98_10262023%20City%20Council%20Packet%20v2%20page%20numbers — Newark City Council, October 26, 2023 (part 1 of 5)

AGENDA
Thursday, October 26, 2023
7:00 P.M.

A. ROLL CALL
B. PRESENTATIONS

1. Introduction of employee(s)

2. Proclaim October as Promotores Month

3. Proclaim October as Filipino American History Month

4. Senator Aisha Wahab California legislative update
C. PUBLIC COMMENT
The public is invited to address the City Council on any item not listed on the agenda. Public Comments are generally limited to 5 minutes per speaker. Please note that State law prohibits the Council from acting on non-agenda items.

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

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

1. Approval of Audited Demands

2. Approval of October 12, 2023 minutes

3. Resolution for acceptance of work with Sposeto Engineering, Inc. for Safe Routes to School Improvements, Project 1280

4. Adopt a resolution authorizing the City Manager to execute a Contractual Equipment and

4. Adopt a resolution authorizing the City Manager to execute a Contractual Equipment and Services Agreement with PB Loader Corporation for the purchase of a dump truck and authorization for outfitting by Classic Graphics and amend the 2022-2024 Biennial Budget and Capital Improvement Plan

5. Adopt a resolution accepting public subdivision improvements for Tract 8459 – Compass Bay, a 138-unit residential subdivision generally located in Bayside Newark on the southeast corner of Enterprise Drive and Hickory Street

6. Adopt a resolution authorizing the City Manager to execute a Contractual Services Agreement with Joseph Chow & Associates, Inc. for on-call architectural services

7. Adopt a resolution authorizing an amendment to the agreement with Stantec Consulting Inc. for environmental services for the Mowry Village project E. PUBLIC HEARINGS

1. Public Hearing to consider adoption of the 2023-2031 Housing Element and Safety Element of the City of Newark General Plan
F. OTHER BUSINESS

1. Waive full reading and, by title only, introduce an ordinance to repeal and replace Title 16 “Subdivisions” of the Newark Municipal Code
G. CITY COUNCIL MATTERS
City Council Members report on attendance at intergovernmental agency meetings, conferences, and seminars since the last meeting. City Council Members may also announce upcoming events and coordinate attendance; report on local events attended since the last meeting; and make brief comments on issues of concern.

H. CITY MANAGER UPDATES
I. CLOSED SESSION
J. ADJOURNMENT

MEETING INFORMATION
Members of the public may attend the meeting in person, watch online or watch on Cable Channel 26. The ability to observe online or Cable Channel 26 is predicated on those technologies being available and functioning without technical difficulties. Should those platforms not be available, or become non-functioning, or should the City Council otherwise encounter technical difficulties that make those platforms unavailable, the City Council will proceed with business in person unless otherwise prohibited by law.

Packet Page No. 1
How to view the meeting remotely:

YouTube live stream: https://www.youtube.com/@cityofnewark3077/streams Copy/paste the YouTube URL into your browser if the link does not automatically open.

Cable Channel 26 if the meeting does not broadcast live, please contact your service provider and request the City of Newark channel lineup
Zoom will no longer be available for public participation unless required by Assembly Bill 2449. Should a Council Member or the Mayor attend the meeting via Zoom pursuant to Assembly Bill 2249, then the webinar id https://us06web.zoom.us/j/86880723722 will be activated. The Mayor will make an announcement at the beginning of the meeting that the City will be allowing public comment via Zoom. Raise your virtual hand to notify the City Clerk that you would like to speak during the item that you wish to speak on.

How to submit written Public Comment:

Send an email to City Clerk by 3:00 p.m. the day of the meeting. Please identify the agenda item number in the subject line of your email. Emails will be compiled into one file and will be distributed to the City Council before the meeting.

No question shall be asked of a council member, city staff, or an audience member except through the Mayor. No person shall interrupt the meeting. Any person who refuses to carry out instructions given by the Mayor for the purpose of maintaining order may be guilty of an infraction and may result in removal from the meeting.

Council Meeting Access/Materials:

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

Pursuant to Government Code 54957.5, supplemental materials distributed less than 72 hours before this meeting, to a majority of the City Council, will be made available for public inspection at this meeting and will be posted at https://www.newark.org/departments/city-manager-s-office/agendas-minutes and will concurrently be made available for public inspection during regular business hours at the David W. Smith City Hall, 37101 Newark Boulevard, Newark CA. Materials prepared by City staff and distributed during the meeting are available for public inspection at the meeting or after the meeting if prepared by some other person. Documents related to closed session items or are exempt from disclosure will not be made available for public inspection. For those persons who require special accommodations, please contact the City Clerk at least two days prior to the meeting at City Clerk or 510-578-4266.

Packet Page No. 2
Item B. 1.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Introduction of employee(s)
The following employees will be introduced at the City Council meeting:

Thomas Curtis promoted to Senior Parks and Landscape Maintenance Worker Jason Avery promoted to Senior Streets Maintenance Worker Packet Page No. 3
Item B. 2.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Proclaim October as Promotores Month
The Newark Recreation and Community Services Department's Promotores Network plays an invaluable role in making the City of Newark a more welcoming place to live.

Promotores are Spanish-speaking members of our community who are trained to be advocates in the community and to identify solutions to community needs. A proclamation declaring October as Promotores Month has been prepared and will be presented to representatives from Promotores at the City Council meeting.

Attachments
Proclamation
Packet Page No. 4

PROCLAMATION NO. 1904
PROCLAIMING OCTOBER 2023

PROMOTORES MONTH
WHEREAS, Promotores are Spanish-speaking women and men who are trained to be advocates who create solutions to community needs; and
WHEREAS, the Newark Recreation and Community Services Department Promotores Network plays an invaluable role in making the City of Newark a more welcoming place to live; and WHEREAS, the Newark Promotores act as intermediaries between healthcare, social services, and educational institutions and the Latino community. They provide information, referrals, and training to ensure access to these vital services; and WHEREAS, the Newark Promotores’ work is grounded in strong cultural values, including a deep appreciation for personal relationships and an eagerness to help and support each other in a new community; and
WHEREAS, as they learn to navigate a new culture and community, the Newark Promotores become guides to other families new to our City. The Newark Promotores Network is like an extended family providing social and emotional support to each other; and WHEREAS, October 2023 has been designated as Promotores Month; NOW, THEREFORE, I, Michael K. Hannon, Mayor of the City of Newark, on behalf of the Newark City Council, do hereby proclaim October 2023 as

PROMOTORES MONTH
in Newark and thank Newark Promotores for the compassion and the commitment they show to their community. They are role models for all of us on how to ensure the health, safety, and educational and financial well-being of the most underserved families.

IN WITNESS THEREOF, I have hereunto set forth my hand and caused the Official Seal of the City of Newark, State of California, to be affixed this Twenty-sixth Day of October, Two Thousand Twenty-three.

MICHAEL K. HANNON
Mayor
Packet Page No. 5
Item B. 3.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Proclaim October as Filipino American History Month Celebrated in October, Filipino American History Month honors the history, pursuits, accomplishments, and legacy of Filipinos in the United States. A proclamation has been prepared and will be presented to Rosalinda Canlas at the City Council meeting.

Attachments
Proclamation
Packet Page No. 6

PROCLAMATION NO. 1905

PROCLAIMING FILIPINO AMERICAN HISTORY MONTH

WHEREAS, California is proud to be home to the largest Filipino American population in the nation that contributes greatly to shaping, advancing, and enriching our community. Nearly 100,000 Filipinos live in Alameda County, representing 6% of its total population; and
WHEREAS, Filipino Americans are the third largest Asian American group in the United States and the second largest Asian American Group in the State of California; and WHEREAS, the Filipino American National Historical Society recognizes the year 1763 as date of the first permanent Filipino settlement in the United States in Saint Malo, Louisiana; and WHEREAS, in November 2009, the United States Congress passed a resolution to officially recognize October as Filipino American History Month; and
WHEREAS, Filipino men and women have made valuable contributions to all areas of life throughout California and the United States, including government, business, education, arts and sciences, medicine and healthcare, law enforcement, and the military; and
WHEREAS, Filipino Americans have a long history of engaging in social justice movements across the nation including, but not limited to, the United Farmworkers Movement and the Hawaii Sugar Plantation; and WHEREAS, the Filipino American communities have shared their rich culture and traditions with neighbors and friends while setting examples of model citizens and public servants; NOW, THEREFORE, I, Michael K. Hannon, Mayor of the City of Newark, on behalf of the Newark City Council, do hereby proclaim October 2023 as

FILIPINO AMERICAN HISTORY MONTH
in Newark and encourage all members of the community to engage in efforts to learn and respect the history of the Filipino American community.

MICHAEL K. HANNON
Mayor
Packet Page No. 7
Item B. 4.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Senator Aisha Wahab California legislative update California State Senator Aisha Wahab represents the 10th District which includes the City of Newark. Senator Wahab will give a California legislative presentation at the City Council meeting.

Attachments
Presentation V2
Packet Page No. 8
Packet Page No. 9
The Contents
01 02
03 04
05 06
Packet Page No. 10
Authored and
Signed Into Law
•
•
•
Packet Page No. 11
Authored and
Signed Into Law
•
•
•
Packet Page No. 12
Co-Authored and
Signed Into Law
Packet Page No. 13
200+
95%
Public Safety
Packet Page No. 14
Public Safety
Packet Page No. 15
Fentanyl
18 6
12 Packet Page No. 16
Fentanyl
Packet Page No. 17
District Budget Wins
County of Santa Clara
City of Santa Clara
City of Fremont
City of Milpitas
BART Board
$10.6M
Secured for
District 10 in
23-24 Budget
Packet Page No. 18
District Grant Wins
•
⚬
⚬
•
⚬
⚬
•
⚬
⚬
Packet Page No. 19
District Activities in Newark
•
Packet Page No. 20
District Office Events
Packet Page No. 21
District Office
Packet Page No. 22
Questions?
Packet Page No. 23
Thank You
Packet Page No. 24
Item D. 1.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Krysten Lee, Finance Director
SUBJECT Approval of Audited Demands
Attachments
Audited Demands 09.28.23
Audited Demands 10.05.23
Audited Demands 10.05.23-2
Packet Page No. 25

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10/10/23, 2:21 PM myReports
https://nwknwapp.finance.newark.org/nwerp/LogosSuite/myReports/myReportsVersion2/myReportsContainer.aspx 1/1 LIVE Newark CA LIVE
Payment Batch Register
Bank Account: AP - ZBA ACCOUNTS PAYABLE
Batch Date: 10/05/2023
Type Date Number Source Payee Name EFT Bank/Account
Transaction
Amount
Bank Account: AP - ZBA ACCOUNTS PAYABLE
Check 10/05/2023 9564 Accounts Payable GHD INC. 6,907.50 Invoice Date Description Check Sort Code Amount
380-0037505 08/28/2023 ON-CALL TRAFFIC ENGINEERING SERVICES (THROUGH 08/26/23) 6,907.50 Check 10/05/2023 9565 Accounts Payable ID360 6,328.00
Invoice Date Description Check Sort Code Amount
INV-0334 09/06/2023 CONSTRUCTION & DEMOLITION RECYCLING PROGRAM CONSULTING 09/23
6,328.00
Check 10/05/2023 9566 Accounts Payable NATIONAL DATA & SURVEYING SERVICES 610.00 Invoice Date Description Check Sort Code Amount
23-080238 08/25/2023 TRAFFIC SURVEY - APA #24-87 610.00 Check 10/05/2023 9567 Accounts Payable PAKPOUR CONSULTING GROUP, INC. 40,863.38 Invoice Date Description Check Sort Code Amount
4209 08/09/2023 PRJ MANAGEMENT SVCS - CENTRAL AVE OVERPASS PRJ 07/01-07/31/23 20,026.13 4237 09/06/2023 PRJ MANAGEMENT SVCS - CENTRAL AVE OVERPASS PRJ 08/01-08/31/23 20,837.25 Check 10/05/2023 9568 Accounts Payable JAMES SCANLIN 989.28 Invoice Date Description Check Sort Code Amount
0910-091323EXP 10/03/2023 EXPENSE REIMBURSEMENT 989.28
AP ZBA ACCOUNTS PAYABLE Totals: Transactions: 5 $55,698.16 Checks: 5 $55,698.16
Packet Page No. 39
Item D. 2.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Approval of October 12, 2023 minutes
Attachments
Minutes
Packet Page No. 40
City of Newark | Newark City Council
Mayor Michael K. Hannon | Vice Mayor Maria “Sucy” Collazo | Council Members: Luis L. Freitas, Mike Bucci, and Matthew Jorgens

Draft
Thursday, October 12, 2023
7:00 P.M.

A. ROLL CALL
Mayor Hannon called the meeting to order at 7:00 p.m. Vice Mayor Collazo, Council Members Bucci, Freitas, and Jorgens were present.

B. PRESENTATIONS

1. Assemblymember Alex Lee ceremonial presentation of checks for the Newark Resource Center and the Old Town PDA Road Diet
Assemblymember Lee presented ceremonial checks in the amount of $ 1 million for each project. He noted that this brought a total of $5.8 million in funding to the City over the last two years from the State of California.

2. Manufacturing Week Proclamation
Mayor Hannon presented the proclamation to Business Liaison Morgan Pedersen, Newark Unified School District Heather Decker, Nefab Packaging Eric Hoogvliet, Allogene Therapeutics Tim Moore, ATUM Nick Valencia, and Resource Label Group Sofia Caldera.

Nick Valencia thanked Assemblymember Lee for the funding and noted that many of his colleagues bicycle to work. He thanked Economic Development Manager Stedler and Business Liaison Pedersen for their work.

3. Senator Aisha Wahab California legislative update
Senator Wahab’s presentation was rescheduled for the next City Council meeting.

Packet Page No. 41
Page No. 2
City of Newark City Council Minutes October 12, 2023
C. PUBLIC COMMENT
Sharon Tokubo stated that she traps, neuters, and releases (TNR) feral cats for the Ohlone Humane Society (OHS). Ohlone’s TNR budget for 2023 has been depleted and she requested that the City provide funding. She noted that OHS will present to the City of Fremont and that may be a good opportunity to work with Fremont. She stated that the Tri City Animal Shelter does not provide much help.

Mayor Hannon requested that City staff contact Ms. Tokubo regarding this matter and thanked her for her volunteer efforts.

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

1. Approval of Audited Demands

2. Approval of September 28, 2023 minutes

3. Adopt a resolution authorizing the acceptance of the Organized Retail Theft (ORT) Prevention Grant Program through the Board of State and Community Corrections (BSCC) and amending the 2022-2024 Biennial Budget Resolution No. 11568

4. Adopt a resolution approving a Letter of Understanding to the Memorandum of Understanding with the Newark Police Association
Resolution No. 11569
E. PUBLIC HEARINGS
F. OTHER BUSINESS
Packet Page No. 42
Page No. 3
City of Newark City Council Minutes October 12, 2023
G. CITY COUNCIL MATTERS
Council Member Freitas thanked Assembly Member Alex Lee for the funding and mentioned a State Senator promised funding for skatepark in 1999 that never materialized. He highlighted locations that he thought were eyesores: Home Depot parking lot is using parking spaces for their products, Big Lots needs to be painted, the Newark sign at Cedar Boulevard and Thornton Avenue needs landscaping.

Council Member Bucci referred to Council Member Freitas comments and stated it was Alberto Torrico who promised funding. He thanked Assembly Member Lee for the funding. He invited the public to attend the Ohlone Wildlife Rehabilitation Center open house on October

21. Vice Mayor Collazo complimented Assemblymember Lee and his staff and thanked them for the funding. She stated the Day of the Dead (Dia De Los Muertos) festival would be held at the Magnolia Plaza on Saturday. Shop Newark.

Mayor Hannon stated that the Mexico Tortilla Factory was featured on KQED this week on Check Please. He complimented Vice Mayor Collazo and her family. St. Edward’s school will celebrate their 60th birthday on Saturday. On October 28 there will be Halloween pancake breakfast fundraiser at Newark Memorial High School to benefit the high school.

Vice Mayor Collazo stated that the Newark Library will have an eclipse viewing party on Saturday.

Mayor Hannon stated graffiti abatement volunteers will be out this weekend to clean graffiti.

H. CITY MANAGER UPDATES
City Manager Benoun announced: Community clean up event on October 21st and the Community Emergency Response Team (CERT) Academy begins this month.

I. CLOSED SESSION
J. ADJOURNMENT
Mayor Hannon adjourned the meeting at 7:36 p.m.

Packet Page No. 43
Item D. 3.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Alysia Reyes, Junior Engineer
SUBJECT Resolution for acceptance of work with Sposeto Engineering, Inc. for Safe Routes to School Improvements, Project 1280
SUMMARY AND RECOMMENDATION
On May 11, 2023, City Council awarded a construction contract to Sposeto Engineering, Inc. for Safe Routes to School Improvements, Project 1280. The project was for the installation of pedestrian and bicycle safety improvements in the areas surrounding Schilling Elementary School and Newark Junior High School. The work was completed within an acceptable time and within the original budget.

Staff recommends that the City Council, by resolution, accept the work with Sposeto Engineering, Inc. for Safe Routes to School, Project 1280, authorize the filing of a notice of completion with the County Recorder of Alameda County, and authorize the release of bonds guaranteeing completion of the work.

BACKGROUND
The Alameda County Transportation Commission’s (ACTC) Safe Routes to Schools Mini Grant Program aims to support capital improvements which enhance pedestrian, bicycle and transit access to schools in Alameda County. In March 2021, ACTC made $1.7 million in Measure B funds available to jurisdictions within Alameda County on a non-competitive basis. Funds were distributed formulaically based on a jurisdiction’s student population share within Alameda County. In July 2021, ACTC programmed $43,000 in Measure B Safe Routes to Schools Mini Grant Program funds to the City of Newark as part of its 2022 Capital Investment Program (2022 CIP).

Pursuant to Resolution No. 11,500, adopted May 11, 2023, the City Council awarded a contract to Sposeto Engineering, Inc. for Safe Routes to School Improvements, Project 1280. The overall project scope of work included installing new ADA-compliant curb ramps with detectable warning surfaces; traffic striping and markings; green bike lane markings; roadside signs; and roadway delineators near Schilling Elementary School and Newark Junior High School. Improvements in the area of Schilling Elementary were identified through a School Safety Assessment facilitated and sponsored by ACTC’s Safe Routes to Schools Program. Similarly, improvements at Newark Junior High School were identified through a walking audit performed during development of Newark’s Pedestrian and Bicycle Master Plan.

Packet Page No. 44
Newark’s Pedestrian and Bicycle Master Plan.

DISCUSSION/ANALYSIS
Staff has reviewed and inspected the entire scope of work which has now been satisfactorily completed in accordance with the approved project plans and specifications and all applicable standards. Pursuant to the State of California Public Contract Code, formal acceptance of the work by the City Council is now recommended. Photos of some of the completed project improvements are attached to this report.

FISCAL IMPACT
The project was completed within the original budget using a combination of ACTC Measure B Safe Routes to Schools Mini Grant Program, Senate Bill 1 (SB1) Road Repair and Accountability Act (RMRA), and Measure B Bike/Ped Direct Local Distribution (DLD) funds.

REVIEW AND APPROVAL
Prepared by - Alysia Reyes, Junior Engineer
Reviewed by - Jayson Imai, City Engineer
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution
Project Photos
Packet Page No. 45
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK ACCEPTING THE WORK WITH SPOSETO
ENGINEERING, INC. FOR SAFE ROUTES TO SCHOOL
IMPROVEMENTS, PROJECT 1280
WHEREAS, the City of Newark awarded a contract to Sposeto Engineering, Inc. pursuant to Resolution No. 11,500, adopted May 11, 2023, for Safe Routes to Schools Improvements, Project No. 1280 in the amount of $212,631.00 with an additional $21,369.00 in construction contingency, bringing the total allocation for the project to $234,000; and WHEREAS, Sposeto Engineering, Inc. has successfully completed the improvements for Safe Routes to School Improvements, Project 1280, in accordance with plans and specifications for the contract and as directed by the City Engineer; and WHEREAS, said work has been completed to the satisfaction of the City Engineer.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby accept the improvements for Safe Routes to School Improvements, Project 1280.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the release of bonds guaranteeing completion of the work.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the filing of a Notice of Completion with the Office of the County Recorder of Alameda County, California.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City to issue payment including the release of a final retention payment to Sposeto Engineering, Inc. for the completion of Safe Routes to School Improvements, Project 1280, pursuant to the contract.

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PROJECT PHOTOS
Figure 1: ACTC Funding Sign at the Newark Junior High School Site Packet Page No. 47
Figure 2: ADA Ramp at the Intersection of Barnard Street and Lafayette Avenue Figure 3: Crosswalk at the Intersection of Barnard Street and Lafayette Avenue Packet Page No. 48
Figure 4: ADA Ramp at the Intersection of Christine Street and Lafayette Avenue Packet Page No. 49
Figure 5: ACTC Funding Sign at the Birch Grove Elementary School Site Packet Page No. 50
Figure 6 & 7: Curb Extension, Post Delineators, and Green Bike Lane on Thornton Avenue at the Intersection of Spruce Street and Thornton Avenue
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Figure 8: Curb Extension and Post Delineators on Spruce Street at the Intersection of Spruce Street and Thornton Avenue
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Figure 9: Crosswalk at the Intersection of Poplar Street and Thornton Avenue Packet Page No. 53
Figure 10: ADA Ramp at the Driveway of Birch Grove Elementary School Packet Page No. 54
Figure 11: “No Parking to Driveway” Signs at the Driveways at Birch Grove Elementary School Packet Page No. 55
Item D. 4.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT Adopt a resolution authorizing the City Manager to execute a Contractual Equipment and Services Agreement with PB Loader Corporation for the purchase of a dump truck and authorization for outfitting by Classic Graphics and amend the 2022-2024 Biennial Budget and Capital Improvement Plan
SUMMARY AND RECOMMENDATION
The existing 10-cubic yard dump truck operated by the Maintenance Division of the Public Works Department is approximately fifteen years old and at the end of its useful life. The Maintenance Division has identified a 2024 Freightliner dump truck that can transport up to 14 cubic yards of debris as a suitable replacement.

