Agenda packet — Newark City Council, March 23, 2023 (part 2 of 2)

Section 2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Extremely Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of thirty percent (30%) of Area Median Income, adjusted for Assumed Household Size.
(b) Very Low Income Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Very Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of fifty percent (50%) of Area Median Income, adjusted for Assumed Household Size.
(c) Low Income Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent of sixty percent (60%) of Area Median Income, adjusted for Assumed Household Size. (d) Compliance with TCAC Requirements. During the term of any regulatory agreement associated with the provision of low income housing tax credits by the California Tax Packet Page 291
6 Credit Allocation Committee ("TCAC") and recorded against the Property (the "TCAC Regulatory Agreement"), Owner may use the occupancy standards, assumed household sizes, income limits, rent levels and rent increases that are permitted by TCAC in the TCAC Regulatory Agreement, in place of such requirements imposed by this Regulatory Agreement.

During the term of the TCAC Regulatory Agreement, compliance with the TCAC Regulatory Agreement as it pertains to occupancy standards, assumed household sizes, income limits, rent levels and rent increases shall be deemed compliance with such requirements of this Agreement.

Section 2.3 Rent Increases.
(a) Rent Amount. The initial Rent for all Affordable Units must be approved by the City prior to occupancy. The utility allowance schedule will be determined either by use of the CUAC or Housing Authority schedule. Notwithstanding the approved schedule of maximum rents, Owner shall not be obligated to reduce rents for any existing tenants should maximum rents decrease, or utility allowances increase for any Units which must conform to the approved schedule of maximum rents.
(b) Rent Increases. No later than sixty (60) days prior to the proposed implementation of any Rent increase affecting an Affordable Unit, Owner shall submit to the City a schedule of any proposed increase in the Rent charged for the Affordable Units. The Rent for such Affordable Units may be increased no more than once annually based upon updated rent schedules corresponding to the updated Area Median Income. Any rent increase resulting from use of the CUAC model for utility allowances shall comply with the TCAC limitation. Owner shall give Tenants of Affordable Units written notice at least thirty (30) days prior to any Rent increase, following completion of the City approval process set forth above. Notwithstanding the above, in no event will any annual rent increase exceed the annual rent increase allowed pursuant to Civil Code Section 1947.12, although the parties acknowledge that the Affordable Units are not subject to such restrictions pursuant to Civil Code Section 1947.13. For purposes of this Agreement, if any rent subsidy is terminated or reduced, an increase in the tenant's total monthly payment toward rent to offset the terminated or reduced rent subsidy shall not constitute a Rent increase as long as the Rent for the Affordable Unit is not increased above the maximum allowable Rent.
(c) Rent During Term of TCAC Regulatory Agreement. Notwithstanding the foregoing, Section 2.2 (d) shall apply to the rent amounts and rent increases during the term of the TCAC Regulatory Agreement.

Section 2.4 Increased Income of Occupying Households.
(a) Increased Income Below 80% of Area Median Income.
(1) In the event that, upon recertification of an occupant household's income, the income of a Very Low Income Household increases above the qualifying limit for a Very Low Income Household, but not above the qualifying income for a Low Income Household, the rent shall increase to thirty percent (30%) of sixty percent (60%) of Area Median Income, the Unit shall qualify as a Low Income Unit, and the next available Unit shall be rented Packet Page 292
7 to a Very Low Income Household, as applicable, as necessary to meet the requirements of Section 2.1 above.
(b) Non-Qualifying Household. If, upon recertification of a Tenant's income, the Owner determines that a Tenant has an Adjusted Income exceeding the qualifying income for Low Income Household, adjusted for Actual Household Size, such Tenant shall be permitted to continue to occupy the Unit at a Rent not exceeding one-twelfth of thirty percent (30%) of one hundred ten percent (110%) of Area Median Income, and the Unit shall continue to be classified as a Low Income Unit until the Tenant vacates the Unit, at which time the Unit shall be re-rented to a Very Low Income Household or Low Income Household as applicable, to meet the requirements of Section 2.1 above. Notwithstanding the above, if the Owner determines that a Tenant has an Adjusted Income exceeding One Hundred Twenty Percent (120%) of Area Median Income, the Owner may elect to increase the Rent to the maximum permissible. (c) Termination of Occupancy. Upon termination of occupancy of an Affordable Unit by a Tenant, such Unit shall be deemed to be continuously occupied by a household of the same income level (e.g., Extremely Low Income Household, Very Low Income Household, or Low Income Household) as the initial income level of the vacating Tenant, until such Affordable Unit is reoccupied, at which time the income character of the Affordable Unit (e.g., Extremely Low Income Unit, Very Low Income Unit, or Low Income Unit) shall be redetermined. (d) Continued Compliance. In the event an occupant household's income increases and the rent is increased as set forth in Sections (a) and (b) above, the Affordable Unit shall continue to be classified as an Extremely Low Income Unit, a Very Low Income Unit, or a Low Income Unit, as applicable, until such time as the Affordable Unit is either vacated by the occupant or another Affordable Unit is rented at the applicable income limit. (e) Income Limits During Term of TCAC Regulatory Agreement.

Notwithstanding the foregoing, during the term of the TCAC Regulatory Agreement, compliance with the TCAC Regulatory Agreement as it pertains to increased income of occupying households shall be deemed compliance with this Agreement.

Section 2.5 Lease Provisions. Owner shall include in leases for all Affordable Units provisions which authorize Owner to immediately terminate the tenancy of any household one or more of whose members has misrepresented any fact material to the household's qualification as an Extremely Low Income Tenant, Very Low Income Household or Low Income Unit. Each lease or rental agreement shall also provide that the household is subject to annual certification in accordance with Section 3.1 below, and that, if the household's income increases above the applicable limits for a Very Low Income Household or Low Income Household, as applicable, such household's Rent may be subject to increase.

Section 2.6 Condominium Conversion. The Owner shall not convert the Development or any Units to condominium or cooperative ownership or sell condominium or cooperative conversion rights to the Property during the Term of this Agreement.

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8 Section 2.7 Loss of Subsidy.

(a) It is anticipated that certain Affordable Units in the Development will receive rental subsidies throughout the Term from governmental project based vouchers or other sources (“Subsidy Units”), as reflected in the operating pro forma contained in the Revised Financing Plan approved by the City. If any change in federal law occurs, or any action (or inaction) by Congress or any federal or state agency occurs, which results in a material reduction, termination, or nonrenewal of the rental subsidy through no fault of the Borrower, such that the rental subsidy shown on the annual operating pro forma approved by the City is no longer available, Borrower shall, in anticipation of such loss of rental subsidy, use good faith efforts for a period of sixty (60) days, to obtain alternative sources of rental subsidies and shall provide the City weekly progress reports on Borrower’s efforts to obtain alternative sources of rental subsidies. If at the end of such sixty (60) day period Borrower is unable to secure an alternate source of rental subsidy, notwithstanding Section 2.3, Borrower may increase the Rent on one or more of the Affordable Units that are Subsidy Units, to the TCAC rent limit for a 60% AMI unit, subject to the following requirements:
(1) Any such Rent increase must be pursuant to a transition plan approved by the City showing how the Rent increase will be phased in, and which Affordable Units will be subject to the increase, and if applicable, be consistent with remedial measures set forth in California Code of Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or such successor regulation applicable to California’s Federal and State Low Income Housing Tax Credit Program.
(2) At the time Borrower requests an increase in the Rent, Borrower shall provide the City with a copy of the proposed annual, operating budget showing the impact of the loss or reduction of the rental subsidy.
(3) Any subsequent Rent increases remain subject to Section 2.3 above.
(4) The number of Affordable Units subject to the Rent increases and the level of Rent increase may not be greater than the amount required to ensure that the Development generates sufficient income to cover its operating costs and debt service as shown in the annual operating pro forma, and as is necessary to maintain the financial stability of the Development.
(b) Borrower shall continue to use good faith efforts to obtain alternative sources of rental subsidies and shall provide the City with annual progress reports on efforts to obtain alternative sources of rental subsidies that would allow the Rents on the Affordable Units to be reduced back to the Rents set forth in Section 2.2. Upon receipt of any alternative rental subsidies, Borrower shall reduce the Rents on the Affordable Units back to the Rents set forth in Section 2.2, to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs and debt service of the Development as shown in the annual operating pro forma.

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9 Section 2.8 Foreclosure. After a foreclosure of a loan or deed in lieu of foreclosure, the City agrees to meet and confer with the successor owner of the Development upon its request to determine if the maximum Rent on one or more of the Affordable Units needs to be increased to the TCAC 60% AMI rent (together with rent increases on Units other than the Affordable Units) in order to cover operating costs and debt service, and maintain the financial stability of the Development, subject to a mutually acceptable transition plan approved by the City showing how the Rent increase will be phased in and which Affordable Units would be subject to the increase. The City agrees to reasonably consider and shall not unreasonably disapprove such changes to the Rent requirements of this Agreement, consistent with the foregoing, as necessary to maintain the financial stability of the Development.

ARTICLE 3.

INCOME CERTIFICATION AND REPORTING
Section 3.1 Income Certification. The Owner shall obtain, complete and maintain on file, immediately prior to initial occupancy and annually thereafter, income certifications from each Tenant renting any of the Affordable Units (excluding the manager's Unit). The Owner shall make a good faith effort to verify that the income provided by an applicant or occupying household in an income certification is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a pay stub for the most recent pay period; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency or similar search; (4) obtain an income verification form from the applicant's current employer; (5) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (6) if the applicant is unemployed and has no such tax return, obtain another form of independent verification or utilize a self-certified statement. Copies of tenant income certifications shall be available to City upon request.

Section 3.2 Annual Report to City. Each year by July 1 Owner shall submit an annual report to City, in a form approved by City. The annual report shall include for each Affordable Unit covered by this Agreement, the Rent and the income and household size of the household occupying the Affordable Unit and shall have the income certifications for each Tenant, prepared pursuant to Section 3.1 above available upon request. The report shall also state the date the tenancy commenced for each Affordable Unit, the number of bedrooms in such Affordable Unit, and such other information as City may be required by law to obtain.

Section 3.3 Additional Information. Owner shall provide any additional information reasonably requested by City. City shall have the right to examine and make copies of all books, records or other documents of Owner which pertain to any Affordable Unit.

