46_03102022%20cc%20packet%20updated%20with%20presentation — Newark City Council, March 10, 2022

AGENDA
Thursday, March 10, 2022
7:00 P.M.

HYBRID IN-PERSON/VIRTUAL MEETING

REFER TO THE END OF THE AGENDA TO

REVIEW OPTIONS FOR PARTICIPATING
IN THE MEETING REMOTELY OR IN-PERSON.

IF YOU ATTEND THE MEETING IN PERSON, A FACE COVERING
IS RECOMMENDED BUT NOT REQUIRED. LIMITED PUBLIC

SEATING WILL BE AVAILABLE IN THE CITY COUNCIL CHAMBERS
CONSISTENT WITH CDC GUIDELINES.

A. ROLL CALL
B. PRESENTATIONS
C. PUBLIC COMMENT
The public is invited to address the City Council on any item not listed on the agenda. Public Comments are generally limited to 5 minutes per speaker. Please note that State law prohibits the Council from acting on non-agenda items.

D. CONSENT CALENDAR
Consent Calendar items are considered to be routine and may be approved by one motion.

There will be no separate discussion on these items unless there is a request by a Council Member, a staff member, or a member of the public to remove an item for separate discussion and action.

1. Approval of Audited Demands

2. Approval of February 24, 2022, minutes

3. Adopt a resolution authorizing the City Manager to execute an amendment to the Consulting Services Agreement with Robert Half International Inc. to increase the not-to-exceed compensation for temporary staffing support to the Information Systems Division

4. Adopt a Resolution Amending the 2020-2022 Biennial Budget and Capital Improvement Plan for Fiscal Year 2021-2022 for Capital Improvement Plan Budget Rollovers

5. Adopt a Resolution Approving Amendments to the Contractual Services Agreements with 4Leaf, Inc. and Bureau Veritas North America, Inc. for Additional Building Inspection Division Plan Review, Field Inspection and Miscellaneous Support Services E. PUBLIC HEARINGS
F. OTHER BUSINESS

1. Introduction of an ordinance adding Chapter 7.24, Fireworks Social Host Ordinance, to the Newark Municipal Code to increase penalties an enforcement authority related to illegal use of fireworks
G. CITY COUNCIL MATTERS
City Council Members report on attendance at intergovernmental agency meetings, conferences, and seminars since the last meeting. City Council Members may also announce upcoming events and coordinate attendance; report on local events attended since the last meeting; and make brief comments on issues of concern.

H. CLOSED SESSION
I. ADJOURNMENT

HYBRID IN-PERSON/VIRTUAL MEETING NOTICE
This meeting is being conducted utilizing teleconferencing and electronic means consistent with Assembly Bill 361.

Members of the public may attend the meeting in person, virtually via Zoom, or watch it via YouTube. If you attend the meeting in person, a face covering is recommended but not required. The City Council Chambers will have limited public seating consistent with CDC Guidelines.

Mayor Nagy, Vice Mayor Hannon, and Council Members Bucci, Collazo, and Freitas may be attending this meeting via teleconference. Teleconference locations are not open to the public. In the event that any members of the City Council elect to attend this meeting via teleconference, all votes conducted during the teleconferencing session will be conducted by roll call vote.

How to view the meeting remotely:

Livestream online at YouTube: https://www.youtube.com/channel/UC383NGSxaPwZP1lkJbo2T8A Copy/paste the YouTube URL into your browser if the link does not automatically open.

How to participate in the meeting remotely, via Zoom Webinar:

From a PC, Mac, iPad, iPhone or Android device: Zoom Meeting https://us06web.zoom.us/j/82035848965 From a telephone dial 1- 669-900-9128, Webinar ID Number 820 3584 8965 Provide live, remote public comments, when the Mayor calls for comments. Use the raise your hand feature in Zoom to be called upon by the City Clerk.

For frequently asked Zoom questions, please go to Agendas and Minutes and select the Frequently Asked Questions link.

Packet Page 2
No question shall be asked of a council member, city staff, or an audience member except through the Mayor. No person shall use vulgar, profane, loud or boisterous language that interrupts a meeting. Any person who refuses to carry out instructions given by the Mayor for the purpose of maintaining order may be guilty of an infraction and may result in removal from the meeting.

Council Meeting Access/Materials:

The agenda packet is available for review at Agendas and Minutes. The packet is typically posted to the City website the Friday before the meeting, but no later than 72 hours before the meeting.

Pursuant to Government Code 54957.5, supplemental materials distributed less than 72 hours before this meeting, to a majority of the City Council, will be made available for public inspection at this meeting and will be posted, if time allows, at Agendas and Minutes. Materials prepared by City staff and distributed during the meeting are available for public inspection at the meeting or after the meeting if prepared by some other person. Documents related to closed session items or are exempt from disclosure will not be made available for public inspection. For those persons who require special accommodations, please contact the City Clerk at least two days prior to the meeting at City Clerk or 510-578-4266.

Packet Page 3
Item D. 1.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Krysten Lee, Finance Director
SUBJECT Approval of Audited Demands
Attachments
Audited Demands
Packet Page 4
Packet Page 5
Packet Page 6
Packet Page 7
Packet Page 8
Packet Page 9
Packet Page 10
Packet Page 11
Item D. 2.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Approval of February 24, 2022, minutes
Attachments
Minutes
Packet Page 12
City of Newark | Newark City Council
Mayor Alan L. Nagy | Vice Mayor Michael K. Hannon | Council Members: Luis L. Freitas, Maria “Sucy” Collazo, & Mike Bucci Minutes
Thursday, February 24, 2022
7:00 P.M.

A. ROLL CALL
Mayor Nagy called the meeting to order at 7:05 p.m. Present were Council Members Collazo, Freitas, and Vice Mayor Hannon. Council Member Bucci was noted absent.

B. PRESENTATIONS

1. Introduction of Employees
Mayor Nagy introduced Alameda County Fire Division Chief Jeffrey Luepke.

C. PUBLIC COMMENT
No one requested to speak.

D. CONSENT CALENDAR
Vice Mayor Hannon moved, Council Member Collazo seconded, to approve Consent Calendar items D.1 through D.5, that the resolutions be numbered consecutively, and that reading of the titles suffice for adoption. The motion passed, 4 AYES, 1 ABSENT (Bucci).

1. Approval of Audited Demands

2. Approval of February 10, 2022, minutes
Packet Page 13
Page No. 2
City of Newark City Council Minutes February 24, 2022

3. Adopt a Resolution Finding That There is a Proclaimed State of Emergency; Finding That Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the State of Emergency; and Authorizing Continued Remote Teleconferenced Meetings of the Legislative Bodies of the City of Newark for the 30 Day Period Beginning February 24 Pursuant to AB 361
Resolution No. 11319

4. Adopt a resolution approving a personnel allocation change to the 2020-2022 Biennial Budget and Capital Improvement Plan, removing one 0.75 full-time equivalent (FTE) Administrative Assistant and adding 1.0 FTE Administrative Analyst to the City Manager's Office
Resolution No. 11320

5. Adopt a resolution authorizing the submittal of an application for the SB 1383 Local Assistance Grant Program administered by the California Department of Resources Recycling and Recovery, authorize the City Manager or designee to execute funding agreements, and amend the 2020-2022 Biennial Budget and Capital Improvement Plan
Resolution No. 11321
E. PUBLIC HEARINGS
F. OTHER BUSINESS
G. CITY COUNCIL MATTERS
Mayor Nagy wished his wife Connie a happy birthday. The City Council shared birthday greetings to Connie Nagy.

Council Member Collazo congratulated her son and daughter in law on their 5th anniversary.

Shop Newark.

