, elderly persons, pregnant women, people with physical and mental disabilities, and people with limited English proficiency.
F
. FOSTER STRONG COMMUNITY RELATIONSHIPS. The Berkeley Police Department understands that uses of force, even if lawful and proper, can have a damaging effect on the public's perception of the Department and the Department's relationship with the community. The Department is committed to fostering strong community relations by building on its historic tradition of progressive policing, ensuring accountability and transparency, and striving to increase trust with our community.
G. FAIR AND UNBIASED POLICING. Members of the Berkeley Police Department shall carry out their duties, including the use of force, in a manner that is fair and unbiased, in accordance with Policy 401, Fair and Impartial Policing.
300.1.4 DEFINITIONS
Definitions related to this policy include:
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 3
Minimal amount necessary – The least amount of force within a range that is objectively reasonable and objectively necessary to safely effect an arrest or achieve some other legitimate law enforcement purpose.
Deadly force - Any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
Feasible
- Reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person.
Force - The application of physical techniques or tactics, chemical agents or weapons to another person. It is not a use of force when a person allows themselves to be searched, escorted, handcuffed or restrained.
Less-Than-Lethal Force – Any use of force which, due to possible physiological effects of application, presents less potential for causing death or serious injury than conventional lethal force options. Less-than-lethal force options include, but are not limited to, a specialized launcher, or other authorized device that can discharge, fire, launch or otherwise propel single or multiple flexible or non-flexible projectiles designed to cause physiological effects consistent with blunt force impact.
Non-Lethal Force – Any use of force other than lethal force or less-than lethal force.
Compliant Suspect
– Cooperative and/or responsive to lawful commands.
Passive Resistance - When an individual does not follow the lawful verbal commands of a police officer, but does not physically resist in any way.
Examples: A person who goes completely limp, sits down and refuses to stand or walk, or who may stand with arms at their sides without attempting to strike at or physically resist officers.
Active Resistance
- An individual who is uncooperative and fails to comply with the lawful verbal commands of a police officer, and attempts to avoid physical control and/or arrest by physically struggling to free oneself from being restrained. The individual may also use verbal non- compliance (refusing a lawful order or direction).
Examples: A person who attempts to avoid physical control and/or arrest by pulling or pushing away from the officer, tensing arm or muscles, hiding from the officer, and/or fleeing.
Combative Resistance
- An individual not only resists the officer, but poses a threat of harm to the officer or others, in an aggressive manner that may cause physical injury.
Examples: A person who violently attempts to or attacks an officer. This action is sometimes preceded by “pre-assault” cues such as taking a threatening stance (clenching fists, facial expressions, threats, etc.) and verbal non-compliance.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 4
Control Hold - Any Department approved hold, designed to allow an officer to control the movement of a subject (e.g., twist lock, rear wrist lock, finger lock, etc.). A control hold can be applied without implementing pain.
Pain Compliance Technique - Involves either the manipulation of a person’s joints or activating certain pressure points intended to create sufficient pain for the purpose of motivating a person to comply with verbal commands (examples of pressure points include buccal nerve, gum nerve, sternum rub).
Control Techniques
– Personal Impact Weapons and Take Downs.
Personal Body Weapons - An officer’s use of his/her body part, including but not limited to hand, foot, knee, elbow, shoulder, hip, arm, leg or head by means of kinetic energy transfer (impact) to gain control of a subject.
Blue Team (BT) – Computer software that allows officers to enter use of force and other incidents from a Department computer.
Concealmen
t - Anything which conceals a person from view.
Cover - Anything which provides protection from bullets or other projectiles fired or thrown. Cover is subjective and its effectiveness depends upon the threat’s ballistic capability (handgun, rifle, etc.).
Blocking - The positioning of a police vehicle in the path of an occupied subject vehicle where contact between the vehicles is not anticipated or is anticipated to be minimal.