Section 3.4 Records.
(a) Owner shall keep and maintain at the principal place of business of the Owner set forth in Section 6.11 below, or elsewhere with the City's written consent, full, complete and appropriate books, records and accounts relating to the Development. Owner shall cause all books, records and accounts relating to the Development to be kept and maintained in Packet Page 295
10 accordance with generally accepted accounting principles consistently applied, and to be consistent with requirements of this Regulatory Agreement. Owner shall cause all books, records, and accounts to be open to and available for inspection and copying by the City, its auditors or other authorized representatives at reasonable intervals during normal business hours.

Owner shall cause copies of all tax returns and other reports that Owner may be required to furnish to any government agency to be open for inspection by the City at all reasonable times at the place that the books, records and accounts of Owner are kept. Owner shall preserve such records for a period of not less than five (5) years after their creation. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Development is pending at the end of the record retention period stated herein, then Owner shall retain the records until such action and all related issues are resolved. Such records are to include but are not limited to:
(1) Records documenting compliance with the fair housing, equal opportunity, and affirmative fair marketing requirements; (2) Financial records; and
(3) Records demonstrating compliance with the marketing, tenant selection, affordability, and income requirements.
(b) The City shall notify Owner of any records it deems insufficient. Owner has fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the City in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Owner must begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.

ARTICLE 4.

OPERATION OF THE DEVELOPMENT
Section 4.1 Residential Use. The Development shall be operated only for residential use. No part of the Development shall be operated as transient housing.

Section 4.2 Compliance with Loan Documents and Development Regulatory Agreements. Owner shall comply with all the terms and provisions of the Loan Documents and any other regulatory requirement imposed on the Development, including but not limited to regulatory agreements associated with the Low Income Housing Tax Credits provided by the California Tax Credit Allocation Committee (the "Development Regulatory Documents").

Owner shall promptly notify the City in writing of the existence of any default under any Development Regulatory Documents and provide the City with copies of any such notice of default.

Section 4.3 Property Tax Exemption. Owner shall not apply for a property tax exemption for the Property under any provision of law other than Revenue and Taxation Section 214(g) without City's prior written consent.

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11 Section 4.4 Taxes and Assessments. Owner shall pay all real and personal property taxes, assessments, if any, and charges and all franchise, income, employment, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Owner shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Owner exercises its right to contest any tax, assessment, or charge against it, Owner, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest.

Section 4.5 Nondiscrimination. All of the Units shall be available for occupancy on a continuous basis to members of the general public who are income eligible. Owner shall comply with state and federal fair housing laws in the marketing and rental of the Units in the Project.

There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, veteran or military status, or genetic information, or any other basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall Owner or any person claiming under or through the Owner, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the operation and management of the Development. All deeds, leases or contracts made or entered into by Owner as to the Units or the Development or portion thereof, shall contain covenants concerning discrimination as prescribed by the AHLA.

Section 4.6 City Preference. To the extent permitted by law and consistent with the program regulations for funding sources used for the development of the Units, Owner shall give a preference in the rental of any Units to eligible households in which at least one member lives or works in the City. The preference stated in this section applies to the rentals of Units throughout the Term.

Section 4.7 Section 8 Certificate Holders. The Owner shall accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor, or similar programs. The Owner shall not apply selection criteria to holders of Section 8 certificate or similar certificates or vouchers that is more burdensome than criteria applied to all other prospective tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of Units by such prospective tenants.

Section 4.8 Marketing Plan. No later than nine (9) months prior to the date construction of the Development is projected to be complete, Owner shall submit to the City for approval its plan for marketing the Development to income-eligible households as required by this Regulatory Agreement (the "Marketing Plan"). The Marketing Plan shall be in compliance Packet Page 297
12 with all applicable fair housing, equal opportunity and affirmative fair marketing laws and requirements.

Upon receipt of the Marketing Plan, the City shall promptly review the Marketing Plan and shall approve or disapprove it within fifteen (15) days after receipt. If the Marketing Plan is not approved, the City shall give Owner specific reasons for such disapproval and Owner shall submit a revised Marketing Plan within fifteen (15) days of notification of the City's disapproval.

Owner shall follow this procedure for resubmission of a revised Marketing Plan until the Marketing Plan is approved by the City. The City understands that the Owner needs to have the Marketing Plan approved at least six (6) months prior to the date construction of the Development is projected to be complete in order to timely lease up the Development. If the Owner does not submit a revised Marketing Plan that is approved by the City at least three (3) months prior to the date construction of the Development is projected to be complete, Owner will be in default of this Regulatory Agreement.

Section 4.9 Environmental Requirements. Owner shall comply with the environmental requirements set forth in Section 6.7 of the AHLA and Article 6 of the Deed of Trust, which are incorporated herein.

ARTICLE 5.

PROPERTY MANAGEMENT AND MAINTENANCE
Section 5.1 Management Responsibilities. The Owner is responsible for all management functions with respect to the Development, including without limitation the selection of tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. City shall have no responsibility over management of the Development. The Owner shall retain a professional property management company approved by City in its reasonable discretion to perform its management duties hereunder. A resident manager shall also be required.

Section 5.2 Approval of Management Agent. The Development shall at all times be managed by an experienced management agent reasonably acceptable to City, with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing (as approved, the "Management Agent"). The Owner shall submit for City's approval the identity of any proposed Management Agent. The City has approved Satellite Affordable Housing Associates Property Management, a California nonprofit public benefit corporation, as the Management Agent. The Owner shall also submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the City to determine whether the proposed Management Agent meets the standard for a qualified Management Agent set forth above. If the proposed Management Agent meets the standard for a qualified Management Agent set forth above, City shall approve the proposed Management Agent by notifying the Owner in writing.

Unless the proposed Management Agent is disapproved by City within thirty (30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved.

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13 Section 5.3 Performance Review. City reserves the right to conduct an annual (or more frequently, if deemed reasonably necessary by City) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable City to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. The Owner shall cooperate with City in such reviews.

Section 5.4 Replacement of Management Agent. If, as a result of a periodic review, City determines in its reasonable judgement that the Development is not being operated and managed in accordance with any of the material requirements and standards of this Agreement, City shall deliver notice to Owner of its intention to cause replacement of the Management Agent, including the reasons therefor. Within fifteen (15) days of receipt by Owner of such written notice, City staff and Owner shall meet in good faith to consider methods for improving the financial and operating status of the Development. If after a reasonable period as determined by City (not to exceed sixty (60) days), City determines that the Owner is not operating and managing the Development in accordance with the material requirements and standards of this Agreement, City may require replacement of the Management Agent.

If, after the above procedure, City requires in writing the replacement of the Management Agent, Owner shall promptly dismiss the then Management Agent, and shall appoint as the Management Agent a person or entity meeting the standards for a Management Agent set forth in Section 5.2 above and approved by City pursuant to Section 5.2 above.

Any contract for the operation or management of the Development entered into by Owner shall provide that the contract can be terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section shall constitute default under this Agreement, and City may enforce this provision through legal proceedings as specified in Section 6.5.

Section 5.5 Management Policies. The Owner shall submit its written management plan with respect to the Development to City for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement.

Section 5.6 Property Maintenance. Throughout the term of this Agreement, Owner shall at its own expense, maintain the Property and the Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations.

Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including without limitation, the Units, common meeting rooms, common areas, landscaping, driveways and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. Owner shall provide adequate safety and security services for occupants of the Project, including without limitation parking lot and pathway lighting and security cameras. To the extent feasible, Owner shall employ Packet Page 299
14 defensible space design principles and crime prevention measures in the operation of the Project.

Owner shall conduct a yearly security inspection, employing Crime Prevention Through Environmental Design (CPTED) principles, and shall participate in an illegal activity review with Newark Police Department (provided that the Newark Police Department agrees to participate in such review). Owner shall maintain an on-site contact, during normal business hours, to receive complaints and concerns from the community, and Owner shall promptly respond to and address such complaints and concerns. Documents and reports relating to security inspections, community complaints and concerns, and illegal activities on the Property shall be maintained and available for inspection by the City. a. Yard Area. Owner shall not leave any yard areas on the Property unmaintained, including broken or discarded furniture, appliances and other, household equipment stored in yard areas for a period exceeding one (1) week; packing boxes, lumber trash, dirt and other debris in areas visible from public property or neighboring properties; and vehicles parked or stored in other than approved parking areas. b. Buildings. Owner shall not leave any buildings located on the Property in an unmaintained condition so that any of the following exist: violations of state law, uniform codes, or City ordinances; conditions that constitute an unsightly appearance that detracts from the aesthetics or value of the Property or constitutes a private or public nuisance; broken windows; graffiti (must be removed within 72 hours); and, conditions constituting hazards and/or inviting trespassers, or malicious mischief.
c. Safety and Security. Owner acknowledges that it is a priority of the City to facilitate the security and safety of the residents and surrounding community. Owner shall implement and maintain throughout the Term the following security measures in the Project:
i. Owner shall provide adequate safety and security services for occupants of the Project, including without limitation parking areas and pathway lighting and security cameras.
ii. Owner shall use best efforts to work with the City of Newark Police Department to implement and operate an effective neighborhood watch program. iii. Owner shall provide added security including dead-bolt locks for every entry door, and where entry doors are damaged, replace them with solid-core doors. d. City Right to Enter Property. The City shall have the right to enter on the Property and/or contact the City of Newark Police Department if it becomes aware of or is notified of any conditions that pose a danger to the peace, health, welfare or safety of the Tenants and/or the surrounding community, and to perform or cause to be performed such acts as are necessary to correct the condition. The City shall provide Owner notice of its contact with the City of Newark Police Department.
e. Documents and Reports. Documents and reports relating to security inspections, community complaints and concerns, and illegal activities on the Property shall be maintained and available for inspection by the City.

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15 In the event that Owner breaches any of the covenants contained in this Section 5.6, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the rate of 10% per annum.