H. CLOSED SESSION

1. Conference with legal counsel - Existing Litigation
Pursuant to California Government Code Section 54956.9(d)(1) Name of Case: Loth, Chomnan v. City of Newark (Workers' Compensation Appeals Board Number ADJ13021646)
Packet Page 14
Page No. 3
City of Newark City Council Minutes February 24, 2022

2. Closed session pursuant to Government Code Section 54957, Public Employee Appointment, Title: City Attorney
At 7:15 p.m., the City Council recessed to closed session.

At 7:24 p.m. the City Council convened in closed session.

At 7:36 p.m. the City Council reconvened in open session with all Council Members present, except for Council Member Bucci.

I. ADJOURNMENT
Mayor Nagy adjourned the meeting at 7:36 p.m.

Packet Page 15
Item D. 3.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Lenka Hovorka, Assistant City Manager
SUBJECT Adopt a resolution authorizing the City Manager to execute an amendment to the Consulting Services Agreement with Robert Half International Inc. to increase the not-to-exceed compensation for temporary staffing support to the Information Systems Division

RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute an amendment to the Consulting Services Agreement with Robert Half International Inc. to increase the not-to-exceed compensation for temporary staffing support to the Information Systems Division.

EXECUTIVE SUMMARY
The Information Systems Division is authorized for 3.75 full-time equivalent staff. As of March 9, 2022, the division will have three (3) vacancies. While recruitments are underway, the division is in need of temporary staffing support to maintain the City's technology systems. Staff recommends an Amendment (Attachment B) to the existing consulting services agreement with Robert Half International (Attachment C) for temporary staffing support in an additional amount not to exceed $120,000 for the period of March - June 2022.

BACKGROUND
The City was in progress of requesting a full-time Information Systems (IS) Technician when COVID-19 struck. This position would have brought the Information Systems team to its previous size of 3.75 full-time equivalent staff. This request was held until presented and approved at the January 27, 2022, City Council meeting.

During the months of June - October 2021, Robert Half International Inc. provided technical assistance for the computer deployment project and to help fulfill help desk requests.

In October 15, 2020, the Information Systems Manager resigned. At that time, the City was facing a budget deficit and the City utilized a consultant for technical assistance until July 2021. The vacancy remains, though a recruitment is currently in progress.

The City will also have a vacant Information Systems Specialist position beginning March 8. Currently, three positions, Information Systems Manager, Information Systems Specialist, and Information Systems Technician, are vacant. The Division now consists of one three-quarter time (0.75) Information Systems Technician.

Packet Page 16
consists of one three-quarter time (0.75) Information Systems Technician.

DISCUSSION/ANALYSIS
The Information Systems Division is responsible for maintaining all City technology systems, including support of all employees' computers and phones; software implementation, updates, and patches; network administration; police communications; and ensuring online City services remain available. In the latest month, February 2022, the help desk received 53 requests for technical support. The last two quarters averaged 450 requests per quarter. In addition to resolving help desk requests and ongoing systems maintenance, staff began or made progress on projects such as citywide computer deployment, police dispatch workstation set-up, expanding wifi and upgrading our security posture. Other projects, such as policy updates, employee training, and a disaster recovery plan were delayed or put on hold due to staff vacancies.

Robert Half International Inc. can provide technical assistance to assist the City in filling the gaps left by the vacant Information Systems Specialist and Information Systems Technician positions until the City completes a successful recruitment. Based on the current recruitment schedule, staff anticipates these two full-time vacancies will be filled in May or June 2022, and requests that Robert Half International Inc. provide technical assistance until the vacancies can be filled. The estimated cost for this technical staffing support for four months is estimated to not exceed $120,000 and can be accomplished through amendment to the original contract (Attachment C). This includes all levels of technical support, including 24/7 response for public safety purposes.

The Information Systems Manager is expected to be filled in April 2022, and will be temporarily filled with current City and vendor resources.

FISCAL IMPACT
Personnel savings from the three (3) full-time vacancies in the Information Systems Division is available to pay for the proposed contract amendment.

REVIEW AND APPROVAL
Prepared by – Lenka Hovorka, Assistant City Manager
Reviewed by – Kristopher J. Kokotaylo, Interim City Attorney Approved by – David J. Benoun, City Manager
Attachments
Robert Half Amendment
Robert Half Resolution
Original contract
Packet Page 17

FIRST AMENDMENT TO THE

CONSULTING SERVICES AGREEMENT

BETWEEN THE CITY OF NEWARK AND
ROBERT HALF INTERNATIONAL INC.

FOR TEMPORARY STAFFING SUPPORT
This First Amendment amends the Consulting Services Agreement between the City of Newark, a municipal corporation, ("City") and Robert Half International Inc., doing business through its division Robert Half Technology, a Delaware company with offices located at 1850 Gateway Drive, Suite 200, San Mateo, CA 94404, ("Consultant"), (together referred to as the "Parties") as of June 14, 2021.

RECITALS
WHEREAS, the Parties executed a Consulting Services Agreement C21054 (the "Agreement") to perform the services generally including: temporary staffing support; and WHEREAS, Section 8.3 of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to extend and amend the Agreement effective March 1, 2022; and
WHEREAS, the Parties desire to add additional temporary staffing services; and WHEREAS, the Agreement provides a not to exceed compensation of Forty-seven Thousand Seven Hundred Dollars ($47,700.00); and
WHEREAS, the total cost of the additional services are not to exceed One Hundred Twenty Thousand Dollars ($120,000.00).

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 2. "Not to Exceed" Compensation, of the Agreement is amended to increase the combined total of compensation and costs payable under the Agreement by One Hundred Twenty Thousand Dollars ($120,000.00) from Forty-seven Thousand Seven Hundred Dollars ($47,700.00) to One Hundred Sixty-seven Thousand Seven Hundred Dollars ($167,700.00).

2. Exhibit B, Compensation Schedule, of the Agreement, is amended to remove:

Assigned Individual: Patrick Concepcion
Bill Rate: $62.00/hour
Start Date: June 14, 2021
Estimated End Date: October 31, 2021
Hourly rates for all assignments will be agreed on a case-by-case basis.

And add:

Assigned individuals, bill rates, start dates, and estimated end dates for all assignments will Packet Page 18
be agreed on a case-by-case basis.

3. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

CITY OF NEWARK Robert Half International Inc. EOE
________________________________ ______________________________

DAVID BENOUN MEGAN SLABINSKI

CITY MANAGER DISTRICT PRESIDENT
ATTEST:
___________________________

SHEILA HARRINGTON, CITY CLERK
APPROVED AS TO FORM:
____________________________
KRISTOPHER J. KOKOTAYLO

INTERIM CITY ATTORNEY
Packet Page 19
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE AN AMENDMENT TO THE CONSULTING

SERVICES AGREEMENT WITH ROBERT HALF
INTERNATIONAL, INC. TO PROVIDE TEMPORARY

STAFFING SUPPORT
WHEREAS, the Parties executed Consulting Services Agreement C21054 (the "Agreement") to perform the services generally including: temporary staffing support; and WHEREAS, Section 8.3 of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to extend and amend the Agreement effective March 1, 2022; and
WHEREAS, the City finds the services are required to maintain the City’s technology systems and desires to amend the Agreement to provide additional funding for additional temporary staffing support to be provided by the Consultant.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Manager is hereby authorized to execute an amendment, in a form approved by the City Attorney, to the Consulting Services Agreement with Robert Half International Inc. to provide temporary staffing support in an additional amount not to exceed $120,000.00 for a total not to exceed amount of $167,700.00.

Packet Page 20
Packet Page 21
Packet Page 22
Packet Page 23
Packet Page 24
Packet Page 25
Packet Page 26
Packet Page 27
Packet Page 28
Packet Page 29
Packet Page 30
Packet Page 31
Packet Page 32
Packet Page 33
Packet Page 34
Packet Page 35
Item D. 4.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Soren Fajeau, Public Works Director
SUBJECT Adopt a Resolution Amending the 2020-2022 Biennial Budget and Capital Improvement Plan for Fiscal Year 2021-2022 for Capital Improvement Plan Budget Rollovers

RECOMMENDATION
Staff recommends that the City Council, by Resolution, amend the 2020-2022 Biennial Budget and Capital Improvement Plan for the Fiscal Year 2021-2022 Capital Improvement Plan Rollover.