Ramming
- The use of a vehicle to intentionally hit another vehicle Serious bodily injury - A bodily injury that creates a substantial risk of death, causes serious, permanent disfigurement or results in a prolonged loss or impairment of the functioning of any bodily member or organ
Officer (or) Police Officer - Any sworn peace officer.
Authorized
Employee - Any non-sworn employee who has received defensive tactics training and has been authorized by the Chief of Police to use non-lethal force.
Employee
– Any non-sworn employee of the Berkeley Police Department, including those deemed “authorized employees.”
Objectively Reasonable – “Objectively reasonable” means an officer’s conduct will be evaluated through the eyes of the hypothetically reasonable officer standing in the shoes of the involved officer.
Totality of the circumstances – All facts known to the officer at the time, including the conduct of the officer and the subject leading up to the use of force.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 5
300.2 DUTY TO INTERCEDE AND DUTY TO REPORT
Any officer who observes another officer or member of the Berkeley Police Department using force that is clearly in violation of this policy shall immediately take reasonable action to attempt to mitigate such use of force. This may include verbal intervention or, when in a position to do so, physical intervention. Further, any officer who learns of a potentially unauthorized use of force, even if the officer did not witness it personally, shall promptly report this information to an on-duty sergeant or a command officer at the first opportunity.
Any officer who observes an employee or member of a different law enforcement agency use force that exceeds the degree of force permitted by law shall promptly report these observations to an on-duty sergeant or a command officer at the first opportunity. 300.2.1 FAILURE TO INTERCEDE
An officer who has received the required training on the duty to intercede and then fails to act to intercede when required by law, may be disciplined in the same manner as the officer who used force beyond that which is necessary (Government Code § 7286(b)). 300.3 USE OF FORCE TO EFFECT AN ARREST
Any peace officer may use objectively reasonable, objectively necessary, and proportional force to effect an arrest, to prevent escape, or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his/her efforts by reason of resistance or threatened resistance on the part of the person being arrested; nor shall an officer be deemed the aggressor or lose his/her right to self-defense by the use of reasonable force to effect the arrest, prevent escape, or to overcome resistance. For the purpose of this policy, "retreat" does not mean tactical repositioning or other de-escalation tactics. 300.3.1 FACTORS USED TO DETERMINE THE REASONABLENESS, NECESSITY, AND
PROPORTIONALITY OF FORCE
When determining whether to apply force and evaluating whether an officer has used reasonable, objectively necessary, and proportional force, a number of factors should be taken into consideration, as time and circumstances permit. These factors include but are not limited to:
(a) The apparent immediacy and severity of the threat to officers or others. (b) The conduct of the individual being confronted, as reasonably perceived by the officer at the time.
(c) Officer/subject factors (age, size, relative strength, skill level, injuries sustained, level of exhaustion or fatigue, the number of officers available vs. subjects). (d) The conduct of the involved officer.
(e) The effects of drugs or alcohol.
(f) The individual's apparent mental state or capacity. (g) The individual’s apparent ability to understand and comply with officer commands. (h) Proximity of weapons or dangerous improvised devices.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 6
(i) The degree to which the subject has been effectively restrained and his/her ability to resist despite being restrained.
(j) The availability of other reasonable and feasible options and their possible effectiveness.
(k) Seriousness of the suspected offense or reason for contact with the individual. (l) Training and experience of the officer.
(m) Potential for injury to officers, suspects, bystanders, and others. (n) Whether the person appears to be resisting, attempting to evade arrest by flight, or is attacking the officer.
(o) The risk and reasonably foreseeable consequences of escape. (p) The apparent need for immediate control of the subject or a prompt resolution of the situation.
(q) Whether the conduct of the individual being confronted no longer reasonably appears to pose an imminent threat to the officer or others.
(r) Prior contacts with the subject or awareness of any propensity for violence. (s) Any other exigent circumstances.