Section 5.7 Social Services. Owner shall provide a variety of social services at the Development. Such social services are subject to the prior written approval of the City, in its reasonable discretion. Owner shall use its best efforts to create a comprehensive social service program that is targeted to the needs of the residents of the Development which may include, but is not limited to, the following services: after-school programs of an ongoing nature for school age children, financial planning skills, job coaching, and/or the availability of a bona fide services coordinator to the tenants. Owner shall ensure that all personnel providing or coordinating all social services shall be adequately trained and counseled, including with respect to the appropriate means and methods of communicating and interacting with residents. Any substantive decrease in the amount of social services to be provided at the Property shall be subject to prior reasonable approval of City and approval shall not be unreasonably withheld.

ARTICLE 6.

MISCELLANEOUS
Section 6.1 Transfers.
(a) For purposes of this Agreement, "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of: (i) any rights and/or duties under the Loan Documents; and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and Owner retains title. The term "Transfer" excludes the leasing of any single Unit in the Development to an occupant in compliance with this Regulatory Agreement.
(b) Except as otherwise permitted in this Section 6.1, no Transfer is permitted without the prior written consent of the City, which the City may withhold in its sole discretion.

The City Loan shall automatically accelerate and be due in full upon any Transfer made without the prior written consent of the City.
(c) The City hereby approves the admission of the Investor Limited Partner to Owner as limited partner. The City hereby approves future Transfers of the limited partner Packet Page 301
16 interest of Owner provided that: (i) such Transfers do not affect the timing and amount of the Investor Limited Partner capital contributions provided for in the Partnership Agreement (as such capital contributions may be adjusted pursuant to the terms of the Partnership Agreement); and (ii) in subsequent Transfers, the Investor Limited Partner or an Affiliate thereof, retains a membership or partnership interest and serves as a managing member or managing general partner of the successor limited partner.
(d) The City hereby approves a Transfer of the Property from Owner to Satellite Affordable Housing Associates, or a non-profit Affiliate of Satellite Affordable Housing Associates, and an assumption of the City Loan by such transferee at or prior to the end of the Fifteen Year Compliance Period, provided that: (i) such Transfer is pursuant to an option or right of first refusal agreement referenced in the Partnership Agreement, (ii) the assignment and assumption agreement evidencing such Transfer requires the transferee to expressly assume the obligations of Owner under the Loan Documents, and (iii) the City is provided executed copies of all documents evidencing the Transfer.
(e) The City hereby approves the purchase of the Investor Limited Partner interest by Satellite Affordable Housing Associates, or a non-profit Affiliate of Satellite Affordable Housing Associates, at or prior to the end of the Fifteen Year Compliance Period, provided that (i) such Transfer is pursuant to an option or right of first refusal agreement referenced in the Partnership Agreement, and (ii) the City is provided executed copies of all documents evidencing the Transfer.
(f) In the event the general partner of Owner is removed by the limited partner of Owner for cause following default under the Partnership Agreement, the City hereby approves the Transfer of the general partner interest to (i) a 501(c)(3) tax exempt nonprofit corporation or other entity with a 501(c)(3) tax exempt nonprofit corporation member or partner, with significant experience in the ownership and operation of affordable housing projects similar to the Development, and with financial resources sufficient for the ownership of the Development, as selected by the Investor Limited Partner and approved by the City, and (ii) the Investor Limited Partner or an Affiliate thereof, but only for a period not to exceed ninety (90) days from the date of removal of the general partner, during which time such entity shall diligently seek a replacement general partner meeting the requirements of subsection (i) above. (g) The City hereby approves the grant of the security interests in the Development for financing approved pursuant to the AHLA.

Section 6.2 Term. The provisions of this Agreement shall apply to the Property for the entire Term even if the entire City Loan is paid in full prior to the end of the Term. This Agreement shall bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by City. City makes the City Loan on the condition, and in consideration of, this provision, and would not do so otherwise.

Section 6.3 Notice of Expiration of Term.

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17 (a) At least six (6) months prior to the expiration of the Term, Owner shall provide by first-class mail, postage prepaid, a notice to all Tenants containing (a) the anticipated date of the expiration of the Term, (b) any anticipated increase in Rent upon the expiration of the Term, (c) a statement that a copy of such notice will be sent to City, and (d) a statement that a public hearing may be held by City on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. The Owner shall also file a copy of the above-described notice with City.
(b) In addition to the notice required above, Owner shall comply with the requirements set forth in California Government Code Sections 65863.10 and 65863.11. Such notice requirements include: (i) a three (3) year notice to existing tenants, prospective tenants and Affected Public Agencies (as defined in California Government Code Section 65863.10(a)) prior to the expiration of the Term, (ii) a twelve (12) month notice to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term, (iii) a six (6) month notice requirement to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term; (iv) a notice of an offer to purchase the Development to "qualified entities" (as defined in California Government Code Section 65863.11(d)), if the Development is to be sold within five (5) years of the end of the Term; and (v) a notice of right of first refusal within the one hundred eighty (180) day period that qualified entities may purchase the Development.

Section 6.4 Covenants to Run with the Land. City and Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless City expressly releases such conveyed portion of the Property from the requirements of this Agreement.

Section 6.5 Enforcement by the City.
(a) If Owner fails to perform any obligation under this Agreement, and fails to cure the default within 30 days after City has notified the Owner in writing of the default or, if the default cannot be cured within 30 days, fails to commence to cure within 30 days and thereafter diligently pursue such cure, City shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law:
(1) Calling the Loan. City may declare a default under the Note, accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed of Trust.
(2) Action to Compel Performance or for Damage. City may bring an action at law or in equity to compel Owner's performance of its obligations under this Agreement, and/or for damages.

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18 (3) Remedies Provided Under Loan Documents. City may exercise any other remedy available at law or provided under the Loan Documents. (b) The City shall provide notice of a default to the Investor Limited Partner and any limited partner of Owner who has requested written notice from the City in the manner set forth in Section 6.1 of the Loan Agreement, and the Investor Limited Partner shall have the right, but not the obligation to cure such event of default.

Section 6.6 Attorney's Fees and Costs. In any action brought to enforce this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.

Section 6.7 Recording and Filing. City and Owner shall cause this Agreement, and all amendments and supplements to it, to be recorded against the Property in the Official Records of the County of Alameda.

Section 6.8 Governing Law. This Agreement shall be governed by the laws of the State of California.

Section 6.9 Amendments. This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title, and duly recorded in the real property records of the County of Alameda, California. The City agrees to amend this Agreement at the Construction Loan Closing to reflect any changes made to the affordability levels and other factual changes and to make other reasonable amendments as requested by the Investor Limited Partner or lenders included in the approved Financing Plan (as those terms are defined in the AHLA).

Section 6.10 Notice. All notices given or certificates delivered under this Agreement shall be in writing and be deemed received on the delivery or refusal date shown on the delivery receipt, if: (i) personally delivered by a commercial service which furnishes signed receipts of delivery or (ii) mailed by certified mail, return receipt requested, postage prepaid, addressed as shown on the signature page. Any of the parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent. Notices shall be sent to:

City: City of Newark
37101 Newark Blvd.

Newark, CA 94560
Attention: Community Development Director
(with copy to City Attorney)
Developer: Thornton, L.P.
c/o Satellite Affordable Housing Associates
1835 Alcatraz Avenue
Berkeley, California 94703
Attention: ___________________
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19 With a copy to: Gubb & Barshay
235 Montgomery Street, Suite 1110
San Francisco, CA 94104
Attention: Erica Williams Orcharton
Section 6.11 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby.

Section 6.12 Multiple Originals; Counterparts. This Regulatory Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.

Section 6.13 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the Property, this Regulatory Agreement will revive according to its original terms if, during the Term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or a leasehold interest in the Property.

Section 6.14. Indemnification. Owner shall defend, indemnify and hold the City and its officials, officers, directors, employees, and agents (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses (including reasonable attorneys' fees) which an Indemnified Party may incur as a result of Owner's failure to perform any obligation as and when required by this Agreement, or any act or omission by Owner, or any of Owner’s contractors, subcontractors, agents, employees, licensees or suppliers with respect to the Development or the Property, except to the extent that such losses are caused by the gross negligence or willful misconduct of such Indemnified Party. Owner shall pay immediately upon an Indemnified Party's demand any amounts owing under the indemnity provided under this Section 6.14. The duty of Owner to indemnify includes the duty to defend the Indemnified Party in any court action, administrative action, or other proceeding brought by any third party arising in connection with the Development or the Property with counsel reasonably approved by City.

Owner's duty to indemnify the Indemnified Parties shall survive the expiration or earlier termination of this Agreement.

Section 6.15. Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Owner or its successor or for any obligation of City under this Agreement.

Section 6.16. Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or designee, without further approval by the City Council.

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20 Section 6.17. Time is of the Essence. Time is of the essence in the performance of this Agreement.

Section 6.18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

IN WITNESS WHEREOF, the City and Owner have executed this Agreement by duly authorized representatives, all on the date first written above. [signatures on following page]
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CITY:

CITY OF NEWARK, a California municipal
corporation
By:

David Benoun, City Manager
Attest:

By:

Sheila Harrington, City Clerk
Approved as to Form:

By:

Kris Kokotaylo, City Attorney
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OWNER:

THORNTON, L.P.,
a California limited partnership
By: Satellite AHA Development, Inc.,
a California nonprofit public benefit
corporation,
its general partner
By:

Name: Susan Friedland
Its: Chief Executive Officer
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
______________________________________
Name: _______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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A-1

EXHIBIT A
Property Description
6361 Thornton Avenue:

Portion of Lot 23, Block "J", Map of Newark Acres, flied December 8, 1916, Map Book 16, Page
11, Alameda County Records, described as follows:

Beginning at a point on the N/W line of Thornton Avenue distance thereon North 33° 00' East 440 feet from the point of intersection thereof with the N/W line of Cherry Road, as said avenue and road are shown on said map; running thence along the said line of Thornton Avenue, North 33° 00' East 55 feet; thence North 56° 86' West 150.00 feet; thence South 33° 00' West 55.00 feet; thence South 56° 66' East 150.00 feet to the point of beginning.

EXCEPTING THEREFROM that portion conveyed to the City of Newark:

The Southeasterly 10 feet of that certain parcel of land described in the Deed from Clyde W.

Lindsay and Marie T. Lindsay, his wife, to Edward C. Jackson and. Eunice M. Jackson, his wife, recorded October 2, 1952 in the Office of the County Recorder of Alameda County in Book 6839, Page 514, Official Records of Alameda County.