Staff recommends that the City Council authorize the City Manager to execute a Contractual Equipment and Services Agreement with PB Loader Corporation for the purchase of the 2024 Freightliner through Sourcewell Contract #080521 and authorize outfitting by Classic Graphics.

Staff further recommends that the City Council authorize the City Manager to amend the 2022-2024 Biennial Budget and Capital Improvement Plan and reappropriate any unused encumbered funds for the next fiscal year.

BACKGROUND
The City of Newark utilizes a dump truck to offload heavy tree debris which was critical during the most recent storm season.

Dump trucks with capacities of 10 cubic yards or more provide operational efficiency and streamline debris removal processes by allowing staff to transport larger loads, thereby reducing delays, downtime and labor costs. Based on the age of the existing dump truck and the restrictions associated with California Air Resource Board regulations, staff is limited to using the existing dump truck solely for emergency purposes. The purchase of a new dump truck would improve the Maintenance Division's operational capabilities and improve safety conditions for staff, ultimately benefiting the City in the long term.

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The City procured the proposed dump truck through an intergovemental procurement process (also known as "piggybacking"), which is an alternative option to Newark's formal bidding process. By piggybacking onto another agency's contract, the City saves the cost and time associated with an additional formal bid process but is still able to procure equipment based upon competitive set prices established by another agency's formal bidding process.

DISCUSSION/ANALYSIS
Sourcewell received bids for roadway maintenance equipment, including dump trucks; PB Loader Corporation was selected by Sourcewell and was issued Contract #080521. PB Loader Corporation was selected because it met the specifications issued by Sourcewell and submitted the lowest bid. PB Loader Corporation is the local distributor of 2024 Freightliner dump trucks with a purchase cost of $270,000.

The cost does not include outfitting which is estimated not to exceed $3,000. The outfitting cost is based on specialized vendor quotes for the installation of lights, cone holders, and logos. The total budget for replacement of a dump truck is $273,000.

FISCAL IMPACT
The proposed purchase requires an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to allocate funds from unallocated equipment replacement (701.3000) to the Equipment Replacement Program (701.87.701.800.8050) in the amount of $273,000 for the purchase and outfitting of a replacement dump truck. In the event the delivery of the proposed purchase is delayed, staff further recommend Council to authorize the City Manager to reappropriate any unused encumbered funds for the next fiscal year.

REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution PB Loader
Dump Truck CSA - PB Loader
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(TCR1)
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE A CONTRACTUAL EQUIPMENT AND SERVICES

AGREEMENT WITH PB LOADER CORPORATION FOR THE

PURCHASE OF A DUMP TRUCK AND AUTHORIZATION

FOR OUTFITTING BY CLASSIC GRAPHICS AND AMEND
THE 2022-2024 BIENNIAL BUDGET AND CAPITAL

IMPROVEMENT PLAN
WHEREAS, the Maintenance Division of the Public Works Department currently operates a dump truck with a 10-cubic yard capacity on an emergency basis only due to its 15- year age and restrictions associated with California Air Resources Board regulations; and WHEREAS, the purchase of a 2024 Freightliner dump truck would satisfy the City of Newark’s need for replacement this existing aged equipment that has reached the end of its useful life; and
WHEREAS, Sourcewell issued a contract for the 2024 Freightliner dump truck and PB Loader Corporation is the local distributor; and
WHEREAS, the City of Newark would be participating in an intergovernmental procurement process (also known as “piggybacking”) with PB Loader Corporation as the holder of the Sourcewell procurement contract to purchase a 2024 Freightliner dump truck at a cost of $270,000; and
WHEREAS, the proposed 2024 Freightliner dump truck will require equipment outfitting based on quotes from Classic Graphics, not to exceed $3,000, not to exceed a combined total cost of $273,000.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby authorize the purchase of a 2024 Freightliner dump truck from PB Loader Corporation in the amount not to exceed $270,000 for the Maintenance Division of the Public Works Department and outfitting by Classic Graphics for a total amount not to exceed $273,000.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to execute a Contractual Equipment and Service Agreement with PB Loader Corporation for the purchase of the 2024 Freightliner dump truck.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby approve an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan to appropriate an additional $273,000 to FY 2024 using existing unallocated Capital Fund reserves as follows:

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(TCR1)
Account Description Amount
TO: 701.87.701.800.8050 Equipment Replacement Program $273,000 FR: 701.3000 Unallocated Fund Balance $273,000
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to reappropriate any unused encumbered funds for the next fiscal year.

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CONTRACTUAL SERVICES AGREEMENT
PB LOADER CORPORATION – DUMP TRUCK
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and PB LOADER CORPORATION, a CALIFORNIA CORPORATION (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:
purchase of a 2024 Freightliner dump truck (Sourcewell Contract 080521-PBL).

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.

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 Packet Page No. 60
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 of TWO HUNDRED SEVENTY THOUSAND and No/100 Dollars ($270,000.00) 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).

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 Packet Page No. 61
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.

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.

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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.

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 Packet Page No. 63
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

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 Packet Page No. 64
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)
$2,000,000 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: $1,000,000 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.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous 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).

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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 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 Packet Page No. 66
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.

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 Packet Page No. 67
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.

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.

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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 TONYA CONNOLLY 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:

PB LOADER CORPORATION CITY OF NEWARK

MARCUS PUTNAM TONYA CONNOLLY
Consultant Administrator
Address: PB Loader Corporation
Attn: Marcus Putnam, Dir. of Sales
5778 W. Barstow
Fresno, CA 93722-5024
City of Newark
Attn: Tonya Connolly
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.

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.

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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, PB LOADER CORPORATION,
a municipal corporation a California corporation
By By
David J. Benoun, City Manager Marcus Putnam, Director of Sales Date Date
Attest:

Sheila Harrington, City Clerk
Date
Approved as to form:

Kristopher J. Kokotaylo, City Attorney
Date
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EXHIBIT A

SCOPE OF SERVICES
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EXHIBIT B

PAYMENT
Payment within 30 days of receipt of dump truck.

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EXHIBIT C

QUALIFICATIONS
Sourcewell contract RFP 080521 which expires October 11, 2025.

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Item D. 5.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Diana Cangco, Principal Civil Engineer
SUBJECT Adopt a resolution accepting public subdivision improvements for Tract 8459 – Compass Bay, a 138-unit residential subdivision generally located in Bayside Newark on the southeast corner of Enterprise Drive and Hickory Street
SUMMARY AND RECOMMENDATION
Public and private improvements for Tract 8459 – Compass Bay, a 138-unit residential subdivision generally located on the southeast corner of Enterprise Drive and Hickory Street within the Bayside Newark Specific Plan Area (formerly known as the Dumbarton Transit Oriented Development), have been completed in substantial compliance with the plans and specifications of the project. The developer, TH-HW Enterprise, LLC, has provided a maintenance bond in the amount of $408,300 to guarantee the completed subdivision improvements for a one-year maintenance period.

Staff recommends that the City Council adopt a resolution accepting the public subdivision improvements for Tract 8459 – Compass Bay, a 138-unit residential subdivision generally located in Bayside Newark on the southeast corner of Enterprise Drive and Hickory Street.

BACKGROUND
On November 14, 2019, TH-HW Enterprise, LLC entered into a subdivision agreement with the City of Newark to construct public and private improvements for Tract 8459-Compass Bay, a 138-unit residential subdivision generally located on the southeast corner of Enterprise Drive and Hickory Street within the Bayside Newark Specific Plan Area (formerly known as the Dumbarton Transit Oriented Development).

TH-HW Enterprise, LLC provided a performance bond in the amount of $4,083,000 and a materials bond in the amount of $2,041,500 to guarantee the subdivision improvements within Enterprise Drive right-of-way and all private in-tract common area improvements. The public improvements included new frontage sidewalk and landscaping, utility connections and pavement overlay. The private improvements included a new private streets, driveways, sidewalk, signage, utilities, storm drain and stormwater treatment systems, lighting, landscaping, and other common area improvements.

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DISCUSSION/ANALYSIS
The construction of the subdivision improvements for Tract 8459 – Compass Bay is now complete. TH-HW Enterprise, LLC has provided a maintenance bond in the amount of $408,300 for the correction of any defective materials or workmanship within the designated one-year maintenance period. After acceptance, the public improvements, some of which are part of Zone 6 of Landscape and Lighting District 19 for Compass Bay, will be owned and maintained by the City. The private improvements for the common benefit of all homeowners will be owned and maintained by the Compass Bay Homeowners Association.

FISCAL IMPACT
The estimated additional annual maintenance cost of the public improvements associated with Tract 8459 is $7,900 and includes pavement maintenance, street sweeping, curb and gutter replacement, and maintenance costs identified as the City’s contribution for Zone 6 of Landscape and Lighting District 19 due to general and special benefits for parcels outside Zone 6. These additional maintenance costs will not adversely impact the Fiscal Year 2024 Public Works Department Operating Budget for street maintenance, but will be added to the 2024-2026 Biennial Budget and Capital Improvement Plan as part of a future operating budget increase request for the City Council's consideration.

REVIEW AND APPROVAL
Prepared by - Diana Cangco, Principal Civil Engineer
Reviewed by - Jayson Imai, City Engineer
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK ACCEPTING THE SUBDIVISION IMPROVEMENTS
FOR TRACT 8459 – COMPASS BAY (TH-HW ENTERPRISE,
LLC), A 138-UNIT RESIDENTIAL SUBDIVISION

GENERALLY LOCATED IN BAYSIDE NEWARK ON THE

SOUTHEAST CORNER OF ENTERPRISE DRIVE AND

HICKORY STREET
WHEREAS, TH-HW Enterprise, LLC previously entered into a Subdivision Agreement with the City of Newark dated November 14, 2019 (Resolution 11,000) for the construction of certain public and private improvements for Tract 8459 – Compass Bay, a 138-unit residential subdivision generally located at on the southeast corner of Enterprise Drive and Hickory Street within the Bayside Newark Specific Plan Area (formerly known as the Dumbarton Transit Oriented Development) in accordance with plans and specifications on file with the City Engineer; and
WHEREAS, the scope of public improvements on Enterprise Drive, Hickory Street, and Seawind Way included new frontage curb, gutter, sidewalk, landscaping, lighting, utility connections, overhead utility undergrounding and street pavement overlay; and WHEREAS, said work has been completed in substantial compliance with the plans and specifications of the contract entered into heretofore and the City Engineer has recommended the acceptance of these public improvements on Enterprise Drive, Hickory Street and Seawind Way; and
WHEREAS, additional work has been completed in substantial compliance with the plans and specifications, within the common areas of the project site to be owned and maintained by the Compass Bay Homeowners Association, including but not limited to the private streets, driveways, sidewalks, signage, utilities, storm drain and stormwater treatment systems, lighting, landscaping, and other common area improvements; and
WHEREAS, TH-HW Enterprise, LLC has furnished a Subdivision Maintenance Bond in the amount of $408,300 for the correction of any defective materials or workmanship within a designated one-year maintenance period.

NOW, THEREFORE, BE IT RESOLVED BY THE City Council of the City of Newark that said public improvements on Enterprise Drive, Hickory Street and Seawind Way are hereby accepted.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby approve a Subdivision Maintenance Bond in the amount of $408,300.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the release of the Performance Bond in the amount of $4,083,000 and the Materials Bond in the amount of $2,041,500 guaranteeing the completion of work in Tract 8459.

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Item D. 6.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Brett Oeverndiek, Administrative Analyst
SUBJECT Adopt a resolution authorizing the City Manager to execute a Contractual Services Agreement with Joseph Chow & Associates, Inc. for on-call architectural services
SUMMARY AND RECOMMENDATION
The City of Newark utilizes outside consultants to perform architectural services to help the City with various projects. To meet current demands, the City issued a competitive Request for Qualifications (RFQ) for On-Call Architectural Services. Based on staff’s analysis of the seven (7) RFQ responses received, three (3) firms were initially recommended by staff and approved by the City Council for contract negotiations with the City Manager at the June 8, 2023, City Council meeting. However, the City was unable to reach agreeable contract terms related to indemnification requirements with one of the three firms.

Staff is now recommending that the City Council consider utilization of the next highest rated RFQ respondent, Joseph Chow & Associates, Inc., as a consultant for On-Call Architectural Services. Hourly rates for Joseph Chow & Associates, Inc., as well as all other RFQ respondents are all closely comparable.

Staff recommends that the City Council, by resolution, authorize the City Manager to enter into a Contractual Services Agreement, in a form approved by the City Attorney, with Joseph Chow & Associates, Inc. in an amount not to exceed $250,000 each, per fiscal year, for On-Call Architectural Services for an initial term of two (2) years, with an option to extend for three (3) additional one (1) year periods.

BACKGROUND
The Public Works Department has a growing backlog of important building improvement and site improvement projects in the current Capital Improvement Plan.

There are a sufficient number and variety of projects that architectural design services are needed from multiple firms to assist with the preparation of final plans, specifications, and estimates for the construction stage of these projects.

The City has previously utilized outside consultants to perform on-call architectural services over the years. The Public Works Department released a Request for Packet Page No. 78
Qualifications (RFQ) in accordance with the City’s Purchasing Rules and Regulations for On-Call Architectural Services. The RFQ specified firm(s) selection would be made based on the proposed cost for services, qualification and experience of firm and staff identified, the firm's understanding of the City’s desires and general approach to completing the work, and other factors.

DISCUSSION/ANALYSIS
In response to the RFQ, Public Works Department staff received a total of seven (7) responses on or before May 2, 2023, from the following firms:

Advance Design Consultants, Inc.

Aetypic
Callander Associates
Interactive Resources, Inc.

Joseph Chow & Associates, Inc.

The KPA Group
Verde Design
Responses from each of the firms were evaluated based on the selection criteria listed in the RFQ. Based on staff’s analysis of the seven (7) RFQ responses received, Interactive Resources, Inc., The KPA Group, and Verde Design, Inc. were determined to be the firms who would provide the best overall service to the City. Contractual Services Agreements were approved to be signed with these three selected firms at the June 8, 2023, City Council meeting. Contractual Services Agreements were signed with both The KPA Group and Verde Design. While Interactive Resources, Inc. indicated they had no objections to the City's Contractual Service Agreement language during the RFQ process, after routing the contract for signature they submitted proposed changes to the indemnification/save harmless section of the agreement. The City Attorney's Office reviewed the proposed changes and advised against any such modifications to the standard Contractual Services Agreement. Therefore, the City was unable to reach an agreement on contract terms with Interactive Resources, Inc.

As a result, staff began discussions with the next highest qualified and responsible bidder, Joseph Chow & Associates, Inc. Joseph Chow & Associates, Inc. provided a comprehensive response and satisfied the stated selection criteria. Hourly rates for Joseph Chow & Associates, Inc., as well as all other RFQ respondents are all closely comparable. The firm has provided similar services to other nearby agencies including the County of Santa Clara and the San Francisco Recreation and Parks Department.

Staff is therefore recommending the award of contract to Joseph Chow & Associates, Inc. to provide on-call architectural services for an initial term of two (2) years, with an option to extend for three (3) additional one (1) year periods.

The firm was selected to cover the variety of architectural services needed and ensure services can be provided in a timely manner. The contract amount of $250,000 was determined by estimating the cost of services to address project backlog. The selected firm will provide various on-call architectural services to help the City with all aspects of Capital Improvement Plan building projects, building maintenance projects, site Packet Page No. 79
Capital Improvement Plan building projects, building maintenance projects, site improvements, and landscape and other projects. The required scope of services will include, but may not be limited to the following:

Provide staff and services on an on-call, as-needed basis Provide design services for renovations and modifications of existing public buildings and parks
Provide personnel or subconsultants for civil, structural, mechanical, electrical, asbestos and lead abatement, and landscaping architecture Provide the full range of architectural and engineering services including preliminary studies, public outreach, renderings, drawings, specifications, estimates, scopes of work and other professional services Typical projects may include, but are not limited to:

Building renovations such as office, kitchen, and bathroom remodeling; exterior façade renovations; structural modifications or additions; seismic upgrades; ADA upgrades; HVAC upgrades; roofing upgrades; “green” building upgrades; and code compliance alterations
Site alterations such as fencing and access gate additions or modifications; driveway and parking lot modifications; accessory structure additions or modifications; a variety of security measures; and landscape and irrigation improvements
Park improvements such as play structures, play fields and courts, irrigation, utilities, grading, landscape, pathways, hardscapes, buildings, parking lots, and lighting
Specific work activities under this agreement will be authorized by individual task orders and subject to funding approval by the City Council through the Capital Improvement Plan or department operating budgets.

FISCAL IMPACT
The 2022-2024 Biennial Budget and Capital Improvement Plan contains sufficient funding for this scope of work through Capital Projects Fund (Fund 610). No budget modifications are necessary at this time. Should department or capital project funding be insufficient for future services, budget approval will be sought on a per-project basis prior to staff authorization of an individual task order.

REVIEW AND APPROVAL
Prepared by - Brett Oeverndiek, Management Analyst II
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David Benoun, City Manager
Attachments
Resolution JCA
Agreement
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

NEGOTIATE AND ENTER INTO A CONTRACTUAL

SERVICES AGREEMENT WITH JOSEPH CHOW &
ASSOCIATES, INC. IN AN AMOUNT NOT TO EXCEED
$250,000, PER FISCAL YEAR, FOR AN INITIAL TERM OF
TWO (2) YEARS, WITH AN OPTION TO RENEW FOR THREE
(3) ADDITIONAL ONE (1) YEAR PERIODS
WHEREAS, the City of Newark has a growing backlog of Capital Improvement Plan building projects, building maintenance projects, site improvements, and landscape and other projects; and
WHEREAS, the Public Works Department issued a Request for Qualifications for on-call architectural services to assist the City with reducing the backlog of projects; and WHEREAS, a total of seven (7) statements of qualifications were received and evaluated by staff on their cost of services, qualifications and experience of firm and staff identified, the firm’s understanding of the City’s desires and general approach to completing the work, and other factors; and
WHEREAS, staff previously received approval to execute Contractual Services Agreements with three (3) firms at the June 8, 2023, City Council meeting; and WHERAS, the City signed contractual services agreements with The KPA Group, and Verde Design, Inc. but was unable to finalize a contract with Interactive Resources, Inc.; and WHEREAS, staff began discussions with the next highest rated and qualified respondent, Joseph Chow & Associates, Inc.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to negotiate and enter into a Contractual Services Agreement, in a form approved by the City Attorney, with Joseph Chow & Associates, Inc. in an amount not to exceed $250,000, per fiscal year, for an initial term of two (2) years.

BE IT FURTHER RESOLVED that specific consultant work activities shall be authorized by the City Manager or their designee with individual Task Orders, and all such activities are subject to prior budgetary funding authorization by the City Council.

BE IT FURTHER RESOLVED that the Public Works Director is hereby authorized to renew the aforementioned Contractual Services Agreements for up to three (3) additional one (1) year terms upon mutual consent of the City of Newark and Joseph Chow & Associates, Inc. under the terms of the agreement, subject to prior funding approval by the City Council.

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CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this 26th day of October, 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and Joseph Chow & Associates, Inc., (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including: On-call Architectural Services.

NOW, THEREFORE, the Parties hereto agree as follows:

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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 of Two Hundred Fifty Thousand Dollars ($250,000) per fiscal year 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.

Invoices shall be sent to:

City of Newark
Attn: Finance Department
37101 Newark Blvd.

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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.

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.

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.

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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.

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:

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

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:

2. Automobile Liability: $1,000,000 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.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous Packet Page No. 88
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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 (i.e. limit that is eroded by the cost of defense).

G. Remedies.

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

3. Terminate this Agreement.

H. Acceptability of Insurers.

I. Other Insurance Provisions.

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

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 No. 89
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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.

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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.

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

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18. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire on June 30, 2025. At the end of the term, the City may renew this Agreement for three (3) one-year terms as authorized by the City Manager.

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.

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

CITY OF NEWARK
Joyce Chow PUBLIC WORKS DIRECTOR
Consultant Administrator
Address: Joseph Chow & Associates, Inc.
650 Delancey Street, Suite 211
San Francisco, CA 94107
City of Newark
Attn: Public Works Director
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.

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.

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.

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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: David J. Benoun By:

Title: City Manager Title:

Date: ____________________________ Date: ____________________________ ATTEST:
____________________________
By: Sheila Harrington
Title: City Clerk
Date: ____________________________
APPROVED AS TO FORM:
____________________________
By: Kristopher J. 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.

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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:

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EXHIBIT C

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

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Item D. 7.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Art Interiano, Deputy Community Development Director SUBJECT Adopt a resolution authorizing an amendment to the agreement with Stantec Consulting Inc. for environmental services for the Mowry Village project
SUMMARY AND RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing an amendment to the agreement with Stantec Consulting Inc. to increase the “not-to-exceed” amount by $69,708 for a total not-to-exceed amount of $401,572. The contract amendment would allow the scope of services for the Environmental Impact Report for the Mowry Village project to be revised to include additional services required to complete the review.

BACKGROUND
The City is currently reviewing an application that was submitted by The Mowry Project Owner LLC, which proposes to build 203 residential units on properties located west of the Silliman Center, a short distance after the railroad tracks (APN 537-850-2, 537-850-1-11 & 537-850-1-13). The project site is located within the Newark Areas 3 and 4 Specific Plan area that is currently developed as an auto part and scrap metal salvage lot known as “Pick-n-Pull.” The proposed project is within Sub Area D of Area 4 and is zoned Park. The proposed project includes an application for a Specific Plan Amendment to change the zoning from Park to RS-6000: Residential Single-Family.