The level of resistance that an officer encounters is a key factor in determining the proportionate amount of force
. It is not possible to determine ahead of time what the proportionate level of force is for every possible situation that officers may face. Nevertheless, one of the key factors in determining what level of force is objectively reasonable, objectively necessary, and proportionate in a given situation is the level of resistance that an officer encounters. In general, the less resistance an officer faces, the less force the officer should use. The types of resistance officers may encounter fall along a continuum, from a cooperative person to an active assailant.
Consistent with training, the following general rules apply when officers are exercising judgment in determining what level of force is necessary and proportionate:
• Compliant – In general, when dealing with a compliant person, officers may rely on police presence and/or verbal control techniques, but should not use greater force. • Passive resistance – In general, when dealing with a suspect involved in passive resistance, officers may rely on police presence, verbal control techniques, or control holds, but should not use greater force.
• Active resistance – In general, in dealing with a suspect involved in active resistance, in addition to the options available for passive resistance, officers may rely on pain compliance techniques or takedowns, but should not use greater force. • Combative resistance – In general, in dealing with a suspect involved in combative resistance, officers have all use-of-force options available to them, but deadly force shall only be used in compliance with this policy as described in Section 300.4.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 7
300.3.2 USE OF FORCE CONTINUUM
The Department uses a "use of force continuum" that refers to the concept that there are reasonable responses for every threat an officer faces in a hostile situation. The force utilized need not be sequential (e.g., gradual or preceded by attempts at lower levels of force) if those lower levels are not appropriate. All Uses of Force must be objectively reasonable, objectively necessary, and proportional, based on a totality of the circumstances. All progressions must rest on the premise that officers shall escalate and de-escalate their level of force in response to the subject's actions.
Continuum of Force
• Officer Presence — No force is used. Considered the best way to resolve a situation.
o The mere presence of a law enforcement officer works to deter crime or diffuse a situation.
o Officers' attitudes are professional and nonthreatening. • Verbalization — Force is not physical.
o Officers issue calm, nonthreatening commands, such as "Let me see your identification and registration."
o Officers may increase their volume and shorten commands in an attempt to gain compliance. Short commands might include "Stop," or "Don't move." • Weaponless defense — Officers use bodily force to gain control of a situation. o Pain Compliance and control holds. Officers use grabs, holds and joint locks to restrain an individual.
o Personal body weapons. Officers may use punches and kicks to restrain an individual.
• Less-Lethal Force Methods — Officers use less-lethal technologies to gain control of a situation.
o Blunt impact. Officers may use a baton or projectile to immobilize a combative person.
o Chemical. Officers may use chemical sprays or projectiles embedded with chemicals to restrain an individual (e.g., pepper spray). • Lethal Force — Officers may use lethal weapons only in compliance with Section 300.4.
300.3.3 USE OF FORCE TO SEIZE EVIDENCE
In general, officers may use reasonable force to lawfully seize evidence and to prevent the destruction of evidence. However, officers are discouraged from using force solely to prevent a person from swallowing evidence or contraband. In the instance when force is used, officers should not intentionally use any technique that restricts blood flow to the head, restricts respiration or which creates a reasonable likelihood that blood flow to the head or respiration would be
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 8
restricted. Officers are encouraged to use techniques and methods taught by the Berkeley Police Department for this specific purpose.
300.3.4 DE-ESCALATION TACTICS
De-escalation tactics and techniques are actions used by officers which seek to minimize the need to use force during an incident. Such tactics and techniques may increase the likelihood of voluntary compliance when employed and shall be used when it is safe to do so, De-escalation tactics emphasize slowing an incident down to allow time, distance and flexibility for the situation to resolve. Officers shall continually assess the dynamics of a situation, and modulate their response and actions appropriately. Officers may be justified in using force at one moment, but not justified in using force the next moment due to a change in dynamics.
The application of these tactics is intended to increase the potential for resolution with a minimal reliance on the use of force, or without using force at all.