EXECUTIVE SUMMARY
Staff annually reviews the City's unspent appropriations along with the City's upcoming spending plans. It is necessary to formally amend the 2020-2022 Biennial Budget and Capital Improvement Plan to re-appropriate the Fiscal Year 2020-2021 appropriations for Fiscal Year 2021-2022. The Capital Improvement Plan rollover for this year includes $53,040,657 of previously approved capital project appropriations.

BACKGROUND
As part of the previous fiscal year-end process, staff reviews the City's unspent appropriations, along with the City's upcoming spending plans. With each new budget year, it is necessary to bring forward the unspent appropriations in the approved Capital Improvement Plan once all prior fiscal year transactions have been finalized. It is now necessary to amend the 2020-2022 Biennial Budget and Capital Improvement Plan to re-appropriate the Fiscal Year 2020-2021 appropriations for Fiscal Year 2021-2022.

DISCUSSION/ANALYSIS
The capital budget amendments include rollovers totaling $53,040,657 of previously approved capital project appropriations, including streets and roadway projects, street trees and landscape maintenance projects, building maintenance projects, final costs on the New Civic Center project, the upcoming Central Avenue Railroad Overpass, and other projects. This amount is projected based on the estimated costs to complete the approved capital projects being carried over from the previous year.

The attached Exhibit A outlines all capital projects that require rollover of appropriations from Fiscal Year 2020-2021 to Fiscal Year 2021-2022.

Packet Page 36
FISCAL IMPACT
The 2020-2022 Biennial Budget and Capital Improvement Plan for Fiscal Year 2021-2022 would be amended for the Capital Improvement Plan rollovers as set forth in Exhibit A for the re-appropriation of all Fiscal Year 2020-2021 capital projects and all new Fiscal Year 2021-2022 capital projects previously approved by the City Council.

REVIEW AND APPROVAL
Prepared by – Krysten Lee, Finance Director; Soren Fajeau, Public Works Director Reviewed by – Kristopher J. Kokotaylo, City Attorney
Approved by – David J. Benoun, City Manager
Attachments
Resolution
Exhibit A
Packet Page 37
(062217 jir1)
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AMENDING THE 2020-2022 BIENNIAL BUDGET

AND CAPITAL IMRPOVEMENT PLAN FOR FISCAL YEAR
2021-2022 CAPITAL IMPROVEMENT PLAN ROLLOVERS
WHEREAS, during the annual review of capital projects for the Fiscal Year 2021-2022, a need has been identified to amend the 2020-2022 Biennial Budget and Capital Improvement Plan; and
WHEREAS, the Fiscal Year 2020-2021 appropriations have lapsed at year-end and project that are ongoing or works in progress need to be re-appropriated for the Fiscal Year 2021-2022; and
WHEREAS, the capital budget amendments include rollovers totaling $53,040,657 of previously approved capital project appropriations, including streets and roadway projects, street trees and landscape maintenance projects, building maintenance projects, final costs associated with the New Civic Center project, the upcoming Central Avenue Railroad Overpass project, and other projects; and
WHEREAS, the rollover amount is projected based on estimated costs to complete the approved capital projects.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby amend that certain document entitled “2020-2022 Biennial Budget and Capital Improvement Plan of the City of Newark,” adopted by Resolution No. 11,098 on June 25, 2020, for Fiscal Year 2021-2022 for Capital Improvement Plan rollovers as set forth in Exhibit A attached.

Packet Page 38
City of Newark Exhibit A
Capital Projects Budget Rollover
Fiscal Year 2021-2022
Capital Total by
Fund Fund/Project Description Project Rollovers Fund
Park Construction (104-5400-5280)
624 City Wide Parks Signage 1272 80,000
Sportsfield Outfield Net Replacement 1273 30,000
110,000
Street Construction (XXX-5000-5280)
201 Lindsay Tract Storm Drainage Study 766 66,288
Cast Iron Storm Water Inlet Grate Replacement Program 890 15,000 Lindsay Tract Improvements 1238 1,359,000
Mowry Ave Median Landscaping 1239 260,000
2020 Thermoplastic Street Striping 1242 15,000
2021 Asphalt Concrete Overlay 1250 449,250
Arterial Bike Lanes 1254 150,000
Citywide Accessible Pedestrian Ramps (Ongoing) 1255 50,000 City Wide Crosswalk Evaluation 1256 150,000
2021 Curb, Gutter & Sidewalk 1257 1,510
Old Town PDA Streetscape Design 1258 500,000
Thermoplastic Street Striping 1261 15,000
Traffic Calming Measures (Ongoing) 1262 80,000
Traffic Signals - LED Lamp/Accessory Replacement (Ongoing) 1263 25,000 Traffic Calming Measures (Ongoing 2016-2017) 1160 19,644 Citywide Accessible Pedestrian Ramps (Ongoing 2017-2018) 1167 89,950 Citywide Street Signs (Ongoing 2017-2018) 1173 7,991
Cedar Boulevard Landscape Improvements 1199 161,702
Citywide Accessible Pedestrian Ramps (Ongoing) 1200 20,000 Citywide Traffic Signal Street Name Signs 1201 63,401
Traffic Calming Measures (Ongoing) 1224 23,000
Traffic Signals - LED Lamp/Accessory Replacement (Ongoing) 1225 7,639 2019 Street Tree Maintenance 1230 48,128
Traffic Calming Measures (Ongoing) 1243 43,500 3,621,003 202 Lindsay Tract Street and Storm Drain Improvements 1238 780,000 2021 Asphalt Concrete Overlay 1250 749,600 1,529,600
210 Citywide Geographic Information System 456 22,700 22,700 211 Citywide Accessible Pedestrian Ramps (Ongoing) 1234 40,000 40,000 212 Traffic Signals - LED Lamp/Accessory Replacement (Ongoing) 1225 15,400 15,400 214 Park Pathways Resurfacing for ADA Access 1232 232,485 232,485 280 Central Ave Overpass Project Development - Phase I 1014 860,595 860,595 281 2021 Asphalt Concrete Overlay 1250 601,150
Central Ave Overpass Project Development 1233 29,300,000 29,901,150 282 Citywide Accessible Pedestrian Ramps (Ongoing 2015-2016) 1101 47,200 Lindsay Tract Street and Storm Drain Improvements 1238 274,000 2021 Curb, Gutter & Sidewalk 1257 200,000 521,200
283 2021 Curb, Gutter & Sidewalk 1257 4,700 4,700
284 Lindsay Tract Street and Storm Drain Improvements 1238 90,000 Citywide Accessible Pedestrian Ramps (Ongoing) 1234 20,000 2021 Asphalt Concrete Overlay 1250 900,000 1,010,000
285 Lindsay Tract Street and Storm Drain Improvements 1238 46,887 2021 Curb, Gutter & Sidewalk 1257 91,000 137,887
287 2021 Asphalt Concrete Overlay 1250 300,000 300,000
Capital Improvements (XXX-5600-5280)
025 Old Town PDA Specific Plan and Development Strategy 1150 28,480 28,480 610 Disaster Recovery Infrastructure 747 100,000
Surplus Property Disposal - Old FS No. 1 845 16,800
Document Retention 884 75,006
Crystal Springs Storm Drain Pump Repairs 933 25,000
Lakeshore Park Lake Dredging Needs Scoping Analysis 935 25,000 Service Center Clean Water Requirements 1058 95,000
Finance System Replacement (Part 2) 1086 709,048
Irrigation Main Line Partial Replacement at Community Park 1088 198,100 Transition to Paperless Documents 1090 8,100
Silliman Activity Center Improvements 1114 254,600
Packet Page 39
City of Newark Exhibit A
Capital Projects Budget Rollover
Fiscal Year 2021-2022
Capital Total by
Fund Fund/Project Description Project Rollovers Fund
Trash Capture Devices 1122 67,600
Web Site Upgrade 1185 77,700
Citywide HVAC Replacements 1144 26,820
Email Message Archiving 1145 15,000
Lakeshore Park Landscape Restoration 1146 302,900
Large Computer Monitors for Plan Review 1147 3,900
Patrol Annex Work Station Upgrades 1151 11,698
Silliman Activity Center - Light Control Board 1153 50,000 Silliman Aquatic Center - Variable Frequency Drive Unit 1157 45,000 Citywide Building Painting 1164 77,631
Citywide Building Roof Repairs 1165 121,055
Citywide Building Upgrades 1166 11,091
Citywide Parking Lot Repair and Resealing 1168 37,213
Citywide Parks/City Facilities Fence Repairs 1169 9,069 Citywide Parks Furniture Installation/Replacement 1170 10,000 Citywide Parks Irrigation Systems Upgrade/Modification 1171 170,000 Park Pathways Repair and Resealing 1175 77,120
Park Renovation 1176 3,950
New Civic Center 1188 9,456,045
Silliman Aquatic Center Activity Pool Play Structure Replacement 1190 27,535 Silliman Aquatic Center Pool Slide Replacement 1191 7,599 2018 Park Tree Grid Pruning 1195 6,495
Birch Grove Park Tree Maintenance 1196 7,526
Bayside TOD Transit Station and Overcrossing (Design) 1197 700,000 Birch Grove Park Tennis Court Resurfacing 1198 38,413
Citywide Trash Capture Devices (Phase 3) 1202 229,705
Citywide Work Station Replacement 1203 35,341
Jerry Raber Ash Street Park Basketball Court Resurfacing 1209 40,000 Lakeshore Park Well Rehabilitation and Pump Replacement 1211 75,000 Newark Community Park Restroom Restoration 1215 60,000
Silliman Activity Center - Carpet Replacement 1219 15,842 Virtual History Museum 1226 60,000
Fire Station No. 27 Painting 1235 32,000
Fire Station No. 27 Roofing 1236 55,000
Fire Station No. 29 Painting 1237 23,000
Service Center Rear Garage Repairs 1240 75,000
Service Center Buildings, Painting 1241 80,000
Fire Station No. 27 - Fencing 1264 8,000
Fire Station No. 29 - Fencing 1265 20,000
PD Department Bar Car Patrol Vehicle 1266 84,000
PD Patrol Vehicle 1267 84,000
PD Replacement Scheduling and Workforce Management Software 1268 101,838 PW Maintenance Vehicle 1269 60,000
Senior Center Flooring Replacement 1270 75,000
Silliman Center Water Heater Replacement 1271 100,000
Newark Civic Center Technology 1292 206,687
Boathouse Building Repairs 1213 18,573
PD vehicles - Sergeant & Vehicle Abatement 1223 51,183
Polaris Vehicle (Artificial Turf Maintenance) 1249 7,277 14,465,458 625 Citywide Building Needs Assessment 1274 100,000
Citywide Rail Station Alternative Study 1275 80,000
Railroad Quiet Zone Study 1276 60,000 240,000
53,040,657
Packet Page 40
Item D. 5.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Matthew Farrell, Chief Building Official
SUBJECT Adopt a Resolution Approving Amendments to the Contractual Services Agreements with 4Leaf, Inc. and Bureau Veritas North America, Inc. for Additional Building Inspection Division Plan Review, Field Inspection and Miscellaneous Support Services