APN: 092A-0919-017-02
6347 Thornton Avenue:

Portion of Lot 23, Block "J", Map of Newark Acres, flied December 8, 1916, Map Book 16, Page
11, Alameda County Records, described as follows:

Beginning at a point on the Northwestern line of Thornton Avenue distance thereon North 33° 00' East 495.00 feet from the Northeastern line of Cherry Road, as said avenue and road are shown on said map; running thence along the said line of Thornton Avenue, North 33° 00' East

55.00 feet; thence North 56° 86' West 150.00 feet; thence South 33° 00' West 55.00 feet; thence South 56° 66' East 150.00 feet to the point of beginning.

EXCEPTING THEREFROM the Southeastern 10 feet, as granted to the City of Newark recorded
September 10, 1969, Series No. 101382 in Book 2474, Page 50 of Official Records. 6375 Thornton Avenue
APN: 092A-0919-016-02
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6375 Thornton Avenue:

A portion of Lots 22 and 23 in Block J, map of Newark Acres, filed December 8, 1916, in Book 16 of Maps, Page 11, Alameda County Records, described as follows:

Beginning at a point on the Northwestern line of Thornton Avenue, distant thereon North 33° 00’ East 385 feet from the point of intersection thereof with the Northeastern line of Cherry road, as said Avenue and Road are shown on said map; running thence along said line of Thornton Avenue North 33° 00’ East 55.00 feet; thence North 56° 58’ West 150.00 feet; thence South 33° 00’ West 55.00 feet; thence South 56° 58’ East 150.00 feet to the point of beginning.

APN: 092A-0919-018
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5267307.4
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RESOLUTION NO. ____

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING A LOAN IN THE AMOUNT OF
$12,000,000 OF CITY OF NEWARK AFFORDABLE HOUSING

IMPACT FEE FUND TO SATELLITE AFFORDABLE

HOUSING ASSOCIATES FOR DEVELOPMENT OF A

MULTIFAMILY AFFORDABLE HOUSING RENTAL
DEVELOPMENT AT 6347-6375 THORNTON AVENUE
WHEREAS, in May 2021, the City Council approved Resolution 10,201 approving an Affordable Housing Work Plan that includes activities for the preparation of new affordable housing requirements, policies, and actions intended to significantly incentivize the production of affordable housing within the City, particularly at the very-low and low-income levels; and WHEREAS, in June 2022, the City released a Notice of Funding Availability (“NOFA”) for multifamily affordable housing rental projects, inviting developers of deed-restricted affordable new-construction multifamily rental housing projects in the Bay Area to apply for funding assistance; and
WHEREAS, the NOFA invited developers to request a total of up to $12,000,000 from the City of Newark Affordable Housing Fund; and
WHEREAS, the City received one response from Satellite Affordable Housing Associates (“SAHA”); and
WHEREAS, SAHA is in contract to purchase three contiguous parcels of real property located at 6347-6378 Thornton Avenue, and proposes to seek approvals for a multifamily affordable housing rental project with no less than 57 units thereon (the “Thornton Avenue project”); and
WHEREAS, SAHA is seeking a loan in the amount of $12,000,000 from the City of Newark Affordable Housing Impact Fee Fund to help support acquisition of the site and construction of the Thornton Avenue project; and
WHEREAS, on January 19, 2023, the Community Development Advisory Committee (“CDAC”) reviewed the project and recommended that the City Council approve the allocation of $12,000,000 from the City of Newark Affordable Housing Impact Fee Fund to SAHA to help support acquisition of the site and construction of the Thornton Avenue project.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark as follows:

Section 1. That the forgoing recitals are true and correct and made part of this Resolution.

Section 2. That the City Council does hereby authorize the City to provide up to $12,000,000 of the City of Newark Affordable Housing Impact Fee Fund to the Thornton Avenue project proposed

ATTACHMENT K
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by SAHA.

Section 3. The City Council hereby authorizes and directs City staff to negotiate and prepare such documents as are necessary and appropriate to provide a loan to the developer of the Thornton Avenue project, in such form as may be approved by the City Community Development Director and the City Attorney.

Section 4. The City Council authorizes the City Manager (or his designee), on behalf of the City, to execute the foregoing loan documents, and to take such other actions as are necessary to carry out the City’s obligations under such documents, including the execution of escrow instructions and closing documents.

Section 5. The City Council finds that the City’s provision of financial assistance pursuant hereto is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines, as it can be seen with certainty that the approval of financial assistance will have no significant effect on the environment. City staff is authorized and directed to file a Notice of Exemption from CEQA with the California Office of Planning and Research and the County Clerk of the County of Alameda in the manner specified in Subdivisions (b) and (c) of Section 21152 of the Public Resources Code.

This Resolution was introduced at the City of Newark City Council’s March 23, 2023 regular meeting by Council Member _________________________, seconded by Council Member _________________________, and passed as follows:

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March 23, 2023
City Council Meeting
Carmelisa Lopez, Senior Planner
$12 Million Funding Award Allocation to
Satellite Affordable Housing Associates
Packet Page 316
Agenda

1. Introductions

2. Notice of Funding Availability (NOFA) Overview

3. Project Proposal

4. Review of Project Against NOFA Priorities

5. Loan Terms

6. Staff Recommendation

7. Q&A
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Introductions
City of Newark
Steven Turner, Community Development Director
Art Interiano, Deputy Community Development Director
Carmelisa Lopez, Senior Planner
Community Planning Collaborative
Kristy Wang, Principal
Paul Peninger, Principal, Bay Area Economics
Satellite Affordable Housing Associates
Jonathan Astmann, Associate Director, Real Estate Development Packet Page 318
Affordable Housing Work Plan
• City Council adopted the Affordable Housing Work Plan in May 2021 • Identifies the priority housing needs, types, and programs to help address the needs of Newark residents
• Staff has made progress on multiple fronts such as:
• Developing the 2023-2031 Housing Element
• Working on a Local Preference study
• Issuing an affordable multifamily rental new-construction Notice of Funding Availability
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NOFA
• Released the Notice of Funding Availability (NOFA) on June 2, 2022 • Priority Housing Needs from Affordable Housing Work Plan:
• Families with children
• Key workers (including teachers/educators, first responders, childcare workers)
• People and families at risk of homelessness
• People with disabilities and other special housing needs • Funding comes from the City’s Affordable Housing Impact Fee Fund

PROJECT
SITE
Packet Page 320
CDAC Review
• On January 19, 2023, the Community Development Advisory Committee (CDAC) considered the following priorities when reviewing the proposal:
• Consistency with Newark’s Housing Element
• Consideration of Design
• Provides Public Benefits in line with Newark’s Priorities • Strong Team Experience/Approach
• Financial Feasibility
• The CDAC shared support overall and unanimously recommended City Council approval of the funding allocation

PROJECT
SITE
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NOFA Process to Date

1. Released in June 2022

2. Submissions due August 2022

3. One submission received from Satellite Affordable Housing Associates (SAHA)

4. CDAC meeting on January 19, 2023

5. City Council meeting for funding decision
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6347-6375 Thornton Avenue
Affordable Housing
March 23, 2023
Packet Page 323
About SAHA
• Multidisciplinary, mission-based nonprofit
• 50+ years experience
• 70 properties developed
• 4,000+ residents served
• Pipeline: $445 million/1,200 units
• Experience in Newark
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Project Summary
• 57 units (mix of 1 - , 2- , 3- bedroom)
• Rents will be affordable at range of incomes 30-60% AMI ($727-$2,101 vs. $1,850-$3,800 current market rates).
• Amenities
• Community room with kitchenette
• Spacious courtyard
• Gardening program
• Outdoor tot play area
• Computer lab
• Acoustically insulated music practice room
• Bicycle repair station
• Bicycle storage
• Secure parking
Development Summary
Packet Page 325
$48,828,459 total cost
• City of Newark seed capital conventional mortgage
• Federal and State tax credit equity
• State HCD Multifamily Housing Program (“MHP”)
• Federal Home Loan Bank of San Francisco’s
Affordable Housing Program (“AHP”)
Financing
Federal &
State Tax
Credits
City
State
MHP
Conventional loan
AHP
$12 million City loan
• ~4.2 million for predevelopment costs
(land/acquisition, permit fees, etc.)
• ~7.8 million for construction costs
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Design Features
Community Garden
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Preliminary Site Plan
Garage In/Out
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Preliminary Second Floor Plan
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Next Steps
JANUARY 2023
CDAC meeting
Negotiate agreements
with developer
MARCH 2023
City Council approval of
developer selection and
City loan to project
MARCH/APRIL 2023
Developer to purchase
property using City loan
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Overall Project Timeline
2023
Developer Selection
Property Acquisition
Schematic Design
Community Engagement
Planning
Application/Approval
2024
Design Development
Funding Applications
(AHP and MHP)
2025
Construction Drawings
Funding Application (Tax
Credits)
Building Permit
Application/Approval
Begin Construction
2026
Construction
2027
Complete Construction
Reach 100% Occupancy
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NOFA Review Priorities
Consistency with
Newark’s Housing
Element
Consideration of
Design
Provides Public
Benefits in line with
Newark’s Priorities
Strong Team
Experience/Approach Financial Feasibility
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Review of Project Against NOFA Priorities
Consistency with Newark’s Housing Element
•Will provide safe, decent, affordable shelter for Newark residents
• Consistent with Housing Element Priorities
• Consistent with High Density Residential designation in General Plan
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Review of Project Against NOFA Priorities
Consideration of Design
• Consistent with city's vision for community
• Includes design features that speak to the existing
context
•Developer and architect have strong track record for
community-oriented design
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Review of Project Against NOFA Priorities
Provides Public Benefits in line with Newark’s
Priorities
• Income Targeting: All units serve lower-income (30-
60% AMI) households; averaging <45% AMI
•Population Targeting: Focus on family-sized units;
includes 15 2BRs, 16 3BRs out of 57 total units
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Review of Project Against NOFA Priorities
Strong Team Experience/Approach
•Community-oriented developer/owner
•Architect with urban design focus
•Team is open to the project evolving to meet city
and community needs
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Review of Project Against NOFA Priorities
Financial Feasibility
• Overall: in line with industry standards
• Cost Effectiveness/ Value: $850K/unit
• Number of Units: 57
• Leverage Other Financing Sources: $210K/unit in city subsidy; reliable plan for obtaining tax credits and other subsidy sources Packet Page 337
Review of Project Against NOFA Priorities
Consistency with Newark’s Housing Element
Consideration of Design
Provides Public Benefits in line with Newark’s Priorities Strong Team Experience/Approach
Financial Feasibility
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Loan Documents
• The documents formalize the exchange of commitments and expectations between the City and SAHA
• Affordable Housing Loan Agreement
• Regulatory Agreement
• Deed of Trust
• Promissory Note PROJECT
SITE
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Main Terms of City Loan
Loan Amount $12,000,00
Interest Rate 3%
Term 57th anniversary of Final CoO
Repayment City’s prorata share of residual receipts
Affordability Regulatory Agreement will regulate 28 of the 57 units because of Article 34.
100% affordability enforced through state density
bonus and TCAC regulatory agreements.

