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2020-03-17 Special Urgency Meeting MinutesSpecial Meeting Alameda City Council March 17, 2020 1 MINUTES OF THE SPECIAL URGENCY MEETING OF THE CITY COUNCIL TUESDAY- -MARCH 17, 2020- -6:58 P.M. Mayor Ezzy Ashcraft convened the meeting at 7:07 p.m. Vice Mayor Knox White led the Pledge of Allegiance. ROLL CALL - Present: Councilmember Daysog, Knox W hite, Oddie, Vella and Mayor Ezzy Ashcraft – 5. [Note: Councilmembers Oddie and Vella were present via teleconference.] Absent: None. AGENDA ITEMS (20-160) Mayor’s Address on the City’s Response to COVID-19 The Mayor made a brief presentation. (20-161) Urgency Ordinance No. 3267, “Declaring the Existence of a Local Emergency in Response to the COVID-19 Pandemic, and Directing City Staff to Respond Appropriately to Such Local Emergency.” Adopted. The City Manager gave a brief presentation. Councilmember Oddie stated that he would like the City of Alameda to know staff is working hard to keep everyone safe; expressed support for the item. Councilmember Vella stated this event is unprecedented; expressed support for the item; stated that she appreciates Mayor Ezzy Ashcraft’s comments. Vice Mayor Knox White inquired whether there is public comment for the item, to which the City Clerk responded in the negative. Vice Mayor Knox White stated the community understands the effort; expressed support for the item. Vice Mayor Knox White moved adoption of the urgency ordinance. Councilmember Daysog seconded the motion, which carried by the following roll call vote: Councilmember Daysog: Aye; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 5. (20-162) Urgency Ordinance No. 3268, “Imposing within the City of Alameda a Temporary (60-Day) Moratorium on Evictions from all Residential Rental Units due to Special Meeting Alameda City Council March 17, 2020 2 the COVID-19 Pandemic and Landlords’ Shutting off Utilities in Rental Units Exce pt for Emergency Situations.” Adopted. The City Attorney gave a brief presentation. Councilmember Vella inquired whether there is public comment for the item, to which the City Clerk responded in the negative. Councilmember Vella stated the City has residential and commercial tenants; inquired whether the City could take action to not just put the moratorium on evictions, but to also postpone the payment of rent and make any rent due April 1st be delayed to payment over time. Mayor Ezzy Ashcraft requested clarification about whether Councilmember Vella’s inquiry includes instances when the City is the landlord, to which Councilmember Vella responded in the affirmative. The City Manager responded that he believes a provision exist s within the language of the previous urgency ordinance [paragraph no. 20- ]. The City Attorney stated Council approved giving the City Manager the flexibility in the prior item. Councilmember Vella inquired whether the language needs to be built -in to the ordinance or if the City Manager authorization on a case by case basis is enough. The City Attorney responded the prior ordinance gives the City Manager discretion; stated due to the City acting as landlord, not a regulator, an ordinance does not need to be adopted; the City Manager may take further direction from Council; however, an ordinance is not needed to regulate City Manager actions. In response to Councilmember Oddie’s inquiry, Mayor Ezzy Ashcraft stated the Council may direct staff to look into commercial payments. Councilmember Oddie expressed support for including commercial tenants in the language; questioned whether property owners who are not receiving rental income could receive aid; stated that he believes the Governor has provided information relat ed to foreclosures; the City needs to look into the foreclosure information; inquired whether a process is being put in place for Section 8 voucher holders to put a pause on vouchers being taken away. Councilmember Vella outlined Governor Newsom’s Executive Order N-28-20 related to commercial provisions; stated that she would like staff to look into the City’s ability to place a moratorium on commercial evictions. Vice Mayor Knox White expressed support for addressing the commercial property Special Meeting Alameda City Council March 17, 2020 3 issue; stated that he would like to give staff direction to consider whether related emergency ordinances can be looked into in a timely manner so as not to cause delay with implementation; it is possible there will be daily orders from Governor Newsom; expressed support for clarification on Section 8. Councilmember Daysog stated that he would like to see a mechanism by which percentage loss of income stemming from the COVID -19 virus results in a pro-rata reduction in rent; should someone lose 20% of their income during the moratorium period, a mechanism should be put in place that allows for collection of 80% of the previous rent during the life of the moratorium; he believes that the ordinance language does not contain a mechanism to deal with rent and income reducti ons; expressed support for a loss of income not resulting in eviction; stated a loss of income still requires the obligation of communication between the landlord and tenant; he has drafted language to include the mechanism; should rent reductions occur as a result of the ordinance, there should also be a process by which parts of