RECOMMENDATION
Staff recommends that the City Council, by resolution, approve the amendments to the Contractual Services Agreements with 4Leaf, Inc. and Bureau Veritas North America, Inc. for additional Building Inspection Division plan review, field inspection and miscellaneous support services.

EXECUTIVE SUMMARY
The City previously entered into multi-year Contractual Services Agreements with 4Leaf, Inc. (4Leaf) and with Bureau Veritas North America, Inc. (Bureau Veritas) for Building Inspection Division plan review, field inspection and miscellaneous support services. These agreements were established with annual not-to-exceed amounts of $160,000 and $100,000 per fiscal year, respectively, for 4Leaf and Bureau Veritas.

Due to the existence of several vacant positions in the Building Inspection Division over the course of the current fiscal year, additional plan review, field inspection and other support services are needed under these contracts for the remainder of Fiscal Year 2021-2022. Staff recommends amendments to the existing agreements to increase the not-to-exceed amount for 4Leaf by $155,000 to a total of $315,000 and by $25,000 for Bureau Veritas to a total of $125,000 for these additional services. No amendment of the 2020-2022 Biennial Budget and Capital Improvement Plan is needed for these contract amendments as the savings experienced as a result of the vacant positions exceeds the anticipated costs for the additional support services.

BACKGROUND
In November 2020, the City entered into multi-year Contractual Services Agreements with 4Leaf, Inc. (4Leaf) and Bureau Veritas North America, Inc. (Bureau Veritas) for ongoing Building Inspection Division plan review, field inspection and miscellaneous support services. The 4Leaf and Bureau Veritas agreements provided for initial not-to-exceed amounts of $160,000 and $100,000 per fiscal year, respectively.

The initial not-to-exceed amounts for both agreements were based on anticipated contractual support services needs for the division that primarily involved intermittent field inspection activities and the need for an additional technical assistance while the Packet Page 41
Chief Building Official position was vacant under the 4Leaf agreement and ongoing plan review of higher-level projects under the Bureau Veritas agreement. The Building Inspection Division has since identified the need for additional support services under both agreements due to additional staff vacancies in several key positions. The existing agreements with 4Leaf and Bureau Veritas are intended to be flexible so that additional technical support services are available when needed. However, any adjustments to the not-to-exceed amounts for a given fiscal year require approval by the City Council.

DISCUSSION/ANALYSIS
In addition to the ongoing intermittent field inspection support services that 4Leaf provides over the course of a typical fiscal year, the Building Inspection Division has recently required additional support service needs in other areas due to multiple vacancies in permanent positions. The City's long-time City Architect/Chief Building Official recently retired following completion of the Civic Center project. 4Leaf provided technical assistance to fulfill some Chief Building Official functions during the last 18 months. The City has since hired a Chief Building Official, but an increase in costs for these services was experienced in the early part of Fiscal Year 2021-2022 due to the extended vacancy.

The Building Inspection Division recently developed an additional vacancy in one of the full-time Building Inspector I/II positions. Staff is attempting to fill that position as well, but the process could take several months. In the interim period, there is a need for additional field inspection support services under the current contract with 4Leaf. In addition, there are current vacancies in both the Senior Building Inspector position and the recently-funded Plan Check Engineer position. These positions are difficult to fill in the current employment market and staff is evaluating options to fill one or both of these positions as soon as possible. However, in the interim period, additional plan review services are needed under the Bureau Veritas agreement as well as additional miscellaneous support services under the 4Leaf agreement.

Staff has evaluated the additional plan review, field inspection and miscellaneous support service needs of the Building Inspection Division for the remainder of the fiscal year and determined that an additional $155,000 should be authorized with a Second Amendment under the contract with 4Leaf, Inc., to bring the total not-to-exceed amount to $315,000. Staff has further evaluated the ongoing plan review needs for the division and determined that an additional $25,000 should be authorized with a Second Amendment to the Bureau Veritas agreement to bring the total not-to-exceed amount to $125,000. This additional contract capacity is entirely off-set by the cost savings experienced by the Building Inspection Division as a result of the multiple vacant positions. The amendments to the contracts require approval by the City Council, but no budget amendment is necessary due to the overall cost savings.