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Main Terms of City Loan
Affordability
Levels
33% Extremely Low Income, 44% Very Low Income,
22% Low Income
City Preference To the extent permitted by law and funding regulations, preference will be given to applicants
who live or work in Newark
Covenants Runs
With The Land
The Regulatory Agreement remains in place even if
the property is transferred to another owner
Subordination Commitment to meet and confer with the successor owner to discuss need for rent increases to 60% AMI
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Staff Recommendation
Staff recommends that the City Council authorize the allocation of $12,000,000 from the Affordable Housing Impact Fee Fund to SAHA and authorize the City Manager to execute the Affordable Housing Loan Agreement and all related loan documents to effectuate the approval of the funding award for an affordable housing project at 6347-6375 Thornton Avenue.

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Item F. 1.

DATE 03/23/2023
TO Honorable Mayor and City Council Members
FROM Ed Miranda, Information Technology Director/CIO
SUBJECT Adopt a resolution authorizing the City Manager to execute a Contractual Services Agreement with Government Technology Group, LLC for development of a Citywide Broadband Master Plan and amend the 2022-2024 Biennial Budget and Capital Improvement Plan
SUMMARY AND RECOMMENDATION
In order to provide and form an implementation strategy for citywide high-speed internet access that includes access to all communities in Newark, a Citywide Broadband Master Plan is required. Staff recommends that the City Council, by Resolution, authorize the City Manager to execute a Contractual Services Agreement with Government Technology Group, LLC for the development of a Citywide Broadband Master Plan and amend the 2022-2024 Biennial Budget and Capital Improvement Plan by appropriating $200,000 of American Rescue Plan Act (ARPA) funding to the ARPA Fund 382.

BACKGROUND
On March 11, 2021, the Federal Government passed the American Rescue Plan Act, commonly referred to as “ARPA”, a $1.9 trillion relief package aimed to stimulate the economy. Under ARPA, the Coronavirus State and Local Fiscal Recovery Fund (SLFRF) was established and $11.8 million was awarded to the City of Newark. The City Council held a work session on October 7, 2021 to discuss options to spend the City’s $11.8 million allocation. On October 28, 2021, the City Council adopted Resolution No. 11275, the American Rescue Plan Act (ARPA) Recovery Plan, to guide staff on expenditure of the funds. This plan approved two initiatives to ensure sufficient infrastructure is in place to provide robust broadband services to all residents, businesses, and other organizations. The first initiative, development of a Citywide Broadband Master Plan, was allocated $200,000. The second initiative, broadband infrastructure (partial implementation of the Master Plan), was allocated $1,000,000.

The City of Newark is receiving $1.8 million from the State of California through Assembly Bill 179, largely due to the legislative efforts of Assemblymember Alex Lee, 24th District. The use of these funds will follow findings, recommendations and strategies of the Broadband Master Plan and will focus on the priorities developed through the master plan process to improve the existing network.

The City issued a Request for Proposals (RFP) for development of a Citywide Packet Page 343
Broadband Master Plan on December 1, 2022 through January 31, 2023 and received a proposal from Government Technology Group, LLC (GTG). GTG was deemed a qualified consultant as a technology consulting firm comprised of public service information technology leaders with extensive experience in local government with practical, hands-on, real-life expertise delivering fiber optic, broadband and Smart City technologies. The team identified for the Citywide Broadband Master Plan development has developed and implemented fiber plans for the City of Modesto, City of Merced, City of Concord, County of Ventura, County of Marin, City of El Monte as well as many others. GTG has partnered with Young Fiber for their industry expertise and advice in planning, designing, project managing and building out fiber/broadband infrastructure. The GTG and Young Fiber professionals identified for this project include Jeff Lewis, Mark Guenther, Clancy Priest and Preston Young. Jeff Lewis and Clancy Priest were part of the GTG team that assisted the City in 2022 with an assessment of the City's Information Systems Division, which led to the formation of the City's first Information Systems Department and the hiring of several new IT analysts.

DISCUSSION/ANALYSIS
The scope of the Broadband Master Plan is to help the City of Newark explore competitive, reliable and cost-effective broadband technologies to address the needs of the community at large, with a focus on unserved and underserved areas. Broadband infrastructure enables innovation in business and operational processes and citizens are demanding new communication speeds to simplify or speed their work. Fiber infrastructure provides efficient error free communications that allow for real time-sharing of information between City facilities, including traffic signals and public safety while improving internet services for the community including residents, businesses (commercial and industrial), schools and health services, and other organizations.

GTG, with the support of Young Fiber, a firm with extensive fiber optic planning experience, will provide the City of Newark a Broadband Master Plan that will assist in the City's ability to obtain funding, improve access/inclusivity, provide high speed communications that are reliable at a reasonable cost. The Broadband Master Plan will be designed with input from current local internet service providers, business and other community stakeholders. The results will provide a broadband solution that will improve innovation and be positioned for future Smart City solutions that can support the collective network of connected devices and the technology that facilitates communication between devices and the cloud, and the devices themselves (also known as "IoT", the Internet of Things).

GTG plans to accomplish the Broadband Master Plan through a structured, phased approach that builds upon earlier stages and findings to discover and resolve foundational gaps in the communications needs of the City with recommendations, roadmaps and prioritizations to support broadband technologies. The planning methodology for the Broadband Master Plan will be a collaborative effort with staff and community input through conversations, surveys, meetings, workshops and reviews, supplemented by subject-matter expertise and awareness of industry best practices and evolving trends. Extensive communication is key, and the project initiation process Packet Page 344
and evolving trends. Extensive communication is key, and the project initiation process ensures that joint expectations are fully understood and met throughout the project with regular meetings and reporting. The schedule is targeted to include thirty weeks of project phases and memorialized in a milestone to be flexible to meet City staffing and operational requirements. Background preparatory activities for each milestone are continuous throughout the project to meet the stated objectives and deliverables.

With the combined efforts of both GTG and Young Fiber, they will prepare a Broadband Master Plan that will position the City of Newark to embrace the advancements while improving broadband services in the community. The study will articulate a mission and vision to accommodate the City's current and future "Smart City" projects.

The City of Newark's Broadband Master Plan will become a framework for the next 10 years that will facilitate the City's mission of providing superior public services that enhance the quality of life for the community. The plan will assist with the rapid growth of the Internet of Things (IoT) and the need for Smart City services due to the proliferation of connected devices, including utility assets, streetlights, traffic signals and surveillance cameras. In addition, the plan will enhance economic development, education, healthcare and the quality of life for the residents and businesses of Newark while allowing the City to target investments and develop capabilities that contribute to achieving strategic and organizational objectives. The Broadband Master Plan will guide and enable decisions on how fiber optic technologies support City and community needs. In addition, it will enhance operational and business processes to help staff collaborate within and across divisional boundaries. The Broadband Master Plan will lay out steps for the City to use broadband services to improve efficiencies in delivering services to the community including broadband friendly policies that support the Citywide Broadband Master Plan.

Phase One establishes the foundation for effective communication and the successful completion of the project. Phase Two focuses on the assessment of the City's current environment and how fiber optic communications support the City's needs while identifying gaps, opportunities, and long-term provision of a broadband communications system. This discovery and assessment phase will result in a gap analysis between vision and the current fiber infrastructure realities by means of working closely with stakeholders to perform a comprehensive assessment. Surveys will be conducted to assess and determine overall satisfaction in terms of broadband and broadband service delivery and support. In addition, GTG will assist with gathering information on all city and private assets to incorporate into the plan (asset inventory, stakeholder outreach, market analysis, governance discussions).

Phase Three builds the tools and vision for the future of Newark including high level design, cost and funding analysis. Workshops and road maps contribute to the understanding of how that future can be achieved. The culmination of the assessment of the current environment, combined with the needs and goals of all the stakeholders, this phase focuses on planning the future with a supporting fiber optic network. The vision requires an understanding of the needs, goals, and funding opportunities the City of Newark will be able to leverage to complete the overall project goals and objectives.

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The final step, follows a structured methodology to develop a Broadband Master Plan that is supported by the information gathered in the "Discovery" and "Vision" phases to develop actionable recommendations and projections for future broadband improvements that support residents, local business and services, regionalism and Smart City technologies. Work products and memorandums from previous tasks will be the foundation for the development of the City of Newark's Broadband Master Plan.

Upon completion and acceptance of the final Broadband Master Plan, GTG will provide a professional presentation summary to multiple audiences, including the City Council.

FISCAL IMPACT
The City Council allocated $200,000 of American Rescue Plan Act (ARPA) Recovery Plan funding toward the development of a Citywide Broadband Master Plan. An amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for the fiscal year 2023 would appropriate $200,000 to the professional services line item in the ARPA Fund (382) for FY 2023.