unpaid rent is paid back over a period of time; outlined an article from the San Francisco Examiner; stated the ordinance is silent about repayment of rent, a process that gets tenants speaking to their landlords, and landlords accommodating tenants to come upon mutually agreed upon rent reduction; noted should someone be able to demonstrate a loss of income by 15%, the language included should depict a rent reduction of 15%; expre ssed support for a mechanism to be in place indicating: a) a rent adjustment discussion with landlord, b) an agreement between landlord and tenant, and c) should no agreement be met, the operative parts of the ordinance takes effect; stated the crisis impacts both tenants and small landlords; the ordinance can be strengthened; both San Francisco and San Jose have 30-day moratoriums with the possibility of extending; Alameda is jumping to 60 - days; Section 1 Subsection 3 needs to clarify the timeframe to state during the course of COVID-19 crisis; the ordinance needs to have a clear sunset; the term tenants must be defined; expressed support for adopting a mechanism that gets tenants and landlords to talk to each other and arrive at a mutually agreed upon rent reduction resulting from a loss of income and for a payback element to be included in the language. Mayor Ezzy Ashcraft stated that a 60-day moratorium has its own sunset; the Council will either reconsider or sunset at the end of 60 days; the she is uns ure of where things will be at the end of 60 days; noted San Jose and San Francisco will possibly extend their provisions; stated that she believes utilities have all agreed not to shut off during the COVID-19 outbreak; this is a healthcare crisis and peop le should not be without utilities; Councilmember Daysog has raised good points worth reviewing; any items approved should not be difficult to administer; expressed concern for pro -rata formulas; many landlords are not present to conduct dialogue, which may cause complications. The City Attorney stated the ordinance will sunset 60 days from today; the ordinance does allow for the City Manager to extend under two conditions: 1) the State must be in a COVID-19 declared emergency by the Governor, or 2) the City Council is unable to meet to authorize an extension; should both circumstances be true, the City Manager can offer extensions; the 60-day limit is less than the Governor’s current timeframe, which extends to May 31st and allows the City to pause and review at the 60-day mark; Special Meeting Alameda City Council March 17, 2020 4 the utility shut-off provision is directly tied to the declared emergency; every provision in the ordinance is tied to the COVID-19 declared emergency; should the COVID-19 emergency cease, the prohibition against landlords shutting off utilities, unrelated to an emergency, will go away; outlined the emergency utility shut off scenario and non- emergency shut off scenario; stated staff can take direction on landlords and tenants conversing; the direction will require additional administrative efforts, which could prove difficult to undertake; staff is attempting to limit the impairment of existing contracts and using the City’s regulatory powers to alter contracts which are in place Councilmember Daysog stated his drafted language is not an effort for the City to insert itself into the discussion between landlord and tenant; the language is to say that landlords and tenants must have the discussion; should litigation be initiated by either landlord or tenant, the question will be asked if communication efforts were made; should communication efforts not be made, the protections listed will not be awarded to either party; there is no role of the City; the communication is part of the procedures that landlords and tenants must take as a result of the ordinance. The City Attorney stated should Council desire to place a procedural limit upfront about conversations, staff will take direction; previous statements related to administration relate to any pro-rata rent payments; pro-rata rent payments delves into the rent program reviewing full or partial rent payments. Mayor Ezzy Ashcraft requested clarification on the provision requiring reimbursement over time. The City Attorney stated the provision is related to pro -rata of rent up-front; there will be some administrative work; the City Manager may have input related to ensuring rent is correct; changes made to existing contracts relates to pro -rata, which changes and creates new lease terms; staff is proposing a time stop on evictions with out changing the existing lease provisions; rates and payments do not change; payments can be made when the emergency is over; the current ordinance is simplistic and creates a time stop allowing for a delay in payment. Mayor Ezzy Ashcraft stated how the City can act as landlord should be reviewed; provisions for small business administration might allow some landlords to qualify. Vice Mayor Knox White expressed gratitude for Councilmember Daysog’s comments; stated the explanation given by the City Attorney confirmed his understanding of the ordinance; evictions are not being stopped; the pro -rata would go further than San Francisco or the current ordinance proposes; questioned whether Councilmember Daysog intends for landlords to receive less money over-time. Councilmember Daysog responded in the