FISCAL IMPACT
Staff is recommending that the Fiscal Year 2021-2022 not-to-exceed contract Packet Page 42
Staff is recommending that the Fiscal Year 2021-2022 not-to-exceed contract agreement amounts with 4Leaf and Bureau Veritas be increased by an additional $155,000 and an additional $25,000, respectively. However, there is no fiscal impact to the 2020-2022 Biennial Budget and Capital Improvement Plan for the current fiscal year for these proposed increases as the salary savings experienced due to the multiple vacancies exceeds the additional operating cost for the recommended contract amendments.

REVIEW AND APPROVAL
Prepared by – Matthew Farrell, Chief Building Official
Reviewed by – Soren Fajeau, Public Works Director
Reviewed by – Kristopher J. Kokotaylo, City Attorney
Approved by – David J. Benoun, City Manager
Attachments
Resolution
4Leaf Second Amendment
BureauVeritas Second Amendment
4Leaf Agreement
4Leaf First Amendment
BureauVeritas Agreement
BureauVeritas First Amendment
Packet Page 43
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK APPROVING AMENDMENTS TO THE
CONTRACTUAL SERVICES AGREEMENTS WITH 4LEAF,
INC. FOR ADDITIONAL FIELD INSPECTION AND

MISCELLANEOUS SUPPORT SERVICES AND BUREAU
VERITAS NORTH AMERICA, INC. FOR ADDITIONAL PLAN

REVIEW SERVICES
WHEREAS, the City of Newark entered into a multi-year Contractual Services Agreement (4Leaf Agreement) on November 3, 2020 with 4Leaf, Inc. (4Leaf) to provide ongoing field inspection and miscellaneous support services for the Building Inspection Division, with a listed not-to-exceed amount of $160,000 per fiscal year unless otherwise approve in writing for any additional amount; and
WHEREAS, the City of Newark entered into a multi-year Contractual Services Agreement (Bureau Veritas Agreement) on November 12, 2020 with Bureau Veritas North America, Inc. (Bureau Veritas) to provide ongoing plan review services for the Building Inspection Division, with a listed not-to-exceed amount of $100,000 per fiscal year unless otherwise approve in writing for any additional amount; and
WHEREAS, due to current staff vacancies in the Building Inspection Division, additional services for ongoing field inspection and for other miscellaneous support services are required under the 4Leaf Agreement for the remainder of the current fiscal year in the amount of $155,000 to bring the total not-to-exceed amount for Fiscal Year 2021-2022 to $315,000; and WHEREAS, due to said vacancies, additional services for ongoing plan review services are required under the Bureau Veritas Agreement for the remainder of the current fiscal year in the amount of $25,000 to bring the total not-to-exceed amount for Fiscal Year 2021-2022 to $125,000; and
WHEREAS, no amendment of the 2020-2022 Biennial Budget and Capital Improvement Plan is necessary due to the net cost savings associated with the existing staff vacancies which exceeds the additional total amount needed ($180,000) under both the 4Leaf Agreement and the Bureau Veritas Agreement; and
WHEREAS, Second Amendments to the 4Leaf Agreement and the Bureau Veritas Agreement, incorporated herein by reference, have been prepared to amend the not-to-exceed amounts accordingly for these additional services.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby approve the Second Amendment to the Contractual Services Agreement with 4Leaf, Inc. to increase the not-to-exceed limit of additional services by $155,000 to a total compensation limit of $315,000 for Fiscal Year 2021-2022.

Packet Page 44
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby approve the Second Amendment to the Contractual Services Agreement with Bureau Veritas North America, Inc. to increase the not-to-exceed limit of additional services by $25,000 to a total compensation limit of $125,000 for Fiscal Year 2021-2022.

BE IT FURTHER RESOLVED that the City Council does hereby authorize the City Manager to execute the above Second Amendments to the Contractual Services Agreements with 4 Leaf, Inc. and with Bureau Veritas North America, Inc., on file with the City Clerk, each in a form approved by the City Attorney.

Packet Page 45

SECOND AMENDMENT TO THE

CONTRACTUAL SERVICES AGREEMENT

BETWEEN THE CITY OF NEWARK AND
4LEAF, INC.

This Second Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, (“City”) and 4Leaf, Inc., a California Corporation (“Consultant”) (together sometimes referred to as “Parties”) dated November 3, 2020, is entered into as of March __, 2022.

RECITALS
WHEREAS, the Parties executed a Contractual Services Agreement (the “Agreement”) to provide building inspection field inspection and related professional services; and WHEREAS, Section 27 of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to extend the Agreement for the Consultant to provide additional services for fiscal year 2021-2022 in the amount of $155,000 for a total not-to-exceed cost for services of $315,000 to be provided during that fiscal year; and WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 3.A. “Not to Exceed” Compensation, of the Agreement, is amended to provide for additional not to exceed compensation of $315,000 for services provided by Consultant for fiscal year 2021-2022.

2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

City of Newark Consultant
4Leaf, Inc.
____________________________ _______________________
David J. Benoun Kevin Duggan
City Manager President
Dated: _____________________ Dated: __________________
Packet Page 46
Attest:
_____________________________
Sheila Harrington
City Clerk
Approved as to Form:
_____________________________
Kristopher J. Kokotaylo
City Attorney
Packet Page 47

SECOND AMENDMENT TO THE

CONTRACTUAL SERVICES AGREEMENT

BETWEEN THE CITY OF NEWARK AND
BUREAU VERTIAS NORTH AMERICA, INC.

This Second Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, (“City”) and Bureau Veritas North America, Inc., a California Corporation (“Consultant”) (together sometimes referred to as “Parties”) dated November 12, 2020, is entered into as of March __, 2022.

RECITALS
WHEREAS, the Parties executed a Contractual Services Agreement (the “Agreement”) to provide building inspection field inspection and related professional services; and WHEREAS, Section 27 of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to extend the Agreement for the Consultant to provide additional services for fiscal year 2021-2022 in the amount of $25,000 for a total not-to-exceed cost for services of $125,000 to be provided during that fiscal year; and WHEREAS, the City Manager is authorized to execute this Amendment in a form approved by the City Attorney.

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 3.A. “Not to Exceed” Compensation, of the Agreement, is amended to provide for additional not to exceed compensation of $125,000 for services provided by Consultant for fiscal year 2021-2022.

2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

City of Newark Consultant
Bureau Veritas North America, Inc.
____________________________ _______________________
David J. Benoun Craig Baptista
City Manager Vice President
Dated: _____________________ Dated: __________________
Packet Page 48
Attest:
_____________________________
Sheila Harrington
City Clerk
Approved as to Form:
_____________________________
Kristopher J. Kokotaylo
City Attorney
Packet Page 49
Packet Page 50
Packet Page 51
Packet Page 52
Packet Page 53
Packet Page 54
Packet Page 55
Packet Page 56
Packet Page 57
Packet Page 58
Packet Page 59
Packet Page 60
Packet Page 61
Packet Page 62
Packet Page 63
Packet Page 64
Packet Page 65
Packet Page 66
Packet Page 67
Packet Page 68
Packet Page 69
Packet Page 70
Packet Page 71
Packet Page 72
Packet Page 73
Packet Page 74
Packet Page 75
Packet Page 76
Packet Page 77
Packet Page 78
Packet Page 79
Packet Page 80
Packet Page 81
Packet Page 82
Packet Page 83
Packet Page 84
Packet Page 85
Packet Page 86
Packet Page 87
Packet Page 88
Packet Page 89
Packet Page 90
Packet Page 91
Packet Page 92
Packet Page 93
Packet Page 94
Packet Page 95
Packet Page 96
Packet Page 97
Item F. 1.

DATE 03/10/2022
TO Honorable Mayor and City Council Members
FROM Kristopher Kokotaylo, Interim City Attorney
SUBJECT Introduction of an ordinance adding Chapter 7.24, Fireworks Social Host Ordinance, to the Newark Municipal Code to increase penalties an enforcement authority related to illegal use of fireworks

RECOMMENDATION
Staff recommends that the City Council waive full reading and, by title only, introduce an ordinance adding Chapter 7.24, Fireworks Social Host Ordinance, to the Newark Municipal Code.

EXECUTIVE SUMMARY
The City of Newark authorizes certain non-profit organizations to annually sell safe and sane fireworks leading up to the 4th of July holiday in compliance with State law and Newark Municipal Code Section 15.17.020 (a copy of which is attached to this staff report). Unfortunately, last year the Police Department received a substantial increase in calls for service relating to illegal firework usage both leading up to the 4th of July holiday as well as on the holiday itself. While our Police Department dedicates resources to enforcing all laws on the 4th of July holiday, our officers face challenges when issuing citations, particularly when there are large gatherings which makes it difficult to identify the specific violator.

To address this issue, staff evaluated potential further enforcement options and, as a result, staff has prepared for City Council consideration of an ordinance that establishes strict liability for social hosts that allow the deployment of illegal fireworks on their property or at their hosted gatherings. This ordinance would authorize the City to issue administrative citations of up to $1,000 per violation.

BACKGROUND
Historic Background:

The City of Newark is one of three cities in Alameda County that allows the sale and use of safe and sane fireworks to celebrate the 4th of July holiday. The Newark Municipal Code contains regulations that govern the sale and use of fireworks, including the dates that authorized organizations can sell, and when individuals can use, fireworks.

Packet Page 98
In the early 2000’s, in response to increasing illegal fireworks activity that was taking place within Newark at the time, the City Council directed the formation of a Fireworks Task Force. The Fireworks Task Force developed an Action Plan that included several measures aimed at reducing the use of illegal fireworks, including closing parks on July 4th after 7:30 p.m., activating a firework’s hotline, increasing police staffing levels, and adopting a zero tolerance policy for the illegal use of fireworks.

There are currently 10 fireworks booth permits within the City. The total number of fireworks booths permits decreases whenever an organization: 1) chooses to not renew a previously issued permit; 2) is deemed ineligible for a fireworks booth permit; or 3) no longer meets the requirements for issuance of a fireworks booth permit.

Despite the limited number of fireworks booth permits, existing regulations, and other enforcement efforts, which is further explained below, the illegal use of fireworks persists during the 4th of July holiday.
2021 4th of July:

Police Department Enforcement
The Police Department experienced a 40% increase in overall fireworks calls for service from January 1st through July 4th in 2021 vs. the same time frame in 2020.

As a result of the increased calls for service and community concerns, the Police Department emphasized enforcement (citations), rather than education, in its efforts.

The Police Department, working in conjunction with the Public Works Department and the Alameda County Fire Department (“ACFD”), annually prepares an operation to respond to calls for service throughout the City and to ensure the proper and safe disposal/disposition of illegal fireworks that are seized. In 2021, the 4th of July operational period began at 6 p.m. on July 4 and ended at 1 a.m. on July 5, 2021 (the “Operational Period”).

During the Operational Period, the Police Department received a total of 139 calls for service with 104 fireworks related calls for service. There were 60 warnings issued and 6 criminal citations issued for either violations of the Newark Municipal Code or the California Health and Safety Code. Of the 6 citations issued, two were for criminal misdemeanor violations of California Health and Safety Code Section 12677 (illegal possession of dangerous fireworks) and four were traffic court citations for violation of Newark Municipal Code Section 15.17.020 (illegal fireworks). The District Attorney declined to prosecute both misdemeanor citations and of the four traffic court citations, one suspect has paid a $280 fine while the other traffic court citations are awaiting court dates.

In addition to the citations, officers also confiscated an assortment of aerial mortars, rocket-type aerials, M-80’s and other illegal fireworks overfilling two 55-gallon barrels.

Fire Department Calls for Service
Packet Page 99
In preparation for the 2021 July 4th Holiday, ACFD staffed one additional fire engine and one additional Battalion Chief for a total of three fire engines, one fire truck, and two battalion chiefs. ACFD was dispatched to 9 fires in total -- 2 residential, 2 dumpster/trashcan fires, and 5 outside fires, presumably related to legal and/or illegal fireworks.

DISCUSSION/ANALYSIS
Current Enforcement:

As noted above, the City currently issues criminal citations for violations of the Newark Municipal Code or the California Health and Safety Code. The use of illegal fireworks may constitute either a criminal misdemeanor or felony depending on the violation or activity. Individuals convicted of a misdemeanor are subject to penalties of up to 6 months in jail and/or a fine of up to $1,000.

Criminal enforcement related to illegal use of fireworks presents some challenges.

First, an officer must observe and apprehend an individual deploying or handling the illegal fireworks to issue the criminal citation. Attempting to make a criminal apprehension during large 4th of July gatherings can be challenging as it may be difficult to identify who illegally utilized the firework. Second, even where the City is able to apprehend a suspect, it does not have control over the ultimate outcome as the District Attorney is responsible for prosecution. There is no current mechanism to hold event hosts liable for the conduct of their guests that engage in the illegal use of fireworks.

Proposed Social Host Ordinance:

Staff has evaluated potential enforcement options and recommends that the City Council adopt a Social Host Fireworks Ordinance (the “Proposed Ordinance”). The Proposed Ordinance would make property owners, or individuals that control the property (for example through a lease or rental agreement), strictly liable for illegal fireworks activity occurring on their property or at their gatherings. Strict liability is a legal standard that does not depend on actual negligence or intent to harm to create liability, but is based on the breach an absolute duty to make something safe.

Generally, traffic offenses and offenses related to hazardous activities are strict liability offenses.

The Proposed Ordinance would eliminate one of the largest hurdles to enforcement on the 4th of July – locating and apprehending individuals that use illegal fireworks.

During 4th of July operations, police officers can often identify crowds of individuals or properties where illegal fireworks are deployed. However, locating the individual can be difficult, particularly when there is a large crowd. The Proposed Ordinance would create liability for property owners that host gatherings or shield individuals that utilize illegal fireworks. For example, if officers observe an illegal firework utilized from a gathering in the back or front yard of private property, officers do not have to confront the individuals engaged in the illegal activity. They could document the activity and Packet Page 100
the individuals engaged in the illegal activity. They could document the activity and issue an administrative citation to the property owner or host. In the event that a property owner rents or leases the property to another individual, is not present, and had no prior knowledge of the violation, the City could proceed with enforcement against the responsible party.

A violation of the Proposed Ordinance is a misdemeanor that allows the City to issue administrative fines of up to $1,000. Staff intends to use administrative enforcement to enforce the Proposed Ordinance and intends to issue administrative fines at the full $1,000 amount for each violation. Utilizing administrative enforcement instead of criminal enforcement would eliminate the possibility that the District Attorney dismiss the matter without any consequence for the violator. Also, the Proposed Ordinance would provide an appeal process for a property owner to show that they should not be liable where they can show that they rented or leased the property to another, were not present, and had no prior knowledge of the violation. However, staff would still have the ability to seek recourse against the responsible party who will be identified when the property owner provides proof that they rented or leased the property.

A number of cities have recently established a Social Host Fireworks ordinance including, but not limited to: Union City; Rohnert Park; Petaluma; Pacifica; Folsom; Redwood City; and San Jose.

If the Council adopts the Proposed Ordinance, staff would engage in extensive public outreach to ensure that community members are aware of the new law and the consequences of violation. This community outreach would include requiring fireworks booths to distribute warning notices to each fireworks purchaser for each fireworks transaction.

FISCAL IMPACT
There is no direct fiscal impact with adopting the Proposed Ordinance. To the extent that the City issues administrative fines for violations of the Proposed Ordinance, the City may see some revenue from that effort.

REVIEW AND APPROVAL
Prepared by – Kristopher J. Kokotaylo, Interim City Attorney and Gina L. Anderson, Police Chief
Approved by – David J. Benoun, City Manager
Attachments
Social Host Fireworks Ordinance
Municipal Code Fireworks section
Presentation
Packet Page 101
ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWARK ADDING CHAPTER 7.24, FIREWORKS, TO THE NEWARK MUNICIPAL

CODE TO INCREASE PENALTIES RELATED TO ILLEGAL FIREWORKS WHEREAS, the City of Newark allows the sale and use of Safe and Sane Fireworks, as defined and classified in Sections 12529 and 12562 of the Health and Safety Code, around the Fourth of July holiday; and
WHEREAS, the sale and use of Safe and Sane Fireworks is regulated by the City; and WHEREAS, the use of illegal fireworks poses a significant public health, safety, and welfare risks to those that discharge the illegal fireworks as well as members of the public in the surrounding areas; and
WHEREAS, the use of illegal fireworks creates a significant fire danger, which is exacerbated by ongoing drought conditions within the City; and WHEREAS, the use of illegal fireworks has increased significantly over recent years, which has increased the significant public health, safety, and welfare risks such fireworks cause; and
WHEREAS, the City Council desires to increase the penalties for illegal fireworks by classifying such conduct as a misdemeanor and increasing the maximum fine for violations; and WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens.

THE CITY COUNCIL OF THE CITY OF NEWARK DOES ORDAIN AS FOLLOWS:

SECTION 1. Recitals.

The above recitals are true and correct and made a part of this Ordinance.

SECTION 2. Addition of Chapter 7.24.

Chapter 7.24, Fireworks, is added to the Newark Municipal Code to read as follows:
“Chapter 7.24 Fireworks Social Host Ordinance.

Section 7.24.010 Definitions.

The following definitions shall apply to this Chapter
Packet Page 102
A. “Safe and Sane Fireworks” means those fireworks defined and classified in Sections 12529 and 12562 of the Health and Safety Code, as those sections may be amended from time to time.

B. “Social host” means any of the following:

1. Any owner of private property as listed on the most recent Alameda County assessment roll;

2. Any person who has the right to use, possess or occupy a public or private property under a lease, permit, license, rental agreement, or contract; or

3. Any person who hosts, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering on public or private property.

C. “Strictly liable” means liability for a wrongful act irrespective of such person’s intent, knowledge, negligence or lack thereof in committing the wrongful act.

Section 7.24.020 Use.

Fireworks other than Safe and Sane Fireworks are prohibited. Except as permitted by the City, it is unlawful for any person, corporation, or entity to possess, store, offer for sale, expose for sale, sell at retail or wholesale, use, discharge, or explode, or allow the use on their property or property under their control, any fireworks except Safe and Sane Fireworks.

Section 7.24.030 Social Host Liability
Any Social Host shall be Strictly Liable for any unlawful ignition, use, discharge or display of any dangerous fireworks, or Safe and Sane Fireworks in violation of this Code, at their property or gathering; except that:

A. No owner of private property shall be liable under this Section for a violation of this Chapter if the property owner can demonstrate that at the time of such violation they:

1. had rented or leased the property to another,

2. were not present, and

3. had no prior knowledge of the violation.

B. No person who has the right to use, possess or occupy a unit in a multifamily residential property under a lease, rental agreement or contract shall be liable under this Section for violations of this Chapter occurring in the common areas of the property.

Section 7.24.040 Penalty.

A. Any person or entity who violates this Chapter shall be guilty of a misdemeanor, punishable by any remedy authorized by this Municipal Code or applicable law, at the election of the City.

B. Notwithstanding anything in this Code to the contrary, a violation of this Chapter may be punishable by a fine of up to one thousand ($1,000) per violation. For the purposes of Packet Page 103
this Section, each use or discharge of a firework in violation of this Chapter shall be a separate violation.

C. A fine for violating this section may be issued to administratively in accordance with Chapter 7.18 (Administrative Citations) and any person receiving a fine pursuant to this section shall be entitled to the hearing procedures contained therein.

SECTION 3. Severability
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of Newark hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.

SECTION 4. CEQA.

Approval of the ordinance is exempt from further environmental review under the general rule in California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3) that CEQA only applies to projects that have the potential for causing a significant effect on the environment. As a series of text amendments and additions that do not authorize any new activity, it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment.

SECTION 5. Publication and effective date.

Within fifteen (15) days from and after adoption, this Ordinance shall be published once in the Tri-City Voice, a newspaper of general circulation printed and published in Alameda County and circulated in the City of Newark, in accordance with California Government Code Section 36933. This Ordinance shall take effect and be enforced thirty (30) days after its adoption.

Packet Page 104
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 1 of 6 ends

Chapter 15.17 FIRE CODE1
K. Chapter 56 is amended by adding Section 5614 as follows. 5614 Fireworks
5614.1 Definitions. For the purpose of this Chapter the phrases "fireworks," "dangerous fireworks," and "safe and sane fireworks" shall have the meanings ascribed to them in Sections 12511, 12505, and 12529 of the Health and Safety Code of the state of California.
5614.2 Storage of safe and sane fireworks:
5614.2.1 Safe and sane fireworks in excess of five pounds shall not be stored at any one location in the City of Newark.

EXCEPTIONS:

1. A maximum of one day's sales supplies of safe and sane fireworks, per stand, may be stored in a safe and sane fireworks stand for which a permit has been issued, or in a tamper resistant metal container approved by the Fire Code Official, pursuant to this Article.

2. If the stand closes at any time, the safe and sane fireworks, in excess of five pounds, may be stored in the booth with an adult guard, 18 years or older on the premises at all times.

3. Safe and sane fireworks stands shall not be located in areas zoned residential or General Industrial.

4. The City Community Development Director shall determine that the locations of the safe and sane fireworks stands do not have unsightly, undesirable, or obnoxious qualities that are not harmonious with, or are not properly related to their sites, surroundings and traffic circulation in the vicinity, or which would not meet the specific intent of the Zoning Code.
5614.3 Prohibition
5614.3.1 The manufacture, sale, or discharge of safe and sane fireworks within the jurisdictional area is prohibited except under special permits as are required by local and state regulations.

EXCEPTIONS

1. A permit is not required for the discharge of safe and sane fireworks as described in Section 12529 of the Health and Safety Code. 1 Editor's note(s)—See the editor's note to Ch. 15.32Editor's note(s)—.

Packet Page 105
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 2 of 6 ends

2. Nothing in this section shall be construed to prohibit the discharge of safe and sane fireworks by railroads or other transportation agencies for signal purposes of illumination, or discharge of blank cartridges for a show or theater, or for use by military organizations.
5614.4 Sale of safe and sane fireworks
5614.4.1 Annual permit required: any organization desiring to sell or to offer for sale safe and sane fireworks shall annually make application to the Fire Code Official for a permit to sell safe and sane fireworks.
5614.4.2 Application for Permit:

1. Shall be made in writing at the office of the Fire Marshal of the City of Newark, accompanied by the permit fee.

2. Shall be made during regular office hours, between the fifteenth day of April and the fifteenth day of May of each year.