If immediate action is not necessary, an officer(s) shall attempt to use verbal de-escalation techniques. When available and when practicable, a Crisis Intervention Team (CIT) officer, crisis negotiator, or Berkeley Mental Health Mobile Crisis Team member shall be called upon as a resource.
Officers shall gather information about the incident, assess the risks, assemble resources, attempt to slow momentum and communicate and coordinate a response. In their interaction with subjects, officers should use advisements, warnings, verbal persuasion and other tactics and alternatives to any levels of force. Officers should move to a position that is tactically more secure or allows them greater distance to consider or deploy a greater variety of force options. (a) De-escalation techniques may include verbal persuasion, warnings and tactical de- escalation techniques, such as: slowing down the pace of an incident; "waiting out" subjects; creating distance (and thus the reactionary gap) between the officer and the threat; and requesting additional resources (e.g., specialized units, mental health care providers, negotiators, etc.) to resolve the incident.
(b) Officers should recognize that they may withdraw to a position that is tactically advantageous or allows them greater distance to de-escalate a situation. (c) Officers should consider a variety of options, including lesser force or no force options. (d) Officers should attempt to understand and consider possible reasons why a subject may be noncompliant or resisting arrest.
(e) A subject may not be capable of understanding the situation because of a medical condition; mental, physical, or hearing impairment; language barrier; drug interaction; or emotional crisis, and have no criminal intent. These situations may not make the subject any less dangerous, but understanding a subject's situation may enable officers to calm the subject and allow officers to use de-escalation techniques while maintaining public and officer safety.
(f) Officers should continue de-escalation techniques, when feasible and appropriate, and take as much time as reasonably necessary to resolve the incident, in effort to avoid and/or minimize the use of force.
Berkeley Police Department
Law Enforcement Services Manual
Use of Force
Copyright Lexipol, LLC 2026/01/27, All Rights Reserved.
Published with permission by Berkeley Police Department Use of Force - 9
(g) When an officer recognizes that mental illness, post-traumatic stress disorder, alcohol and/or drug addictions, or other health issues are causing an individual to behave erratically, the officer shall, when feasible and appropriate, try to de-escalate the situation using de-escalation and/or crisis Intervention techniques. (h) Establishing communication with non-compliant subjects is often most effective when officers establish rapport, use the proper voice intonation, ask questions and provide advice to defuse conflict and achieve voluntary compliance before resorting to force options.
(i) The officer's physical actions may also de-escalate a potentially volatile/violent situation; e.g., exhibiting relaxed body language.
When time and circumstances allow, officers shall consider the following tactical principles:
1. Make a tactical approach to the scene.
2. Maintain a safe distance.
3. Use available cover or concealment and identify escape routes.
4. Stage Berkeley Fire Department.
5. Control vehicle and pedestrian traffic.
6. Establish communication, preferably with one officer.
7. Create an emergency plan and a deliberate plan with contingencies.
8. The officer's physical actions may also de-escalate a potentially volatile/violent situation; e.g., exhibiting relaxed body language.
300.3.5 PAIN COMPLIANCE TECHNIQUES
Pain compliance techniques may be effective in controlling a physically or actively resisting individual. Officers may only apply those pain compliance techniques for which they have successfully completed department-approved training. Officers utilizing any pain compliance technique should consider:
(a) The degree to which the application of the technique may be controlled given the level of resistance.
(b) Whether the person can comply with the direction or orders of the officer. (c) Whether the person has been given sufficient opportunity to comply.
The purpose of pain compliance is to direct a person's actions. The application of any pain compliance technique shall be discontinued once the officer determines that compliance has been achieved.
300.3.6 USE OF NON-LETHAL FORCE
When lethal force and less-than-lethal force are not authorized, officers and authorized employees may use objectively reasonable, objectively necessary, and proportional approved non-lethal force techniques and weapons in the following circumstances:
(a) To protect themselves or another person from physical injury;