DISCUSSION/ANALYSIS
The initial review of the environmental impacts of the proposed changes to the Specific Plan and rezoning requires specialized consultant services for the preparation of an environmental analysis, consistent with the requirements of the California Environmental Quality Act (CEQA), as well as services to assess the Project’s consistency with the Specific Plan’s Policies and Actions. On June 10, 2021 the City approved a contract to hire Stantec Consulting Inc. to perform the necessary environmental analysis. On October 13, 2022 the City approved the first amendment to the contract which increased the not-to-exceed amount to $331,814 for an Environmental Impact Report (EIR). The second amendment includes additional requested services which would include changes to existing tasks to generally provide more review time for responses to public comments, a draft MMRP and additional time for project management. Based on the project schedule provided by Stantec Packet Page No. 107
for project management. Based on the project schedule provided by Stantec Consulting Inc., the EIR is anticipated to be completed in late January 2024. The additional services requested would continue to be part of the Stantec contract for the EIR and will be paid through the reimbursement account with the developer. There will be no City cost associated with this request.

Community Development staff is recommending that Stantec Consulting Services Inc. continue to perform the required services as described in the initial Contract Agreement, including the request for additional services in the Second Amendment to Contractual Service Agreement (the “Agreement”) contained in Exhibit A of the Resolution.

FISCAL IMPACT
There is no fiscal impact associated with this item. The contract is being paid through the reimbursement agreement set up with the project that is funded by the developer.

REVIEW AND APPROVAL
Prepared by - Art Interiano, Deputy Community Development Director Reviewed by - Steven Turner, Community Development Director Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Stantec 2nd Amendment Resolution
Resolution Exhibit A
Packet Page No. 108
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING SECOND AMENDMENT TO THE

CONTRACTUAL SERVICES AGREEMENT WITH STANTEC
CONSULTING SERVICES INC. TO PROVIDE

PROFESSIONAL ENVIRONMENTAL SERVICES
WHEREAS, on June 10, 2021, the City of Newark awarded a Contractual Services Agreement (the “Agreement”) to Stantec Consulting Services Inc. (the “Consultant”) to provide professional environmental services; and
WHEREAS, on October 13, 2022 the City approved the first amendment to the Agreement with the Consultant to increase the not to exceed amount from $169,708 to $331,814 for additional services; and
WHEREAS, the City finds that the scope of services described in the Agreement continue to be necessary and desires to amend the Agreement to provide additional funding for the existing scope of services to be provided by the Consultant.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Manager is hereby authorized to execute the second amendment to the Agreement with the Consultant, in a form approved by the City Attorney, to provide professional environmental services and to increase the not to exceed amount of the Agreement by $69,708 for a total not to exceed amount of $401,572.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to take all other actions consistent with this Resolution.

Packet Page No. 109

AUTHORIZATION FOR ADDITIONAL SERVICES
V:\1857\active\185705508\01_management\proposal\CO_3_09222023\stantec_CO_3_mowry_village_09222023.docx Date 22 September 2023
“Stantec” Stantec Consulting Services Inc. Stantec Project # Stantec Proj. No. 185705508 (to be set up as new PN)
Stantec Pipeline # 825195 (to be set up as new
Pipeline ID)
1340 Treat Blvd, Suite 300, Walnut Creek, CA 94597
Ph: (925) 285-6541
email: [email protected]
Client City of Newark, Art Interiano Client Project # N/A. 37101 Newark Blvd, Newark, CA 94560
Ph: (510) 578-4331
email: [email protected]
Project Name and
Location:

Mowry Village Project Change Order # Change Order No. 3 This is authorization for Stantec to perform additional services on the project as noted above.

A. Stantec agrees to perform the following additional service(s):

Based on direct from City Staff, we have developed the following scope of work to prepare an Environmental Impact Report (EIR) for the Mowry Village Project (Project) located on Mowry Avenue in Newark, California. The EIR will be based on the Project Description, Notice of Preparation (NOP), and Draft EIR prepared under the original Project contract executed June 10, 2021, Change Order #1 executed on November 1, 2022, and Change Order #2 executed on August 9, 2023. The EIR tasks include completion of the Final EIR and MMRP, and Project Management and meeting attendance. A Statement of Overriding Considerations and Findings of Fact may be prepared under a separate scope if applicable and requested by the City; it is our current understanding that the City will be preparing both the Statement of Overriding Considerations and Findings of Fact documents.

All deliverables associated with this EIR are budgeted as a combination of electronic. Due to COVID-19 conditions and current Office of Planning and Research guidelines, it is assumed all submittals to State Clearinghouse will be electronic.

Task 1: Administrative Final EIR and Response to Comments Administrative Final EIR
After the close of the 45-day public comment period, Stantec will prepare written responses to comments received on the Draft EIR and submit them for review by City staff. The responses to comments will be prepared based on the CEQA Guidelines and the City’s CEQA implementing procedures and will be submitted to the City in the form of an Administrative Final EIR. To implement this process, the following steps are proposed:
• City staff will compile and transmit to Stantec all written comments on the Draft EIR. • Stantec will confer with City staff and the Applicant (if approved by the City) to review written comments on the Draft EIR and comments from public meetings and hearings to develop a general framework and strategies for preparing responses. The format of the Final EIR will be as an attachment of responses to comments to the text of the Draft EIR. • Stantec will submit the Administrative Final EIR and the Administrative Draft MMRP (as detailed below in Task 6) for City staff review. Responses within this proposal’s scope of work and budget will consist of explanation, elaboration, or clarification of the data contained in the Draft EIR with Stantec staff time to address up to 260 individual comments in this task. Stantec will communicate to the City if assistance is needed from the Applicant’s consultants to respond to technical questions, and comments on their respective work products, or if new analysis is required.

Deliverable
• Administrative Final EIR including response to comments (electronic) Exhibit A
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AUTHORIZATION FOR ADDITIONAL SERVICES Page 2
V:\1857\active\185705508\01_management\proposal\CO_3_09222023\stantec_CO_3_mowry_village_09222023.docx Task 2: Final EIR, MMRP, and Noticing
Screencheck Final EIR and Final EIR
Stantec will revise the Administrative Final EIR by incorporating written responses to comments received from City staff and, if appropriate, the Applicant, yielding a Screencheck Final EIR and then the Final EIR review. One set of unified comments incorporating all City staff comments on the Draft and Screencheck Final EIRs will be provided to Stantec.

The Final EIR shall comprise the Draft EIR, comments on the Draft EIR, and responses to all comments on the Draft EIR, including any necessary changes to the Draft EIR text. Submittal of the Final EIR shall be accompanied by submittal of the Final MMRP, as outlined below. Stantec will present the Final EIR and MMRP to the Planning Commission and City Council for certification at a public hearing.

Deliverable
• Screencheck Final EIR including response to comments (electronic) • Final EIR including response to comments (electronic for City website, electronic submittal to State Clearinghouse, and up to three hard copies with appendices on flashdrive) Mitigation Monitoring and Reporting Program
Stantec will prepare the MMRP required by Public Resources Code Section 21081.6, as mandated by AB 3180, for adoption at the time of the CEQA findings. Stantec will prepare an Administrative Draft MMRP in accordance with the CEQA Guidelines and the City’s CEQA implementing procedures. The MMRP will be designed to ensure compliance with mitigation measures required during project implementation.

The MMRP will be designed to fit into the City’s existing entitlement and project review process; the City will provide the format. Stantec will coordinate with City staff to refine MMRP content and format through one round of City review on the Administrative Draft MMRP prior to preparing the “Final” MMRP. The MMRP will include, but not be limited to, the following:
• Mitigation measures.
• Mitigation measures to be monitored with specific mitigation performance standards. • Monitoring requirements.
• Type of monitoring program or activity necessary to monitor each specific mitigation measure, with monitoring time frame.
• Person/agency responsible for implementing mitigation measures and/or monitoring measures. • Assignment of roles and responsibility, with the general qualifications that will be required of individuals or organizations necessary to implement each specific mitigation or monitoring activity. • Timing and/or frequency of monitoring measures.
• Specific review or inspection schedule for each measure. • Person/agency responsible for ensuring compliance with mitigation requirements and monitoring and reporting program.

After review and comment on the Administrative Draft MMRP, Stantec will revise the MMRP in accordance with the comments provided and will submit the Administrative Draft MMRP with submittal of the Administrative Final EIR. After City review of the Administrative Draft MMRP, Stantec will revise the MMRP in accordance with the comments provided and will submit the “Final MMRP” with the Final EIR. Hard copies of the Final EIR would be provided upon request, up to three copies (with appendices on flashdrive).

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AUTHORIZATION FOR ADDITIONAL SERVICES Page 3
V:\1857\active\185705508\01_management\proposal\CO_3_09222023\stantec_CO_3_mowry_village_09222023.docx Deliverable
• Screencheck Final EIR (electronic)
• Final EIR (electronic for City website, electronic submittal to State Clearinghouse, and up to three hard copies with appendices on flashdrive)
• Administrative Draft MMRP (electronic)
• Draft MMRP (electronic)
• Final MMRP (electronic)
Noticing
Stantec will prepare all CEQA-required notices in compliance with state legislation and guidelines. This task includes the preparation of the Notice of Availability (NOA) and the Notice of Completion (NOC) for the Final EIR. This task includes completing the NOA form but assumes the City will be responsible for preparation of the associated mailings and newspaper notices, electronic files for City printing, envelope stuffing, and distribution. Stantec will prepare the NOC in compliance with the CEQA Guidelines and submit the draft notices for City staff review; if necessary, Stantec will revise the draft notices based on staff comments. Stantec will file one copy of the NOC with the State Clearinghouse at the time of Final EIR publication.

Stantec assumes the City will prepare the Notice of Determination (NOD) and that the City will file the NOD with the County Clerk within five business days of EIR certification. The purpose of the NOD filing is to limit the legal challenge period to 30 days. If an NOD is not filed within five business days of certification, the legal challenge period is 180 days. The NOD filing also requires payment of a filing fee, which Stantec assumes will be paid by the Applicant.

Findings of Fact
Based on the City’s September 20, 2023 email communication, Stantec assumes the City will prepare written findings for each significant effect identified in the EIR as a separate document, pursuant to CEQA Guidelines Section 15091.

Stantec may prepare a Findings of Fact under a separate scope if applicable and requested by the City Statement of Overriding Considerations
Based on the City’s September 20, 2023 email communication, Stantec assumes the City will prepare the Statement of Overriding Considerations, pursuant to CEQA Guidelines Section 15093. Stantec may prepare a Statement of Overriding Considerations under a separate scope if applicable and requested by the City Deliverable
• Stantec to upload NOA and NOC to State Clearinghouse, as required (electronic) • City to be responsible for completing and filing all required forms with County Clerk (NOD and any other applicable forms)
Task 3: Project Management and Meetings
Members of Stantec’s Project Management Team will attend various staff and public meetings, including 9 bi-weekly Project check-in meetings, and up to three public hearing meetings (likely one Planning Commission and two City Council). Regular email communications and status updates involving the Stantec Project Manager and City staff, either by telephone conference call or email, are anticipated throughout the duration of the Proiject’s18 weeks (approximately January 29, 2024) per the September 22, 2023 Project Schedule included as Attachment 1 to this Change Order #3). This task also consists of the ongoing management activities that ensure Stantec’s ability to keep the project running smoothly on time, and within budget, as outlined in the original contract. With exception of the up to three in-person public hearing meetings, it is assumed all other Project meetings, Project check-ins, and document review meetings will be virtual.

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AUTHORIZATION FOR ADDITIONAL SERVICES Page 4
V:\1857\active\185705508\01_management\proposal\CO_3_09222023\stantec_CO_3_mowry_village_09222023.docx Staff Reports and Presentations
This task assumes Stantec will present at up to three public hearings (likely one Planning Commission and two City Council) but assumes the City will be responsible for preparing all staff reports and presentations with exception of a CEQA slide deck for presentation at the three public hearings, similar to the CEQA slid deck presented at the August 22, 2023 Planning Commission meeting.

Schedule
The scope provided herein is based on the Stantec September 22, 2023, Project Schedule prepared for the Project (Attachment 1). The Working Project Schedule will be updated regularly and shared at Project Check-in Meetings.

B. Client agrees to compensate Stantec for such additional services in accordance with the terms of the initial agreement for additional amount(s) stated below:

The time and materials fee for providing the additional scope of work described herein is $69,758.

Task Original
Contracted Budget
Task 1: Administrative Final EIR and Response to Comments, and Draft MMRP
$37,240
Task 2: Final EIR, MMRP, and Noticing $21,198
Task 3: Project Management and Meetings $9,820
Labor Total $68,258
Direct Costs $1,500
Total Budget $69,758
The fees herein are based on Stantec 2023 rates for this Project and are applicable to this September 22, 2023, change order proposal.

Note that Stantec’s $69,758 fee does not include any additional City of Newark staff administrative fees that may be applicable to the Applicant. This change order does not account for any scope or fees associated with an appeal should the Project be appealed following the City Council hearing.

C. All other terms and conditions of the original agreement shall remain in full force and effect.

Effect on Schedule: Stantec is available to begin work described herein immediately upon execution of this change order.

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AUTHORIZATION FOR ADDITIONAL SERVICES Page 5
V:\1857\active\185705508\01_management\proposal\CO_3_09222023\stantec_CO_3_mowry_village_09222023.docx By signing below, the parties agree and affirm that each has reviewed and understands the provisions set out above and that each party shall be bound by each and all of said provisions. A copy of this agreement shall serve and may be relied upon as an original.

Stantec Consulting Services Inc. City of Newark, Steven Turner Print Name and Title Print Name and Title
Signature Signature
Date Signed: Date Signed:

Print Name and Title Print Name and Title
Signature Signature
Date Signed: Date Signed:

Packet Page No. 114
ID Task
Mode
Task Name Duration Start Finish Predecessors Notes
1 Final EIR 114 days Fri 8/4/23 Mon 1/29/24
2 Distribute Draft EIR for Public Review
(45‐days)
45 edays Fri 8/4/23 Mon 9/18/23
3 DEIR PC Meeting 1 day Tue 8/22/23 Tue 8/22/234 End of Public Review Period 1 day Mon 9/18/23 Mon 9/18/23 2FF+1 day5 Stantec Receives Public Comments from City
1 day Thu 9/21/23 Thu 9/21/23
6 Stantec Prepares Administrative Final
EIR and Responses to Comments (RTC),
and Draft MMRP
25 days Fri 9/22/23 Fri 10/27/23 5
7 Stantec Submits Admin Final EIR and
RTC, and Draft MMRP to City
1 day Fri 10/27/23 Fri 10/27/23 6FF
8 City Reviews Admin Final EIR and RTC,
and Draft MMRP
15 days Mon 10/30/23 Mon 11/27/23 7 Accounts for City office/holiday closures the week of Thanksgiving.
9 City Provides Comments on Admin Final
EIR and RTC, and Draft MMRP to Stantec
1 day Mon 11/27/23 Mon 11/27/23 8FF
10 Stantec Prepares Screencheck Final EIR
and RTC, and "Final" MMRP
15 days Tue 11/28/23 Mon 12/18/23 9
11 Stantec Submits Screencheck Final EIR
and RTC, and "Final" MMRP
1 day Mon 12/18/23 Mon 12/18/23 10FF
12 City Reviews Screencheck Final EIR and
RTC, and "Final" MMRP
10 days Tue 12/19/23 Tue 1/9/24 11 Accounts for one week City office closure over Winter Holidays.
13 City Provides Comments on Screencheck
Final EIR and RTC
1 day Tue 1/9/24 Tue 1/9/24 12FF
14 Stantec Prepares Final EIR and RTC 8 days Wed 1/10/24 Fri 1/19/24 1315 Stantec Submits Final EIR and RTC, and "Final" MMRP to City for
Circulation/Posting to City Website
1 day Fri 1/19/24 Fri 1/19/24 14FF
16 Final EIR Circulation 10 edays Fri 1/19/24 Mon 1/29/24 15 FEIR posted to SCH and NOA with link to document on Website sent to all individuals who commented
during the NOP and DEIR. PC meeting to take place
after FEIR 10‐day circulation complete.
17 Public Hearings (Planning Commission) 1 day tbd tbd18 Public Hearings (City Council) 1 day tbd tbd Qtr 3 Qtr 4 Qtr 1
2024
TaskSplitMilestoneSummary
Project SummaryInactive TaskInactive MilestoneInactive Summary Manual TaskDuration-onlyManual Summary RollupManual Summary Start-onlyFinish-onlyExternal TasksExternal Milestone
DeadlineProgressManual Progress

Page 1 ends

CO #3 ATTACHMENT 1Mowry Village EIR ScheduleDate: Fri 9/22/23 Packet Page No. 115
8 City Reviews Admin Final EIR and RTC, and Draft MMRP
Accounts for City office/holiday closures the week of Thanksgiving. 12 City Reviews Screencheck Final EIR and RTC, and "Final" MMRP Accounts for one week City office closure over Winter Holidays. 16 Final EIR Circulation
FEIR posted to SCH and NOA with link to document on Website sent to all individuals who commented during the NOP and DEIR. PC meeting to take place after FEIR 10-day circulation complete.

Page 2 ends

Packet Page No. 116
Item E. 1.

DATE 10/26/2023
TO Honorable Mayor and City Council Members
FROM Steven Turner, Community Development Director
SUBJECT Public Hearing to consider adoption of the 2023-2031 Housing Element and Safety Element of the City of Newark General Plan SUMMARY AND RECOMMENDATION
Executive Summary
Staff has prepared a draft update to the Housing Element of the General Plan to affirmatively further fair housing and accommodate the City's 1,874-unit Regional Housing Needs Allocation (RHNA) for the 2023-2031 Housing Element cycle (the Housing Element Update). The content of the Housing Element Update is structured for consistency with the requirements set forth in state law. In addition to responding to state law requirements, the Housing Element Update also demonstrates the City’s strategy to meet the City’s locally determined housing needs and how these needs are addressed through policies and programs outlined within the Housing Element Update.

Public review and input have been a critical component of the preparation of the Housing Element Update.

This report summarizes the Housing Element requirements, an overview of the status of the Housing Element Update, and the findings provided to the City by the California Department of Housing and Community Development (HCD) on the first 90-day review of the draft.

The City has responded to HCD’s comments as detailed in Attachment 1, Exhibit B. To respond to HCD’s July 12, 2023, comment letter, the City has conducted extra research and analysis, provided additional details and context, added new programs, and updated the sites inventory.

In addition to the Housing Element Update, this report provides background on the General Plan Safety Element requirements under state law and describes the proposed Safety Element with specifics related to the latest updates, including updates in accordance with recently established state requirements (the Safety Element Update).

These include an evacuation analysis consistent with Senate Bill (SB) 99 and Assembly Bill (AB) 747. The previous iteration of the City of Newark's policy document was known as the 2013 Environmental Hazards Element, while the current version is now referred to as the Safety Element.

Packet Page No. 117
Recommendation
Staff recommends that the City Council adopt a Resolution for a General Plan Amendment to repeal the Fifth Cycle Housing Element for the Period of 2015-2023 and adopt the Housing Element of the General Plan for the Period of 2023-2031, and repeal the existing Natural Hazards Element and adopt the Safety Element of the General Plan, in compliance with State Housing Element Law.

BACKGROUND
Government Code Sections 65580 - 65589.11 regulates the use and requirements of housing elements in California. State law requires that cities and counties update their General Plan Housing Element every eight years. State law further requires the current update for jurisdictions in the Association of Bay Area Governments (ABAG) region, which includes the City of Newark, to comply by January 31, 2023.

The City’s Housing Element Update was prepared with the benefit of the community, City Council, and Planning Commission input and discussion at public workshops over the course of the two-year Housing Element preparation period. The City Council and the Planning Commission held workshops on the Housing Element Update. HCD and other community members also provided guidance throughout the process.

On April 12, 2023, the City submitted the Housing Element Update to HCD for its review after an initial 30-day public comment period and incorporation of public comments into the draft. The City received nine comment letters during this period, including from East Bay for Everyone, Save the Bay, Greenbelt Alliance, and the public. Based upon those comments, staff made additional changes to the Housing Element Update. Comments and responses received during the comment period focused on adjusting parking requirements to better facilitate affordable housing development, programs to increase missing middle housing, aligning housing with active transportation investments, and concern about housing development in the floodplain areas of the City. Staff worked with HCD to discuss the state’s feedback, and HCD submitted a preview of updated language to staff in advance of the official findings letter.

On July 12, 2023, the City received a letter from HCD providing its findings regarding the Housing Element Update. Based upon the findings letter, staff revised the Housing Element Update to include additional information and analysis.

On August 7, 2023, the City published the Housing Element Update on the website and requested public comment on changes from the prior iteration. The City did not receive comment letters during the public review period. City staff and HCD staff met multiple times to discuss the August 7 revisions, and based upon those discussions, staff made additional changes to the Housing Element Update related to the housing sites list, revisions of programs including missing middle housing and housing for residents with special needs such as Single Room Occupancy housing, among other changes. On August 17, 2023 the City submitted the subsequent Housing Element Update to HCD for review.

On October 17, 2023, the City received a letter from HCD providing its findings. As Packet Page No. 118
On October 17, 2023, the City received a letter from HCD providing its findings. As described in the letter, HCD found that the Housing Element Update requires additional analysis and information before HCD can consider the Housing Element Update to be substantially complete. City staff will prepare responsive revisions that address the substantive HCD comments. Other non-substantive comments will be prepared before HCD certification of the Housing Element Update, which is anticipated to occur before the end of 2023. As provided in the draft adoption resolution, staff will bring the Housing Element Update revisions to the Planning Commission and City Council within 60 days of HCD certification.