REVIEW AND APPROVAL
Prepared by - Edwin J. Miranda, Information Technology Director Reviewed by - Lenka Hovorka, Assistant City Manager
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Broadband Master Plan Resolution
Agreement Broadband Master Plan
Presentation Broadband Master Plan
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE A CONTRACTUAL SERVICES AGREEMENT

WITH GOVERNMENT TECHNOLOGY GROUP, LLC TO

PROVIDE A BROADBAND MASTER PLAN AND AMEND
THE 2022-2023 BIENNIAL BUDGET AND CAPITAL

IMPROVEMENT PLAN
WHEREAS, the City Council held a work session on October 7, 2021 to consider options for use of the City of Newark’s $11.8 million of the Coronavirus State and Local Fiscal Recovery Funds (SLFRF) allocation and the City of Newark’s American Rescue Plan Act (ARPA) Recovery Plan was formally approved on October 28, 2021; and WHEREAS, the ARPA Recovery Plan designates $200,000 for development of a Broadband Master Plan under the infrastructure expense category; and WHEREAS, a Citywide Broadband Master Plan will ensure sufficient infrastructure is in place to provide robust broadband services to all residents, business and other organizations that will support and expand the City’s Smart City efforts; and WHEREAS, the City released a request for proposals for the development of a Citywide Broadband Master Plan; and
WHEREAS, after review of the proposal received, Government Technology Group, LLC was selected to provide the requested services.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to execute the Contractual Services Agreement with Government Technology Group, LLC, in a form approved by the City Attorney, to develop a Broadband Master Plan for an amount not to exceed $200,000.00.

BE IT FURTHER RESOLVED that the City Council does hereby authorize an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan as follows:

TO: 382.21.021.200.6220 Professional Services $200,000
FR: 382.3000 ARPA Unappropriated Fund Balance $200,000
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CSA 8/2019 -1-

CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this ____ day of ____________ by and between the CITY OF NEWARK, a municipal corporation (“City”), and Government Technology Group, LLC, (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:

Development of a Citywide Broadband Master Plan and SmartCities Roadmap WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the Services more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

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3. COMPENSATION.

A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum $200,000.00 unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount.

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Attn: Finance Department
37101 Newark Blvd.

Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of an invoice, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

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4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services rendered pursuant to this Agreement.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its Subconsultants, if any, identified in Exhibit “C”. Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or Subconsultants identified in Exhibit “C”, without the prior written consent of City. All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

Consultant agrees to include with all Subconsultants in their subcontract the same requirements and provisions of this Agreement including the indemnity and Insurance requirements to the extent they apply to the scope of the Subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subconsultant further agrees to include these same provisions with any Sub-subconsultant. A copy of this Agreement’s Indemnity and Insurance provisions will be furnished to the Subconsultant upon request. The Consultant shall require all Sub-subconsultants to provide a valid certificate of insurance and the required endorsements included in this Agreement prior to commencement of any Services and will provide proof of compliance to the City.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or Subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

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8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement.

Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

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12. RESERVED.

13. RESERVED.

14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.

Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:

CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and

2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and
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4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.

Consultant shall maintain limits no less than:

1. General Liability:
(including products and
completed operations,
property damage, bodily
injury, and personal and
advertising injury)
$1,000,000 per occurrence for
bodily injury, personal injury, and
property damage. If a general
aggregate limit applies, either the
general aggregate limit shall apply
separately to this project/location or
the general aggregate limit shall be
twice the required occurrence limit.

2. Automobile Liability: $500,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions
Liability:
$1,000,000 per occurrence or
claim; $2,000,000 aggregate.

D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.

E. Claims Made Policies.

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coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

F. Wasting Policies.

No policy required by this paragraph 14 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).

G. Remedies.

In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall Packet Page 354
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not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.

3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.

6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

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16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants.

Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established.

An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

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17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

18. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire upon completion of performance of Services hereunder by Consultant.

B. Notwithstanding the provisions of paragraph 18 Section A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant.

Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3.

In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

19. CONTRACT ADMINISTRATION. This Agreement shall be administered by of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

CITY OF NEWARK
Consultant Administrator
Address: City of Newark
Attn:
37101 Newark Boulevard
Newark, CA 94560

21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

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22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

30. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK,
a municipal corporation
CITY OF NEWARK, a municipal corporation CONSULTANT
____________________________ ____________________________ By: By: By:

Title: Title:

Date: ____________________________ Date: ____________________________ ATTEST:
____________________________
By: Sheila Harrington
Title: City Clerk
Date: ____________________________
APPROVED AS TO FORM:
____________________________
By: Kristopher Kokotaylo
Title: City Attorney
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EXHIBIT A

SCOPE OF SERVICES
This Scope of Services, Exhibit “A,” is hereby incorporated by reference into the Agreement, under Agreement Paragraph 1.

Broadband Master Plan

1. Project Management & Meetings
GTG’s team will hold bi-weekly meetings with the city of Newark’s project team to discuss the project status, deliverables, and any other topics to keep the project moving forward. Keeping the project moving forward without delays is key to the success of the overall project. The meetings will be preceded by agendas, handouts, and other documentation as needed.

In addition to the bi-weekly meetings, GTG will be available for workshops, meetings, and interviews with city staff and other stakeholders relevant to the project. These meetings would be used primarily for providing progress updates, goals, direction of project, etc.

At the present time, due to COVID restrictions and uncertainty about the future, it is assumed that all meetings will be conducted virtually until such time as in-person meetings are practical.

Kick-Off Meeting & Project Management Plan -The project will begin with a kickoff meeting between the GTG team and the City of Newark’s project team. Prior to the kickoff, GTG will put together a Project Management Plan (PMP) including a project outline, timeframe, deliverables, and other milestones. After the meeting, based on feedback from the stakeholders GTG will revise the PMP accordingly. GTG will deliver the updated PMP within 7 days following the meeting.

2. Asset Inventory
We will conduct an asset inventory to gain an understanding of the current infrastructure that can be leveraged for this project. These assets include but not limited to:
● Any existing conduit, abandoned infrastructure, traffic signal interconnect, or other ● City owned fiber optic cables including access points o With strand count and availability
● Any building or cabinet space available for cable terminations and patch panels ● Traffic lights
● Streetlights
● Any existing wi-fi access points
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● All camera locations: Public safety, Traffic, Automatic License Plate Readers, and/or Building security cameras
● Any capital improvement projects
● Site list of all facilities to connect to the network ● GIS maps including City-owned property, right of way, easements ● Economic development zones, low/moderate income areas, un/underserved areas ● Other as needed
GTG can utilize this information in any form including GIS, PDF, Excel, Word, Pictures, KMZ, etc. This information will be requested as soon as possible after the project begins and put into a master GIS database. The GIS database will be turned over to the city upon completion of the project.

GTG will also use the available contacts and websites to gain an understanding of the existing fiber throughout Newark that could be leveraged as part of the Broadband Planning Study. The local Internet Service Providers (ISPs) will be contacted with the hopes of gaining an understanding of their current networks and future plans for the area. It is assumed that most providers will not share maps of their networks for proprietary reasons but in the spirit of the project they will typically verbally share information that can be used in the study. The analysis will include as much of this information as possible and will lead to a better understanding of the local networks and how the community is being served and show the inequalities that exist in all markets. These talks should yield an understanding to both the city and the providers of the current needs of the community and a greater understanding of how to solve these issues. The providers will also have needs and goals that should be considered in the designing of the network as they too are stakeholders in Newark and should be viewed that way.

After all this information is collected and put into a comprehensive map, GTG will conduct a gap analysis indicating the areas of the city that will require new fiber optic infrastructure to extend services where needed/desired.

Per the RFP, a technical memorandum will be provided to the city at the end of this phase.

3. Technology and Trends Review
Our team of experts maintain a presence in many forums and groups that help influence the direction of broadband. These nationwide groups: current state of broadband, what technologies have been successful and not successful. They are knowledgeable about the trends that are helping municipalities become smarter and more efficient, and the types of networks needed to support these technologies.

The internet of things, or IoT, is a system of interrelated computing devices, mechanical and digital machines, objects, animals, or people that are provided with unique identifiers (UIDs) and the ability to transfer data over a network without requiring human-to-human or human-tocomputer interaction. IoT is quickly becoming such an integral part of our lives. IoT is the Packet Page 361
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innovation that is bringing together various smart systems, frameworks, intelligent devices, and sensors meant to make our lives better, more efficient, safer, longer, and easier.

We will bring this knowledge to the city of Newark and highlight the technologies and trends that are of particular importance to municipalities.

4. Broadband Availability and Market Analysis
Within the city of Newark, there are multiple private companies that are providing broadband services to their residences and businesses. We will research and use many different resources to find what is available, the cost, and who is providing those services.

As part of the analysis, we will interview the private sector companies and ascertain what networks exist and if there are plans for the future that would have an impact. We will contact the wireless, wireline, fixed wireless, and cellular companies with a presence in Newark. It is expected that these companies will not share maps or detailed plans, however, they typically will cooperate as much as they can. It should also provide an insight into the idea of partnerships and the level of interest these companies have.

There are several resources on the state and Newark levels that will be used to obtain coverage maps and availability. Every facility-based provider must report, every 6 months, FCC Form 477 every census block that they provide services and the speeds of that services. The FCC takes this information and provides maps that show the reported information.

5. Needs and Goals Assessments
Determining the State of Broadband in Newark will occur during this phase. We will perform outreach with the community and stakeholders within the City of Newark’s departments, focus groups, major employers, neighboring agencies etc. to determine the needs of these groups. The first step for knowing where to expand broadband and having a smart city is to satisfy the needs of the community and constituents.

We will also identify use cases and key issues that impact the community, economic development, education, healthcare, public safety and City operations in this phase in addition to broadband solutions that assist unserved and underserved areas of the City.

Goals are a major driving force for increasing broadband and fiber networks. It is imperative to know the technologies, IoT, programs, smart city applications, 5G and 6G, among many others.

No two cities are the same and they all have different goals, objectives, and needs in order to make the city the best it can be. We will use our extensive experience to guide the interviews to learn how to best serve the city.

The needs and goals assessment will include bifurcated residential and commercial surveys per deliverable section V.A.

GTG will assess City policies and business practices during this phase.

6. Gap Analysis
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During the discovery phases of the project, we will document and compare the current infrastructure with the network that will be needed to meet the needs and goals of the city. We will take all this information and develop an analysis of the gaps, or missing pieces that will be needed to complete the network.

Between private networks, future plans, and current city assets a comprehensive road map will be outlined on how to fill the gaps.

7. High-level Broadband Design – Conceptual Routing
Following the gap analysis, we will put together a conceptual HLD (high-level design) that will fill the gaps. We will work with the city’s team to find the most appropriate network type and design to fit the business model. We will create a design that will include expected construction types and costs, cable sizes, strand counts, route diversity, and redundancy to support an inclusive, high speed and reliable service at reasonable cost.

The HLD will include area data centers and colocation spaces and how and if the city of Newark should connect to these locations. It will include the most efficient and direct routing focusing on the most reliable and cost-effective construction methods. We will include technical specifications and a cost estimation should construction of a network be a feasible option.

8. Business Model & Financial Analysis
GTG will incorporate findings from the asset inventory, needs assessment, and partnership opportunities to develop a business model that fits the framework of financial, operational, and organizational requirements of Newark that will have the greatest chance of success and will be the most financially sustainable. We will present this business case to the City’s team and provide an analysis of how it meets Newark’s goals in the project. Each city is unique, and through our proven process we will work with Newark to find the model that is most feasible and presents the best opportunity for its unique community.

Some considerations for the business model may include:

Public-Owned
● City-owned “middle mile” infrastructure with potential partnership opportunities for “last mile” connections
Open Access
● Proceed with the intent to lease or otherwise make available, fiber infrastructure (conduit, dark or lit fiber, vertical and other assets) to other municipal entities, telecommunications carriers, other service providers or businesses ● Connect to an internet Point of Presence (POP) and offer a choice of Internet Service Providers (ISPs) to partnership entities and end-users on the network through either wholesale, retail, revenue sharing or passive network access Demand-Driven
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● Deploying the network and associated services where areas of demand (both social and economic) will be strongest
● Realizing a financial return on investment in terms of economic development impact, infrastructure enhancement, leased line or other communications service savings and revenue generation
● Focusing on social return on investment in terms of enhancing Quality of Life via educational, Public Safety, and Smart City initiatives
Incremental Build
● City/municipal buildings and facilities, evaluating leased-line savings, communications, and operational enhancements
● Community Anchor Institutions (CAIs) such as large businesses, hospitals, learning institutions, etc.
● Business economic development zones or corridors and the broader business community
● Public Wi-Fi areas, public safety and other smart city services requiring a fiber backbone or otherwise enhanced by high-speed access
● Eventual possibility of residential communities including multi-dwelling units (MDUs), low-income housing and the broader community at large.

Other considerations
● Leverage the existing network, including adding redundancy and resiliency, building the network to carrier-grade levels, monetizing current assets including leasing infrastructure
● Capitalize on joint-trench opportunities and other right-of-way access opportunities in conjunction with other Public Works projects and private development agreements to expand network infrastructure
After the best business model option has been selected, GTG proposes using our Broadband Financial Sustainability Model to ensure that Newark has a full understanding of the business and financial sustainability of the program. Using our financial tools, we suggest using the following process to conduct the business model analysis and make recommendations. We would propose using a 10-year period to analyze the project:
• Develop the cost model for the network, including one-time and ongoing capital expenditures to build the network. This will include an assessment of current facility locations, City owned land and the City right-of-way for construction, and the need to purchase any land or equipment.

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• Develop the cost model for operations, including O&M, network operations, field services, staffing, billing, and customer service.
• From the market analysis and outreach, determine the customer segmentation and growth on the network, across each type of customer (business, school, hospital, etc.). • Determine customer growth rates for the network, based on benchmarking analysis from other utility and municipal providers.
• Provide a phased deployment approach, including prioritization and costs for each phase.
• Determine a proposed competitive rate schedule for potential services, using pricing information from the market analysis and benchmarking information. • Develop financial statements including:
o Operating income and cash flow
o Net present value analysis
o Projected revenues and benefits
o Uses and sources of funds
o Operational expenses
o Depreciation schedule
o Debt service analysis
o Key assumptions
• Conduct comprehensive financial analysis on the project to determine overall financial sustainability using key metrics such as free cash flow, debt service coverage, operating margin, and net income.

We will incorporate findings, review them with the City’s team and provide direction for the final business case.

9. Phased Implementation Plan
The culmination of the study will lay out the core strategies for Newark to identify solutions for improved broadband services to unserved and underserved areas and that support Smart City/IoT initiatives. We believe a phased approach to implementing such a project is key. GTG’s team will help you develop a prioritized, phased approach that uses a “crawl, walk, run” approach to broadband communications expansion. We will identify near term, high-impact projects that will demonstrate capabilities and competence for the City, while minimizing capital investment.

These small steps are important to help you build toward larger goals. Building on the initial successes, we will provide a year-by-year roadmap to meet the City’s broadband needs, based on the priorities of your community and with clear milestones that should be achieved along the Packet Page 365
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way. We will also help you determine what activities, funding, resources, and partnerships you will need along the way to be successful at developing the City’s broadband Infrastructure to meet short term, mid-term and long-term goals of the City.

10. Grants and funding opportunities
Newark’s geographic location and population will limit the grant opportunities. However, within SB 156 there may be provisions for urban areas that will have opportunities for Newark.

11. Digital inclusion
One of the most paramount problems that has come to the forefront of the technology world is as technology advances the public has to be educated in how to use it. Most of the aged population does not have the skillset to access telehealth, distance learning, and other technologies and this must be addressed if Newark wants to become a smarter city.

12. Final report and presentation
Upon completion of the project, GTG will present the final report to the City Council if desired.

This presentation will encompass the methodology, findings, and recommendations.

The final report will include study findings for a proposed broadband mission and value statement that drives annual budget initiatives to achieve stated goals and milestones in the plan.

Other Services:
• Public Private Partnerships RFP Development
• Digital Inclusion Program Development
• SmartCities Roadmap (Scope of Services tied in with Broadband Master Plan Development) – Build a roadmap and provide a strategy for a SmartCities Initiative to include:
o Initiatives
▪ SmartCities Goals for Newark
▪ Inventory of SmartCities Initiatives Completed and Planned ▪ Innovation Roadmap
▪ Definition and Plan for a SmartCities Program
▪ High-level Implementation Plan with Prioritized List of Initiatives ▪ High-level Cost Estimates for each initiative within the Plan where available
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o High-level Implementation Plan – Develop a comprehensive and sustainable SmartCities Program with attainable outcomes that includes an innovation/initiatives roadmap, high-level strategic and implementation plan along with high-level budget estimates to achieve the goals. Once adopted, the roadmap will be a guiding document for the City of Newark. ▪ Innovation and SmartCities priorities based upon gathered current state and future state needs from all City departments and reflecting the City’s Vision, Community Goals and the ITSP.
▪ Consideration for current or planned work, including listing potential projects that would fit into or build on the City’s current initiatives (e.g, WiFi or traffic).
▪ Identification of key tools, platforms, policies, processes and/or programs required to build the City’s SmartCities Program, including governance, skills and competencies.
• Governance models, policies, processes and programs will include ways to inclusively engage and collaborate with the City’s diverse community, stakeholders and staff.
▪ Recommendations on how to develop the SmartCities Program including:
• Core partnerships to build/grow to scale our efforts and meet goals (local and regional).
• Recommendations for financial and business models to support innovation/SmartCities portfolio over the short, medium and long term.
▪ Proposed KPIs and methods for measurement and evaluation of the roadmap and implementation plan.
o Requirements/Deliverables
▪ Current State Analysis and Discovery. Deliverable: Current State Report • Conduct an environmental scan of municipalities and similar local government agencies and best practices with regards to
innovation/SmartCities to determine what the City’s current state is compared to others.
• Provide core definitions around SmartCities and the best fit for Newark
• Review and analysis of the City’s accomplishments to date that meet SmartCities definitions.

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• Review and analysis of the City’s current strengths and assets related to innovation and SmartCities (e.g., current partnerships, programs, policies, skills, technologies, governance models, etc.). • Review and analysis of the City’s barriers and weaknesses related to innovation and SmartCities.
• Provide an understanding of internal and external stakeholders. ▪ Future State Analysis and Recommendations Deliverable: Future State Analysis Report
• Conduct an environmental scan of other municipalities and similar local government agencies’ best practices with regards to innovation/SmartCities in order to determine what has proven successful, what can the City build upon from other’s experiences, define what is realistic and achievable for the City, and help identify opportunities for the City’s strategy/program
• Review and analysis of the City’s needed future strengths and assets related to innovation and SmartCities (e.g., potential partnerships, programs, policies, skills, technologies, governance models, etc.). • Review and analysis of the City’s barriers and weaknesses related to future innovation and SmartCities.
• Provide a prioritized inventory of recommended initiatives with high-level cost and resource estimates for implementation. ▪ Roadmap and Program Development. Deliverable: Road Map for SmartCities, Smart City Program Defined, High-level Implementation Plan ▪ Collaborate with key staff and community members to:
• Define SmartCities goals, priorities, themes that will guide our strategy and effort.
• Define principles that help guide the City’s Innovation and SmartCities efforts in the community and aligned with
organizational values.
• Define criteria that helps the City prioritize investment choices in the future about how innovation and transformation is incorporated in workplans as the SmartCities program and IT Strategic Plan evolves over time.

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• Establish processes, policies and programs required to build the City’s Innovation and SmartCities Program to include governance, staff skills, organizational culture and competencies.
• Identify key tools, platforms and programs that will help innovate and leverage SmartCities opportunities.
• Recommend initiatives and projects to support our SmartCities goals.
• Provide a resource plan and matrix of skills and staff (City or vendor) required for initiatives to be successfully implemented. • Recommend how to establish and maintain a SmartCities Program including resource, fiscal and operations management.
• Recommend how to roll out the SmartCities program with Roadmap.
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EXHIBIT B

COMPENSATION
This compensation schedule, Exhibit “B,” is hereby incorporated by reference into the Agreement, under Agreement Paragraph 3.

For all services identified in Exhibit “A”, Scope of Services, the City agrees to pay, and Consultant agrees to accept as total compensation the following:

The total fixed cost to the City of Newark for a Citywide Broadband Master Plan is $179,992.00 and includes all work to be completed by GTG as stated in this proposal. GTG will invoice Newark in eight equal monthly payments of $22,499.00. Invoices are payable on net 30 terms from the date of invoice.

The Government Technology Group will be available to assist with project managing an RFI or RFQ to assist the City in selecting a vendor if this model is selected by the City.