affirmative. Vice Mayor Knox White stated the repayment is set to be 100%. Special Meeting Alameda City Council March 17, 2020 5 Councilmember Daysog stated should be COVID-19 virus emergency be one-month long and a $1000 per month rent payment is typical, under a 20% loss in income, the rent due would now be $800, the 20%, $200, would still be due at a later date spread over time. Vice Mayor Knox White stated the landlord is still receiving 100% of what is owed over time; the total owed is now being stretched over time with administrative processes. Councilmember Daysog stated that he does not see a sufficient mechanisms addressing how the process works. Vice Mayor Knox White stated San Francisco does provide a time by which payment needs to be provided; expressed support for the provision to be inserted into the language; questioned whether Council can consider the addition. The City Attorney responded the addition would not necessitate a new hearing to be considered. Mayor Ezzy Ashcraft expressed support for the proposal; stated that she is hearing many people are uncertain about what the future holds; some providers will not be able to receive unemployment benefits for two-weeks; many people are living paycheck to paycheck; questioned whether the six months would start at the end of the COVID-19 emergency. Vice Mayor Knox White stated there is only one month of missing payment due under the 30-day provision; if a payment is missed, there will be 60-days to cure. Councilmember Daysog expressed support for a payback period similar to San Francisco. Mayor Ezzy Ashcraft expressed support. The City Clerk announced a public comment has been received. Mayor Ezzy Ashcraft inquired whether the public was made aware of how to submit comments, to which the City Clerk responded in the affirmative; stated instructions were provided on the revised agenda; members of the public can either e -mail clerk@alamedaca.gov or may text or leave a voicemail at: (510) 747-4802. Expressed support for both ordinances as listed in the staff reports; the moratorium on evictions urgency ordinance attached to the agenda item reflects the fifth option for Council actions: direct staff to prepare an urgency ordinance that establishes a moratorium on evictions regardless of the reason for non-payment of rent, for example, the tenant would not have to establish the inability to pay rent was directly related to COVID-19; while there may be an argument for such a broad moratorium, it could be difficult to find housing in this rental market if evicted , thus increasing the likeliness of Special Meeting Alameda City Council March 17, 2020 6 homelessness etc.; urged Council to make a decision regarding the moratorium on evictions relating to non-payment of rent where the tenant can demonstrate that the tenant has suffered a substantial loss of income defined as a reduction of 20% or more monthly gross pay due to COVID-19 pandemic and regardless of the reason for non- payment of rent: Alan Teague, Alameda. Councilmember Vella expressed support for the period of payment being six months, for Vice Mayor Knox White’s proposal authorizing staff to look into a number of different options relative to the options constituents might be facing and for local governments to take action. Vice Mayor Knox White expressed support. Councilmember Oddie stated some options are worth exploring; it is important for Council to understand the extent of the ordinance; provisions can extend to more than just those that are afflicted with the virus; outlined a headline relate d to unemployment; expressed support for leaving the ordinance as-is without adding any undue requirements; stated that he does understand that Council may have to refine the ordinance and implement repercussions as indicated. Vice Mayor Knox White stated the City Attorney should confirm the language being approved and voted on; expressed support for adding some sort of repayment within six months of the end of the state of emergency. The City Attorney stated staff is ready to accept Council direction; th e current ordinance as drafted requires a tenant to pay within 1 day of the emergency ending; Council direction is to stretch that out to six-months giving more time to pay. Mayor Ezzy Ashcraft stated some tenants may break down payments over a period of six-months. Councilmember Daysog expressed support for the rent payback agreement; stated that a tenant must make an effort to pay some amount of the rent that they can pay during the moratorium, with payback of the amount that could not be paid. Mayor Ezzy Ashcraft inquired whether there is anything which would stop a tenant offering a partial rent payment to a landlord during the COVID-19 declared emergency; stated that would require a level of communication between landlord and tenant; that she in unsure something needs to be legislated to the effect. Councilmember Daysog inquired whether the proposed payment would only apply to those that hit the 20% income reduction point. The City Attorney responded there are circumstances: 1) a 20% reduction, 2 ) extraordinary health care or medical costs, 3) if someone or a member of the family is affected by COVID-19. Special Meeting Alameda City Council March 17, 2020 7 The Community Development Director stated the ordinance is intended to be straight - forward for people who are served