The Planning Commission held a hearing to consider the Housing Element Update and the Safety Element Update on October 24, 2023. Staff will return to the Planning Commission and City Council within 60 days of Housing Element certification with an analysis of recommendations for supplemental text amendments, if necessary, to the Housing Element Update provided by HCD, the Planning Commission, and the City Council.

The following section summarizes the required components of Housing Element updates per State law, new requirements included since the 5th Cycle Housing Element Update (2015-2023), and penalties for non-compliance with Housing Element laws. This section also includes the statutory framework for the Safety Element Update and also includes a summary of public meetings related to the 6th Cycle Housing Element Update prior to the October 26, 2023 City Council meeting.

Required Components of a Housing Element
Pursuant to Government Code Section 65583, local governments are required to include the items below as components within their Housing Elements and subsequent updates thereto. Newly required components introduced as part of the 6th Cycle are noted below and discussed in further detail within the “New Requirements for the 6th Cycle Housing Element Update” section.

Housing Needs Assessment. Examine demographic, employment and housing trends and conditions and identify existing and projected housing needs of the community, with attention paid to special housing needs (e.g., large families, persons with disabilities). This section includes a community’s Regional Housing Needs Allocation (RHNA) as determined by a community’s regional planning body in partnership with HCD.

1. Evaluation of Past Performance. Review the prior Housing Element to measure progress in implementing policies and programs.

2. Housing Sites Inventory. Identify locations of available sites for housing development or redevelopment to demonstrate there is enough land zoned for housing to meet future needs at all income levels. The standards for designating adequate sites were substantially changed from the fifth cycle, particularly for non-vacant sites.

3. Community Engagement. Implement a robust community engagement program that includes reaching out to individuals and families at all economic levels of the community plus historically underrepresented groups.

4. 5. Constraints Analysis. Analyze and recommend remedies for existing and potential Packet Page No. 119
governmental and nongovernmental barriers to housing development.

Policies and Programs. Establish policies and programs to be carried out during the 2023-2031 planning period to fulfill the identified housing needs.

6. Affirmatively Furthering Fair Housing (AFFH). Analyze and address significant disparities in housing needs and access to opportunity by proposing housing goals, objectives, and policies that aid in replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.

7. New Requirements for the 6th Cycle Housing Element Update Pursuant to recent state law, the following items are now required as part of the Housing Element Update process:

Affirmatively Furthering Fair Housing (AFFH). Assembly Bill 686 (AB 686), passed in 2018, created new requirements for jurisdictions to affirmatively further fair housing. According to AB 686, affirmatively furthering fair housing means taking “meaningful actions, in addition to combating discrimination, which overcomes patterns of segregation and fosters inclusive communities free from barriers that restrict access to opportunity based on protected characteristics” and is Federally mandated by the 1968 Fair Housing Act. The four main goals are to:

Address significant disparities in housing needs and access to opportunity, and
Replace segregated living patterns with truly integrated and balanced living patterns, and
Transform racially and ethnically concentrated areas of poverty into areas of opportunity, and
Foster and maintain compliance with civil rights and fair housing laws.

Public Comment on Draft Revisions. Assembly Bill 215 (AB 215, 2021) requires local governments to make the first draft revision of their housing element update available for public comment for at least 30 days. Further, if any comments are received, a local government must take at least ten additional business days to consider and incorporate public comments into the draft revision before submitting to HCD. HCD must review the draft and report its written findings to the planning agency within 90 days of receiving the first draft submittal for each housing element revision or within 60 days of its receipt for a subsequent draft amendment or adoption.

Penalties for Non-Compliance
Jurisdictions face a number of new consequences for not having a certified 6th Cycle Housing Element. Under legislation enacted in recent years, if a jurisdiction does not comply with state law, HCD may refer the jurisdiction to the Attorney General.

Significant fines may be imposed if a jurisdiction does not comply with a court order within one year. If a court finds a Housing Element is inadequate, it may limit local land use decision-making authority until the jurisdiction brings its Housing Element into compliance, or local governments may lose the right to deny certain projects.

Conversely, an HCD-certified housing element makes jurisdictions eligible for, or obtain higher priority for, numerous sources of funding, such as Local Housing Allocations, Affordable Housing and Sustainable Communities Grants, SB 1 Planning Grants, Packet Page No. 120
Affordable Housing and Sustainable Communities Grants, SB 1 Planning Grants, CalHOME Program Grants, Infill Infrastructure Grants, Pro-Housing Design funding, Local Housing Trust Funds and Regional Transportation Funds (such as MTC’s OneBayArea Grants).

Safety Element Requirements
Statutory requirements for the Safety Element are outlined in Government Code Section 65302(g), which requires a Safety Element that protects “the community from any unreasonable risks associated with the effects of seismically induced surface rupture, ground shaking, ground failure, tsunami, seiche, and dam failure; slope instability leading to mudslides and landslides; subsidence; liquefaction; and other seismic hazards… flooding; and wildland and urban fires.” These requirements are organized into nine subsections, and are summarized in the Safety Element Update. In addition to these requirements, Safety Elements are also required to include the identification of residential areas with less than two evacuation routes pursuant to Senate Bill (SB) 99; and the identification of evacuation routes and their capacity safety and viability under a range of emergency scenarios pursuant to Assembly Bill (AB) 747.

Related Elements
Environmental Justice. In 2016, SB 1000 amended state law to require jurisdictions to adopt an Environmental Justice (EJ) Element or EJ-related goals, policies, and objectives integrated in other elements, which identify “disadvantaged communities” within the area covered by the general plan.

This applies only where the city, county, or city and county has a “disadvantaged community” as defined by state law. "Disadvantaged Communities” are defined as areas identified by the California Environmental Protection Agency or low-income areas that are disproportionately affected by environmental pollution and other hazards that can lead to negative health effects, exposure, or environmental degradation. This law is triggered if the jurisdiction is updating two or more elements concurrently on or after January 1, 2018. Staff will return to the Planning Commission and City Council to review an EJ Element in 2024.

SB 1035 and SB 379. Require all jurisdictions to address climate change adaptation and resilience in their general plan safety element. SB 379 is triggered by the next update of a jurisdiction’s local hazard mitigation plan (updated every five years) or before January 1, 2022, whichever is first. The City of Newark, with the cities of Fremont and Union City, the Alameda County Water District, and Union Sanitary District, are participating in the Multi-Jurisdictional Local Hazard Mitigation Plan (MJLHMP) update, which is expected to be completed in 2024.

The adopted MJLHMP would be incorporated by reference in the Safety Element.

AB 2140. Authorizes local governments to adopt the LHMP with the general plan safety element. Integration by reference or annexation is encouraged through a post-disaster financial incentive to cover local shares of the 25 percent non-federal portion of grant-funded post-disaster projects when approved by the legislature.

Summary of Prior Meetings and Study Sessions
Over the last two years, the City has conducted a comprehensive community engagement and outreach strategy consistent with state law to assist in informing the Packet Page No. 121
6th Cycle Housing Element Update Process. This strategy has included a series of community meetings and study sessions with the Planning Commission and City Council. These meetings and study sessions are summarized below. Feedback received throughout the ongoing community engagement and outreach process has assisted staff and the consulting team in preparing the Housing Element Update and related items.

September 23, 2021 – Joint Study Session with City Council and Planning Commission
May 12, 2022 – Joint Study Session with City Council and Planning Commission February 28, 2023 – Study Session with the Planning Commission Housing Element Requirements
The following section summarizes the contents of the City's Housing Element Update.

Housing Needs Assessment
The City is required to analyze the existing and projected housing needs of the City, including its fair share of RHNA requirements, as part of preparing the Housing Element Update. The City’s analysis of housing needs is required to include an assessment of detailed demographic data, including population, age, size, and ethnicity; household characteristics; overpayment trends; housing stock conditions; units in need of replacement or rehabilitation; and needs of special needs populations including the elderly, persons with disabilities, unhoused persons, extremely low-income households, and farmworkers. Utilizing the Housing Needs Data Report provided by ABAG, the Housing Element Update outlines the following housing needs of the City.

Regional Housing Needs Allocation (RHNA)
In January of 2022, HCD approved ABAG’s adopted Final RHNA Plan for the San Francisco Bay Area: 2023-2031 (the Plan), which establishes a total RHNA for the San Francisco Bay Area of 441,176 residential units for the 6th Cycle housing element update 2023-2031 planning period. The Plan further distributes this RHNA across the Bay Area’s nine counties and 101 cities based on demographic and population data received from the California Department of Finance (DOF). Local jurisdictions must then utilize their ascribed RHNA to update the housing elements of their general plans for the 6th Cycle planning period, inclusive of identifying eligible land resources to accommodate this RHNA. See the Sites Inventory Section below.

RHNA requirements are organized into four affordability categories, established according to the Area Median Income (AMI) of a geography. These categories include very low-income residential units, which are affordable to households earning less than 50% of AMI; low-income residential units, which are affordable to households earning between 50% and 80% of AMI; moderate income residential units, which are affordable to households earning between 80% and 120%; and above moderate-income residential units which are affordable to households earning upwards of 120% of AMI.

The City’s RHNA is 1,874 units. The RHNA breakdown is shown in Table 1.

Table 1: City of Newark Regional Housing Needs Allocation (RHNA) for 2023-2031
Packet Page No. 122
Income Category
Previous Housing
Element 5th Cycle
(2015-2023)
6th Cycle RHNA
(2023-2031)
Very Low (less than
50% AMI) 330 464
Low (50-80% of
AMI) 167 268
Moderate (80-120%
of AMI) 158 318
Above Moderate
(More than 120% of
AMI)
423 824
Total RHNA 1,078 1,874
Source: Final RHNA Plan for the San Francisco Bay Area: 2023-2031 RHNA Buffer
New “no net loss” provisions of state law require the City to ensure an adequate supply of land resources to be made available for housing development throughout the duration of the 2023-2031 planning period. This means if housing sites identified within the City’s 6th Cycle housing element update are developed with non-residential uses, lower residential densities, or residential uses at affordability levels higher than anticipated by the Housing Element, the City’s Housing Element could be determined to be out of compliance. Accordingly, the City’s RHNA requirement is further buffered with 980 surplus units representing approximately 52% units above the RHNA requirement to ensure compliance with “no net loss” provisions.

Constraints Analysis
In addition to analyzing the existing and projected housing needs of the City, the Housing Element Update must also identify and analyze potential and actual governmental and nongovernmental constraints to the maintenance, improvement, or development of housing for all income in the community, regardless of protected class.

A summary of constraints to the development and improvement of housing in the City is included below, along with descriptions of local efforts to lessen these constraints as applicable.

Governmental Constraints
Government regulations can potentially constrain the supply of housing available in a community if those regulations limit opportunities to develop housing, impose requirements that unnecessarily increase the cost of developing housing, or overcomplicate the development process for developers. State law requires that housing elements contain an analysis of the governmental constraints on housing maintenance, improvement, or development of housing for all income levels, including special needs households and persons with disabilities. In Newark, potential government constraints to housing identified in the Housing Element Update include land use controls, development processing procedures and fees, impact fees, on- and off-site improvement requirements, and building and housing codes and enforcement.

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The City has worked proactively in recent years to address constraints to housing development, including notably through the adoption of four (4) specific plans that have significantly increased the City’s capacity to accommodate new housing development through the coming duration of the Housing Element Update period and beyond. These plans are expected to guide new housing development during the timeframe of the Housing Element Update and are described in depth in the Housing Element Update. In addition, a number of revised and new policies and programs are included in the Housing Element Update to address identified government constraints.

Other governmental constraints to housing that will be addressed include:

Zoning for ADUs: In Newark, ADUs are permitted within all single-family, multifamily, and mixed-use residential districts. The City will comply with state law until the existing Accessory Dwelling unit ordinance is in compliance with state law, and Newark will make further amendments to the ordinance, as necessary, to remain consistent with State law and reflect local needs. In particular, the parking requirement for an ADU with one bedroom or more can be a constraint on development.

Zoning for Single Room Occupancy Units (SROs): The current Zoning Code provisions for SROs limit the potential for SROs in Newark through the requirement of a conditional use permit. Through community engagement, staff identified that there is a need for housing for small households.

Zoning for Large Community Care Facilities: The Housing Element Update includes an implementation program to permit community care facilities for more than six persons as a permitted use in all zones where other residential uses are permitted subject to the same requirements of other residential uses of the same type in the same zone.

Need for Objective Design Standards: The City is undertaking an effort to create objective design standards for multi-family housing that provide certainty and clarity in terms of design review and that would be consistent with State laws and requirements that limit the ability of a jurisdiction to enforce design standards that may be interpreted as discretionary.

Parking Standards: Because off-street parking often requires large amounts of land, parking requirements are one of the development standards that can most negatively impact housing development. The cost of land associated with parking, in addition to the costs of construction, paving, and maintenance, drive up the overall cost of development, requiring more funds to assist in the development of affordable housing. The City has overall higher parking requirements than neighboring jurisdictions, including Union City and Fremont, and for multifamily housing (both residents and guests), seniors, and ADUs
Non-Governmental Constraints
In addition to governmental constraints, there may be non-governmental factors that constrain the production of new housing. These include market-related conditions, such as the availability of financing and land and construction costs, as well as community opposition to new development. In Newark, land and construction costs as well as the availability of financing, have been identified as key non-governmental constraints to housing production. Through various efforts detailed in the Housing Element Update, Packet Page No. 124
the City will continue to work with public, private, and non-profit partners to overcome these constraints.

Environmental Constraints
Environmental issues affect the amount, location, and timing of new residential development in Newark. Sites in Newark are susceptible to a variety of environmental constraints, including sea level rise and flooding, seismic hazards, sensitive ecological areas, and hazardous materials.

In the following Discussion/Analysis section, the report will provide an overview of the Housing and Safety Elements provided for review as part of the Resolution.

DISCUSSION/ANALYSIS
Housing Element 2023-2031
Housing Resources & Sites Inventory
As part of the Housing Element Update, the City is also required to identify resources available to the City for the preservation, rehabilitation, and production of housing throughout the community. This includes programmatic and financial resources, such as those offered locally or through state or federal partners. These resources also include land resources within the City that were identified as eligible for accommodation of the City’s RHNA Requirements. The following land resources are eligible for accommodation of the City RHNA: vacant sites zoned for residential use; or vacant sites zoned for nonresidential use that allow residential development; or residentially zoned sites that are capable of being developed at a higher density; or sites zoned for nonresidential use that can be redeveloped for residential use, and for which the Housing Element Update includes a program to rezone the site.

The City’s Housing Sites Inventory is summarized below in Table 2. This Housing Sites Inventory is also provided as a map in the Housing Element Update (Figure C-1, Attachment A, Exhibit 1, Page C-4)

Site Category ELI/VLI LI Moderate Above
Moderate Total
Pipeline/Pending
Units 274 66 26 891 1,257
ADUs 48 48 48 16 160
Missing Middle
Housing Units 0 0 200 0 200
Vacant/Non-Vacant
Sites, Units 249 229 348 771 1,597
Total 523 295 374 1,622 2,854
Table 2: City Housing Sites Inventory
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Policies and Programs
The Housing Element Update includes a set of goals, policies, and implementing programs intended to promote the preservation, rehabilitation, and production of housing throughout the City. Goals are long-range, broad, and comprehensive targets that describe the future outcomes the City desires. A policy is a specific instructional guideline that seeks to promote goals. Together, goals and policies are implemented through a series of programs that identify specific, quantifiable actions the City will undertake during the 6th Cycle planning period. A summary of draft goals, policies and programs included within the Housing Element Update is included below:

Goal H1: Preserve + Improve Existing Housing
Policies:

POLICY H1: Leverage local funds to supplement county, state and federal funding to support the maintenance, rehabilitation and preservation of existing rental and ownership housing.

Programs:

PROGRAM H1.1: Housing Rehabilitation and Repair Programs.

PROGRAM H1.2: Develop citywide rental inspection program to maintain high quality housing throughout the City.

Goal H2: Facilitate the Development of More Homes for More People Policies:

POLICY H2.1: Create opportunities for new housing for moderate income households through zoning adjustments to promote missing middle housing types such as courtyard housing, duplex and small multifamily homes.

POLICY H2.2: Second Units. Recognize second units (also known as Accessory Dwelling Units (ADUs) and in-law apartments) as an important part of Newark’s housing supply and continue to allow such units, subject to parking, ownership, and size standards that are consistent with State law.

POLICY H2.3: Promote and facilitate new affordable housing partnerships with various organizations with different housing needs that include but are not limited to the following:

Community serving nonprofits
Newark Unified School District
Community college districts
POLICY H2.4: Work with community partners and property owners to revisit a community visioning plan for the Four Corners neighborhood/community commercial area.

POLICY H2.5: Support programs aimed at housing vulnerable and special needs populations. Monitor the need for housing for seniors across all income groups and for various levels of care, and support programs and incentives that encourage the development of a variety of age-friendly housing options.

POLICY H2.6: Develop and adopt a Universal Design Ordinance to ensure new construction is accessible to residents in all phases of life and regardless of their physical abilities.

POLICY H2.7: Update the existing Reasonable Accommodation requirements of the Zoning Ordinance.

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the Zoning Ordinance.

POLICY H2.8: Support regional homeless initiatives and develop robust and equitable local responses to people experiencing homelessness.

POLICY H2.9: Increase housing for large households as stated in the Affordable Housing Work Plan (which may be amended from time-to-time). Large households are defined as those with five or more people. The City will review existing site development regulations and design guidelines to ensure that the City is not unintentionally restricting housing designs that meet the needs of extended, multigenerational, and/or large families such as 2 + bedroom units, to reduce overcrowding and assist in maintaining the affordability of existing housing stock.

POLICY H2.10: Evaluate annual housing production targets to ensure the City is meeting the RHNA goals.

Programs:

PROGRAM H2.1: Develop new housing options in areas of the City close to services such as parks, schools and grocery stores, with existing infrastructure.

PROGRAM H2.2: Accessory Dwelling Unit (ADU) Program.

PROGRAM H2.3: Investigate opportunities in the Four Corners area to facilitate market-rate and affordable housing and promote neighborhood revitalization through increased mixed use development and walkability.

PROGRAM H2.4: Universal Design Ordinance.

PROGRAM H2.5: Develop a local response to support people experiencing homelessness.

PROGRAM H2.6: Work in partnership with the Newark Unified School District PROGRAM H2.7: Affordable Housing Development Fund
PROGRAM H2.8: Zoning for Missing Middle Housing Types.

PROGRAM H2.9: Area Specific Plans
PROGRAM H2.10: Single Room Occupancy Housing
Goal H3: Reduce and Remove Constraints to Affordable Housing Development Policies:

POLICY H3.1: Allow By-Right Approval of Projects with 20 Percent Affordable Units on “Reused” Sites. Pursuant to AB 1397, amend the Zoning Ordinance to require by-right approval of housing development that includes 20 percent of the units as housing affordable to lower-income households on sites being used to meet the 6th Cycle RHNA that represent “reuse sites” previously identified in the 4th and 5th Cycles Housing Element, and on sites that are subject to a text amendment to accommodate the lower-income RHNA.

POLICY H3.2: Increase certainty of entitlement procedures and accessibility to resource information for developers. Prepare a comprehensive set of guidelines and associated process diagram for all the City’s processes and fees related to residential development generally and affordable housing specifically.

POLICY H3.3: Ensure there is a sufficient supply of multifamily and single-family zoned land to meet the housing needs identified in the RHNA.

Programs:

PROGRAM H3.1: Streamline Ministerial Approval Permit Procedures PROGRAM H3.2: Develop objective design standards for single family and multifamily developments and infill housing.

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PROGRAM H3.3: Assess and update impact fees.

PROGRAM H3.4: Adjust zoning to allow mixed use in current Commercial zones.

PROGRAM H3.5: Parking standards update and study.

PROGRAM H3.6: By-Right Approval of Projects with 20 Percent Affordable Units on “Reused” Sites.

Goal H4: Help People Stay in their Homes and Communities Policies:

POLICY H4.1: Develop programs that support homeowners and tenants remain in their homes and communities with a focus on low and moderate income residents and BIPOC households.

POLICY H4.2: Preservation of unsubsidized affordable units. Many low income residents depend on unsubsidized housing at below market rates, which is vulnerable to investment and speculation. Work with nonprofit organizations that may acquire at-risk projects to extend affordability of existing unsubsidized affordable housing for lower-income households. These policies aim to prevent displacement of low-income BIPOC communities, long-term renters, and other marginalized residents by preserving currently affordable housing and creating pathways for permanent affordability.

POLICY H4.3: Sites Acquisition for affordable housing. The City will proactively work to identify opportunities for partnering with other local public sector agencies and private landowners to acquire sites for affordable housing, as well as to seek creative ways of partnering with developers to include affordable units in market-rate projects.

Programs:

PROGRAM H4.1: Develop Anti-Displacement Programs for the Old-Town Newark Specific Plan Area.

PROGRAM H4.2: Develop a Tenant/Community Opportunity to Purchase Policy.

PROGRAM H4.3: Develop a Just Cause Eviction Ordinance.

PROGRAM H4.4: Small Sites Program.

PROGRAM H4.5: Connect Residents to Existing Shared Housing Programs.

PROGRAM H4.6: Support Tenant Stability Though Minimum Lease Terms and Relocation Assistance.

PROGRAM H4.7: Identify Housing Opportunities For Those With Developmental Disabilities.

PROGRAM H4.8: Connect Residents with Foreclosure Assistance.

PROGRAM H4.9: No Net Loss of Units.

PROGRAM H4.10: Zoning Ordinance Amendments for Special Needs Housing.

PROGRAM H4.11: Scattered Site Housing for Persons Experiencing Homelessness.