Description Cost
Project Management $8,970.00
Project Initiation
Project Kickoff Meeting
Project Management Plan
Discovery $75,075.00
Asset Inventory
Physical Inspection and Evaluation of City-owned conduit Technology Trends and Review
Broadband Availability and Market Analysis
Needs and Goals Assessment
Review City Policies and Business Practices
Gap Analysis
Provide Ongoing Knowledge of SB 156 and other funding sources Vision $47,190.00
High - Level Network Design - Conceptual Routing
Business Model & Financial Analysis
Phased Implementation Plan
Grants and Funding
Opportunities
Digital Inclusion
Technology Master Plan Final with Smart City Foundation $27,300.00 Master Plan Draft
Report Out to Board, Mgmt, Divisions
Incidentals & Travel $1,950.00
Broadband Master Plan Sub-total $160,492.00
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Description – PPP or Digital Inclusion Program Cost
Depending on Plan Outcome, one of the following will be completed:

Public Private Partnership (PPP) RFP Development and Oversight “or” $19,500.00 Digital Inclusion Program $19,500.00
Broadband Master Plan + PPP or Digital Inclusion Program $179,992.00 Description - Contingency Cost
Should work outside of the fixed fee agreement herein be requested and authorized by the City of Newark, the Government Technology Group will bill only for actual hours worked at a rate of $195 per hour. $20,008.00
Total Not-To-Exceed $200,000.00
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EXHIBIT C

QUALIFICATIONS
These Consultant Qualifications, Exhibit “C,” are incorporated by reference into the Agreement, under Agreement Paragraph 6.

Project Team
JEFF LEWIS, PMP, CGEIT – Principal Consultant for Overall Project Management and Fiber Optic Planning
Jeff Lewis is a veteran in the field of Information Technology and has a career that spans over thirty- eight years in public, private, and non-profit sectors including positions in local government, medical, and IT consulting. He has served as Chief Information Officer for multiple local government and non-profit agencies, is a founding member of the Government Technology Group (www.GovTechGroup.net) and has served as the Director of Smart Region Initiative at Joint Venture Silicon Valley.

As a CIO Jeff has led Smart City, broadband, IT strategic and GIS planning, enterprise architecture, policy, and research initiatives for local government. Specific areas of responsibility included developing and advancing Smart City initiatives, digital government, security policy, innovation, and emerging technologies. During this tenure, he served as the lead executive for numerous enterprise IT initiatives, broadband/fiber projects, and efforts to improve business processes.

Jeff is a lifetime member of the Municipal Information Systems Association of California (MISAC) and has won the MISAC Excellence award 10 years in a row for implementing best practices in local government. Jeff has served as President of MISAC, and currently serves on the Education and Smart City committees.

MARK GUENTHER, CGCIO – Principal Consultant for Project Review and Evaluation Mr. Guenther is also a recently retired municipal Chief Information Officer who has been part of several organizations as detailed in his résumé. Mr. Guenther is currently an independent technology consultant offering a wide range of technical expertise. In both the CIO and consulting roles, he has overseen the successful implementation of citywide enterprise systems including finance (AP, GL, PR, Budget), community development (Permits) and utility billing functions including online access to permit and utility accounts for customers (Tyler Munis) for Hayward, California and Danville, California. Prior to focusing on IT management, he implemented numerous systems, both those which were developed in-house and others that were configured commercial packages which created automated systems for financial and community development functions.

CLANCY PRIEST, IEEE – Principal Consultant for Project Review and Evaluation Mr. Priest is a retired 30+ year municipal Chief Information Officer who has been part of several organizations as detailed in his résumé. Mr. Priest is currently an independent technology consultant offering a wide range of technical expertise. His education is in the technical field with a baccalaureate in engineering. He has a wide range of technical abilities with an emphasis on project and program management, with extensive experience in various forms of information Packet Page 372
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technology and executive management. He has a vast knowledge base of the various forms of automation and of the continual technological evolutions that prevail in the technology profession.

PRESTON YOUNG – Senior Broadband Consultant
San Francisco Bay Area has been Mr. Young’s home for most of his career. He has worked in construction management, project, and program management, and been part of and managed internal teams of 10+ as well as vendor teams. He has been responsible for communications to executive level management on project status and risk management. Main area of career focus has been broadband deployment through fiber optics and fiber optic networking.

Mr. Young is an accomplished and respected Senior Broadband Consultant passionate about creating a culture of integrity and excitement in an organization. He is recognized for accelerating operational initiatives while partnering with senior executives in defining long-term initiatives, goals, and objectives.

WILLIAM PUGH – Project Consultant

SMART CONNECTIONS CONSULTING LLC
Mr. Pugh has over 25 years of experience in wired/wireless strategy of platform development and deployment of networking technologies for several private and public companies. Most recently over the past 7 years, working with cities on strategies for executing Smart City initiatives around Street lights, Smart Parking, Intelligent Traffic and Security. Several technologies include, but not limited to:
• Wireless solutions
• Digital Twins
• Distributed Ledger Technologies
• Standards and Interoperability
• Cloud strategy and distributed Networking
Project References
References that best support the proposed teams’ stated qualifications:

Holli Thier
Tiburon Town Council
[email protected] (415)407-4843
Broadband Master Plan – Preston Young, Young Fiber/Magellan Project Manager Steve Hargis, PhD
Strategic Initiatives Manager City of Moreno Valley [email protected] (951)413-3401 Fiber Master Plan – Preston Young, Young Fiber/Magellan Thomas Fitchner IT Director
City of Federal Way, Washington [email protected] (253)835-2547 Broadband Feasibility Study
Joe Haggard Senior IT Manager
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City of Lancaster (formerly with the City of Victorville) [email protected] (661) 723-6060
Victorville IT Master Plan, 2021
Scott Wiggins
IT Manager Network and Security City of Shafter, California [email protected] (209) 661-3662
Broadband Planning Assistance
Chris Skelly
Information Technology Manager South Tahoe Public Utility District [email protected] (530) 543-6281
Strategic Planning and LATA Grant Assistance
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1 Broadband Master Plan Award
City Council: March 23, 2023
Broadband Master Plan Award
Government Technology Group
Background
• American Rescue
Plan Act • Master Plan
• Request for
Proposals
• Additional
Funding
About GTG
• Clancy Priest • Jeff Lewis
• Preston Young
• Mark Guenther
Process
• Assessment • Inventory
• Broadband
Policies
• City and
Community
• Gap/Feasibility
Analysis
• Broadband
Initiatives
• Grants,
Funding, PPP
• Master Plan
Report
Focus Areas
• Needs
• Public Services
• Local and
Regional Assets
• Local and
Regional Partners
• Economic
Development
Recommendation
• Project Schedule
• Broadband Master Plan
Award
Agenda Agenda
Broadband Master Plan Award
Slide 1 Slide 3 Slide 4 Slide 5 Slide 10
1 2
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2 Background – Broadband Master Planning 1 Background – Broadband Master Planning Broadband Master Plan Award
American Rescue Plan Act (ARPA) • $200,000 to develop a Citywide Broadband Master Plan Request for Proposals (RFP) • December 1, 2022 through January 31, 2023 • Proposal received from Government Technology Group, LLC Background – Additional Project Funding 2 Background – Additional Project Funding Broadband Master Plan Award
ARPA Broadband Master Planning
$200,000
ARPA Broadband Infrastructure Project
$1,000,000
Federal Appropriation (Asm. Alex Lee)
$1,800,000 PLAN IMPLEMENTATION
3 4
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3 About GTG
About The Government Technology Group
3 Clancy Priest Jeff Lewis Preston Young Mark Guenther  Over 85 years as Chief Information Officers  Extensive experience in local government
 Developed multiple Broadband Master Plans:

Cities of Modesto, Merced, Concord and San Leandro
Process and Key Elements of Plan 4
• Needs Assessment • Inventory of Assets and Policies
• Gap and Feasibility Analyses
• Broadband Initiatives
• Grants, Funding and Partnerships
Broadband Master Planning - Process
Broadband Master Plan Award
5 6
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4 Addressing Community Needs 5 Addressing Community Member Needs Broadband Master Plan Award
6 Broadband Master Plan Award
Enhancing Public Services
7 8
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5 7 Broadband Master Plan Award
• Freeways, Highways, Roads & Sidewalks
• Conduit Infrastructure & Fiber • Towers & Antenna
• Hilltops, Rooftops, Parks & Open Space
• Light Rail & Track Easements
• Utility, Street Light & Traffic Signal Poles
• Service Provider Assets
Leveraging Local and Regional Assets
8 Broadband Master Plan Award
• Telecommunications Providers
• Medical Community
• Neighboring Communities • Educational Institutions
• Service Districts • Utilities
Working with Local & Regional Partners
9 10
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6 9 Broadband Master Plan Award
• Understand the needs of businesses
• Attract and retain key industries
• Encourage growth
Economic Development
10 Broadband Master Plan Award
Project Schedule

TASK APR MAY JUN JUL AUG SEP OCT NOV
Kickoff
Inventory Providers & Fiber Paths
Asset Inventory
Plan Engagement with Providers
Identify Obstacles
Identify Anchors
Gap Analysis
Broadband Policies
Assess Need Smart Applications
Funding Sources
Final Broadband Master Plan
11 12
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7 Resolution
Authorize the City Manager to execute a
Contractual Services Agreement with
Government Technology Group
not to exceed $200,000
11 Broadband Master Plan Award
Staff Recommendations
Questions?
Place Photo Here
12 City Council: March 23, 2023
Broadband Master Plan Award
13 14
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Item H. 1.

DATE 03/23/2023
TO Honorable Mayor and City Council Members
FROM Jennifer Solito, Human Resources Director
SUBJECT Closed session for conference with Labor Negotiators pursuant to California Government Code Section 54957.6. Agency designated representatives: City Manager Benoun, Assistant City Manager Hovorka, and Human Resources Director Solito; Employee Groups: the Newark Association of Miscellaneous Employees; the Newark Police Management Association; the Newark Police Association; the Confidential Employee Group; and City Officials and the Management, Supervisory, and Professional Employee Group
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Newark City CouncilMarch 23, 2023

Newark City Council
March 23, 2023