3. Shall set forth the proposed location of the safe and sane fireworks stand applied for.

4. Shall be accompanied by an assurance that if the permit is issued to the applicant, applicant shall, at the time of receipt of such permit, deliver to the Fire Code Official a general liability insurance policy or endorsement adding or specifying the City, its officers, employees, and volunteers as "insureds" and within the scope and limits as set by the Fire Chief.
5614.5 Annual Permit. An annual permit shall only be issued to any organization meeting the following requirements:
5614.5.1 Nonprofit organization organized primarily for veteran, patriotic, welfare, youth activity, civic betterment, or charitable purpose within the City of Newark. 5614.5.2 The organization shall have its principal place of business and permanent meeting place within the City limits of the City of Newark. 5614.5.3 The organization shall have been organized for a minimum of one (1) year continuously preceding the filing of the application for the permit. 5614.5.4 The organization shall have at least twenty (20) regular and active participants, volunteers, or members with a minimum of fifty percent (50%) of those regular and active participants, volunteers, or members being bona fide residents of the City of Newark. For purposes of this section, a "member" need not be a "member" as defined by California Corporations Code Section 5056. 5614.5.5 The organization shall obtain a business license from the City of Newark. 5614.6 Operation of Stand
Packet Page 106
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 3 of 6 ends

5614.6.1 No person other than the permittee organization shall operate the stand for which the permit is issued or share or otherwise participate in the profits of the operation of such stand.
5614.6.2 No person other than individuals who are members, regular and active participants, volunteers, or other persons supportive of the activities of the permittee organizations, or a spouse or adult child of such a person, shall sell or otherwise participate in the sale of safe and sane fireworks at such stand. 5614.6.3 No person shall be paid any money or other consideration for selling or otherwise participating in the sale of safe and sane fireworks at such stand. 5614.6.4 All retail sales of safe and sane fireworks shall be permitted only from within a temporary safe and sane fireworks stand. The sale from any other building or structure is hereby prohibited.
5614.7 Temporary Safe and Sane fireworks Stands
5614.7.1 No safe and sane fireworks stand shall be located within 25 feet of another building or within 100 feet of any flammable liquid or gas storage or dispensing unit. 5614.7.2 All safe and sane fireworks stands shall be erected in a manner approved by the Fire Marshal in order to reasonably ensure the safety of attendants and patrons. 5614.7.3 No stand shall have a floor area in excess of 300 square feet. 5614.7.4 Each stand shall have at least two remote exits three feet in width and not less than six feet eight inches in height. All doors shall swing out. 5614.7.5 Each stand shall be provided with two 2-A rated fire extinguishers bearing a valid inspection tag and in good working order. Extinguishers shall be easily accessible for use in case of fire.
5614.7.6 "No smoking" signs shall be conspicuously posted at the stand. 5614.7.7 Merchandise shall be displayed in such a manner that it cannot be handled by patrons reaching over the selling counter or through other openings in the stand. 5614.7.8 All electrical wiring will require a permit from the City Building Inspection Division prior to any installation.
5614.7.9 Decorative material, canvas tops, screening, etc., shall be flame retardant or rendered to the satisfaction of the Fire Code Official. 5614.7.10 All weeds and combustible material shall be cleared from within a 25 foot minimum area surrounding the stand.
5614.7.11 Each stand shall be located only at those locations in compliance with the City Zoning Ordinance.

Packet Page 107
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 4 of 6 ends

5614.7.12 A maximum of one day's sales supplies of safe and sane fireworks, per stand, may be stored in a safe and sane fireworks stand for which a permit has been issued, or in a tamper resistant metal container approved by the Fire Code Official, pursuant to this Chapter.
5614.7.13 If the stand closes at any time, the safe and sane fireworks, in excess of five pounds, may be stored in the booth with an adult guard, 18 years or older on the premises at all times.
5614.7.14 Safe and sane fireworks stands shall not be located in areas zoned residential or General Industrial.
5614.7.15 The Fire Code Official shall determine that the locations of the safe and sane fireworks stands do not have unsightly, undesirable, or obnoxious qualities that are not harmonious with, or are not properly related to their sites, surroundings and traffic circulation in the vicinity, or which would not meet the specific intent of the Zoning Code.
5614.8 General Requirements
5614.8.1 The sale of safe and sane fireworks shall be from 12:00 noon to 9:00 p.m. on the 28th day of June and 8:00 a.m. to 9:00 p.m. June 29 through July 4. The use of safe and sane fireworks shall be from midnight June 30 to midnight July 4. 5614.8.2 All unsold stock and accompanying litter shall be removed from the location by 12 Noon on the sixth day of July.
5614.8.3 The safe and sane fireworks stand shall be removed from the location by the twelfth of July.
5614.8.4 The sale of safe and sane fireworks shall not be made to any person or persons under the age of 18.
5614.8.5 Prior to the sale, in the event that a prospective purchaser appears or would appear to a reasonable person to be under the age of thirty (30), the permittee shall require the prospective purchaser to show proof of age by displaying a motor vehicle operator's license, a registration certificate issued by the Federal Selective Service Act, an identification card issued to a member of the Armed Forces, or a similar document bearing the picture or likeness of the purchaser. Any permittee that sells safe and sane fireworks to any person under the age of 18 or, in the event that a prospective purchaser appears or would appear to a reasonable person to be under the age of thirty (30), fails to require the prospective purchaser to show proof of age as required herein, shall be guilty of an infraction. Pursuant to Title 7 of the Newark Municipal Code, an Administrative Citation may be issued for the violation. Each sale to any person under the age of 18 shall be deemed a separate violation. In addition the sale of safe and sane fireworks to any person under the age of 18 is declared a public nuisance subject to abatement pursuant to Title 7 of this Code subjecting the Packet Page 108
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 5 of 6 ends

permittee to administrative penalties up to $1,000 per day per violation to a maximum of $100,000, and to recovery of all costs of abatement and enforcement as provided in Title 7.
5614.8.6 In addition to the foregoing, in the event of multiple violations or other evidence of a course of conduct in conscious or reckless disregard of the requirements of this section, the permittee may be deemed ineligible for a safe and sane fireworks booth permit in subsequent years. The Fire Code Official shall make the decision of ineligibility. The permittee may appeal that decision by requesting an administrative hearing to be held by the City Manager's designated Hearing Officer.

The hearing shall be conducted pursuant to the rules of procedure set forth in Chapter 7.22 of the Newark Municipal Code. The Hearing Officer's decision shall be the final decision of the City of Newark.
5614.9 Fireworks Display
5614.9.1 General. Outdoor fireworks displays, use of pyrotechnics before a proximate audience and pyrotechnic special effects in theatrical and group entertainment productions shall comply with California Code of Regulations, Title 19, Division 1, Chapter 6 Fireworks.
5614.9.2 Scope. Fireworks and temporary storage, use, and handling of pyrotechnic special effects material used in motion pictures, television, and theatrical and group entertainment productions shall be in accordance with California Code of Regulations, Title 19, Division 1, Chapter 6 Fireworks.
5614.9.3 Permits Required. The permittee shall furnish a general liability insurance policy of endorsement adding the City, its officers, employees, and volunteers as "insureds" and within the scope and limits as set by the Community Development Director. Said policy is to cover payments for all damages, which may be caused to a person or persons or to property by reason of the permitted display and arising from any acts of the permittee, his agents, employees, or subcontractors. 5614.9.4 Fireworks other than safe and sane fireworks prohibited. Except as provided in this section, it is unlawful for any person, corporation, or entity to possess, store, offer for sale, expose for sale, sell at retail or wholesale, use, discharge, or explode any fireworks except "safe and sane fireworks" as described in Section 12529 of the Health and Safety Code. Violation of this section is punishable as an infraction. (Ord. No. 518, § 1(Att.), 12-12-2019)
Editor's note(s)—Ord. No. 518, § 1Editor's note(s)—(Att.), adopted Dec. 12, 2019, repealed the former § 15.17.020Editor's note(s)—, and enacted a new 15.17.020Editor's note(s)— as set out herein. The former § 15.17.020Editor's note(s)— pertained to fire department duties— fire prevention bureau established and derived from Ord. No. 471, § 1Editor's note(s)—, adopted Nov. 14, 2013; Ord. No. 494, § 1Editor's note(s)—, adopted Nov. 10, 2016.

Packet Page 109
Created: 2021-03-29 12:39:03 [EST]
(Supp. No. 19)

Page 6 of 6 ends

15.17.030 Reserved.