Goal H5: Increase Access to Affordable Housing
Policies:

POLICY H5.1: Continue to generate funding for affordable housing and seek additional funding opportunities as they arise.

POLICY H5.2: Bring homeownership within reach for Newark residents. Develop a Below Market Rate (BMR) homeownership program, and down payment assistance programs, with a focus on first time home buyers.

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POLICY H5.3: Prioritize the use of City-owned property for affordable housing prior to other uses (if the sites are feasible and appropriate for housing), and prioritize housing for extremely low income households.

POLICY H5.4: Amend the existing Inclusionary Housing Ordinance to require on-site production of units rather than allowing the payment of an in-lieu or impact fee to support increased access to affordable housing opportunities across the city and in high opportunity areas.

POLICY H5.5: Develop an affordable notice of funding availability (NOFA) that will be released regularly to incentivize new developments consistent with the City’s goals of increasing affordable housing opportunities for residents that are families, low income seniors, and residents with disabilities.

Programs:

PROGRAM H5.1: First-Time Homebuyer Assistance.

PROGRAM H5.2: Affordable Housing Development Programs.

PROGRAM H5.3: Public Lands for dedicated affordable housing.

PROGRAM H5.4: Affordable Housing Overlay Zone.

Goal H6: Enhance Quality of Life | Equity and Environmental Justice Policies:

POLICY H6.1: Identify the various existing and potential funding sources for infrastructure / public facility needs, including local, State, and Federal money.

POLICY H6.2: Urban Centers. Implement existing specific plans for NewPark Place and Old Town, creating locations in Newark which are more urban and pedestrian-oriented in character than they are today. These areas will be transformed over time into mixed-use centers with retail, office, civic, and higher density housing uses.

POLICY H6.3: Implement land use and transportation policies that encourage active transportation and transit oriented development. Make land use and transportation decisions that reduce emissions, including promotion of walking and bicycling, improvements to public transportation, and a jobs-housing balance that reduces vehicle commute miles.

POLICY H6.4: In partnership with local nonprofits and city departments, work to promote energy efficiency and wise water use in new and existing residential buildings in order to reduce energy costs, provide quality and resilient housing, improve building comfort, and reduce greenhouse gas emissions.

POLICY H6.5: Allow and encourage green building practices and energy efficient construction, such as Cross Laminated Timber buildings, solar installations, and electrification of buildings.

POLICY H6.6: Urban Heat Island Effect. Develop standards and requirements for municipal projects that can incorporate natural cooling techniques to reduce the urban heat island effect.

POLICY H6.7: Residential Development in the Flood Plain. Limit development within low-lying areas at high risk from flooding. Require any new residential development, including streets and other surface improvements, to be constructed above the 100-year flood elevation.

Programs:

PROGRAM H6.1: In Response to Multi-Year Drought Conditions, Support a Packet Page No. 129
PROGRAM H6.1: In Response to Multi-Year Drought Conditions, Support a Community Reduction of Local Water Usage.

PROGRAM H6.2: Encourage Water Utilities to Participate in BayREN’s Water Upgrades $ave Program.

PROGRAM H6.3: Cool Roofs for Cool Homes.

PROGRAM H6.4: Flood Risk Disclosure for New Development.

Goal H7: Further Fair Housing Throughout Newark
Policies:

POLICY H7.1: Improve awareness, access, and use of education, training, complaint investigation, mediation services of the fair housing service provider, particularly in areas sensitive to displacement, low-income, racial/ethnic concentration, disability or other fair housing considerations.

POLICY H7.2: Promote affirmative marketing in affordable housing programs to enable mobility among low-income residents and residents of color in areas of poverty and segregated neighborhoods.

POLICY H7.3: Address barriers to renting and increase tenant support. Low income households and people experiencing homelessness face obstacles that prevent them from accessing housing that is affordable to them.

Programs:

PROGRAM H7.1: Training for Voucher Program and Landlord Responsibilities.

PROGRAM H7.2: Increase City Access, and Partner With Community Organizations To Ensure That Community Members Have Access To Tenant Rights Information and Fair Housing In Multiple Languages.

PROGRAM H7.3: Work with Newark Unified School District to Distribute Housing Resources.

PROGRAM H7.4: Affirmatively Market Affordable Housing.

PROGRAM H7.5: Monitor housing programs through a mid-cycle review.

Affirmatively Furthering Fair Housing
The AFFH requirements, as identified previously in this report, are intended to address racial inequalities seen today throughout the Bay Area which developed through historical policies and practices enacted at federal, state, regional and local levels and across the public and private sectors. Though many of these explicit forms of historical discrimination have been outlawed, the results of these systems have left a lasting imprint on both the Bay Area region and the City. Racially explicit practices (e.g., racial covenants) which excluded persons of color from predominately white neighborhoods have been replaced with race-neutral land use policies that continue to exclude these same groups. Furthermore, rapidly increasing housing costs have deepened racial and economic disparity and segregation, displacing many low-income individuals and people of color to the peripheries of the region or out of the Bay Area entirely.

Accordingly, Newark must incorporate fair housing considerations into its Housing Element Update to increase housing opportunities in high resource neighborhoods and bring additional resources to traditionally under-resourced neighborhoods. The following section summarizes the components of the required AFFH component of the Housing Element Update.

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Attachment 2 provides an overview of the AFFH analysis contained in the Housing Element Update, including summaries of community outreach, fair housing assessment, segregation and integration patterns, racially and/or ethnically concentrated areas of poverty or affluence, disparities in access to opportunities, disproportionate housing needs, sites inventory, and goals, policies, and actions.

Safety Element Update
The Safety Element is one of eight state-required components for the General Plan of every jurisdiction in California. In Newark the Safety Element is known as the Environmental Hazards Element, which was originally adopted with the General Plan in 2013. Recent state laws mandate the City review and update the Safety Element of the General Plan when updating the Housing Element. While the City of Newark’s Housing Element is being updated for the 6th Cycle period from 2023 to 2031, the Safety Element Update included specifically targeted updates specifically in response to new state mandates and hazard mitigation related to climate change. This section outlines the process through which the Safety Element Update was prepared, including a review of relevant plans, existing conditions analysis, a community survey, and development of the Safety Element Update goals, policies, and actions.

The city hired Environmental Science Associates, Inc. (ESA) to prepare the Safety Element Update associated with the Housing Element Update.

Process
Review of Relevant Plans
ESA began by reviewing existing City plans relevant to the Safety Element Update, including the Environmental Hazards Element (2013), Union City/Newark Multi-Jurisdictional Local Hazard Mitigation Plan (2017), Alameda County Local Hazard Mitigation Plan (2021), Climate Action Plan Initial Framework (2010), Emergency Operation Plan, and other plans identified by City staff.

The 2017 Union City/Newark Multi-Jurisdictional Hazard Mitigation Plan (MJHMP), along with the 2021 Alameda County Local Hazard Mitigation Plan (LHMP), contained much of the information required to update the City’s Environmental Hazards Element.

In addition to other data collection required for mapping needs, other information was necessary for the evacuation analysis consistent with Senate Bill (SB) 99 and Assembly Bill (AB) 747. The fulfillment of these requirements is discussed in the Summary of Updates section below.

Existing Conditions Analysis
ESA compiled background information from relevant Plans to graphically communicate the information related to anticipated hazards and potential effects of climate change.

These included mapping of critical infrastructure and emergency services which can be seen in Figure SAF-15, mapping of sea-level rise in Figure SAF-8 and mapping of PM2.5 and Diesel Particulate in Figure SAF-1 and Figure SAF-2 Additional figures are discussed below in the Summary of Updates section.

Community Survey
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Newark community members and stakeholders informed the development of the Safety Element Update through participation in the community survey for the Housing Element Update as described above. Each hazard topic in the Safety Element Update concludes with a section on community and stakeholder input, which summarizes feedback received through the survey related to each topic. Input received informed the development of policies and actions in Section 3 of the Safety Element Update.

Safety Element Update Preparation
Information from the review of relevant plans, existing conditions, and results from the community survey were complied in to the Safety Element Update and established the foundation for the goals, policies, and actions. A summary of the updates are provided in the following section.

Summary of Updates
The Safety Element Update, in alignment with concurrent City policy and planning efforts, places emphasis on recognizing and preparing for climate change hazards and their impact across the City. These include known hazards that have intensified due to climate change as well as previously unknown impacts and threats. The Safety Element Update prioritizes safeguarding against both introducing hazards and placing people in hazardous areas. This update provides new background information on climate change hazards and language to address these threats and hazards among its goals, objectives, and policies.

New or Updated Hazard Topics
The hazards listed below were either absent from the 2013 General Plan or were present in the General Plan but not accounted for in the Environmental Hazards Element. The hazards are presented in order of appearance in the Safety Element Update.

Air Quality
Air quality was discussed in the 2013 General Plan under the Health and Wellness Element. Notable differences between the discussion of air quality in the 2013 Health and Wellness Element and the updated Safety Element include the addition of maps showing the prevalence of diesel particulate and PM2.5. In addition to the establishment of new policies and actions related to air quality for the Safety Element Update, several action items were pulled directly from the 2013 Health and Wellness Element to promote healthy conditions for specific air quality standards. New or updated policies include directions for implementing the forthcoming Climate Action Plan (Policy SAF-1.2 Climate Action and Adaptation Planning; Action SAF-1.B Climate Action and Adaptation Plan Preparation) as well as guidelines for land use planning to promote improved air quality (Policy SAF-1.4 Land Use Planning; Action-1.C Transportation Demand Management Strategies).

Drought and Water Quality
In the 2013 General Plan, discussions about drought and water quality were primarily confined to the Conservation and Sustainability Element. The Safety Element Update includes a discussion of drought and water quality in the existing conditions section as well as corresponding policies and actions in Section 3. A graphical representation of Packet Page No. 132
drought conditions spanning from 2000 to 2023 is included as Figure SAF-3, offering a visual insight into evolving conditions in Alameda County. This section also includes a map of groundwater threats, presented as Figure SAF-4. Policies related to mitigation of drought impacts and improvement of water quality for community members include addressing and preventing water pollution (Policy SAF-2.1 Water Pollution Reduction; Action SAF-2.B Address Pollution in Water Bodies; ), educating community members on water conservation (Policy SAF-2.4 Drought Awareness), and investing in water security (Policy SAF-2.5 Water Storage; Policy SAF-2.6 Water Conservation; Policy SAF-2.9 Long Term Water Supply; Action SAF-2.F Ensure Water Availability, Action SAF-2.H Water Use Restrictions).

Extreme Weather
Extreme weather was not explicitly discussed in the 2013 General Plan as a stand-alone hazard section. It is mentioned just once in the General Plan under the Conservation and Sustainability Element in relation to climate change and greenhouse gases. In the updated Safety Element, Extreme Weather is presented as a hazard topic alongside a discussion of topics specific to the city such as the risks associated with the urban heat island effect, the benefits of urban greening and secondary hazards such as increased energy demand and decreased use of active transportation methods. Corresponding policies center around providing cooling methods for households and communities (Policy SAF-3.2 Cooling Amenities; Policy SAF-3.3 Household Cooling; Action SAF-3.B Cool Pavements; Action SAF-3.C Cooling Center Access) as well as guidance for mitigating the impact of urban heat island effects (Policy SAF-3.1 Urban Heat Island Effect; Policy SAF-3.5 Urban Forest Management; Action SAF-3.H; Action SAF-3.I Climate Friendly Trees).

Dam Failure
In the 2013 Environmental Hazards Element, Dam Failure is discussed as a hazard under the Geologic Hazards section. In the Safety Element Update, Dam Failure is discussed as a stand-alone hazard. The existing conditions section on Dam Failure describes local conditions including a discussion of the five dams that have the potential to impact the city if a failure were to occur. Dam inundation zones are mapped in Figure SAF-9. Corresponding policies include guidance on educating community members of the risks associated with dam failure (Policy SAF-5.5 Flooding Resource Education; Action SAF-5.B Flood Insurance Awareness and Coverage in Dam Inundation Zones; Action SAF-5.C Accessible Flooding Insurance Resources) as well as direction for protecting critical facilities and new development from potential dam failure (Policy SAF-5.3 Critical Facilities and Services; Policy SAF-5.4 New Development; Action SAF-5.D Flood Risk Disclosure for New Development; Action SAF-5.E Protect Critical Facilities, Services, and Infrastructure).

Existing Hazard Topics
The following topics were included in the 2013 Environmental Hazards Element.

Notable changes are discussed.

Geologic Hazards
Geologic hazards were discussed in the 2013 Environmental Hazards Element. The updated element discusses local conditions, including vulnerabilities, and local Packet Page No. 133
initiatives, in addition to the existing information from the previous element on tsunamis and seiches, subsidence, landslides, liquefaction, fault rupture, and ground shaking.

The updated element also includes an updated map of local fault lines (Figure SAF-10) as well as liquefaction and landslide zones (Figure SAF-11). Updated policies under Geologic Hazards include protecting critical public and private facilities (Policy SAF-7.5 Evaluate Critical Facilities; Policy SAF-7.6 Evaluate Critical Public Facilities) and utilizing updated information and assistance to inform best practices for preparing for geologic hazards (Policy SAF-7.7 Require Geotechnical Investigation; Action SAF-7.C Code Updates; Action SAF-7.K Structural Retrofits).

Hazardous Materials
The 2013 Environmental Hazards Element covered Hazardous Materials with topics such as hazardous materials handling, transportation, clean-up, hazardous household waste, and pipeline safety. The updated element retains these topics and expands upon them by including discussions about Hazardous Materials Business Plans, local conditions and initiatives, and relevant government agencies. Additionally, the updated version features a map of hazardous waste sites (Figure SAF-12), providing a visual representation of their locations. New and updated policies aim to enhance safety in the context of hazardous materials. New policies center around the protection of both existing and new developments (Policy SAF-8.9 Facility Use or Storage of Hazardous Materials; Policy SAF-8.11 New Development).

Flood Hazards
The 2013 Environmental Hazards Element addressed flood hazards however, the Safety Element Update includes some changes and updates. An updated new FEMA flood exposure zone map is included as seen in Figure SAF-7. Notable differences in the existing conditions section include discussions about local vulnerabilities such as infrastructure and local wildlife, as well as different types of potential flooding like Coastal, Flash, and Riverine Flooding. In the Safety Element Update, there is a detailed discussion of sea level rise along with an accompanying map (Figure SAF-8).

Additionally, several policies from the 2013 Environmental Hazards Element have been retained, with some new policies introduced to enhance safety and resilience against floods. These new policies aim to mitigate the impacts of flood hazards (Policy SAF-4.9 Regional Planning for Sea Level Rise) and investments in infrastructure to withstand impacts (Policy SAF-4.11 Green Infrastructure; Policy SAF-4.12 Impervious Surfaces).

Fire Hazards
Fire hazards are briefly discussed in the 2013 Environmental Hazards Element. Due to the geographic location of the City, wildfire hazard remains low. The Safety Element Update discusses local conditions, vulnerabilities, and initiatives related to fire hazards.

Updated or new policies prioritize fire safety standards (Policy SAF-6.1 Fire Hazard Reduction; Action SAF-6.F Public Buildings and spaces) and aim to improve emergency vehicle access (Policy SAF-6.3 Adequacy of Access; Action SAF-6.G Infrastructure Upgrades).

Emergency Preparedness
The primary difference between the Emergency Preparedness section in the 2013 Packet Page No. 134
Environmental Hazards Element and Safety Element Update is the evacuation analysis for SB 99 and AB 747. These are described in further detail below. The Safety Element Update also includes a map of emergency services within the City (Figure SAF-15).

New policies focus on informing community members of resources to prepare for emergencies (Policy SAF-10.3 Hazard Awareness; Policy-10.15 Natural Hazards Education Programming and Events) and evacuation planning and notification (Policy SAF-10.10 Evacuation Planning; Policy SAF-10.11 Resident Evacuation; Action SAF-10.G Multilingual Emergency Outreach).

SB 99 and AB 747
ESA subcontracted with Fehr & Peers to perform the assessments necessary for SB 99 and AB 747. In compliance with SB 99, Fehr & Peers mapped residential parcels within the City with only one point of access. Additionally, to comply with AB 747, Fehr & Peers conducted a volume-to-capacity analysis of three evacuation scenarios, each focusing on the availability of roadways during flood emergencies. These scenarios assess various factors affecting evacuation, such as access to arterial roadways and highway overpasses.

Roadway capacity assessments conducted by Fehr & Peers conclude that due to the many cul-de-sacs in the City, numerous residential parcels are delimited to only one access route. Additionally, the City is bound by topography, which limit the direction and number of evacuation routes. The findings established by these analyses are summarized in the Safety Element Update under Section 2, Emergency Preparedness.

The full analysis can be found in Appendix B of the Safety Element Update. The analysis provided in the appendix also includes potential measures to enhance the evacuation preparation and process, which are reflected in Policy SAF-10.10 Evacuation Planning.

Noise and Vibration
The Safety Element Update did not include changes to the noise policies or existing conditions. These sections were pulled from the 2013 Environmental Hazards Element and are included in the updated draft with no changes made to the content.

Community Engagement
Consistent with State Law, the City has conducted ongoing community outreach efforts throughout the 6th Cycle Housing Element Update process. These efforts, in addition to the Planning Commission and City Council meetings, are summarized within the Introduction and Appendix B of the Housing Element Update and below.

Public Outreach
Written communication through social media, posters & flyers, and a project website www.newarkhousingupdate.org
March 15, 2022 – April 30, 2022: online community survey (342 responses) In-person outreach in the community (March/April 2022): The city conducted in person community engagement in a variety of locations and events around the city. They engaged with residents at Family Day in the Park on April 9, 2022 spent time connecting with folks at the Newark Public Library on a busy Saturday, visited the senior center for Bingo, and Tri-City food pantry mobile pop up Packet Page No. 135
1:1 Interviews and Listening Sessions
June 22, 2022: online community meeting (50 attendees)
March 22, 2023: online community meeting
April 1, 2023 Family Day in the Park outreach and awareness event Review Process
HCD is the state's department that is responsible for reviewing housing elements and determining compliance with state housing law. The review process is established by state law and includes document submittal requirements and defined review timelines. At the conclusion of each review period, HCD must prepare a response that contains a determination of compliance and, if applicable, any non-compliance findings that the City must address in subsequent submittals. The following is a summary of key milestones throughout the City's Housing Element Update review process with HCD:

April 12, 2023: At the conclusion of a 40-day public review and public comment consideration period, the City submits the Housing Element Update to HCD for an initial 90-day review.

July 12, 2023: HCD submits a response to the City. HCD determines that the Housing Element Update does not substantially comply with state law, and revisions are necessary.

August 7, 2023: The City publishes a revised Housing Element Update and requests public comment.

August 17, 2023: The City submits the revised Housing Element Update to HCD for a 60-day review. Subsequent discussions with HCD staff identify additional revisions and clarifications.

October 3, 2023: After a seven-day public review period, the City submits an interim revised Housing Element Update to HCD for a subsequent 60-day review period
October 17, 2023: HCD submits a response to the City. HCD determines that the revised Housing Element Update does not substantially comply with state law, and additional revisions are necessary.

HCD Findings Letters – Outstanding Comments and City Response As described above, HCD reviewed the Housing Element Update and reported the results of its review as required by state law. See Attachment 1, Exhibit A for HCD’s requested changes and the City’s response to each comment. Significant progress has been made to comply with state housing law. However, as described in the October 17, 2023 response, HCD has determined that portions of the Housing Element Update do not yet comply. HCD staff has indicated that the remaining noncomplying portions are non-substantive, meaning that additional analysis, information, or adjustments to policies or programs may be needed prior to HCD certification.

Although HCD has determined that the Housing Element Update does not substantially comply with state law and that non-substantive revisions are necessary, staff recommends that the City Council approve the staff recommendation to adopt the Housing Element Update as provided in Attachment 1, Exhibit B. The adoption resolution contains a provision allowing the Community Development Director to make the non-substantive changes to the adopted housing element and submit a revised Housing Element Update for HCD consideration. Staff's expectation is that HCD will Packet Page No. 136
Housing Element Update for HCD consideration. Staff's expectation is that HCD will complete their review of the City's responses to the remaining issues and certify the Housing Element Update is in compliance with state law by the end of December 2023.

FISCAL IMPACT
Adopting the 2023-2031 Housing Element Update and the subsequent implementation of Housing Element Update programs is expected to require moderate staff, consultant, and financial resources. Over the eight-year period between 2023 and 2031, the City will implement over 40 programs intended to achieve Housing Element Update goals and policies. Most of these programs will be initiated between 2024 and 2026 and implemented through 2031. The Housing Element identifies the anticipated funding source required to implement the programs. All of the programs would be funded through the Affordable Housing Fund, an impact fee fund charged to developers of new projects, or through the Community Development Maintenance Fee fund, a fee assessed on each building permit issued. Other funding sources include Community Development Block Grant (CDBG) funds and other grants intended to support affordable housing development and programs. As programs are initiated, staff will assess the available funding sources in order to reduce costs.

Adopting the Safety Element is not expected to result in substantial new costs to the city. Similar to the Housing Element, projects to implement Safety Element policies and actions will utilize available funding from a variety of sources in a manner intended to reduce the impact on the city's general fund.

ENVIRONMENTAL/PLANNING COMMISSION REVIEW
Environmental Review
The City has prepared the necessary environmental review, consistent with the California Environmental Quality Act (CEQA) for the Draft 2023– 2031 Housing Element and the Safety Element. Pursuant to CEQA, an Addendum to the Newark General Plan Tune Up Environmental Impact Report (State Clearinghouse No. 2013012052) (Addendum) was prepared. No subsequent EIR is required to be prepared, as no substantial changes have been proposed or the conditions that require major revisions of the General Plan Tune Up EIR. No new significant environmental impacts have been identified, and no substantial increases in the severity of previously identified impacts were discovered. The Housing Element and Safety Element remain subject to all previously adopted mitigation measures, as applicable, and no new mitigation measures or alternatives are required. The Addendum is provided in Attachment 3.

Planning Commission Review and Recommendation
On October 24, 2023, the Planning Commission is scheduled to hold a public hearing to consider the staff recommendation. The Planning Commission's recommendation, transmitted through a resolution, will be provided at the October 26, 2023, City Council meeting.

REVIEW AND APPROVAL
Packet Page No. 137
Prepared by - Steven Turner, Community Development Director Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Attachment 1 - City Council Resolution
Exhibit A - HCD Findings and City Responses
Exhibit B - 2023-2031 Housing Element
Exhibit C - Safety Element Update
Attachment 2 - Affirmatively Furthering Fair Housing Analysis Summary Attachment 3 - CEQA Addendum
Presentation
Packet Page No. 138
CITY COUNCIL RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWARK ADOPTING A

GENERAL PLAN AMENDMENT TO REPEAL THE FIFTH CYCLE HOUSING ELEMENT FOR THE PERIOD OF 2015-2023 AND ADOPTING THE HOUSING ELEMENT OF THE GENERAL PLAN FOR THE PERIOD OF 2023-2031 AND ADOPTING THE SAFETY ELEMENT OF THE GENERAL PLAN, IN COMPLIANCE WITH STATE HOUSING ELEMENT LAW.

WHEREAS, the California Legislature has found that “California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives” (Gov. Code Section 65589.5.); and
WHEREAS, the Legislature has further found that “Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration” (Gov. Code Section 65589.5.); and WHEREAS, the Legislature recently adopted the Housing Crisis Act of 2019 (SB 330) which states that “In 2018, California ranked 49th out of the 50 states in housing units per capita… California needs an estimated 180,000 additional homes annually to keep up with population growth, and the Governor has called for 3.5 million new homes to be built over 7 years”; and WHEREAS, State Housing Element Law (Government Code Sections 65580 et seq.) requires that the City Council adopt a Housing Element for the eight-year period 2023-2031 to accommodate the City of Newark (City) regional housing need allocation (RHNA) of 1,874 housing units, composed of 464 very-low income units, 268 low-income units, 318 moderateincome units, and 824 above moderate-income units; and WHEREAS, to comply with State Housing Element Law, the City of Newark has prepared Housing Element 2023-2031 (the Housing Element Update) in compliance with State Housing Element Law and has identified sites that can accommodate housing units meeting the City’s RHNA; and
WHEREAS, as provided in Government Code Section 65350 et. seq., adoption of the Housing Element constitutes a General Plan Amendment; and WHEREAS, as provided in Government Code Sections 65352 – 65352.5 the City mailed a public notice to all California Native American tribes provided by the Native American Heritage Commission and to other entities listed; and
WHEREAS, no California Native American tribe requested consultation; WHEREAS, the City conducted extensive community outreach over the last twenty months, including two joint sessions before the City Council and Planning Commission in September 2021 and May 2022, and an additional session with the Planning Commission in February 2023; and
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WHEREAS, in accordance with Government Code Section 65585 (b), on February 24, 2023, the City posted the draft Housing Element Update and requested public comment for a 30- day review period, and on April 12, 2023, after responding to public comments, the City submitted the draft Housing Element to the State Department of Housing and Community Development (HCD) for its review; and
WHEREAS, on July 12, 2023, the City received a letter from HCD providing its findings regarding the draft Housing Element; and
WHEREAS, on August 7, 2023, the City published a revised Housing Element Update responding to HCD’s findings and requested public comment on the draft; and on August 17, 2023, after responding to public comments, the City submitted a second draft Housing Element to HCD for its review; and
WHEREAS, on October 17, 2023, the City received a letter from HCD providing its findings regarding the Housing Element Update; and
WHEREAS, the proposed adoption of the Housing Element, the Safety Element, and amendment to the General Plan are collectively referred to as the “Project”; and WHEREAS, pursuant to the California Environmental Quality Act (CEQA), an Addendum to Newark General Plan Tune Up Environmental Impact Report (State Clearinghouse No. 2013012052) (Addendum) was prepared for the Project. A copy of the Addendum is on file with the Community Development Department; and
WHEREAS, no subsequent EIR is required to be prepared for the Project, as no substantial changes have been proposed to the Project or the conditions under which the project will be carried out that require major revisions of the General Plan Tune Up EIR. No new significant environmental impacts have been identified and no substantial increases in the severity of previously identified impacts were discovered. The Project remains subject to all previously adopted mitigation measures, as applicable, and no new mitigation measures or alternatives are required; and
WHEREAS, a staff report dated October 24, 2023, and incorporated herein by reference, described and analyzed the Housing Element Update, Safety Element Update, and the Addendum for the Planning Commission; and
WHEREAS, on October 24, 2023, the Planning Commission held a duly and properly noticed public hearing and recommended that the City Council adopt the Housing Element Update and Safety Element Update; and
WHEREAS, on October 26, 2023, the City Council conducted a duly and properly noticed public hearing to take public testimony and consider this Resolution regarding the proposed Housing Element Update, reviewed the Housing Element Update and all pertinent maps, documents and exhibits, including HCD’s findings, the City’s response to HCD’s findings, the Packet Page No. 140
Safety Element, Addendum, the staff report and all attachments, and oral and written public comments.

NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby finds that, based on substantial evidence in the record:

The foregoing recitals are true and correct and are incorporated by reference into this action.

1. The foregoing recitals are true and correct and are incorporated by reference into this action.

2. No subsequent environmental impact report or additional environmental analysis is required in connection with the approval of the Housing Element or Safety Element, as the City Council finds and determines that none of the conditions set forth in Public Resources Code Section 21166, CEQA Guidelines Section 15162(a) have occurred.

3. The Housing Element substantially complies with Housing Element Law, as provided in Government Code 65580 et seq., and contains all provisions required by State Housing Element Law.

4. As required by Government Code Section 65585(e), the City Council has considered the findings made by the Department of Housing and Community Development included in the Department’s letter to the City of Newark dated July 12, 2023 and October 17, 2023, consistent with Government Code Section 65585(f), and as described in Exhibit A to this resolution, incorporated herein, the City Council has changed the Housing Element in response to the findings of the Department to substantially comply with the requirements of State Housing Element Law as interpreted by HCD.

5. The City Council hereby directs the City Manager or designee to return to Planning Commission and City Council within 60 days of Housing Element certification with an analysis of recommendations for supplemental text amendments to the Housing Element Update provided by HCD, the Planning Commission at the October 24, 2023 meeting, and by the City Council at this October 26, 2023 City Council meeting.

6. The 5
th Cycle Housing Element for the 2015-2023 Period is hereby repealed in its entirety, and the 6
th Cycle 2023-2031 Housing Element, as shown in Exhibit B to this Resolution, incorporated herein, is adopted.

7. The Environmental Hazards Element is hereby repealed in its entirety, and the Safety Element, as shown in Attachment C to this Resolution, incorporated herein, is adopted.

8. This Resolution shall become effective upon adoption by the City Council.

9. The Community Development Director or designee is hereby directed to file all necessary material with the Department of Housing and Community Development for the Department to find that the Housing Element Update is in conformance with State Housing Element Law and is further directed and authorized to make all nonsubstantive changes to the Housing Element Update to make it internally consistent Packet Page No. 141
or to address any non-substantive changes or amendments requested by HCD to achieve certification.

10. The Community Development Director or designee is hereby directed to distribute copies of the Housing Element Update in the manner provided in Government Code Sections 65357 and 65589.7.

Exhibit A: Housing and Community Development Findings and City Responses Exhibit B: 2023 – 2031 Housing Element
Exhibit C: Safety Element
5495138.1
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STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
July 12, 2023
Steven Turner, Director
Community Development Department
City of Newark
37101 Newark Blvd
Newark, CA 94560
Dear Steven Turner:

RE: City of Newark’s 6th Cycle (2023-2031) Draft Housing Element Thank you for submitting the City of Newark’s (City) draft housing element update received for review on April 13, 2023, along with revisions received on June 30, 2023.

Pursuant to Government Code section 65585, subdivision (b), the California Department of Housing and Community Development (HCD) is reporting the results of its review. Our review was facilitated by conversations on May 23 and May 30, 2023 with you and your consultants, Paul Peninger and Clara Cheeves. In addition, HCD considered comments from David Kellogg, pursuant to Government Code section 65585, subdivision (c).

The draft element addresses many statutory requirements; however, revisions will be necessary to substantially comply with State Housing Element Law (Gov. Code, § 65580 et seq.). The enclosed Appendix describes the revisions needed to comply with State Housing Element Law.

Public participation in the development, adoption and implementation of the housing element is essential to effective housing planning. Throughout the housing element process, the City must continue to engage the community, including organizations that represent lower-income and special needs households; by making information regularly available while considering and incorporating comments where appropriate. Please be aware, any revisions to the element must be posted on the local government’s website and to email a link to all individuals and organizations that have previously requested notices relating to the local government’s housing element at least seven days before submitting to HCD.

Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Exhibit A
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Steven Turner, Director

Page 2 ends

Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.

For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.

HCD appreciates the hard work and dedication you and your consultants, Clara Cheeves and Paul Peninger, provided in preparation of the City’s housing element and looks forward to working with the City toward a compliant housing element. If you have any questions or need additional technical assistance, please contact Shawn Danino, of our staff, at [email protected].

Sincerely,
Paul McDougall
Senior Program Manager
Enclosure
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City of Newark’s 6th Cycle (2023-2031) Draft Housing Element Page 1 July 12, 2023

APPENDIX

CITY OF NEWARK
The following changes are necessary to bring the City’s housing element into compliance with Article 10.6 of the Government Code. Accompanying each recommended change, we cite the supporting section of the Government Code.

Housing element technical assistance information is available on HCD’s website at http://www.hcd.ca.gov/community-development/housing-element/housing-elementmemos.shtml. Among other resources, the housing element section contains HCD’s latest technical assistance tool, Building Blocks for Effective Housing Elements (Building Blocks), available at http://www.hcd.ca.gov/community-development/building-blocks/index.shtml and includes the Government Code addressing State Housing Element Law and other resources.

A. Housing Needs, Resources, and Constraints

1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).) Disproportionate Housing Needs: The element includes some general information on persons experiencing homelessness and housing conditions but should also evaluate those needs, impacts and patterns within the City, such as areas of higher need. For homelessness, the element should examine patterns of need or areas with higher concentrations of persons experiencing homelessness, including access to transportation and services. For housing conditions, the element should discuss any areas of potentially higher needs of rehabilitation and replacement. The element should utilize local data and knowledge such as service providers and code enforcement officials to assist this analysis.

Affirmatively Furthering Fair Housing (AFFH) and Identified Sites: The element provides some analysis of the identified sites and grouping of socio-economic concentrations.

However, the element should quantify the regional housing need allocation (RHNA) by location or area and evaluate the impacts on the existing patterns of socio-economic characteristics. For example, the element should discuss the impacts of isolating a large portion of the RHNA by income group or lack of RHNA by income group in other planning areas. A complete analysis should fully assess how the site inventory is expected to improve and/or exacerbate fair housing conditions. This analysis should address the location, number of units by income group, magnitude of the impact and any isolation of the RHNA and add or modify programs as appropriate to improve fair housing conditions and promote more inclusive and equitable neighborhoods.

2. Include an analysis of population and employment trends and documentation of projections and a quantification of the locality's existing and projected needs for all income levels, including extremely low-income households. (Gov. Code, § 65583, subd. (a)(1).)
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Include an analysis and documentation of household characteristics, including level of payment compared to ability to pay, housing characteristics, including overcrowding, and housing stock condition. (Gov. Code, § 65583, subd. (a)(2).) Overpayment: The element must quantify and analyze the number of lower-income households overpaying by tenure (i.e., renter and owner).

Age and Condition of the Housing Stock: The element analyzes the age of the housing stock as well as units lacking plumbing and kitchen facilities. However, the element must include an estimate the number of units in need of rehabilitation and replacement.

For example, the analysis could include estimates from a recent windshield survey or sampling, estimates from the code enforcement agency, or information from knowledgeable builders/developers, including non-profit housing developers or organizations. For additional information, see the Building Blocks at http://www.hcd.ca.gov/community-development/building-blocks/housing-needs/housingstock-characteristics.shtml.

3. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).)
Parcel Listing: While the element lists sites by parcel number and acreage (Table C-2), it must also list sites by general plan designation, zoning, realistic capacity, and the number of units by affordability level.

Progress in Meeting the RHNA: The City’s RHNA may be reduced by pending, approved, or completed projects; however, the element must demonstrate their availability in the planning period. The element lists pipeline projects (Site 7 and Sites 12 through 21) “with an active application”. The element should generally discuss any remaining steps, barriers to development, phasing, build out or planning horizons and other relevant factors to demonstrate their availability in the planning period. In addition, the element may list the expected completion date for several projects.

Small and Large Sites: Sites larger than ten acres in size or smaller than a half-acre in size are deemed inadequate to accommodate housing for lower-income households unless it is demonstrated, with sufficient evidence, that sites are suitable to accommodate housing for lower-income households. While the element included a few examples about developments with lot consolidation, it must also provide specific examples with the densities, affordability and, if applicable, circumstances leading to consolidation. The element should relate these examples to the sites identified to accommodate the RHNA for lower-income households to demonstrate that these sites can adequately accommodate the City’s lower-income housing need. In addition, the element could describe it parceling strategy for the 14.7-acre site in the NewPark Place Specific Plan. Based on a complete analysis, the City should add or revise programs to Packet Page No. 146
City of Newark’s 6th Cycle (2023-2031) Draft Housing Element Page 3 July 12, 2023
include incentives for facilitating development on these sites for housing affordable to lower-income households.

Realistic Capacity: The element appears to assume residential development on sites with zoning that allows 100 percent nonresidential uses, but to support this assumption, the element must analyze the likelihood of residential development in zoning where 100 percent nonresidential uses are allowed. The analysis should be based on factors such as development trends including nonresidential, performance standards requiring residential uses or other relevant factors such as enhanced policies and programs.

Suitability of Nonvacant Sites: The element must include analysis demonstrating the potential for additional development on nonvacant sites. While the element mentions underutilized sites were identified based on assessed value (AV) and floor area ratios (FAR), it must support the validity of these assumption in demonstrating the potential for redevelopment and evaluate the extent existing uses impede additional development. For example, the element could utilize recent development activity. In addition, the element should consider additional factors such as building age, structural conditions and expressed interest in residential development. Finally, the element should account for the extent existing uses impede additional residential development including market demand for the existing use and existing leases or contracts that would perpetuate the existing use or prevent additional residential development.

In addition, if the housing element relies upon nonvacant sites to accommodate more than 50 percent of the RHNA for lower-income households, the housing element must demonstrate existing uses are not an impediment to additional residential development and will likely discontinue in the planning period (Gov. Code, § 65583.2, subd. (g)(2).).

Absent findings (e.g., adoption resolution) based on substantial evidence, the existing uses will be presumed to impede additional residential development and will not be utilized toward demonstrating adequate sites to accommodate the RHNA.

Environmental Constraints: While the element generally describes environmental constraints were considered (p. C-68), it must also describe any other known environmental or other conditions (e.g., shape, easements, property conditions, contamination) that could impact housing development on identified sites in the planning period. The City, may, for example, discuss individual sites’ outstanding environmental constraints and describe its strategy and timeline to mitigate these risks.

Electronic Sites Inventory: For your information, pursuant to Government Code section 65583.3, the City must submit an electronic sites inventory with its adopted housing element. The City must utilize standards, forms, and definitions adopted by HCD. Please see HCD’s housing element webpage at https://www.hcd.ca.gov/planning-and-communitydevelopment/housing-elements for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance.

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Zoning for a Variety of Housing Types:
• Emergency Shelters: The City must demonstrate compliance with laws governing emergency shelters including, but not limited to AB 139 related to parking requirements. In addition, Chapter 654, Statutes of 2022 (AB 2339), adds specificity on how cities and counties plan for emergency shelters and ensure sufficient and suitable capacity. Future submittals of the housing element must address these statutory requirements. For example, the element should also clarify shelters are permitted without discretionary action and discuss available acreage in the zones allowed, including typical parcel sizes and the presence of reuse opportunities. In addition, the analysis should address proximity to transportation and services and any conditions inappropriate for human habitability. For additional information and timing requirements, please see HCD’s memo at
https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/ab2339- notice.pdf.
• Low Barrier Navigation Centers: Low Barrier Navigation Centers shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65661. The element must demonstrate compliance with this requirement and include programs as appropriate.
• Permanent Supportive Housing: Supportive housing shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65651.

The element must demonstrate compliance with this requirement and include programs as appropriate.
• Accessory Dwelling Units (ADUs): The element should provide a date by which it expects to revise its ordinance to comply with state law. • Single-Room Occupancies (SRO): The element describes the zones in which SROs are currently permitted. However, given the success of SROs in providing housing for extremely low-income (ELI) households, the element should also describe how zoning will encourage and facilitate SRO development and what development standards SROs will be subject to.

4. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures... (Gov. Code, § 65583, subd. (a)(5).)
Land Use Controls: The element identifies many land use controls as potential constraints on a variety of housing types. However, the analysis should analyze land use controls independently and cumulatively with other land use controls. The analysis should specifically address requirements related to maximum units per building, maximum building coverage, FAR, required open space per unit, minimum lot area, Packet Page No. 148
City of Newark’s 6th Cycle (2023-2031) Draft Housing Element Page 5 July 12, 2023
setbacks, height limits, parking and limits on allowable densities. The analysis should address any impacts on cost, supply, housing choice, affordability, timing, approval certainty and ability to achieve maximum densities and include programs to address identified constraints.

Fees and Exactions: The element provides information on some fees but must describe all required fees for single family and multifamily housing development and analyze their impact as potential constraints on housing supply and affordability. The element should also describe and analyze fees such as those for obtaining a conditional use permit (CUP), general plan amendments, and zone changes. For example, the analysis could identify the total amount of fees and their proportion to the development costs for both single family and multifamily housing. For additional information and a sample analysis and tables, see the Building Blocks at https://www.hcd.ca.gov/planning-and-communitydevelopment/housing-elements/building-blocks/fees-and-exactions.

Zoning and Fees Transparency: The element should clarify its compliance with new transparency requirements for posting fees and all zoning and development standards for each parcel on the jurisdiction’s website.

Building Codes and their Enforcement: The element should clarify which building code is utilized and any local amendments and evaluate impacts on housing costs. In addition, the element should describe the type (e.g., complaint-based) and degree of code enforcement. For additional information and a sample analysis, see the Building Blocks at https://www.hcd.ca.gov/planning-and-community-development/housingelements/building-blocks/codes-and-enforcement-and-onsite-offsite-improvementstandards.

On and Off-site Improvements: While the element general describes necessary streetscape improvements in Specific Plan areas (p. 134), it should also identify subdivision level improvement requirements, and analyze their impact on housing costs.

For additional information and a sample analysis, see the Building Blocks at https://www.hcd.ca.gov/planning-and-community-development/housingelements/building-blocks/codes-and-enforcement-and-onsite-offsite-improvementstandards.

Processing and Permit Procedures: While the element provides a description of the types of permits required for housing developments, it must describe and analyze the permits’ processes, identify what is reviewed, typical findings and approval procedures by zone and housing type. The analysis must specifically address the threshold for a CUP on multifamily uses and special development permits. The analysis must evaluate impacts on housing supply (number of units), costs, timing, feasibility, and approval certainty.

Housing for Persons with Disabilities: The element should analyze potential constraints on housing for persons with disabilities, as follows:

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• Definition of Family: The element briefly mentions a definition of family. However, the element should describe and analyze its definition of family and, if necessary, include a program to address identified constraints.
• Reasonable Accommodation: The element describes the general requirements of reasonable accommodation, but it should list and analyze approval findings for impacts on housing for persons with disabilities.
• Group Homes for Seven or More Persons: The element describes its procedures for permitting residential care facilities of seven or more persons. However, the element excludes group homes for seven or more persons from some residential zones and subjects the use to a CUP, unlike other similar uses. The element should specifically analyze these constraints for impacts on housing supply and choices and approval certainty and objectivity for housing for persons with disabilities and include programs as appropriate.

B. Housing Programs

1. Include a program which sets forth a schedule of actions during the planning period, each with a timeline for implementation, which may recognize that certain programs are ongoing, such that there will be beneficial impacts of the programs within the planning period, that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the Housing Element... (Gov. Code, § 65583, subd. (c).)
Several programs and actions have timelines that should be moved earlier in the planning period to ensure a beneficial impact. Examples include Programs H2.3 (Four Corners Development), H2.6 (Housing Development on School Sites), H2.8 (Zoning for Missing Middle Housing), H3.4 (Housing in Mixed Use Zones), and H3.5 (Parking Requirement Changes).

Additionally, programs must have specific commitment to housing outcomes or deliverables. Several programs include actions with no description of how those actions will be implemented (e.g., “support”, “study”, “explore”, “evaluate”, etc.,). For example, Program H2.8 describes the ‘pursuit of’ minimum lot widths of 50 feet and minimum lot sizes of 5,000 feet, and parking that ‘may include a minimum of 1 per unit outside specific plan areas’. However, it does not make a specific commitment to adjust these development standards and to what extent. Programs should be amended, to include specific commitment to a housing related outcome. Examples include, but are not limited to, Programs H2.3 (Four Corners Development), H2.6 (Housing Development on School Sites), H2.8 (Zoning for Missing Middle Housing), H3.4 (Housing in Mixed Use Zones), H3.5 (Parking Requirement Changes), and H5.3 (Public Lands for Affordable Housing).

2. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the Packet Page No. 150
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inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).)
As noted in Finding A3, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types.

3. Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. (Gov. Code, § 65583, subd. (c)(3).) As noted in Finding A4, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.

4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).)
As noted in Finding A1, the element must include a complete assessment of fair housing. Based on the outcomes of that analysis, the element must add or modify programs. Programs to AFFH should go beyond status quo actions, include specific commitment, timing, geographic targeting and metrics or numerical targets and should, as appropriate, address housing mobility, encourage new housing choices in higher resource areas, improve place-based strategies toward community revitalization and protect existing residents from displacement.

The element may, for example, as discussed on the May 23 and May 30, 2023, commit to adopting an ordinance to allow Accessory Commercial Uses in residential neighborhoods and revise Program H2.1 or another similar program accordingly. The element may also, for example, revise Program H2.10 to establish development standards for missing middle housing typologies and/or SROs that encourage their development, for example in specific plan areas. To improve housing opportunities for persons experiencing homelessness or lower-income households employed in the City, the element could commit to additional applications for Project Homekey in areas of Packet Page No. 151
City of Newark’s 6th Cycle (2023-2031) Draft Housing Element Page 8 July 12, 2023
higher need and opportunity by using a scattered sites approach. The City may also, for example, commit to establishing minimum densities across residential and mixeduse zones to provide more certainty in housing choices and affordability. Finally, the City may also, for example, discuss its efforts to improve pedestrian safety and active mobility as a way to increase access to opportunity.

Finally, the element should commit to assessing and revising programs through a midcycle review. Please see HCD’s AFFH memo for more information:
https://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4-27- 2021.pdf#page=23.

5. Develop a plan that incentivizes and promotes the creation of accessory dwelling units that can be offered at affordable rent... (Gov. Code, § 65583, subd. (c)(7).) As noted in Finding A3, the City’s ADU Program (Program H2.2) should commit to amend the ordinance as necessary to comply with ADU law by a specified date.

C. Quantified Objectives
Establish the number of housing units, by income level, that can be constructed, rehabilitated, and conserved over a five-year time frame. (Gov. Code, § 65583, subd. (b)(1 & 2).) The element provides a summary of quantified objectives starting on page 198 of the policy document. These objectives include new construction and rehabilitation but must also include conservation objectives by income group. Conservation objectives may include the variety of strategies employed by the City to promote tenant stability and the preservation of units at-risk of conversion to market rate uses. In addition, the element could add missing middle objectives for 20 units in the 8-year planning period and pursuant to public comments received, HCD encourages the City to re-consider increasing these objectives, as well as Program H1.2 objectives to provide 12 rental inspections and Program H1.1’s goal to provide 20 home rehabilitations.

D. Public Participation
Local governments shall make a diligent effort to achieve public participation oof all segments of the community in the development of the Housing Element and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(9).) While the City made extensive efforts to reach the public, including hosting events and meeting with key stakeholders and summarizing community feedback, it should also discuss how input was incorporated into the housing element.

Packet Page No. 152
1 Response to HCD Findings
Pursuant to Government Code section 65585, subdivision (b), HCD reviewed the draft Housing Element and reported the results of its review in the July 12, 2023 letter to the City of Newark.

The following changes were requested by HCD.

KEY:
● HCD’s findings are copied and pasted verbatim from their letter under “HCD Finding.” Pages noted here reference the initial draft dated April 12, 2023 and submitted to HCD. ● The City’s responses are provided under “City response”. Pages noted under City response refer to the October 3, 2023 version posted at newarkhousingupdate.org (as numbered on the page).

HCD General Comment Topic Area A: Housing Needs, Resources, and Constraints

1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).)
HCD Finding: Disproportionate Housing Needs: The element includes some general information on persons experiencing homelessness and housing conditions but should also evaluate those needs, impacts and patterns within the City, such as areas of higher need. For homelessness, the element should examine patterns of need or areas with higher concentrations of persons experiencing homelessness, including access to transportation and services. For housing conditions, the element should discuss any areas of potentially higher needs of rehabilitation and replacement. The element should utilize local data and knowledge such as service providers and code enforcement officials to assist this analysis.

City response:
● People experiencing homelessness: After conducting additional research with a local service provider from Second Chance, the housing element has identified areas of higher need, organizations and resources available serving the city, and parcels in the city that are available for additional housing for special needs housing.

Programs have been added and updated to better reflect the needs identified. Program H2.5 will continue to build upon the work the city has undertaken to develop a local response to homelessness by the end of 2024 (p. 210). Program H2.10 makes changes to increase uptake of Single Room Occupancy or (SROs), an affordable housing type, Program H4.10, identifies zoning changes for special needs housing, and Program H4.8 connects residents with foreclosure assistance (p. 215-216, 223-224). Program H4.11 commits the City to partnering with nonprofits and neighboring jurisdictions to provide supportive shared housing in hotels/motels and scattered sites for people experiencing homelessness (p. 225).
● Housing Conditions: The Housing Element identifies areas of the city that have the highest concentration of code enforcement cases for housing conditions. Due to the age of the housing stock, a large share of the City’s code cases are in the Mirabeau Park and Old Town/ Central neighborhood. In response to this finding, the Housing Element has increased the capacity of households served for Program H1.1 Housing Rehabilitation and Repair and Program H1.2, an Packet Page No. 153
2 inspection program to ensure safe and healthy living conditions for rental housing, while promoting the repair of housing units with one or more housing conditions issues (p. 205-206).

HCD Finding: Affirmatively Furthering Fair Housing (AFFH) and Identified Sites: The element provides some analysis of the identified sites and grouping of socio-economic concentrations. However, the element should quantify the regional housing need allocation (RHNA) by location or area and evaluate the impacts on the existing patterns of socio-economic characteristics. For example, the element should discuss the impacts of isolating a large portion of the RHNA by income group or lack of RHNA by income group in other planning areas.

A complete analysis should fully assess how the site inventory is expected to improve and/or exacerbate fair housing conditions. This analysis should address the location, number of units by income group, magnitude of the impact and any isolation of the RHNA and add or modify programs as appropriate to improve fair housing conditions and promote more inclusive and equitable neighborhoods.

City response: The Housing Element provides additional analysis to quantify, evaluate, and summarize the sites inventory capacity relative to fair housing indicators by census tract (p. 122-124). The element discusses the large RHNA in specific planning areas in the city, as well as the potential for housing sites to improve fair housing conditions by race/ ethnicity, opportunity, and income. A table looking at the sites inventory by income level, census tract, neighborhood and AFFH indicators (p. 124) and a map of the census tracts and areas of the city with site inventory (p. 123). In response to the lack of housing sites in the northern portion of the city, the Element identifies programs to expand housing mobility throughout the city.

Programs include: Program H2.1 SB9 and SB10 ordinance as well as Program H2.8 Zoning for Missing Middle Housing, and Program H2.2 to reduce constraints and expand accessibility for ADU production in order to achieve a greater geographic diversity of housing type and location (p. 206-207, 212-213, 208). Program H2.6 looks at public school sites in Newark as locations for affordable housing to district employees and has the potential to both provide affordable family-sized housing and increase access to opportunities throughout the city (p. 210-211).

On 9/26, HCD requested additional analysis of environmental risk relative to fair housing concerns. A new Environmental map layering the sites on the Cal EnviroScreen assessment has been added to Section 3.H: AFFH Analysis of Sites (p. 132).

Packet Page No. 154
3 Also note existing Figure 3-13: Environmental Opportunity Score and Figure 3-14: Cal Enviro Screen and the NonWhite Population (p. 83-84) and the section on Displacement from Environmental Hazards (including Figure 3- 50: 100 Year and 500 Year Flooding Projections) (p. 120-121).

Program H2.8 Zoning for Missing Middle Housing has been strengthened: the timeline has been accelerated to rezoning by the end of 2024, the goal has been increased to 100 units, and the City has committed to evaluating and improving the effectiveness of the program by the middle of the RHNA period (p. 212-213). In addition, the City has added clarifying references to specific northern neighborhoods for targeting missing middle housing (Program H2.1 SB 9/SB 10, Program H2.3 Four Corners, Program H2.8 Zoning for Missing Middle Housing Types).

Code, § 65583, subd. (a)(1).)
Include an analysis and documentation of household characteristics, including level of payment compared to ability to pay, housing characteristics, including overcrowding, and housing stock condition. (Gov. Code, § 65583, subd. (a)(2).) HCD Finding: Overpayment: The element must quantify and analyze the number of lower-income households overpaying by tenure (i.e., renter and owner).

City response: Additional analysis was conducted to identify the rates of low-income households by renter and owner (p. 38, figure 2-10).

HCD Finding: Age and Condition of the Housing Stock: The element analyzes the age of the housing stock as well as units lacking plumbing and kitchen facilities. However, the element must include an estimate the number of units in need of rehabilitation and replacement. For example, the analysis could include estimates from a recent windshield survey or sampling, estimates from the code enforcement agency, or information from Packet Page No. 155
4 knowledgeable builders/developers, including non-profit housing developers or organizations. For additional information, see the Building Blocks at http://www.hcd.ca.gov/community-development/buildingblocks/housing-needs/housingstock-characteristics.shtml.

City response: Through additional data from code enforcement, the city has identified 40 units that could use rehabilitation and repair. The existing rehabilitation program has supported about 10 homes per year and with the increase of household supported through programs such as Program H1.1 Housing Rehabilitation and Repair, supporting homeowners with repairs, and new programs such as Program H1.2 Citywide inspection program, which will inspect rental properties to ensure safe and healthy living conditions for all will help in addressing these needs and support even more households (p. 205-206).

3. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).)
HCD Finding: Parcel Listing: While the element lists sites by parcel number and acreage (Table C-2), it must also list sites by general plan designation, zoning, realistic capacity, and the number of units by affordability level.

City response: General Plan land designations, zoning, development standards and site-specific realistic capacity analyses have been included in the detailed sites inventory analysis in Appendix C. This includes an identification of the number of units by affordability level.

Table C-2 was updated to include general plan designation, zoning, and number of units by affordability level. All unit counts listed have realistic capacity analysis factored in (p. C-7-C-11).

HCD Finding: Progress in Meeting the RHNA: The City’s RHNA may be reduced by pending, approved, or completed projects; however, the element must demonstrate their availability in the planning period. The element lists pipeline projects (Site 7 and Sites 12 through 21) “with an active application”. The element should generally discuss any remaining steps, barriers to development, phasing, build out or planning horizons and other relevant factors to demonstrate their availability in the planning period. In addition, the element may list the expected completion date for several projects.

City response: The Sites inventory has been updated to remove some projects that will not be moving forward during the planning period and to clarify the exact status of projects classified as “pending, approved or completed.” Contained primarily in Appendix C, this includes an analysis of remaining barriers to development and phasing and build out projections for specific projects, including Newpark Place Phases B through D.

On 9/14, HCD requested more information on project timelines and the steps remaining for sites in the approvals process. Appendix C site-by-site analyses include additional information for those projects in entitlements with active applications.

HCD Finding: Small and Large Sites: Sites larger than ten acres in size or smaller than a half-acre in size are deemed inadequate to accommodate housing for lower-income households unless it is demonstrated, with sufficient evidence, that sites are suitable to accommodate housing for lower-income households. While the element included a few examples about developments with lot consolidation, it must also provide specific examples with the densities, affordability and, if applicable, circumstances leading to consolidation. The element should relate these examples to the sites identified to accommodate the RHNA for lower-income households to demonstrate that these sites can adequately accommodate the City’s lower-income housing need. In addition, the element could describe it parceling strategy for the 14.7-acre site in the NewPark Place Specific Plan. Based on a complete analysis, the City should add or revise programs to include incentives for facilitating development on these sites for housing affordable to lower-income households.

Packet Page No. 156
5 City response: Additional analysis of sites larger than 10 acres and smaller than 0.5 acres is included in the site analyses provided in Appendix C. This includes more detailed information on the NewPark Place Specific Plan Area, including a proposed phasing strategy.

In meetings with HCD on 9/14 and 9/26, the following sites were called out for more attention:
● Site 3 (formerly Site 5) FMC Willow South: This project is fully entitled (p. C-21). ● Site 9 (formerly Site 13) Lepakshi Building B: This site is actively being pursued by a developer in tandem with Building A across the street. While physical constraints of a small site remain (as there is a street between the two properties, they cannot be consolidated), there are efficiencies associated with Building B being part of the larger project site (p. C-27). ● Site 11 (formerly Site 15) Mulberry: This project is already fully entitled at this density (p. C-29). ● SIte 14 (formerly Site 19) NewPark Place Phasing Strategy: The NewPark Place Specific Plan (Specific Plan) is anticipated to build out over an approximate 20-year timeframe, with a total capacity of 1,519 units (p. C-32-C34). The Mixed Use I area (where Phases A through D are located and highlighted in this Element) is expected to redevelop first but is subject to market conditions. In order to facilitate and encourage residential development, the Specific Plan was amended in 2021 to allow residential as a permitted use rather than a use allowed with the issuance of a Conditional Use Permit. As a result, the required entitlements for residential uses are limited to Design Review and any Tentative Map/Final Map that may be necessary. This change simplifies the entitlement process and provides certainty to the property owner and developer. The NewPark Place plan has a 20 year planning arc, therefore it is expected that only 40% of the total units will be complete for the 8 year RHNA 6 Housing Element Period.

As feasible, the City will continue to work with the property owner to encourage the inclusion of larger percentages of affordable units in future phases of development; the build out capacity and affordable housing assumptions for NewPark Place provided in this sites inventory reflects the city’s requirements for affordable units to mitigate need for affordable housing (in lieu of paying the Housing Impact Fee) as described in Resolution No. 10,184. As all of the residential units would be for-rent (a requirement of the Specific Plan), 12% of the total units would be affordable at the following percentages: 6% Very Low Income; 3% Low Income; 3% Moderate Income.
○ Phase A: Type-III multifamily development. A total of 319 units on.3.98 acres at a density of 80 dwelling units per acre. The development includes six levels of parking. ○ Phase B1: Type-III multifamily development. A total of 195 units on 3.47 acres at a density of 56 dwelling units per acre. The development includes a six level garage. ○ Phase B2: Type-III multifamily development with a podium. A total of 310 units on 4.30 acres at a density of 72 dwelling units per acre. The development includes a 3 level garage and 1 sub-t. ○ Phase C: Type-III multifamily development with a podium. A total of 300 units on 3.70 acres at a density of 81 dwelling units per acre. The development includes a 2 level garage and 1 sub-t. ○ Phase D2: Type-III multifamily development. A total of 395 units on 5.67 acres at a density of 70 dwelling units per acre. The development includes a five level garage. ● Site 27 (formerly Site 17) Fahmy Homes: Embedded link to project plans shows how the 4 homes are proposed to fit on the site. The entitlements have expired, and this project has been moved to the Sites Zoned for Housing category (p. C-52).

Packet Page No. 157
6 HCD Finding: Realistic Capacity: The element appears to assume residential development on sites with zoning that allows 100 percent nonresidential uses, but to support this assumption, the element must analyze the likelihood of residential development in zoning where 100 percent nonresidential uses are allowed. The analysis should be based on factors such as development trends including nonresidential, performance standards requiring residential uses or other relevant factors such as enhanced policies and programs.

City response: The housing element does not propose residential uses on any commercial sites where the City thinks there is a viable existing or future commercial land use. The City regularly receives applications for residential uses on commercial and mixed-use sites confirming that market pressure is pushing toward residential redevelopment. Each site listed in the Sites Inventory that might also allow non-residential uses includes an adjustment factor, and the Sites listed in Appendix C also take into account development trends, market and financial feasibility and other key factors as noted in Comment 8. As noted in the element in the sites methodology section (p. C-16):

For realistic capacity analysis in commercial zones such as the CMU and RC districts, market data provided by the HESS tool identified 128 project(s) built in the Non-Residential districts of Alameda South County (tri cities) between 2018 and 2020 and demonstrates that the average number of units built as a percentage of the maximum allowable units was 130 percent. However, due to ground floor retail requirements, a softening market, and comparable pipeline projects, a more conservative feasibility multiplier of 80 percent was used instead to reflect local conditions in Newark.

HCD Finding: Suitability of Nonvacant Sites: The element must include analysis demonstrating the potential for additional development on nonvacant sites. While the element mentions underutilized sites were identified based on assessed value (AV) and floor area ratios (FAR), it must support the validity of these assumption in demonstrating the potential for redevelopment and evaluate the extent existing uses impede additional development. For example, the element could utilize recent development activity. In addition, the element should consider additional factors such as building age, structural conditions and expressed interest in residential development. Finally, the element should account for the extent existing uses impede additional residential development including market demand for the existing use and existing leases or contracts that would perpetuate the existing use or prevent additional residential development. In addition, if the housing element relies upon nonvacant sites to accommodate more than 50 percent of the RHNA for lower-income households, the housing element must demonstrate existing uses are not an impediment to additional residential development and will likely discontinue in the planning period (Gov. Code, § 65583.2, subd. (g)(2).).

City response: Additional analysis and detailed development capacity and unit yield tables were included for key non-vacant sites in Appendix C. This analysis addresses the points listed in Comment 9. The Element does not rely on non-vacant sites for more than 50 percent of the lower-income RHNA.

HCD requested the housing element show the math for this calculation. The below table has been added to the housing element on page C-18.

Packet Page No. 158
7 Site Location Lower Income Units
Percent of Lower Income
RHNA
Planned and Proposed Sites 340 46.4%
Vacant Sites (Sycamore St.) 50 6.8%
ADUs 96 13.1%
Total Lower Income RHNA 732 100%
Lower Income RHNA vis-a-vis Non Vacant Sites 246 33.6%
HCD Finding: Environmental Constraints: While the element generally describes environmental constraints were considered (p.C-68), it must also describe any other known environmental or other conditions (e.g., shape, easements, property conditions, contamination) that could impact housing development on identified sites in the planning period. The City, may, for example, discuss individual sites’ outstanding environmental constraints and describe its strategy and timeline to mitigate these risks.

City response: Where relevant the Element provides more detailed information on environmental constraints and proposed mitigations as part of the site by site analysis in Appendix C.

After our 9/14 meeting, additional environmental constraints details have been added to the site-by-site analysis in Appendix C.

In addition, the Methodology section at the beginning of Appendix C includes a discussion of Environmental Constraints and the approach to mitigating those risks (p. C-13-C-14):

The analysis of environmental constraints included a review of all parcels identified in the inventory using different GIS-based data screens as well as ABAG’s HESS tool to determine if sites possess one or more environmental constraint, including hazard risks such as parcel shapes, flood zones or wetlands, easements, contamination, steep slopes, and other possible constraints to development feasibility. Two sites, both in the construction phase, Bridgeway/Gateway and Harbor Pointe have floodplain exposure, which was mitigated during the entitlement process. None of the sites in the inventory, either planned or proposed or zoned for housing, have irregular shapes, or are impacted by either wetlands or critical habitat.

The sites zoned for housing in the sites inventory are located in urbanized areas of the City and do not have special hazard risks or significant environmental challenges. However, some of the sites zoned for housing have current or former industrial uses which may need contamination mitigation. For instance, the Environmental Impact Report for the Bayside Newark Specific Area Plan, an area that had considerable previous industrial contamination, outlines and addresses contamination and other environmental concerns which has led the way for significant housing construction. Where siting housing on parcels with environmental constraints may be unavoidable to accommodate the City’s housing need, risks would be addressed through building codes and other mitigation measures.

HCD Finding: Electronic Sites Inventory: For your information, pursuant to Government Code section 65583.3, the City must submit an electronic sites inventory with its adopted housing element. The City must utilize standards, forms, and definitions adopted by HCD. Please see HCD’s housing element webpage at Packet Page No. 159
8 https://www.hcd.ca.gov/planning-and-communitydevelopment/housing-elements for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance.

City response: The Electronic Sites Inventory will follow under separate cover.

HCD Finding (multiple findings below): Zoning for a Variety of Housing Types:

HCD Finding: Emergency Shelters: The City must demonstrate compliance with laws governing emergency shelters including, but not limited to AB 139 related to parking requirements. In addition, Chapter 654, Statutes of 2022 (AB 2339), adds specificity on how cities and counties plan for emergency shelters and ensure sufficient and suitable capacity. Future submittals of the housing element must address these statutory requirements. For example, the element should also clarify shelters are permitted without discretionary action and discuss available acreage in the zones allowed, including typical parcel sizes and the presence of reuse opportunities. In addition, the analysis should address proximity to transportation and services and any conditions inappropriate for human habitability. For additional information and timing requirements, please see HCD’s memo at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/ab2339- notice.pdf.

City response: Additional language has been added to the Emergency Shelters section to clarify the questions raised by HCD, including the zones where shelters are permitted by-right and applicable development standards. In the 9/26 meeting, HCD requested further language on human habitability standards, and this language has been added to the housing element (p. 161):

None of these sites have existing structures intended to be used as shelters. Any shelters to be constructed on these sites will be appropriate for human habitability, consistent with the Minimum Habitability Standards for Shelter and Housing Policy published by HCD’s Emergency Solutions Grant Program.

HCD Finding: Low Barrier Navigation Centers: Low Barrier Navigation Centers shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65661. The element must demonstrate compliance with this requirement and include programs as appropriate.

City response: The Housing element identities compliance with Government Code regarding zoning for a variety of housing types. The Emergency Shelters, Transitional Housing, and Supportive Housing section under Constraints outlines how Low Barrier Navigation Centers demonstrate compliance with this requirement and includes programs as appropriate (p. 162). Program H4.10 Zoning Ordinance Amendments for Special Needs Housing outlines how the city will meet Government Code, including this language (p.224):

Allow “low barrier navigation center” developments by right in mixed-use zones and nonresidential zones permitting multifamily uses, consistent with Government Code Section 65662.

HCD Finding: Permanent Supportive Housing: Supportive housing shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65651. The element must demonstrate compliance with this requirement and include programs as appropriate.

City response: The Housing element identities compliance with Government Code regarding zoning for a variety of housing types. The Emergency Shelters, Transitional Housing, and Supportive Housing section under Constraints outlines how Permanent Supportive Housing demonstrates compliance with this Packet Page No. 160
9 requirement and includes programs as appropriate (p. 161). Program H4.10; Zoning Ordinance Amendments for Special Needs Housing outlines how the city will meet Government Code, including this language (p. 224):

Allow for the by-right approval of 100 percent affordable developments that include a percentage of supportive housing units, either 25 percent or 12 units, whichever is greater, to be allowed without a conditional use permit or other discretionary review in all zoning districts where multifamily and mixed-use development is permitted, consistent with Government Code Section 65651(a).

HCD Finding: Accessory Dwelling Units (ADUs): The element should provide a date by which it expects to revise its ordinance to comply with state law.

City response: Program H2.2 commits the city to comply with state law until a new ADU ordinance is passed in 2024 (p. 208):

HCD Finding: Single-Room Occupancies (SRO): The element describes the zones in which SROs are currently permitted. However, given the success of SROs in providing housing for extremely low-income (ELI) households, the element should also describe how zoning will encourage and facilitate SRO development and what development standards SROs will be subject to.

City response: Program H2.10 expands the zones where single room occupancy is permitted by right to Residential Medium Density, Commercial Mixed Use and Residential High Density, and prioritizes development along transit routes to support access to employment and other services.

After discussion with HCD on 9/26, Program H2.10 now includes the following details (p. 215-216):

Under Quantified Objective: …Review and update existing development standards (Chapter

17.26.230), including parking requirements, to ensure they are not a barrier to the development of SROs. City fees for SRO projects will remain in line with fees for multifamily projects.

Under Timeline: IMMEDIATE: updates to land use regulations in zoning code by early 2024. SRO development standards and fee requirements to be reviewed and updated as necessary by December 2024.

4. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures... (Gov. Code, § 65583, subd. (a)(5).) HCD Finding: Land Use Controls: The element identifies many land use controls as potential constraints on a variety of housing types. However, the analysis should analyze land use controls independently and cumulatively with other land use controls. The analysis should specifically address requirements related to maximum units per building, maximum building coverage, FAR, required open space per unit, minimum lot area, setbacks, height limits, parking and limits on allowable densities. The analysis should address any impacts on cost, supply, housing choice, affordability, timing, approval certainty and ability to achieve maximum densities and include programs to address identified constraints.

City response: Land use controls and development standards are analyzed in the Government Constraints section and also as part of the site by site development standards analysis in Appendix C.

On 9/26 HCD requested additional details on parking and open space standards.

Packet Page No. 161
10 ● Parking: Program H3.5 Parking Standards Update and Study (p. 218-219) includes details on the scope of what will be reviewed and updated, including targets for reductions for senior parking, ADUs, twounit dwellings, and multi-unit dwellings (including not only resident parking but also requirements for covered parking and guest parking). The program also includes language about analyzing the existing standards for SROs, small multifamily (Missing Middle) and shared parking and revising as necessary to reduce development barriers.
● Open Space: Additional details about the existing open space requirement have been provided in the housing element and Programs H2.1 (p. 206-207) and H2.8 (p. 212-213) include open space standards as part of a review and update of development standards for Missing Middle housing.

The City has a policy in the General Plan that sets parkland standards. For multifamily housing, the open space requirement ranges from 100 square feet per unit for RM in the Old Town District, to 200 square feet per unit in RH, 300 square feet per unit in RM, and 400 square feet per unit in RL. Open space requirements in the mixed-use and commercial districts where housing is allowed (CMU and RC) are at 50 square feet per unit. Overall, these standards are not excessive and are the same or lower than the requirements of Newark’s closest neighbors. These standards are typical of many jurisdictions in the Bay Area and would not significantly reduce the affordability of multifamily housing units. Further, the City has not received developer feedback that its open space requirements are excessive or a barrier to feasibility.

HCD Finding: Fees and Exactions: The element provides information on some fees but must describe all required fees for single family and multifamily housing development and analyze their impact as potential constraints on housing supply and affordability. The element should also describe and analyze fees such as those for obtaining a conditional use permit (CUP), general plan amendments, and zone changes. For example, the analysis could identify the total amount of fees and their proportion to the development costs for both single family and multifamily housing. For additional information and a sample analysis and tables, see the Building Blocks at https://www.hcd.ca.gov/planning-and-communitydevelopment/housing-elements/building-blocks/fees-andexactions.

City response: Table 4-7 shows planning fees commonly required for development based on level of review.

Newark’s planning fees are comparable to surrounding jurisdictions and do not present a constraint to the construction of housing (p. 174-175).

The element also includes a Total Estimated Fees section below Table 4-8: Residential Development Impact Fees (p. 175-176).

Per the meeting with HCD on 9/26, this section in the element (p. 176) also includes language confirming that future fees for Missing Middle and SROs will not include any extraordinary requirements:

When the City implements Program H2.8 and H2.10, fees for Missing Middle and SRO housing types will be set at levels in line with current permit and impact fees for multifamily.

HCD Finding: Zoning and Fees Transparency: The element should clarify its compliance with new transparency requirements for posting fees and all zoning and development standards for each parcel on the jurisdiction’s website.

City response: The City is in compliance with these requirements and included references to this as part of the updated Government Constraints section.

HCD Finding: Building Codes and their Enforcement: The element should clarify which building code is utilized and any local amendments and evaluate impacts on housing costs. In addition, the element should describe the Packet Page No. 162
11 type (e.g., complaint-based) and degree of code enforcement. For additional information and a sample analysis, see the Building Blocks at https://www.hcd.ca.gov/planning-and-communitydevelopment/housingelements/building-blocks/codes-and-enforcement-and-onsite-offsiteimprovementstandards.

City response: This information is clarified in the updated Government Constraints Section.

In response to discussion on 9/26 with HCD, the housing element now includes language clarifying that code enforcement currently operates on a complaint-based system (p. 182), and:

In 2021, the city expanded the number of full-time employees by hiring a code enforcement manager to oversee existing efforts and create proactive code enforcement services, which would include the rental inspection and landlord registration program identified in Program H1.2.

Also in response to comments on 9/26, the City's review of Newark's local code amendments indicates that they are mostly clarifying in nature, adding consistency across the various codes. The local amendments adopted with Ordinance No. 539 do not increase requirements above standards (p. 181-182). Generally, the local amendments provide clarifications and consistency with other sections of the Newark Municipal Code. The city does not have a REACH code. In addition, local amendments were made to provide consistency with fire protection, alarms, and detection system requirements of the Alameda County Fire Department, the agency that provides contract fire protection services in Newark.

HCD Finding: On and Off-site Improvements: While the element generally describes necessary streetscape improvements in Specific Plan areas (p. 134), it should also identify subdivision level improvement requirements, and analyze their impact on housing costs. For additional information and a sample analysis, see the Building Blocks at https://www.hcd.ca.gov/planning-and-community-development/housingelements/buildingblocks/codes-and-enforcement-and-onsite-offsite-improvementstandards.

City response: Area and site specific on and off site improvement standards are described as part of the site by site analysis in Appendix C.

On and Off-SIte Improvements: The City does not have a specific list of required onsite and offsite improvements for new development. All projects typically include basic improvements to sidewalk/curb/gutter, planter strips or tree wells, and adjacent street surfacings. Newark does not have any extraordinary infrastructure requirements. Improvements to wet and dry utilities are considered on an project-by-project basis at the direction of the utility providers (p. 175-176).

HCD Finding: Processing and Permit Procedures: While the element provides a description of the types of permits required for housing developments, it must describe and analyze the permits’ processes, identify what is reviewed, typical findings and approval procedures by zone and housing type. The analysis must specifically address the threshold for a CUP on multifamily uses and special development permits. The analysis must evaluate impacts on housing supply (number of units), costs, timing, feasibility, and approval certainty.

City response: Additional details have been added to the housing element to describe and analyze permit approval processes in Newark. An additional Table 4-5: Level of Review Authority (p. 176) was added to show who the decisionmaker(s) is/are for various permit types. A new section on Discretionary Findings and Criteria (p. 168-170) describes findings for key permit types.

Conditional Use Permit Threshold: Other than SROs, residential uses in residential districts are permitted without a CUP (p. 158). In the Newpark Place Specific Plan, residential uses are permitted in Mixed Use Area I without a use permit.

As shown in Table 4-3, multifamily housing is permitted throughout the City of Newark in all RL, RM, RH Packet Page No. 163
12 and CMU zones. Multifamily housing is also permitted in RC zones with a conditional use permit.

Variance Findings: Per our discussion on 9/26, HCD raised questions about the required variance findings on page 169, particularly the phrase: “The granting of the application will not be detrimental or injurious to property or improvements in the vicinity.” Newark's variance findings A. and B. are consistent with CA Gov't Code 65906. Findings C and D are typical findings that are not unique to Newark and similar to those imposed by jurisdictions throughout the state. As such, the Variance process does not require extraordinary findings compared to other cities. Requests for variances are extremely uncommon in Newark. In the last five years the city has received a single request for a variance (2023; variance review is in process).

Remaining Public Process: On 9/26, HCD asked for additional detail on which approval conditions still apply for sites with active applications:
● Site 8 (formerly Site 12) Lepakshi Building A: As of October 2023, the application is under review (p. C26). The city anticipates that the application to be complete in early 2024 with public hearings scheduled shortly thereafter. Entitlements include a Planned Development and Design Review. ● Site 9 (formerly Site 13) Lepakshi Building B: As of October 2023, the application is under review (p. C-27).

The city anticipates that the application to be complete in early 2024 with public hearings scheduled shortly thereafter. Entitlements include Planned Development and Design Review. ● Site 10 (formerly Site 14) SAHA - 6347 -6375 Thornton Ave: The developer will submit a formal design review, minor use permit, and a map application before the end of 2024 (p. C-28). Entitlements are expected in late 2024.

HCD Finding (multiple findings below): Housing for Persons with Disabilities: The element should analyze potential constraints on housing for persons with disabilities, as follows:

HCD Finding: Definition of Family: The element briefly mentions a definition of family. However, the element should describe and analyze its definition of family and, if necessary, include a program to address identified constraints.

City response: The Housing Element updates the definition of a family and finds no housing constraints related to the definition (p. 166-167).

HCD Finding: Reasonable Accommodation: The element describes the general requirements of reasonable accommodation, but it should list and analyze approval findings for impacts on housing for persons with disabilities.

City response: The Housing Element lists and analyzes approval findings for impacts on housing for persons with disabilities (p.165-166).

On 9/26, HCD staff raised questions about the term “least restrictive means” under the applicable findings for waivers in NMC 17.37:

D. If the waiver requested is to provide reasonable accommodation pursuant to state or federal law, in addition to any other findings that this chapter requires, the decision-maker must also make the following findings:
…
c. That the conditions imposed, if any, are necessary to further a compelling public interest and represent the least restrictive means of furthering that interest; and The City believes this language intends to ensure that if a waiver of the code is necessary to make a reasonable accommodation for someone with a disability, that the conditions upon that waiver are the Packet Page No. 164
13 least restrictive for the property owner. In other words, the City must allow the property owner to meet the need in the easiest/least costly way possible and cannot use the waiver and its associated conditions to impose additional requirements. We believe this does not create or increase barriers to housing but in fact ensures they are contained. Let us know if this adds the clarity you were seeking.

HCD Finding: Group Homes for Seven or More Persons: The element describes its procedures for permitting residential care facilities of seven or more persons. However, the element excludes group homes for seven or more persons from some residential zones and subjects the use to a CUP, unlike other similar uses. The element should specifically analyze these constraints for impacts on housing supply and choices and approval certainty and objectivity for housing for persons with disabilities and include programs as appropriate.

City response: The Housing Element includes Program H4.10, an implementation program to permit community care facilities for more than six persons as a permitted use in all zones where other residential uses are permitted subject to the same requirements of other residential uses of the same type in the same zone (p. 224).

HCD General Comment Topic Area B: Housing Programs

1. Include a program which sets forth a schedule of actions during the planning period, each with a timeline for implementation, which may recognize that certain programs are ongoing, such that there will be beneficial impacts of the programs within the planning period, that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the Housing Element... (Gov. Code, § 65583, subd. (c).) HCD Finding: Several programs and actions have timelines that should be moved earlier in the planning period to ensure a beneficial impact. Examples include Programs H2.3 (Four Corners Development), H2.6 (Housing Development on School Sites), H2.8 (Zoning for Missing Middle Housing), H3.4 (Housing in Mixed Use Zones), and H3.5 (Parking Requirement Changes).

City response:

The Housing Element made changes to a number of programs to accelerate timelines and provide more clarity for housing related outcomes.
● Program H2.3: Four Corners area neighborhood development has an updated timeline of 2024/2025 and new housing related outcomes associated with 4.5 acres of underutilized land within a half mile of a proposed rail station (p. 209).

In response to 9/26 discussion, the City has committed to completing the rezoning by December 31, 2025 (p. 209).

Packet Page No. 165
14 ● Program H2.6: Work in Partnership with Newark Unified School District provides the minimum densities required for affordable housing development on school district owned sites, and moves the timeline up to 2025 (p. 210-211).
● Program H2.8: Zoning for Missing Middle Housing Types makes significant revisions to remove constraints to development through design standards and parking requirements (p. 212-213).

In response to 9/26 discussion, the City has also moved this program earlier in the planning period, planning to rezone by the end of 2024 (p. 213). The City will also evaluate the program by the middle of the planning period (2027) in order to ensure the goals can be achieved. As listed in Program H2.1, the target number of missing middle units (through both programs) has been increased to 200 units (p. 207). ● Program H3.2: Objective Design Standards has an immediate implementation of 2024 (p. 216-217). ● Program H3.4: Adjust zoning to allow mixed use in current Commercial zones made revisions to utilize state laws SB 6 and AB 2011 to encourage residential development in commercial zones. Program with an immediate start date of 2025 (p. 217-218).
● Program H3.5: Parking Standards Update has significant revisions to update the ordinance with parking reductions and removals, as well as the incentive of alternatives to parking for developments. Start date was moved to immediate, 2024 (p. 218-219).

This program includes details on the scope of what will be reviewed and updated, including targets for reductions for senior parking, ADUs, two-unit dwellings, and multi-unit dwellings (including not only resident parking but also requirements for covered parking and guest parking). The program also includes language about analyzing the existing standards for SROs, small multifamily (Missing Middle) and shared parking and revising as necessary to reduce development barriers. The City will also engage the development community on proposed changes to parking minimums.
● Program H4.10: Zoning Ordinance Amendments for Special Needs Housing is a new program to make amendments to the zoning code to allow housing for special needs groups consistent with State law. The program has an immediate start date of 2024 (p. 224).
● Program H5.3: Public Lands for affordable housing has an immediate date of 2025 for the development of a public lands framework (p. 226-227).

In response to 9/26 discussion, the City has targeted the rezoning to happen by the end of 2025 (p. 227).

2. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).) HCD Finding: As noted in Finding A3, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and Packet Page No. 166
15 analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types.

City response: Additional analysis and programs have been developed for this revised Draft as noted above. Site by site analysis is included in Appendix C.

Code, § 65583, subd. (c)(3).)
HCD Finding: As noted in Finding A4, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.

City response: Additional analysis of government constraints has been included in Section 4 of the Housing Element and in Appendix C.

4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).) HCD Finding: As noted in Finding A1, the element must include a complete assessment of fair housing. Based on the outcomes of that analysis, the element must add or modify programs. Programs to AFFH should go beyond status quo actions, include specific commitment, timing, geographic targeting and metrics or numerical targets and should, as appropriate, address housing mobility, encourage new housing choices in higher resource areas, improve place-based strategies toward community revitalization and protect existing residents from displacement.

The element may, for example, as discussed on the May 23 and May 30, 2023, commit to adopting an ordinance to allow Accessory Commercial Uses in residential neighborhoods and revise Program H2.1 or another similar program accordingly. The element may also, for example, revise Program H2.10 to establish development standards for missing middle housing typologies and/or SROs that encourage their development, for example in specific plan areas. To improve housing opportunities for persons experiencing homelessness or lower-income households employed in the City, the element could commit to additional applications for Project Homekey in areas of higher need and opportunity by using a scattered sites approach. The City may also, for example, commit to establishing minimum densities across residential and mixed-use zones to provide more certainty in housing choices and affordability.

Finally, the City may also, for example, discuss its efforts to improve pedestrian safety and active mobility as a way to increase access to opportunity. Finally, the element should commit to assessing and revising programs through a midcycle review. Please see HCD’s AFFH memo for more information:
https://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4-27- 2021.pdf#page=23.

City response:

The Housing Element conducted a complete assessment of fair housing and as a result has added new programs and made modifications to existing programs to better meet the needs to further fair housing for the Newark community. Page 140 outlines programs to support mobility, new housing choices in areas of opportunity, place based strategies and anti displacement / tenant protection.

Packet Page No. 167
16 ● Program H2.10: Single Room Occupancy Housing is a new program that expands the housing type as a permitted use (p. 215-216).
● New programs supporting people experiencing homelessness are Programs H4.10 Zoning Ordinance Amendments for Special Needs Housing and Program H4.11 Scattered Site Housing. These programs, with an immediate time frame will expand the availability of spaces to develop special needs housing in Newark (p. 224-225).
● Modifications were made on the program H4.3: Just Cause Eviction, with an increase in the number of residents supported per year during the cycle (p. 221). ● Program H7.5 was added to monitor housing programs through mid-cycle review (p. 231).

5. Develop a plan that incentivizes and promotes the creation of accessory dwelling units that can be offered at affordable rent... (Gov. Code, § 65583, subd. (c)(7).)
HCD Finding: As noted in Finding A3, the City’s ADU Program (Program H2.2) should commit to amend the ordinance as necessary to comply with ADU law by a specified date.

City response: Program H2.2 commits the city to comply with state law until a new ADU ordinance is passed in 2024 (p. 208).

General HCD Comment Topic Area C: Quantified Objectives Establish the number of housing units, by income level, that can be constructed, rehabilitated, and conserved over a five-year time frame. (Gov. Code, § 65583, subd. (b)(1 & 2).) HCD Finding: The element provides a summary of quantified objectives starting on page 198 of the policy document. These objectives include new construction and rehabilitation but must also include conservation objectives by income group. Conservation objectives may include the variety of strategies employed by the City to promote tenant stability and the preservation of units at-risk of conversion to market rate uses. In addition, the element could add missing middle objectives for 20 units in the 8-year planning period and pursuant to public comments received, HCD encourages the City to re-consider increasing these objectives, as well as Program H1.2 objectives to provide 12 rental inspections and Program H1.1’s goal to provide 20 home rehabilitations.

City response: Page 232 in the document, the quantified objectives look at housing production for very low, low, moderate and above moderate income housing units. For new construction, the city has included pipeline projects, as well as increased the number of units for missing middle housing (Program H2.8) to 160 moderate income units for the cycle and 77 accessory dwelling units (Program H2.2) distributed for each income level.

Program H2.1, to implement SB9 and 10 were increased to add 120 moderate income units. For Rehabilitation, both programs offered have increased the number of residents served. Program H1.1, Housing Rehabilitation and Repair has been increased to 102 very low, low and moderate income households served during the housing element cycle, and a new program for the city H1.2, a citywide rental inspection program. This program aims to support renters and increase the safety and quality of rental housing, as well as reduce displacement due to code violations. The program has been increased to the goal of 96 households supported through the Housing Element cycle.

General HCD Comment Topic Area D: Public Participation
Local governments shall make a diligent effort to achieve public participation oof all segments of the community in the development of the Housing Element and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(9).) Packet Page No. 168
17 HCD Finding: While the City made extensive efforts to reach the public, including hosting events and meeting with key stakeholders and summarizing community feedback, it should also discuss how input was incorporated into the housing element.

City response: Pages 14-20 and Appendix D, pages D-55-D-68 outline the public comments received during the public comment period and staff response, highlighting how the Draft Housing Element has been edited to be responsive to the comments as possible.

Packet Page No. 169
5STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
October 17, 2023
Steven Turner, Director
Community Development Department
City of Newark
37101 Newark Blvd
Newark, CA 94560
RE: City of Newark’s 6th Cycle (2023-2031) Revised Draft Housing Element Dear Steven Turner:

Thank you for submitting the City of Newark’s (City) revised draft housing element update received for review on August 18, 2023, along with revisions received on October 3, 2023.

Pursuant to Government Code section 65585, the California Department of Housing and Community Development (HCD) is reporting the results of its review.

The revised draft element addresses many statutory requirements; however, revisions will be necessary to substantially comply with State Housing Element Law (Gov. Code, § 65580 et seq.), as follows:

1. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period... (Gov. Code, § 65583, subd. (a)(3).) Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and... (Gov.

Code, § 65583, subd. (c)(1).)
Progress in Meeting the Regional Housing Needs Allocation (RHNA): While the element now describes the status of pending, approved, or completed projects (pipeline projects); it must demonstrate their availability in the planning period. The element should generally discuss any remaining steps, barriers to development in the planning period, phasing, build out or planning horizons and other relevant factors to demonstrate their availability in the planning period. Lastly, given the element’s reliance on pipeline projects, it should include a program that commits to facilitating development and monitoring the progress of projects toward completion in the planning period, including alternative actions such as rezoning or identification of additional sites if pipeline projects are not progressing toward completion in the planning period.

Small Sites: Sites smaller than half an acre are deemed inadequate to accommodate housing for lower-income households unless it is demonstrated, with Packet Page No. 170
Steven Turner, Director

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Newark City CouncilOctober 26, 2023

Newark City Council
October 26, 2023