with an unlawful detainer; should someone receive a 3-day notice to pay rent or quit and end up going to court on unlawful detainer, th e ordinance allows an affirmative defense for why there should be no eviction during th e moratorium; the ability for landlords and tenants to discu ss and work out a reduced rent can happen without the City; the ordinance is a defense against unlawful detainer for 60-days; at the end of the 60-day period, a notice can be received stating pay rent or quit; grants are available at the end of the moratorium period; some with low income will have to qualify under the Centro Legal contract. Mayor Ezzy Ashcraft stated tenants must be prepared to pay full rent at the end of 60 - days; questioned whether some will be able to obtain a grant for payment through Centro Legal. The Community Development Director responded in the affirmative. Vice Mayor Knox White moved adoption of the urgency ordinance with direction to clarify the six month payback. The City Attorney requested clarification of the motion; stated should there be an extension of the 60-days, the Council will extend the moratorium; noted some landlords may not bring an unlawful detainer action during the declared emergency, plus whatever extension is given. Vice Mayor Knox White stated the requirement should be as long as the tenant has paid the post-moratorium rent on-time. The City Attorney concurred. Vice Mayor Knox White stated rent must begin to be paid on -time after the moratorium concludes; the tenant then has six-months to pay back the up to two months or 60 days’ worth of rent. The City Attorney stated staff will need time to draft the ordinance to ensure correctness; for the declared period of an emergency, non -payment is a non-evictable offense; the non-eviction period will be extended by however much the Council decides. Mayor Ezzy Ashcraft inquired whether Council is balancing the needs of property owners. Councilmember Oddie stated staff can return to Council with a proposal on how to deal with payback and the six-month timeline; there is not an anticipation of a nine-month moratorium on evictions; expressed support for a mechanism that landlords can be made whole; stated there are many ways to proceed. Special Meeting Alameda City Council March 17, 2020 8 Mayor Ezzy Ashcraft stated the ordinance is being enacted as an emergency ordinance; the effective date is March 1 if approved; the item should be decided now; questioned what should be proposed. Councilmember Oddie stated May 1st would allow for an unlawful detainer to be placed should the defense no longer hold; expressed support for six-months and concern about people lingering. The Community Development Director stated that she understands there is concern for how landlords will be paid after being out rent during the moratorium period of non - eviction; stated that she hears a desire to ensure rent is recouped after the moratorium; typically, a tenant can be served a notice to pay rent or quit which would accrue for the months of non-payment and is due immediately; questioned whether there is desire for everyone to be made whole, with more time for the tenant to catch up paying rent; once the moratorium expires, total rent will be due within 3 days. Councilmember Vella expressed concern about the duration of time; expressed support for giving more time to ensure a lump sum is not due all at once; questioned whether direction can be given to staff to figure out. The City Attorney stated due to the moratorium giving 60 -days, Council can direct staff to return in April with more information. Councilmember Vella expressed support; inquired whether the commercial provision can be back-dated and brought back; expressed concern about small businesses’ ability to pay expenses. The City Attorney responded in the affirmative. Councilmember Oddie expressed support for the Community Development Director’s comments. Councilmember Daysog expressed support for the Community Development Director’s comments; stated this is all about a tenant being in front of a judge stating reasons for non-eviction; there are three tests to avoid eviction: 1) experiencing a 20% loss of income or more, 2) experiencing extraordinary medical expenses, or 3) experiencing extraordinary childcare needs during the time of crisis; there are additional tests missing from the process; the judge also needs to question whether the tenant made efforts to come to a mutually agreeable rent, which takes into account the loss of income or whether a payback agreement been reached; stated that he cannot support the item without the additional test. Vice Mayor Knox White restated his motion: approval of the ordinance as-written, with direction for staff to return at the next Council meeting with language that adds a rent repayment over the suggested six months, as well as commercial considerations and any other further considerations related to Governor Newsom’s state of emergency Special Meeting Alameda City Council March 17, 2020 9 orders made in the future. Councilmember Vella seconded the motion, which carried by the following roll call vote: Councilmembers Daysog: No; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 4. Noes: 1. ADJOURNMENT There being no further business, Mayor Ezzy Ashcraft adjourned the meeting at 8:29 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance.