San Clemente City Council
June 21, 2022

contracts and purchases when there is a need to protect public health and safety per Section 3.40.070 of the City of San Clemente Municipal Code.

Action: STAFF RECOMMENDS THAT the City Council:

1. Make a finding that an emergency continues to exist due to the potential failure of an existing sewer pump station and storm drain system and that the situation requires immediate action to prevent or mitigate impairment to property and public services, that might otherwise occur if required to incur delays attributed to the typical engineering design and public competitive bidding process;

2. Approve a supplemental appropriation in the amount of $357,225 to Account Number 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve;

3. Ratify a Change Order with O'Connell Engineering and Construction, Inc. on a time and materials basis for $255,000 for Cyprus Shore Emergency Pump Station Bypass Operation, Project No. 12209;

4. Approve a supplemental appropriation in the amount of $98,412 from the Storm Drain Fund Depreciation Reserve to account 059-553-45300-000-12004; and

5. Ratify a Professional Services Agreement with AKM Consulting Engineers for design services for Cyprus Shore Storm Drain Emergency Relocation, Project No. 12004 for an amount not to exceed $98,412.

Attachments: 1. Location Map

2. Proposed design for new Storm Drain, Project No.12004.

3. October 19, 2021 City Council Agenda Report without attachments.

4. December 7, 2021 City Council Agenda Report without attachments.

5. February 15, 2022 City Council Agenda Report without attachments.

6. April 5, 2022 City Council Agenda Report without attachments.

7. O'Connell Engineering and Construction Contract Change Order No. 04.

8. AKM Consulting Engineers Professional Services Agreement.

Notification: None.
6-21-22 I 4L-3

PROJECT

LOCATION

NOT TO SCALE
'il
m
C.

U>
.,.

Attachment 1
(
6-21-22 I 4L-4
Attachment 2
.f:
f'l UJ .... I- a z
UJ E ~ .... N
UJ 0 N
..J in 0
u N
z a, oi <( .... r. V, 0 r: u.. s:. 0 " (f) :le
>- VI
!:: :J
'- u a.
>,
0 6-21-22 I 4L-5
Department:

Prepared By:

Subject:

Utilities

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: October 19, 2021
David Rebensdorf, Utilities Director {)~
Attachment A. rL
Agenda Item ~
Approvals:

City Manager /i,'7
Dept. Head .~
Attorney
Finance JRRA TJFICA TION OF EMERGENCY P URCHASES, PROFESSIONAL SERVICES AGREEMENT WITH

AKM CONSULTING ENGINEERS AND CONSTRUCTION CONTRACTS WITH O'CONNELL

ENGINEERING FOR CYPRUS SHORE STORM D RAIN EMERGENCY RELOCA TJON AND CYPRUS SHORE PUMP STATION E MERGENCY RELOCATION, PROJECT No. 's 12004 AND 12209.

Fiscal Impact: Yes. An estimated $205,400 is recommended for continuous emergency operation of the pump station and bypass for two months. An appropriation of $205,400 i,s recommended from the Sewer Fund Depreciation Reserve to Account No. 054-476-45300-000-12209.

The initial estimated cost for design, permitting and power for a temporary pump station relocation with remote monitoring and improved operating capabilities is $88,580. An appropriation of $88,580 is recommended from the Sewer Connection Fee Reserve to Account No. 054-477-45300.

The estimated cost for the temporary relocation of the storm drain is $256,000. An appropriation of $256,000 is recommended from the Storm Drain Fund Depreciation Reserve to Account No. 059-553-45300-000-12004.

There is sufficient fund balance within all proposed funds for the recommended appropriations.

Summary: Coastal bluff movement at Cyprus Shore necessitated an emergency response to ensure uninterrupted wastewater and storm drainage in September 2021 . In order to protect public health and safety, staff recommends the City Council ratify the emergency Professional Services Agreement and constructi:on contracts approved by the City Manager with AKM Consulting Engineers and O'Connell Engineering and Construction, Inc. (O'Connell) and appropriate funding for the expenditures including construction management/inspection services for Dudek Engineering, material purchases and rentals.

Background: When the Cyprus community was developed, the collection system, a sewer pump station serving approximately 400 homes and a portion of the storm drain system was dedicated to and accepted by the City. Due to coastal bluff movement adjacent to the Cyprus Shore Clubhouse near the intersection of Calle Ariana and Avenue de las Palmeras and to protect public safety and property a temporary emergency sewer bypass was installed by City staff on September 20, 2021. In addition, a bypass of the storm drain in Avenue de las Palmeras and the private beach access road may be Utilities Agenda Report
10-19-21 / 9B-1
6-21-22 / 4L-6
Agenda Report Page 2
necessary to accommodate urban runoff and storm flows until the bluff is stabilized and rebuilt. Design analysis to address urban runoff and storm flows is ongoing, and alternative methods may be implemented.

The temporary emergency sewer pump station bypass is utilizing two existing manholes and pumps with generator power to convey wastewater in above ground piping to the sewer forcemain. This type of operation should be considered temporary due to lack of storage within the system and is recommended for continuous monitoring to prevent a sewer spill in the event a pump or generator fails to operate.

Due to limited City staffing and to ensure preventative maintenance activities are being completed by City staff for other facilities, O'Connell was hired to perform pump watch for a cost of $83,988 for 30 days. Staff contacted four companies and O'Connell provided the lowest informal bid, Xylem provided a bid in the amount of $123,000 per month. Newest and J.R. Filanc did not provide a bid due to lack of available staffing.

Due to the emergency nature of wastewater pump station operation, AKM Consulting Engineers was hired to design a temporary pump station to ensure uninterrupted operation by adding power, telemetry and wastewater storage instead of relying on storage within existing manholes and pipelines that can clog from debris and grease.

The additional capacity created from storage can be utilized in conjunction with the existing pump station which will increase available response time in the future when operation failures of Cyprus Shore Pump Station occur. Due to the need for increased capacity, the Sewer Connection Fee Reserve is being recommended to fund the temporary pump station. Additional funding, material purchases and construction costs are anticipated and will be considered as more information becomes available.

To assist with the design and construction for temporary relocations of the wastewater pump station and storm drain, AKM Consulting Engineers was hired for an amount not to exceed $98,464. O'Connell was hired for 30 days of pump watch in the amount of $83,988, with an option to extend the contract for an additional 30 days and $40,000 for installation of the Storm Drain Emergency Bypass. In addition, 500 linear feet of High Density Polyethylene pipe and fittings was ordered from P&F Distributors in the amount of $122,392. Dudek Engineering was contacted and will provide construction management and inspection services, through an existing on-call agreement, for the duration of the emergency construction relocations. The City Manager has the authority to approve emergency contracts and purchases when there is a need to protect public health and safety per Section 3.40.070 of the City of San Clemente Municipal Code.

The estimated cost for temporary wastewater service operations, temporary sewer pump station design and temporary relocation of the storm drain are shown on the following page.
10-19-21 /9B-2
6-21-22 I 4L-7
Agenda Report
Recommended
Sewer Costs
Emergency Pump Station Operation Estimated Costs
Pump, Piping and Fittings $ 8,000/month
700/month
10, 000/month
84,000/month
K-Rail
Generator
Pump Watch (O'Connell)
Subtotal
Total (Assumes two months of operation)
Temporary Pump Station Relocation Estimated Costs
102, 700/month
$205,400
Engineering $ 48,580
Administration/Permitting 15,000
Power (Transformer and Meter) 25,000
Inspection/Construction Management TBD
Manhole/Wetwell TBD
Construction TBD
Total Cost $ 88,580
Storm Drain Costs
Temporary Relocation Costs
Engineering
Administration/Permitting
Inspection/Construction Management
500' of 36-inch HOPE Pipe and Fittings
Construction
Contingency
Sandbags
K-Rail (550/month X 4 months)
Total Cost
$ 49,884
15,000
10,000
125,000
40,000
10,116
3,800
2,200
$256,000

Action: STAFF RECOMMENDS THAT the City Council:

1. Make a finding that an emergency exists due to the potential failure of an existing sewer pump station and storm drain system and that the situation requires immediate action to prevent or mitigate impairment to property and public services, that might otherwise occur if required to incur delays attributed to the typical engineering design and public competitive bidding process;

2. Declare that the public interest and necessity demand the immediate expenditure of public funds to safeguard public health;

3. Approve an appropriation in the amount of $205,400 to Account Number 054-476- 45300-000-12209 from the Sewer Fund Depreciation Reserve; 10-19-21 / 9B-3
6-21-22 I 4L-8
Agenda Report Page 4

4. Approve an appropriation in the amount of $88,580 to Account Number 054-4 77- 45300 from the Sewer Connection Fee Reserve;

5. Approve an appropriation in the amount of $256,000 to Account Number 059-553- 45300-000-12004 from the Storm Drain Fund Depreciation Reserve;

6. Ratify a Construction Contract with O'Connell Engineering and Construction, Inc. on a time and materials basis for up to $83,988 and authorize the City Manager to extend the Contract for an additional 30 days, if needed, for Cyprus Shore Emergency Pump Station Bypass Operation, Project No 12209;

7. Ratify a Construction Contract with O'Connell Engineering and Construction, Inc. on a time and materials basis for up to $40,000 for Cyprus Shore Storm Drain Emergency Relocation, Project No 12004;

8. Ratify a purchase with P&F Distributors for storm drain pipe and fitting in the amount of $122,391.75 for Cyprus Shore Storm Drain Emergency Relocation, Project No 12004: and,

9. Ratify an Emergency Professional Services Agreement with AKM Consulting Engineers on a time and materials basis for up to $98,464 for Cyprus Shore Storm Drain Emergency Relocation and Cyprus Shore Emergency Pump Station, Project No.'s 12004 and 12209.

Attachments: 1. Location Map.

2. Construction Contract with O'Connell for Cyprus Shore Emergency Pump Station Bypass Operation.

3. Construction Contract with O'Connell for Cyprus Shore Storm Drain Emergency Relocation.

4. P&F Distributors Quote.

5. Professional Services Agreement with AKM Consulting Engineers for Cyprus Shore Storm Drain Emergency Relocation and Cyprus Shore Emergency Pump Station.

Notification: None.
i:\culsecure\staff\admlnlagenda-admin reports\2021 admlnsl 10-19-21\ 10-19-1 r cyprus shore emergency projectdocx.docx 10-19-21 / 9B-4
6-21 -22 I 4L-9
AGENOJ.:\ REPORT
SAN CLEMENTE CITY cou1,1c1L MEETING
Meeting Date: December 7, 2021
Attachment 4
Agen,j3 Jtem L.Q3
Approvals.
c,,y Manage~
Dept Head
A.ttorney
Finance ~ +-T,T--
i~ ¥?#tP!£M p;:g:;;,3.µ4 :2?-L-o;-..,H;..§AfR:tf_:..r-;:.¢:~Se?---A!':$~:i'.:'.!:U:!'Uj .. ,-,..?-,_~., ,A ~&.,of'-• i:i(• d:i .. :::::' ~-,:C·• ► .... ~:'7"'7.,i -E5if-nffi~ .... c;;4b._, Department:

Prepared By:

Subject:

Utilities
David Rebensdorf, Utilities Director D 12-

RA TJFJCA TION OF EMERGENCY PURCHASES AND SUPPLEMENTAL FUNDING FOR CYPRUS

SHORE PUMP STATION EMERGENCY OPERATION AND CYPRUS SHORE STORM DRAIN EMERGENCY RELOCATION, PROJECT No. 's 12209 AND 12004.

Fiscal Impact: Yes. $205,400 was approved for an initial 60 days of emergency bypass pump station operation. An additional 60 days of operation is recommended with funding from a supplemental appropriation in the amount of $236,000 from the Sewer Fund Depreciation Reserve to Account No. 054-476-45300-000-12209.

The initial estimated cost for the temporary relocation of the storm drain was $256,000.

Based on design and procurement of materials, the updated cost estimate is $411 ,000. Staff is recommending a supplemental appropriation in the amount of $155,000 from the Storm Drain Fund Depreciation Reserve to Account No. 059-553- 45300-000-12004.

There is sufficient fund balance within all proposed funds for the recommended appropriations.

Summary: Coastal bluff movement at Cyprus Shore necessitated an emergency response to ensure uninterrupted wastewater and storm drainage. On September 20, 2021, City staff installed a temporary emergency sewer bypass pump system adjacent to the Cyprus Shore Clubhouse near the intersection of Calle Ariana and Avenue de las Palmeras. In order to protect public health and safety, the City Council ratified the emergency Professional Services Agreement and construction contracts approved by the City Manager with AKM Consulting Engineers and O'Connell Engineering and Construction, Inc. (O'Connell) and an initial appropriation of funding for expenditures, including construction management/inspection services for Dudek Engineering, material purchases and rentals at its October 19, 2021 City Council Meeting. With the need for continued operation of the pump station with pump watch while a more permanent facility is constructed and based on detailed design -of the storm drain relocation, additional funding is being recommended. In addition, due to lack of availability of materials and changes in suppliers, ratification of purchases is required.

Background: To continue sewer service to approximately 400 homes within the Cyprus community while design and construction of a temporary pump station with electric power and monitoring capabilities, additional costs for pump watch are needed. Staff is anticipating approximately 60 additional days may be needed for pump watch to ensure uninterrupted service and to prevent a sewer spill. O'Connell was hired through Utilities Agenda Report
12-7-21 / 6J-1
6-21-22 I 4L-10
Agenda Report Page 2
an emergency contract to provide 30 days of pump watch for $83,988 which was extended for 30 days as previously authorized by the City Council. Several temporary and permanent pump station options were evaluated which requires additional time to for design. Staff is recommending the City Council authorize the City Manager to approve a contract change order for as needed pump watch for an additional 60 days with O'Connell. In addition, funding is needed for expenditures related to rentals and purchase of materials, such as, electrical equipment, piping, pumps, emergency generator and fuel to operate the temporary pump station. The temporary relocation of the pump station is under design and electrical power is being installed by SDG&E.

Staff anticipates completion of pump watch in February 2022. Once design is finalized, staff will recommend additional funding and contracts for the temporary relocation of the pump station. •
The storm drain above ground bypass is under construction and consists of approximately 500 linear feet of above ground 36-inch High Density Polyethylene (HOPE) Pipe and 100 linear feet of 18-inch HDPE Pipe routed south of the association Clubhouse and through the private community park. K-rail, sandbags and visqueen will be utilized to route nuisance and storm flows around the clubhouse and into the 18-inch storm drain (see Exhibit 2). Due to an issue with availability of pipe, the ratified purchase from P&F Distributors by the City Council on October 19, 2021 was not completed. Fortunately, storm drain pipe and fittings were available through Envirocon Systems in the amount of approximately $120,000. In addition, staff is requesting the City Council ratify a construction contract with Sancon Technologies, Inc. in the amount of $57,280 to install approximately 225 linear feet of liner from the above ground junction structure near the clubhouse to the intersection of Avenue de las Palmeras and Calle Marlena due to increased pressure in the storm drain caused by the above ground piping. Construction for the relocation of the storm drain is anticipated to be complete by the end of December 2021.

The City Manager has the authority to approve emergency contracts and purchases when there is a need to protect public health and safety per Section 3.40.070 of the City of San Clemente Municipal Code. The estimated cost for temporary wastewater service operations and temporary relocation of the storm drain are shown below.

Emergency Wastewater Operation Cost Estimate
Pump, Piping and Fittings
K-Rail
Generator
• - Diesel Fuel
Pump Watch (O'Connell)
Contingency 10%
Subtotal
Total (Assumes two months of operation)
$ 8,500/month
700/month
11,000/month -- · .. _ - ·-·--·-3-;aonImorith84,000/month

10.000/month
118,000/month
$236,000
12-7-21 / 6J-2
6-21-22 / 4L-11
Agenda Report Page3
Recommended
Storm Drain Temporary Relocation Costs
Approved Initial Estimate
Engineering
Administration/Permitting
Inspection/Construction Management
500' of 36-lnch HOPE Pipe and Fittings
Construction
Contingency
Sandbags
K-Rail (550/month X 4 months)
Total Cost
Current Cost Estimate
Engineering
Administration/Permitting
Inspection/Construction Management
500' of 36-inch and 100' of HOPE Pipe and Fittings
Thrust Restraint Pipe Clamps
Construction
36-lnch Storm Drain Liher
Contingency 12%
36-inch Storm Drain Plug Rental and Maintenance
Sandbags
K-Rail (700/month X 6 months)
Total Cost
$ 49,884
15,000
10,000
125,000
40,000
10,116
3,800
2200
$256,000
$ 49,884
15,000
22,500
120,000
20,000
40,000
60,000
40,616
35,000
3,800
4,200
$411,000
Action: STAFF RECOMMENDS THAT the City Council:

1. Make a finding that an emergency exists due to the potential failure of an existing sewer pump station and storm drain system and that the situation requires immediate action to prevent or mitigate impairment to property and public services, that might otherwise occur if required to incur delays attributed to the typical engineering design and public competitive bidding process;

2. Declare that the public interest and necessity demand the immediate expenditure ! ----- • ---- -of ·publrc·funds---to-safegaard-pablic-health-;----- ----- -- · • - --------- ------ i

3. Approve a supplemental appropriation in the amount of $236,000 to Account Number 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve;

4. Approve a supplemental appropriation in the amount of $155,000 to Account Number 059-553-45300-000-12004 from the Storm Drain Fund Depreciation Reserve;
12-7-21 / 6J-3
6-21-22 / 4L-12
Agenda Report Page 4

5. Authorize the City Manager to approve a change order with O'Connell Engineering and Construction, Inc. on a time and materials basis for up to $168,000 for Cyprus Shore Emergency Pump Station Bypass Operation, Project No 12209;

6. Ratify a purchase with Envirocon Systems for storm drain pipe and fittings in the amount of $120,000 for Cyprus Shore Storm Drain Emergency Relocation, Project No 12004: and,

7. Ratify a Construction Contract with Sancon Technologies, Inc. in the amount of $57,280 Cyprus Shore Storm Drain Emergency Relocation, Project No 12004.

Attachments: 1. Location Map.

2. Storm Drain Location Exhibit.

3. Envirocon Systems Initial Purchase Order.

4. Sancon Technologies, Inc. Construction Proposal for a 36-inch Storm Drain Liner.

The Construction Contract is on-file with the City Clerk's Office.

5. October 19, 2021 City Council Agenda Report without attachments.

Notification: None.
12-7-21 / 6J-4
6-21-22 / 4L-13
Department:

Prepared By:

Subject:

Fiscal Impact:

Summary:

Baclrground:

Utilities

AGENDA REPORT

SAN CLEMENTE CITY COUN CIL MEETING
Meeting Date: February '15, 2022
David Rebensclorf, Utilities Director f} f-..

AttachmenJ 5
Agencl3 Item . (p·:'j
Approvals :

City Manager ~ JJ 16
Dept. Head !) {<--,
Attorney CJ
Fi11ance--:_;iJ_.----

RATIFICATION OF EMERGENCY P URCHASES AND SUPPLEMENTAL FUND/IVG FOR CYPRUS SNORE P UMP STATION EMERGENCY OPERATION, PROJECT No. 12209.

Yes. $441,400 was approved for an initial -120 days of emergency bypass pump station operation. An additional 90 days of operation is recommended with funding from a supplemental appropriation in the amount of $354,000 from the Sewer Fund Depreciation Reserve to Account No. 054-476-45300-000-12209. There is sufficient fund balance within the proposed fund for the recommended supplemental appropriation.

Coastal bluff movement at Cyprus Shore necessitated an emergency response to ensure uninterrupted wastewater and storm drainage. On September 20, 2021, City staff installed a temporary emergency sewer bypass pump system adjacent to the Cyprus Shore Clubhouse near the intersection of Calle Ariana and Avenue de las Palmeras. In order to protect public health and safety, the City Council ratified the emergency Prnfessional Services Agreement and construction contracts approved by the City Manager with AKM Consulting Engineers and O'Connell Engineering and Construction, Inc. (O'Connell) and an initial appropriation of funding for expenditures, including construction management/inspection services for Dudek Engineering, material purchases and rentals at its October 19, 2021 City Council Meeting. With the need for continued operation of the pump station with pump watch while a more permanent facility is designed and constructed, additional operational funding was approved on December 7, 2021. To allow for procurement of materials and construction of a temporary pump station, an additional 90 days may be needed for emergency wastewater pumping operation.

To continue sewer service to approximately 400 homes within the Cyprus community while construction of a temporary pump station with electric power and monitoring capabilities, additional funding for pump watch and equipment and materials is needed. Design has been completed for the temporaIy pump station and informal bids are anticipated by the middle of February. Staff is anticipating approximately 90 additional days may be needed for pump watch to ensure uninterrupted service and to prevent a sewer spill. If possible, the time.tile services ar.e needed will be reduced based on availability of equipment and power.

Staff is recommending the City Council authorize the City Manager to approve a contract change order for as needed pump watch based on the estimated costs for Utilities Agenda Report
2-15-22 / 6J -1
6-21-22 I 4L-14
(
Agenda Report
Recommended

rental and purchase of materials, such as, electrical equipment, piping, pumps, emergency generator and fuel to operate the temporary pump station as shown below.

Emer~ency Wastew~ter Operation Cost Estimate •
PUmp, Piping and Fittings.

K-Rail
Generator
Diesel Fuel
Pump Watch (O'Connell)
Contingency 10%
Subtotal
Total (Assumes three months of operation)
......
$ 8,500/month
700/month
11 ,000/month
3,800/month
84,000/month
10,000/month
118,000/month
$354,000
Action: STAFF RECOMMENDS THAT the City Council:

1. Approve a supplemental appropriation in the amount of $354,000 to Account Number 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve; and,

2. Authorize the City Manager to approve a change order with O'Connell Engineering and Construction, Inc. on a time and materials basis for up to $354,000 for Cyprus Shore Emergency Pump Station Bypass Operation, Project No 12209.

Attachments: 1. Location Map.

2. October 19, 2021 City Council Agenda Report without attachments.

3. December 7, 2021 City Council Agenda Rep.art without attachments.

Notification: None.
l:\cu\secure\staff\admin\agenda-admln reports\2022 admlns\2-15-22\2-15-22-4r cyprus shore emergency projectdocx 2--15-22 I 6J -2
6-21-22 r4L~15
/ . /
V

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: April 5, 2022
Department: Utilities
Prepared By: David Rebensdorf, Utilities Director -0 ~
Attachment 6
Agenda Item (o J~
Approvals: (
City Manager {g }y-) ·
Dept. Head (){(.

Attorney C tf
Finance T u,I'--"
Subject: RATIFICATION OF EMERGENCY PURCHASES, CONSTRUCT/ON CONTRACT WITH O'CONNELL

ENGINEERING & CONSTRUCTION FOR CYPRUS SHORE PUMP STATION RELOCATION, AND FIRST AMENDMENT To A PROFESSIONAL SERVICES AGREEMENT WITH AKM CONSUL TING ENGINEERS, PROJECT No.'s 12004AND 12210.

Fiscal Impact: Yes. The total estimated project cost for the Cyprus Shore Pump Station Relocation, Project No. 12210 is $2,623,150. The project was originally budgeted for $88,580, and a supplemental appropriation of $2,534,570 is recommended from the Sewer Connection Fee Reserve to Account No. 054-477-45300-000-12210.

A total of $411,000 has been budgeted for Cyprus Shore Storm Drain Emergency Relocation, Project No. 12004. Based on actual costs and addition funding for project management, a supplemental appropriation is recommended in the amount of $40,000 from the Storm Drain Fund Depreciation Reserve to Account No. 059-553- 45300-000-12004.

There is sufficient fund balance within all proposed funds for the recommended supplemental appropriations. •
Summary: Staff recommends additional funding for Project No.'s 12004 and 12210, ratifying a Construction Contract with O'Connell Engineering and Construction, Inc. (O'Connell) in the amount of $1,974,950 for the Cyprus Shore Pump Station Relocation, ratifying a change order with O'Connell for the Storm Drain Relocation, and approval of a First Amendment to a Professional Services Agreement with AKM Consulting Engineers (AKM).

Background: Coastal bluff movement at Cyprus Shore necessitated an emergency response to ensure uninterrupted wastewater and storm drainage. On September 20, 2021, City staff installed a temporary emergency sewer bypass pump system adjacent to the Cyprus Shore Clubhouse near the intersection of Calle Ariana and Avenue de las Palmeras. In order to protect public health and safety, the City Council ratified the emergency Professional Services Agreement and Construction Contract approved by the City Manager with AKM and O'Connell and an initial appropriation of funding for expenditures, including construction managemenUinspection services for Dudek Engineering, material purchases and rentals at its October 19, 2021 City Council Meeting. With the need for continued operation of the pump station with pump watch while a more permanent facility is designed and constructed, additional operational Utilities Agenda Report 4-5-22 I 6J-1
6-21-22 I 4L-16
Agenda Report Page2
funding was approved on December 7, 2021 and February 15, 2022. Design was completed for the Pump Station Relocation by AKM and bids were received.

Discussion: Project No. 12210 - Cyprus Shore Pump Station Relocation, AKM prepared a design for the relocation of the pump station, which includes the following: wet well, three pumps, replacement of the six-inch forcemain in Calle Ariana, electrical equipment and instrumentation with emergency generator backup power to be purchased separately. The project will improve the pumps, electrical and motor control systems.

Based on a bid package prepared by AKM, City staff contacted three contractors that have satisfactorily completed previous City projects to receive bids for the emergency Cyprus Shore Pump Station Relocation. The following bids were received on March 8, 2022:

O'Connell Engineering and Construction, Inc.

Jennette Company
sew Contracting Corporation
$1,974,950
$2,467,935
$4,096,168
Based on the low bid, construction costs are estimated as follows:

Design/Construction Services
Installation and Monitoring an Inclinometer
Construction Management, Inspection and Testing
Construction
Emergency Generator
Contingency (15%)
Total Project Cost
$ 77,200
25,000
175,000
1,974,950
75,000
296,000
$2,623,150
Based on the low bid, the City Manager approved a construction Contract with O'Connell in the amount of $1,974,950. The City Manager has the authority to approve emergency contracts and purchases when there is a need to protect public health and safety per Section 3.40.070 of the City of San Clemente Municipal Code.

In addition, a First Amendment to the Professional Service Agre·ement with AKM is • recommended to provide construction related engineering support services and to finalize design for the permanent relocation of the pump station in the amount of $77,158 (Attachment 7). The original Professional Services Agreement with AKM was for preliminary design and analysis for the pump station and storm drain in the amount of $98,464 and did not include final design or construction period services.

The pump station relocation project was budgeted for preliminary design and analysis in the amount of $88,580. Based on the bids and additional services needed to complete the project, the total project cost is estimated at $2,623,150, based on the project costs, a supplemental appropriation of $2,534,570 is needed to fund the project.

Project No. 12004 - Cyprus Shore Storm Drain Emergency Relocation, the Emergency Storm Drain Relocation is partially constructed due to negotiations between the City and Cyprus Shore HOA related to its placement. The pipeline and fittings have been purchased, the pipeline has been partially placed and stored above 4-5-22 I 6J-2
6-21-22 I 4L-1 7
Agenda Report Page 3
ground have been constructed. Based on a time and materials basis, approximately $130,000 has been spent with O'Connell for equipment, staffing and materials. The original contract was approved for $39,405 with a change order in the amount of $31,230 approved within the project contingency limit. Based on actual construction costs to date, the City Manager approved a change order in the amount of $59,000.

As previously mentioned, the City Manager has the authority to approve emergency contracts and purchases when there is a need to protect public health and safety per Section 3.40.070 of the City of San Clemente Municipal Code.

Based on current construction costs, design, construction management, purchase of ,materials, storm drain lining, and plug installation and maintenance, approximately $441,000 has been spent to date. Staff is requesting an additional $10,000 for project management and contingency until the location of the pipeline is determined. At that time, additional funding will be needed to complete the relocation project. A total of $411 ,000 has been budgeted, based on the cost as previously mentioned, a supplemental appropriation is recommended in the.amount of $40,000.

Recommended
Action: STAFF RECOMMENDS THAT the City Council:

1. Make a finding that an emergency continues to exist due to the potential failure of an existing sewer pump station and storm drain ·system and that the situation requires immeoiate action to prevent or mitigate impairment to property and public services, that might otherwise occur if required to incur delays attributed to the typical engineering design and public competitive bidding process;

2. Declare that the public interest and necessity demand the immediate expenditure of public funds to safeguard public health;

3. Approve a supplemental appropriation in the amount of $2,534,570 to Account Number 054-477-45300-000-12210 from the Sewer Connection Fee Reserve for Cyprus Shore Pump Station Relocation, Project No.12210;

4. Approve a supplemental appropriation in the amount of $40,000 to Account Number 059-553-45300-000-12004 from the Storm Drain Fund Depreciation Reserve for Cyprus Shore Storm Drain Emergency Relocation, Project No. 12004;

5. Ratify a Construction Contract with O'Connell Engineering and Construction, Inc. in the amount of $1 ,974,950 for Cyprus Shore Pump Station Relocation, Project No.12210;

6. Ratify a Change Order with O'Connell Engineering and Construction, Inc. on a time and materials basis for $59,000 for Cyprus Shore Storm Drain Emergency Relocation, Project No. 12004; and,

7. Approve and authorize the City Manager to execute, Amendment No. 01 to Contract C21-43 by and between the City of San Clemente and AKM Consulting Engineers. This Amendment increases the contract amount from $98,464 to $175,622 (an increase of $77,158).
4-5-22 I 6J-3
6-21-22 I 4L-1 8
Agenda Report Page 4
Attachments: 1. Location Map.

2. Construction Contract with O'Connell Engineering & Construction for Cyprus Shore Pump Station Relocation, Project No.12210 (without attachments).

3. First Amendment to Professional Services Agreement with AKM Consulting Engineers.

Notification: None.
l:\cu\secure\staff\admin\agenda-admin reports\2022 admins\4-5-22\4-5-22-3r cyprus shore contract award and supplemental appropriation.doCJ< 4-5-22 / 6J-4
6-21 -22 / 4L-19

CITY OF SAN CLEMENTE

CONTRACT CHANGE ORDER
PROJECT: Cyprus Shore Emergency Bypass Monitoring Contract PROJECT NO.: 12209
OWNER: City of San Clemente
PROJ. MGR.: David Rebensdorf, Utilities Director
CONTRACTOR: O'Connell Engineering and Construction Inc
36572 Deauvil/e Road
Winchester, CA. 92596
Original Contract Amount:

Previous CCO(s) Amount:

This CCO Amount:

Revised Contract Amount:

Notice to Proceed Date:

Original Contract Completion Date (30 Days):

Extended Calendar Days Through Previous CCO's:

Extended Calendar Days By This CCO:

Total Extension Calendar Days:

Extended Date for Completion:

Substantial Completion Date:

Attachment 7
Change Order No.: 04
Date: 6/3/2022

$83,988.00
$504,000.00
$255,000.00
$842,988.00
10/20/21
11/03/21
180
90 270
N/A
08/03/22
We hereby agree to extend the original contract by 90 days per this Change Order. This Order shall not be considered as such. until it has been signed by the Contractor and approvals are provided by the City.

The amount indicated shall be compensation on a time and materials basis for the work described. including all time extensions, direct and indirect costs, incidental or consequential costs or expenses, that have been or will be incurred by the Contractor.

O'Connell Engineering and Construction Inc
(Approval)
CITY OF SAN CLE~ ENTE
~;provals),
By: _ ___________ _
Title: President Date: 6-3-22
Title: Utilities Director/Construction Mgr Date: b / \?> } 2.2.. I I Title: City Manager Date: _ ____ _
6-21-22 I 4L-20
Item
No.

A
B
C

CITY OF SAN CLEMENTE

CONTRACT CHANGE ORDER
Exhibit "A"
Cyprus Shore Emergency Bypass Monitoring Contract
Project No.: 12209
Force Acct. or
Contract Extended Negotiated
Description Qty. Unit Unit Price Total Price
Cyprus Shore Emergency Bypass
Monitoring Contract 1 LS nla n/a $255,000.00
Account# 054-47~300-000-12209
Continued monitoring services through
8/3/22
SUBTOTALS: $0.00 $255,000.00
Total Price for this Contract Change Order= $255,000.00 CCO#: 04
Date: 06/03/22
Page: 2 of 2
Time Extension Total Time
(Calendar Days) Extension
weather Other (CD)
0 90 270
Total Time Ext. , 270
6-21-22 / 4L-21
Attachment 8

CITY OF SAN CLEMENTE

PROFESSIONAL CONSULTANT SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this __ day of ____ ,, 2021, by and between the City of San Clemente, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 910 Calle Negocio , San Clemente, California, 92673 ("City") and AKM Consulting Engineers, an engineering consulting firm, with its principal place of business at 553 Wald, Irvine, CA 92618 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2 . RECITALS.

2.1 Consultant.

Consultant desires to perform and assume~ onsibility f© the provision of certain professional engineering consulting services regtiired by t, e City on the terms and conditions set forth in this Agreement. Consultant represents t~t~ s experienced in providing professional engineering consulting services to public clients, is lice s~ in the State of California, if applicable, and is familiar with the plans of City.

2.2 Project.

City desires to engage ~ 1>1su an, r such professional engineering consulting services for the Cyprus Sho " •• ~- tion (collectively referred to as "Project") as set forth in this Agreeme
3, TERMS.

3.1 3.1 .1 Gene~aLSoope of Services. Consultant promises and agrees to furnish to the City all labor, materials, t6ols, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from May 31, 2022 to May 31 , 2024 unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Responsibilities of Consultant.

3.2.1 Independent Contractor: Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. 1 55452.01100\31193624.5
6-21-22 I 4L-22
(
Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perfor the Services in conformance with such conditions. In order to facilitate Consultant's confo~ nce with the Schedule, City shall respond to Consultant's submittals in a timely manner. UJ"on re.guest of City, Consultant shall provide a more detailed schedule of anticipated performance to mee the Schedule of Services.

3.2.3 Endorsement on PS&E/ Otrner Data. Consultant shall sign all plans, specifications, estimates (PS&E) and engineering , ~ mnished by Consultant, and where appropriate will indicate Consultant's authorized signat~ nd professional registration number.

3.2.4 Conformance to Applicable Requrrements. All work prepared by Consultant shall be subject to the approval of City

3.2.5 Substitutio ,of Kev. Per~ m:iel. Consultant has represented to City that certain key personnel will perf~ and~ 00r0ir:1~e the Services under this Agreement. Should one or more of such personnel 15e0orf~ailable, Consultant may substitute other personnel of at least equal competem fi>On w itten approval of City. In the event that City and Consultant cannot agree as to ~t;i subst1 1 ion o~ ey personnel, City shall be entitled to terminate this Agreement for caus . As discussed below, any personnel who fail or refuse to perform the Services in a manner: cceptable) to the City, or who are determined by the City to be uncooperative, incompete I a weat to the adequate or timely completion of the Project or a threat to the safety of persoas or property, shall be promptly removed from the Project by the Consultant at the request of ttie City. The key personnel for performance of this Agreement are as follows: [INSERT NAME AND TITLE].

3.2.6 City's Representative. The City hereby designates David Rebensdorf, Utilities Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.7 Consultant's Representative. Consultant hereby designates Zeki Kayiran, Principal, or his/her designee, to act as its representative for the performance of this Agreement 2 55452.01100\31193624.5
6-21-22 I 4L-23
("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.8 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.9 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Se~ s assigned to them. Finally, Consultant represents that it, its employees and subcon}.l!llta ts have all licenses, permits, qualifications and approvals of whatever nature that are legJ!llyr~ ed to perform the Services, and that such licenses and approvals shall be maintained'throughot(tbe term of this Agreement.

As provided for in the indemnification provisions of ~ iiJ.'greement, G~ sultant shall perform , at its own cost and expense and without reimburse~~{ from"tf:1e City, any services necessary to correct errors or omissions which are caused by tq)\J{''rfsultant's failure to comply with the standard of care provided for herein. Any em loyee oNt, Consultant or its sub-consultants who is determined by the City to be uncooperati~~e ir,icompet nt, a threat to the adequate or timely completion of the Project, a threat to the safet ofp e~ ras or--property, or any employee who fails or refuses to perform the Services in a manne ~1ptal51e- o the City, shall be promptly removed from the Project by the Consult~j: ~all no{l ere-employed to perform any of the Services or to work on the Project. ~ - ~

3.2.10 Laws and R. , laGoiis:"-eonsultant shall keep itself fully informed of and in compliance with all locaJ, ~ nd . eral laws, rules and regulations in any manner affecting the performance of t~ roject or the S~ ices, including all Cal/OSHA requirements, and shall give all notices requHkl by law. ~ onsultant shall be liable for all violations of such laws and regulations in connectio ith Serv.!ges. If Consultant performs any work knowing it to be contrary to such laws, rules and re ulatililps, Consultant shall be solely responsible for all costs arising therefrom. Consultant sharl~ efend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3 55452.0 ·1100\31193624.5
6-21-22 / 4L-24

3.2.12 Insurance. Consultant agrees to procure and maintain, at Consultant's expense all insurance specified in Exhibit "C" attached hereto and by this reference incorporated herein. Consultant shall require all subconsultants to carry the same policies and limits of insurance that the Consultant is required to maintain, unless otherwise approved in writing by the City.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The total compensation shall not exceed Ninety Eight Thousand Four Hundred and Twelve Dollars ($98,412) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
,/>

3.3.2 Payment of Compensation. ConsultanTuhall submit to City a monthly invoice which indicates work completed and hours of Sezy1Ees rendered by Consultant. The invoice shall describe the amount of Services provided_.._sj,nce the lnitial commencement date, or since the start of the subsequent billing periods, as ~ropriate, through, the date of the invoice.

City shall, within 30 days of receiving such invoic~; review.!ct~e invoice and pay all non-disputed and approved charges thereon. If the City dispute~¥.c_(;)t,t:onsultant's fees, the City shall give written notice to Consultant within thirty (30) days of reb~t of an invoice of any disputed fees set forth therein.
' ,

3.3.3 Reimbursement for Expet':\Ses. Cons·uitant shall not be reimbursed for any expenses unless authorized in writir:r~• city, hr fncluded in Exhibit "D" of this Agreement. ',;-· } \

3.3.4 Extra Work. A~ riY::-tim.!2_~uring the term of this Agreement, City may request that Consultant perform E~ra·V,1/ITTR. AsJtl'sed herein, "Extra Work" means any work which is determined by City to-::.b'enec~s -efry for the proper completion of the Project, but which the Parties did not reasooal31y an 1cj~pte w~yld be necessary at the execution of this Agreement.

Consultant shall not~ rform, nor\oe coffipensated for, Extra Work without written authorization from the City. ~ . };/

3.3.5 Rate'Tficfeases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set foril'l in Exhibit "D" may be adjusted each year at the time of renewal as set forth in Exhibit "D."

3.3.6 Labor Code Requirements.

3.3.6.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and Since the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, 4 55452.01100\31193624.5
6-21-22 I 4L-25
agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.3.6.2 Registration. If the Services are being performed as part of an applicable "public works" or "maintenance" project, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations ("DIR"). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code sections 1725.5 and 1771.1 shall not apply to Services performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code sections 1725.5 and 1771 .1.

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Co~! a · shall maintain complete and accurate records with respect to all costs and expense~i curred u~ r this Agreement. All such records shall be clearly identifiable. Consultant shall_a,l 0 a representeRve of City during normal business hours to examine, audit, and make trans ools or ,&<ilpies of suc h records and any other documents created pursuant to this Agreement. Cons lta t:s~all allow inspection of all work, data, documents, proceedings, and activities related to the ~ , reement for a period of four (4) years from the date of final payment under this A~e t.

3.5 General Provisions.

3.5.1 Termi m
for-- ermination. City may, by written notice to
Consultant, terminat ~.-...= of this Agreement at any time, with or without cause, by giving written no such termination, and specifying the effective date thereof, at least sev effective date of such termination. Upon termination, Consultant shall be hose services which have been adequately rendered to City, and Consulta to no further compensation. Consultant may not terminate this Agreement except

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
5 554 52.01100\31193624.5
6-21-22 I 4L-26
Consultant:

City:

AKM Consulting Engineers, Inc.
553Wald
Irvine, CA 92618
ATTN: Zeki Kayiran
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: City Manager; or David Rebensdorf, Utilities
Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownership of Materials and Confid~

3.5.3.1 Documents & Data- Lie.ensin of. iotellectual Pro ert . This Agreement creates a non-exclusive and perpetual lice se for City to e~y, use, modify, reuse, or sublicense any and all copyrights, designs, and Q!r er intet~ctual pro{erty embodied in plans, specifications, studies, drawings, estimates, and otli 42~ments or works of authorship fixed in any tangible medium of expression, including but n~imited to, physical drawings or data magnetically or otherwise recorded on com , :e disketie~~hich are prepared or caused to be prepared by Consultant under this Agreemen \ Doe e(l!s~&>Data"). Consultant shall require all subconsultants to agree in writing that City is ~ ea a•oon-exclusive and perpetual license for any Documents & Data the subconstflta~-.,Frep¾\S under this Agreement. Consultant represents and warrants that Consultant ~ he -~al riglit to license any and all Documents & Data.

Consultant makes no such ref:)cesentati0[il a@~ a'rranty in regard to Documents & Data which were prepared by design profess~~? ot~r4"1an Consultant or provided to Consultant by the City. City shall not b~ li i~ --a~y~ y in its use of the Documents & Data at any time, provided that any such use not ffiin the i!tjr~inlended by this Agreement shall be at City's sole risk. • ~-2 C.o , fidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, : crig1!P6s, computer program data, input record data, written information, and other Doc ents & Data either created by or provided to Consultant in connection with the perform an e of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.5.3.3 Confidential Information. The City shall refrain from releasing Consultant's proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the Release Notice to give City written 6 55452.01100\31193624,5
6-21-22 / 4L-27
notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney's fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.5.4 Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have arn~ recover from the losing party reasonable attorney's fees and all other costs of such action.

3.5.6 Indemnification. ,i

3.5.6.1 To the fullest extem~ rm~ by law, Consultant shall defend (with counsel of City's choosing), indemnify and ff~~City, its directors, officials, officers, employees, volunteers and agents free and harmless ~ any and all claims, demands, causes of action, costs, expenses, liability, loss, da~e ol_injury\~ny kind, in law or equity, to property or persons, including wrongful death, in any lt\8r~-e~siQg o wt of, pertaining to, or incident to any alleged acts, errors or omissions, or willful\~~ucP- of Consultant, its officials, officers, employees, subcontractors, cons~~ r agfifs in connection with the performance of the Consultant's Services, the Projeot or thi~ gree,~nt, including without limitation the payment of all damages, expert witness ees~ <d at~mey's fees and other related costs and expenses. Consultant's obligatio~nderii'nify shall not be restricted to insurance proceeds, if any, received by Consultarf , h~t~t officials, officers, employees, agents, or volunteers . . 5.6.2 If Co~ ltant's obligation to defend, indemnify, and/or hold harmless arises out of;~ nsu_lta9~i performance as a "design professional" (as that term is defined under Civil Code Sl=lft~ :2782.8), then, and only to the extent required by Civil Code section 2782.8, which is ful y~erporated herein, Consultant's indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault.

3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.

3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
7 55452.01100\31193624.5
6-21-22 I 4L-28

3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.5.13 Construction: References: Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be dee111foi' calendar days and not work days. All references to Consultant include all personnel, emgl©y'$._es, agents, and subconsultants of Consultant, except as otherwise specified in this Agree~ rff.~l~ eferences to City include its elected officials, officers, employees, agents, and volunte rs exce~t s otherwise specified in this Agreement. The captions of the various articles and ~ragraphs are » convenience and ease of reference only, and do not define, limit, augme~~r des ·ibe the scope, content, or intent of this Agreement.

3.5.14 Amendment· Modifica ie . o sup , ent, modification, or amendment of this Agreement shall be binding unless exec~ • • itiog ma signed by both Parties.

3.5.15 Waiver. No~ r. of a~ tiefault shall constitute a waiver of any other default or breach, whether of t_aysam~ or otl\_e\ covenant or condition. No waiver, benefit, privilege, or service voluntarilyJ'§iven ~ elfo..c@ed by a Party shall give the other Party any contractual rights by custom , esto~ elYOrOihef\oVlse.

3.5.16 eneficiaries. There are no intended third party
beneficiaries of any , urned by the Parties.

3.5.17 rability. If any portion of this Agreement is declared invalid, illegal, or otherwise unen o ea e y a court of competent jurisdiction, the remaining provisions shall continue in full force an ffect.

3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom .

3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex 8 55452.01100\31193624.5
6-21-22 I 4L-29
or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement h ve the legal power, right, and authority to make this Agreement and bind each respective Part

3.5.22 Counterparts. This Agreement m&: be s g ed in counterparts, each of

3.6 Subcontracting.
which shall constitute an original. ~

3.6.1 Prior Approval Required. Cons~ nt shall not subcontract any portion of the work required by this Agreement, exce~ s~expres~ stated herein, without prior written approval of City. Subcontracts, if any, shi3il~n a l~).,,ision making them subject to all provisions stipulated in this Agreement.
9 55452.01100\31 193624.5
6-21-22 I 4L-30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures.

ATTEST:

CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:

BEST BEST & KRIEGER
City Attorney
APPROVED AS TO AVAILAB L-:' :fY.

OF FUNDING:
55452.01100\31193624.5

CITY OF SAN CLEMENTE
By: _____________ _
Its:
---------- - - -
Dated: ________ , 20 _ _
("CONSULT ANT")
By: ___________ _
Its: ----------- -
Dated: ________ , 20 __
10 6-21 -22 I 4L-31
55452.011 00\31 193624.5
EXHIBIT "A"

SCOPE OF SERVICES
11 6-21-22 I 4L-32
ia-•
---- ..-.
-- ~
---
-
---
---
--
AKM Co11s11/ti11g Engineers
553 Wald
Irvine, CA 92618
Telephone: 949. 753. 7333 Facsimile: 949. 753. 7320
www.alcmce.com
May 25, 2022
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attention: Mr. David Rebensdorf, Utilities Director
Mr. Amir llkhanipour, Senior Civil Engineer
Subject: Proposal for the Cyprus Shore Storm Drain Relocation Projec Water Resources
Infrastmcllire
Construction Management
In response to your request for proposal for the Cyprus S~re Sto; m Drain Relocation project within the Cyprus Shore Community, AKM Consulting Engineers (AKM) is pie sed to submit the attached revised proposal, fee schedule and implementation schedule.

Key contact information for this proposal is:

Zeki Kayiran, P.E., Pri, ig_a~ AKM Co~
0 ulting Engineers, Inc. - 553 Wald, Irvine, CA 92618
Phone: 949-753-733:3 :..JFAX: ~ " 20-email: [email protected] We appreciate the opportunity to suorn·t 0 r--pr0p0s,al'8nd look forward to expeditiously provide this service to the City of San Clemente. Should ¥OU liav any questions or require additional information, please do not hesitate to contact the undersignecl 0(Naclee Maj~ (949) 753-7333.

Very truly yours,
AKM Consulting Engineers
Zeki Kayiran, P.E.

Principal
6-21-22 / 4L-33

CYPRUS SHORE STORM DRAIN RELOCATION PROJECT
The City of San Clemente (City) experienced a landslide on or about September 16, 2021 along bluffs bordering the Cyprus Shore Community. The City owns and operates various utilities in the vicinity including a storm drain, a gravity sewer collection system, and a sewer lift station, among others. The landslide damaged the Cyprus Shore storm drain and the sewer lift station.

The City hired AKM for the preparation of plans, specifications and engineers estimate for the relocation of the lift station. The City also intends to also relocate the storm drain from its existing alignment to an alignment which is generally depicted in the figure below (in red). This alignment is the result of the City considering several alternatives, in coordination with Cyprus Shore Home Owners Association, who owns the underlying right-of-way for the proposed/relocated storm drain.

The City requested AKM to prepare a proposal for the preparation of plans, specifications and engineers estimate for the storm drain relocation project.
c;
"i! w C
ffi E ~ 0 ~ _, en ~ u e! ,.; z 'E .,
<C 0
.c: ... en 0 :E
~ .. u i
u
2 6-21-22 I 4L-34
€¥PRUS SHORE STORM DRAIN RELOCATION PROJECT
Based upon our understanding of the project, the following is the scope of work which AKM proposes to accomplish:
• Meet with the City and discuss the goals and criteria for the project. Of primary importance is to secure direction/understanding from the City on the required storm frequency for the design of the storm drain and the catch basins.
• Review existing record drawings, tract maps, topographic maps (2-foot contours), master plan of drainage document and other City-provided information. • Conduct field investigations and measurements to assess existing site conditions. • Identify needed pothole locations (for utility conflicts, if any), and request City's contractor to provide potholing, as needed.
• Identify geotechnical boring locations (primarily for groundwater elevations and pipe bedding and backfill), and request City's consultant to provide sueh, on an as needed basis. • Complete a hydrology study of the areas tributary to ' e storm drain, in compliance with the Orange County Flood Control District (OCFCD) and City rel:jui~ ments. • Identify locations for catch basins at the inters~ ion of Averi_ld.a De Las Palmeras, and and Ca lle Ariana. '>
• Complete hydraulic analyses of the proposed stor drain system (including catch basins) in accordance with OCFCD criteria and City Require ents. Analyses will be conducted using the _,,f
WSPG program (and hand computafi~~s hl~ nec~ ary).
• Prepare and submit construction plans qt t_ti ;;75~ nd 100% design levels for City review. • Determine whether the City_;ru!rchasecf'36-inch HOPE pipe has the hydraulic capacity to convey the required stor.rn aischc[_ge. In tne event that a portion of the pipe (or all) does not have the capacity, AKM ill re.e"'cfmmend,,t he appropriate size and material for the City's consideration.
• Prepare the Engineerts E's~imat which will be submitted at the 100% stage. The Engineer's Estimate will('ef,sed upon venclors' quotes, quantity estimates, and AKM's experience with similar work .. ~
• Prepare legal descrip~ nd exhibits for the relocated storm drain within the Avenida De Las Palmeras and Call~ JXriana intersection as well as through the park (along the proposed alignment).
• Prepare technical specifications delineating project issues and technical requirements. The technical specifications will describe design and coordination features of the work, as well as provide requirements for materials, equipment, installation, workmanship, and any special requirements. Project specifications will be submitted at the 75% and 100% levels. Final specifications will be signed and sealed by a registered professional engineer in the State of California.
• Submit the final construction package which includes: a) signed drawings; b) engineer's estimate and bid schedule; c) camera-ready specifications; d) copies of standard drawings; and f) electronic files for AutoCAD drawings and the specifications in Word format. • Attend progress review meeting with City staff at the 75% plan submittal. • Provide engineering support during the bidding and construction phases. 3 6-21-22 I 4L-35

CYPRUS SHORE STORM DRAIN RELOCATION PROJECT
Assumptions
• The City will provide an electronic 2-foot contour intervals topographic file, in AutoCAD or Microstation format, which covers the entire Cyprus Shore watershed. • The City will provide all available files/documents, which are essential for the preparation of the hydrology study.
• The City will coordinate approvals of the Cyprus Shore Community Home Owners Association and property owners, as needed.
• The City will be responsible for securing the required construction and permanent right-ofway easements. • AKM's services do not include any environmental/regulatory tasks including those associated with the California Coastal Commission, Regional Water Quality Control Board, California Fish and Wildlife and US Army Corps of Engineers.
• AKM's services do not include geotechnical work. Any nee:ded geotechnical services will be provided by the City's geotechnical consultant, through{{e City's project manager. • AKM's services do not include potholing work. Any rJ$e'"de~. <ttholing services will be provided by the City's potholing contractor, through the GJ y's project,-rhanager. 4 6-21-22 I 4L-36
O>
I
N
....,.

I
N
N
--.i:,.
r
I
(;.)
--..J
U'I
e AKM Consulting Engineers -Detailed Labor and Fee Breakdown City of San Clemente

CYPRUS SHORE STORM DRAIN RELOCATION PROJECT

COMPENSATION/PAYMENT FEE SCHEDULE
u 0 u i' g: >
< ~ C
Cf u ~ ~ u u C
.. u C 0
~ "' j~ C
~ a: 0
~ C :,
Task No. Task Descrlptlon ~ "' ~ 0
A C - 0 5 ,:
~8 2 0 < a: Q Q l j 5 -
1i 0
¼ u ;i :5 1; 0
t. t. u ~ ~,, lhlrdcncd Hou.:ty qa1e m, S:!32 SXll S15tl $JJO SB1 0 ... TASK 1 • RESEAI\CII, FIELD INVESTIGATIONS ANO MEE'l'INGS ,, /l A Task 1.1 Ri:vlew ofeidrtlng~orddn wlngs. "'--"",, ~ ,,,,.. ' h.. 4 ' Task 1.2 Conductneld lnvesli~on and me:isurcmenu lo :u11H1 cxlUnJ:1!1.e c:ondi~n,___...,. /, ; ,, " tl Task 1.3 Jdendfy ut!lltlu th:itrequlrepothoUngar,d vertry depth and locdon /A ~ ) ~ 4 4 Task 1.4 Atterld 1inc .,..o"•'t$1 n:vh:w m1.-c:dn• with Cirv scff11tthe 75% l:1n submittal ~, ,. ,, -~ i 3 ' SUBTOTAL 'v ) I,!-. / 3 3 20 0 0 29 s TASK 2 • SURVEY & LEGAL DESCRIPTION
Task Z. l Prepare lqpl descriptions :i.nd exhibits for the storm dr3tn's proposed e:isements (10 be cnnveyed from IJ ~
the Home Owners Assod::au on to 1he Cltvl. ' ( /.,... ,,l/ 4 SUBTOTAL "<.rf'., ""'\v\._ 11 0 0 0 4 s
TASK3 -HYDROLOGY AND HYDRAULICS ' "l ~ ' T,sk 3.1 Completaahydrolcgy study In comp{l:mc-e wlththt Or3n&e r.cunty Hyclrclogy M::anu.:r.l and City • j f'l!quln-ments: / 12 .-' ,;~ "' 80 Task 3.2 Complete a hydr.iullc :uulys1.1 or the ptopoud r:iclllty according Lit I.he City :ipprovcLI alJ~nmc11t U11vu1,1l1 ., .. rt, thc=<k "'to\. '"v A Sb
SUBTOTAL 0 12 ' }4 1oa-.,. > 0 , o-..._ 136 5
TASK4 -FINAL PLANS, SPECIFICATIONS AND COST ESTIMATES /::. \..

Task4.l Complete 75% pbns or des1gn pl:iru. 8 16 ,o 60 , , ... µ, Task 4.2 Preiul"I! project S!k!clfiouons :at 75% design pl:!ns. • 16 "" ~ 7 .. Task 4.3 Complclc/submuthe Enginoo:r's Estimate, b::asdd upon the 7S¾ dwlgn pl;ins. 2 4 ,. ,,; , 22 Task 4.4 Comple1e/submh 100% design plan~ whtch addms :ill comments from the City :ind utlllty owm::s, 2 2 4 16 ( 7i'. ,o T:isk 4.5 Complcte/jubmltlhe Supptement:Jt Spoc1flc.'ltJcnt ;it 100% dutt,"11 plant, , 2 ' ,,, 32 Task 4.6 Compktc/submttUue Enghwer'1 EsUmate, bnn-d upon the JOO% de,lgn pl:ln.s.. ' 2 ' • H Task 4.7 Complete Fina! Mylar pl:ins. Spednc::ioont and Ena,neers Estlm.111:, which lncorpor.ncal! comments 2 , fmm Uie JOO% submllul. ' 12 16 24 " SUBTOTAL • 26 48 156 92 24 354 s

TASKS-CONSTRUCTION SUPPORT
Task 5.1 Provide cnginec!crtng support durtng the blddlrig :md constnJction ithascs ,o 40 SUBTOTAL 0 0 40 0 0 0 40 s
TOTAL LABOR 11 41 119 276 92 24 563 s
Other D lrect Costs
I"'-" I I I
TOTAL E~"TIMATED FEE FOR f.NGll'IEERING SZ.,629 S9,SI? S'l6,'Z99 $43,608 510,lZO S1,944 --■
•• -
--■ -•
§ -= D C
c. ll "' ·i: - ~ .. u "
a: U C
o- C 8
j~ }t :.i-
... ., .
fl 0
... " u "'"'
5632
$1,896
Sf.32
$2,076
5,236.00
$884 S].300
884.00 $ 3,300.00
SI3,9BB
S'J.'100
23,888.00
SlB.312
511.712
Sl,876
S6,1H
15,GJO
S:?.6-10
S6,'JS4
55,264.00
$8,8110
0,840,00
94,112.00 s J,300.00
S!,000
S95,UZ SJ.JOO
-
••• -
••• •••
"' ... C: u 0
:i:: z "' - In - 0
tn ~ g: 5o z~ !;: :i; =! ~ u5~
..., ... u
... < "' .., 0
0 ... "' C:

S632
£1.896
$632
$2,076
s 5,236.00
14,184
s 4,104.00
$ 13,988
$lJ,'l00
s 23,888.00
S 18,312
'S ll,712
SJ.876
$6,114
SS.6UI
S?.l,-18
S6.?U4
s 55.264.00
$8,840
8,840
97,412
s1,000
$98,412
C""l
~ ==' c:::
c.n
~ 0
s;
c.n
-3
0 ~ 0
&: ...,
z
s;
t""
0 r.,
~
-
0 z
"'O
~
0 -tr'J
r.,
-3
0)
I
N
.....

I
N
N
---
~
r
I
<,.)
CX)
TASK No.

TASK 1
[TASK 2 ITASK3
ITASK4
[TASK 5
OJ
~'ON SCHEDULE
CYPRUS SHORE ST©jM DRAIN'RE-C:OCATION PROJECT

TASK DESCRI
Research and field investi_g_ations
Survey and legal description
Geotechnical
Hy_drology and Hydraulics
Plans, Specifications and Engineers Estimate
~
~ ·
V,)
V,)
:::c:
0 ~ VJ
--3
0 ~
3:
t:,
~ ~ t"'
0 ("")
;:i;..
--3 -
0 z
~
:,:,
0 -~
("")
--3
EXHIBIT "A-I"

FEDERALLY REQUIRED PROVISIONS FOR SERVICES
N/A
1 55452.01100\31193624.5
6-21-22 / 4L-39
55452.01100131193624.5
EXHIBIT "B"

SCHEDULE OF SERVICES
NIA
(
6-21-22 I 4L-40
EXHIBIT "C"

INSURANCE REQUIREMENTS

3.2.12 Insurance.

3.2.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.

3.2.12.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in particll1,erformance of its obligations under such Agreement, shall procure and maintain in full force--and effect during the term of the Agreement the following policies of insurance. If the existi!l,( ff • licies do not meet the insurance requirements set forth herein, Consultant agrees too7 me et.rs. upp e· ent or endorse the policies to do so.
(A) Commercial ~~r~"i~ a ility: Commercial General Liability Insurance which affords coverage at least as broa~s,. surance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not I than $1,000,000 per occurrence and no less than $2,000,000 in the general aggrwr-e. Qefens~ osts shall be paid in addition to the limits. The policy shall contain no endorseme~ Or,.P~~~s (1) limiting coverage for contractual liability; (2) excluding coverage for claims or sulf~..;pr one insured against another (cross-liability); or (3) containing any other exclusien(s) ontrary to the terms or purposes of this Agreement. (B) :,~~ Liability Insurance: Automobile Liability
Insurance with coverage a east a 6 oad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1 ), 0 tlie·e ct eq i-valent, covering bodily injury and property damage for all activities with limits f , ot less -~ $1;000,000 combined limit for each occurrence. Workers' Compensation: Wor e ,s' Compe ation Insurance, as required by the State of California and Employer's Liability Insur , ce witb limit of not less than $1,000,000 per accident for bodily injury and disease.
(C} Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant's profession with limits of not less than $1 ,000,000 per claim. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.

3.2.12.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability:
55452.01100131193624.5
6-21-22 I 4L-41
(1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be
restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement.
(2) Cancellation: Required insurance policies shal l not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability:
(1) Cancellation: f eqa· ed insurance policies shall not be canceled or the coverage reduced until a thirty (30) da~ written nqy_ce of cancellation has been served upon the City except ten (10) days shall be ~ d for non-pa y,;ent of premium.

3.2.12.4 Professiona~ iabi~ & .Omissions): . .
(A) Canceijat101:r R~~ed insurance policies shall not be canceled or the coverage reduced until a th'r'~t (-S<il! daY, written notice of cancellation has been served upon the City except ten (10) days shatf\e~lowao»tor non-payment of premium . (B). Cont actua Liability Exclusion Deleted: This insurance shal_l include co~tractual liabilit_ c:,PPlic~Ji>~ t 9=,this eig_reement. The policy must "pay on behalf of' the insured and include a prov1s1!:ifu.e • al:511shrl'litfie insurer's duty to defend. (A) Cancellation: Required insurance policies shall not be

3.~. 2.~or·e 'Compensation:
canceled or the coverag • educ ~ ntil a thirty (30) day written notice of cancellation has been served upon the City excep~ n ~O) days shall be allowed for non-payment of premium.

3.2.12.6 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.2.12. 7 Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
55452.01 100\31193624.5
6-21-22 I 4L-42

3.2.12.8 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention greater than $5,000 must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

3.2.12.9 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended sh,al,IA e filed with the City. If such coverage is cancelled or reduced and not replaced immedia~ ;o as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after. r:eceipt of written notice of such cancellation or reduction of coverage, file with the City ev~ nc~ @l insurance showing that the required insurance has been reinstated or has been prov.id:ed throug~Q_other insurance company or companies. "\;)

3.2.12.10 Failure to Maintain ~o4 ge. In the event any policy of insurance required under this Agreement does not com pi with these specifications or is canceled and not replaced immediately so as to avoi\ a 3~~n the required coverage, City has the right but not the duty to obtain the insurance it dee~ s n~~s.a~ and any premium paid by City will be promptly reimbursed by Consultant or City wil '1Yitn"1ola"amounts sufficient to pay premium from Consultant payments. In the alt~ rnafve, ).ty mw (cancel this Agreement effective upon notice.

3.2.12.1 cceptal9ility ot\ nsurers. Each such policy shall be from a company or companies with a c r-tr.ilv'~Best'~ rating of no less than A- VII and authorized to transact business of ins~,0~11.;lie State of California, or otherwise allowed to place insurance through surplus line b .o ·ers uncfe~ appl'eable provisions of the California Insurance Code or any federal law.

3. . 2 12 EA'forcement of Agreement Provisions (non estoppel).

Consultant acknowledges a @'fees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.

3.2.12.13 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Appendix are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.

3.2.12.14 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant's subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and 55452.01100131193624.5
6-21-22 I 4L-43
volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant's compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
55452.01100\31193624.5
6-21-22 I 4L-44
EXHIBIT "D"

COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Los Angeles-Long Beach-Anaheim, CA. 55452.01100\31193624.5
6-2 1-22 I 4L-45

WORKER'S COMPENSATION INSURANCE CERTIFICATION

WORKERS' COMPENSATION DECLARATION
I hereby affirm under penalty of perjury one of the following declarations:
(ONE OF THE BOXES BELOW MUST BE CHECKED)
r
I
I have and will maintain a certificate of consent from the California Labor Commission to self-insure for workers' compensation, as provided for by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract.

I have and will maintain workers' compensation insura~ as required by Section 3700 of the Labor Code, for the performance of th ~~~ to be performed under this contract. My workers' compensation insurance c" er a~t olicy number are:

Carrier / . ~ Policy Number __________ ~ ~ -------
! I certify that, in the performance of ~ •rl< o~ His Agreement, I shall not employ any person in any manner so as to ~qflje~ bject to the workers' compensation laws of California, and I hereby,,,~ e to initefnnify, defend, and hold harmless the City of San ~leme~te_ ~~d all ~Ysotri}~ ls, _ell\pJoyees, an~ ~gents from and again_st any and all claims, hab1ht1es, a@Josses felat1og t0 personal mJury or death, economic losses, and property damage ~rout ormltailure to provide such worker's compensation insurance. I fucthe a@ ee tl\at_ if I should become subject to the workers' compensati~ fl ~ visio , o(S~ ion 3700 of the Labor Code, I shall forthwith comply with those ~ 10i isions.
'
WARNING: FAILURE O · CURE WORKERS' COMPENSATION

COVERAGE IS UNLA ' L, AND SHALL SUBJECT AN EMPLOYER TO

CRIMINAL PENAL TIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES.
55452.01100\31193624.5
6-21-22 I 4L-46
Dated: _______ _ , 20_ --
consultant
By:

Title
Address
55452.01100\31193624.5
6-21-22 / 4L-47
Department:

Prepared By:

Subject:

Utilities

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: June 21 , 2022
David Rebensdorf, Utilities Director 9~
Agenda Item 4-m
Approvals:

City Manager ~) !/) '
Dept. Head p(?_
Attorney CJ
Finance--;t::~
ORANGE COUNTY WASTE DISPOSAL AGREEMENT (WDA) LETTER OF INTENT TO RENEW.

Fiscal Impact: None at this time.

Summary: Request for authorization to submit a letter of intent to renew the City's WDA between the City and County of Orange for disposal of materials at County landfills.

Background: In 1997, the County and Cities within Orange County entered into WDA's to direct their solid waste to the County disposal system at a fixed rate (per ton). In 2009, the San Clemente City Council approved a new WDA with the County of Orange commencing July 1, 2010 and ending June 30, 2020 in which the City agreed to continue depositing its solid waste into the County's landfill system in return for low, stable disposal rates for a ten year term. The 2009 Agreement also included a June 30, 2016 expiration date for the importation of solid waste from outside of the County of Orange.

Discussion:

Due to lower than projected waste disposal revenue caused by recycling of materials at other facilities, 34 cities within Orange County including San Clemente negotiated an Amendment to the WDA that commenced on June 30, 2016. The Amended WDA was negotiated by a committee of City Managers representing Orange County cities and the County. The Amended WDA included: extension of the Agreement thru June 30, 2025, continued allowance for out of county disposal at County landfills utilizing Ortega Highway for Prima Deshecha Landfill access and cost sharing out of county revenue between Orange County cities and the County.

While the WDA with the County of Orange expires on June 30, 2025, Section 6.1 (B) Option to Renew within the Agreement allows for renewal subject to mutual agreement of the parties, on or before June 30, 2023. The term is for an additional ten years with the same terms and conditions, but, based on the January 11 , 2022 letter from the County (Attachment 1 ), new or amended WDA's will be subject to new terms to reflect compliance under Senate Bill 1383 for recycling and future legislation. To begin the renewal process, cities are required to provide written notice to renew the WDA on or before June 30, 2022 to begin formal discussions and negociations. Given limited options for waste disposal and the proximity of the City to Prima Deshecha Landfill, it is in the City's best interest to provide written notice to the County to renew the WDA.

The continued use of County facilities will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and sound environmental management. The City and cities will have Utilities Agenda Report
6-21-22 / 4M-1
Agenda Report
Recommended

until June 30, 2023 to renew the Agreement which may include new terms to reflect compliance under SB 1383 and future legislation.

Action: STAFF RECOMMENDS THAT the City Council:

1. Authorize the City Manager to provide written notice to the County of Orange with its intent to renew the Waste Disposal Agreement (WDA) between the City and County of Orange by June 30, 2022 to initiate formal discussions and negotiations for renewal by June 30, 2023.

Attachments: 1. Letter from County of Orange dated January 11 , 2022.

2. 2016 Waste Disposal Agreement Amendment.

3. 2009 Waste Disposal Agreement.

Notification: None.
6-21-22 I 4M-2
• .::OUNTY Of ORANGt:;
January 11, 2022

CITY OF SAN CLEMENTE
Mr. Erik Sund
City Manager
910 Calle Negocio
San Clemente, CA, 92673
Subject: Upcoming Waste Disposal Agreement (WDA) Renewal Dear Mr. Sund,
Attachment 1
Thoma, D. Koutroulls, Director
601 N Ross Srreec. 5"' Floor
Sane Ana, CA 9270 I
www.oclandfills.com
Telephone: (714) 834-4000
Fax: (7141 834-4183
As you are aware, the Initial Term of the Waste Disposal Agreement (WDA) you entered with Orange County will be ending on June 30, 2025. Per section 6.1 (B) Option to Renew, your city is required to provide written notice to the County of your intent to renew the WDA on or before June 30, 2022. Your City's written notice of its interest in renewing the WDA will be used to initiate the formal discussions and negotiations for renewal of the WDA beyond June 30, 2025.

While the language in the WDA states that the Renewal Term will be on the "same terms and conditions" as the existing WDA, please be advised that it is OCWR's intent to include new terms in any new or amended WDA to reflect compliance under SB 1383 and future legislation.

Please mail your responses to:

Orange County Waste & Recycle
Attn: Jo Anne Taylor
601 N. Ross Street, 5di Floor
Santa Ana, CA 92701
I look forward to your city's response. Wishing you a Healthy and Happy New Year.

Sincerely,
t
Tom Koutroulis
6-21 -22 I 4M-3
- - Attachment 2

AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between

THE COUNTY OF ORANGE, CALIFORNIA
and the

CITY OF SAN CLEMENTE
County Amendment Authorization Date: City Amendment Authorization Date: ✓ _ ____ , 2016
County Notice Address:

Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
2015 Amendment to Waste Disposal Agr.:ement
)i1iJb.JLJ,20l6
City Notice Address
City Manager
City of San Clemente
I 00 Avenida Presidio
San Clemente, CA 92672
6-21 -22 I 4M-4
(
- - Al'1ENDMENT TO WASTE DISPOSAL AGREEMENT
THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the "County" ), and the City designated on the cover page of this Amendment, a general law or charter city and political subdivision of the State of Californ ia (the "City").

RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.

The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste · Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").

The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts located in the County (the "Participating Cities"), pursuant to which the County agreed to provide disposal capacity for waste generated in or under the control of the Participating Cities, and the Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the tenns and conditions of, the Original Waste Disposal Agreements.

The City has detennined that the execution of this Amendment by the City is in the best interest of the City and will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and sound environmental management.

The County has detennined that the execution by the County of this Amendment will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.

Official action approving this Amendment and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof.

Official action approving this Amendment and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.

It is, therefore, agreed as follows:
20 l 5 Amendment to Waste Disposal Agreement
6-21-22 / 4M-5
- Section 1. Amendment to Original Waste Disposal Agreement. (a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and replaced in their entirety, as set forth below:
;'(C) Receipt of lmported Acceptable Waste on a Contract Basis. Throughout the Term hereof, the County shall have the right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery oflmported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Tenn thereof." "(E) Application and Use of Revenues From Other Users. (I) Throughout the tenn hereof, all revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System (including amounts received by the County as a result of the failure of contract counterparties to deliver minimum required amounts of Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net Import Revenues shall be used for the payment of bankruptcy related obligations until payment in full of such bankruptcy related obi igations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full cif such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment will occur by the end of Fiscal Year 2017-l 8. (2) Until the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(l ). For any period after the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as follows:
(i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton oflmported Acceptable Waste (excluding any newly established per-ton fees or increases to existing perton fees with respect to Imported Acceptable Waste payable to the · State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of $17.57 per ton;
(ii) in Fiscal Year 20 18-19, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported 2015 Amendment to Waste Disposal Agreement
6-21-22 I 4M-6
- Acceptable Waste (excluding any newly established per-ton fees or increases to existing perton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of $18.0 I per ton;
(iii) in Fiscal Year 2019-20, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported Acceptable Waste (excluding any newly established per-ton fees or increases to existing perton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of $ 18.46 per ton; and
(iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by the County from the disposal ofrmported Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located).
(3) After the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full (i) 50% of any Net Import Revenues (as calculated pursuant to Section 3.6(E)(2)) shall be paid to the County General Fund; and (ii) 50% of such Net Import Revenues shall be paid to the Participating Cities (and to the County, with respect to the unincorporated area) listed in Appendix 5 for use for any purpose by the Participating City, including but not limited to state mandated solid waste programs. Payments of such amounts to the County General Fund and the Participating Cities shall be made by the County within 90 days after the end of each fiscal year. The portion of Net Import Revenues specified above payable to the Participating Cities shall be apportioned in the percentages set forth in Appendix 5. (4) The percentages set forth in Appendix 5 with respect to each Participating City will be adjusted at the end of Fiscal Year 20 19-20 to reflect the percentage of actual deliveries of Acceptable Waste fi'om each Participating City as compared to the total amount of actual deliveries from all of the Participating Cities during Fiscal Years 2017- I 8, 20 18-19, and 20 I 9-

20. The County shall notify each Participating City of the revised percentages in Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will be used for the allocation of Net Import Revenues generated during Fiscal Year 2020-21 and thereafter. (b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately following Section 4.2(A)(y)) as follows:
"(z) decrease the amount of Net Import Revenues otherwise payable to the County General Fund and the Participating Cities pursuant to Section 3.6(£)(2) and Section 3.6(E)(3) and use the amount of such decrease to pay costs of the Disposal System." (c) Section 6.1 (A) and Section 6.1 (B) of the Original Waste Disposal Agreement are deleted and replaced in their entirety with the following:
2015 Amendmem 10 \\/aste Disposal Agreement
6-21-22 I 4M-7
- "SECTION 6.1 EFFECTIVE DA TE AND TERM.
(A) Initial Tenn. This Agreement shall continue in full force and effect until June 30, 2025, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such tennination. (B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2023, for an additional term of ten years (the "Renewal Term") on the same tem1s and conditions as are applicable during the Initial Tern, hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30, 2023, the Agreement shall expire on June 30, 2025."
(d) The first sentence of Section 6.1 (C) of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the following:
"In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1 (B), the parties shall, on or before June 30, 2023, negotiate an applicable change in the Contract Rate for such renewal term."
(e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the form attached hereto.
(f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in the form attached hereto.
(g) All other tenns and conditions of the Original Waste Disposal Agreement shall remain in full force and effect.

Section 2. Initial Payment. As consideration for the execution of this Amendment by all of the Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate Amendment Payment shall be $5,400,000, and shall be distributed to the individual Participating Cities (including the City) in the percentages set forth in Appendix 5 by September 30, 2016.

Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become effective unless and until the Amendment has been executed by the County and all of the Participating Cities. The date on which the County and all of the Participating Cities have executed the Amendment shall be the "Amendment Effective Date." The Cow,ty shall give written notice of the Amendment Effective Date to the City. In the event that the Amendment Effective Date does not occur by June 30, 2016, this Amendment shall be automatically tenninated and the County shall have no obligation to make the Amendment Payment. 20 I 5 Amendment to Waste Di~pusal Agreement
6-21-22 I 4M-8
- Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the parties to this Amendment represent and warrant that it is a political subdivision of the State of California validly existing under the Constitution and laws of the State and (ii) it has duly authorized the execution and delivery of this Amendment, and has duly executed and delivered the Amendment.

All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically changed by this Amendment, shall remain in full force and effect.

IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written.

COUNTY OF ORANGE
Date _4--1--1- ( U---1-/-----=- f (p _ _
Date_....,_]_· 2«:...J_/--- ---'-"' /(:;"-----
C" ' anager
• y of San Clemente
Date 3 -?-/ -{t
APPROVED AS TO FORM:

COUNTY COUNSEL

ORANGE COUNTY, CALIFORNIA
By~~==--
Date ___________ _
20 15 A mendment to Waste Disposal Agreement
6-21-22 I 4M-9
- - APPENDIX2
County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2(b)
Fiscal Year Tonnage Cumulative
FY 2015-16 2,724,250 2,724,250
FY 2016-17 2,681,153 5,405,403
FY 2017-18 2,638,746 8,044,149
FY 2018-19 2,597,017 10,641,166
FY 2019-20 2,558,522 13,199,688
FY 2020-21 2,520,605 15,720,293
FY 2021-22 2,483,256 18,203,549
FY 2022-23 2,483,256 20,686,805
FY 2023-24 2,483,256 23,170,061
FY 2024-25 2,483,256 25,653,317
20 15 Amendment to Wast~ Disposal Agreement
6-21-22 / 4M-10

APPENDIXS
PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6
City Allocation Percentage for Allocation of
Pur~oses of Section 3.6 Initial Payment
Anaheim 13.1 8% $711,509
Aliso Viejo 0.67 36,416
Buena Park 2.34 126,275
Brea 2.28 123,085
Costa Mesa 2.18 117,936
Costa Mesa Sanitary District 1.48 79,976
Cypress 2.56 138,115
Dana Point 0.99 53,278
Fullerton 4.10 221,271
Fountain Valley 1.76 95,217
Garden Grove/
GG Sanitary District 7.17 387,197
Huntington Beach 6.13 330,807
Irvine 8.22 444,036
Laguna Beach 1.14 61 ,796
Laguna Hills 0.74 40,098
Laguna Niguel 1.36 73,341
Laguna Woods 0.41 22,274
La Habra 1.69 91,431
Lake Forest 2.45 132,214
La Palma 0.32 17,325
Los Alamitos 0.58 31,362
Mission Viejo 2.42 130,902
Newport Beach 3.68 198,946
Orange 4.90 264,468
Placentia 1.58 85,116
Rancho Santa Margarita 1.11 60,009
Santa Ana 10.60 572,184
San Clemente 1.40 75,728
San Juan Capistrano 1.23 66,420
Seal Beach 0.82 44,292
Stanton 1.62 87,287
Tustin 1.42 76,648
Villa Park 0.21 l l ,08 l
Midway City Sanitary
District (Westminster) 2.13 114,893
Yorba Linda 1.78 96,344
County Unincorporated 3.35 180,723
Totals 100% $5,400,000
2015 Amendment lo Waste Disposal Agreement
6-21 -22 / 4M-11
Attachment 3

SCANNED

WASTE DISPOSAL AGREEMENT
Between

THE COUNTY OF ORANGE, CALIFORNIA
County Authorization •ate:

March 24, 2009
County Notice Atdress:

Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
Execution copy
and
the

CITY OF SAN CLEMENTE
Dated J 0 \ i 2':), 2009
City Authorizati•n Date:

M:iy 21, 2009
City Notice Address
George Scarboreugh, City r,fanater
City of San Clemente
I 00 A venida Presidio
San Clemente, CA 926 72
6-21-22 I 4M-12
(
Section I .I
Section 1.2
Section 2.1
Section 2.2

TABLE OF CONTENTS
ART[CLE I
DEF[NITIONS AND INTERPRETAT[ON
DEFIN!TIONS .................................................................................................................................. 2 INTERPRETATION ..................................................................................................................... .... ?

ARTICLE II

REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF THE CITY ..................................... . ............ .... 8 REPRESENTATIONS AND WARRANTIES OF THE COUNTY ............................................. .... 9 ARTICLE Ill

DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1
Section 3.2
Section 3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 5.1
~ection 5.2
Section 5.3
Section 5.4
Section 5.5
Section 6.1
Section 6.2
Ext:L:ution Copy
DELIVERY OF WASTE ............................... : ..................................... ................. ..... .................... 9 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ..................................................... I I COUNTY RIGHT TO REFUSE WASTE .......... .......................................................................... 12 UNINCORPORATED AREA ACCEPTABLE WASTE ............................................................... 13 MISCELLANEOUS OPERATIONAL MATTERS ..................................................................... 14 OTHER USERS Of THE DISPOSAL SYSTEM . .................................. ....................................... 14 COUNTY PROVISION OF WASTE DIVERSlON SERYICES .................................................. 15

ARTICLE IV

CONTRACT RATE
CHARGING AND SECURING PAYMENT OF CONTRACT RATE ........ ............................... 15 CONTRACT RA TE ......................................................................................................... .. ............. IS RESPONSIB[LITY FOR PAYMENT OF THE CONTRACT RATE . . .. ............. ...................... 21 BILLING OF THE CONTRACT RATE ........................................................................................ 2 1 RESTRICTED RESERVES ....................................................... : .......................................... ......... 21 AUDITED FINANCIAL STATEMENTS ...................................................................................... 22 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION ........................................... 22

ARTICLE V

BREACH, ENFORCEMENT AND TERMINATION
BREACH ........................................................................................................................................ 23 CITY CONVENIENCE TERMINA TfON ..................................................................................... 23 TER};11NATION ............................................................................................................... .............. 23 NO WAIVERS ....................... ............................ ............................................................................. 24 FORUM FOR DISPUTE RESOLUTION .............................................. ....................................... 24 ART[CLE VI
TERM
EFFECT/VE DA TE ANO TERM . .......................................................................................... 24 COMMENCEMENT DA TE .......................................................................................................... 25 6-21-22 I 4M-13
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
Section 7.7
Section 7.8
Section 7.9
Section 7. 10
Section 7. 11
Section 7.12
Section 7 I J
Section 7.14
Section 7.15
Section 7.16
APPENDIX 1

ARTICLE VII

GENERAL PROVISIONS
OPERATION AND MAfNTENANCE OF Tl-fE DISPOSAL SYSTEM ........... ........................... 26 UNCONTROLLABLE CIRCUMSTANCES GENERALLY . ...... .................................... .......... . 26 INDEMNIFlCATION ..................................................................................................................... 27 RELATIONSHIP OF THE PARTTES ........................................................................................... 27 LIMITED RECOURSE . ............................................................................................................... .. 27 PRE-EXISTING RJGHTS AND LIABIUTIES ............................................................................. 27 NO VESTED IUGHTS .................................................................................................................. 28 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ......................... 28 NO CONSEQUENTIAL OR PUNlTIVE DAMAGES ................................................................ . 28 AMENDMENTS .... ....................................................................... : ............................................... 28 NOTICE OF LJTIGATJON ................ ................................................... ......................................... 28 FURTHER ASSURANCES ... ...................................................................................................... 28 ASSIGNMENT OF AGREEMENT ............................................................................................... 28 INTEREST ON OVERDUE OBLIGA TJONS .............................................................................. 28 BINDING EFFECT .................................................................. ...................................................... 28 NOTICES ...................... ..................................................... ............................................................. 28

ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS.

APPENDIX 3

CUMULATIVE CAPITAL COSTS
APPENDIX 4

FORM OF HAULER ACKNOWLEDGEMENT
II
Execution Copy
6-2 1-22 I 4M-14

WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL, AGREEMENT is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City designated on the cover page of this Agreement, a general law or charter city and political subdivision of the State of California (the "City").

REClTAL,S
The County owns, n1anages and operates a sanitary landfill system for the dispusal uf municipal solid waste generated by the cities and the unincorporated area with in the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.

The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfifl disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division JO of the California Public Resources Code) (the "Act").

The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of municipal solid waste generated within the City.

A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System. ln 1997, the City and the County entered in a waste disposal agreement (the "Original WDA''), pursuant to which the County agreed to provide disposal capacity for waste generntell in the City, and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original WDA.

The Original WDA, as amended, will expire by its terms on June 30, 20 I 0, unless the City and the County agree to renew the Original WDA.

The City and the County desire to enter into this agreement to extend, amend and restate the Original WDA, on the tenns and conditions set forth herein. The County and City acknowledge that the Original WDA shall remain in full force and effect until the Commencement Date.

The City has determined that the execution of this Agreement by the City wilt serve the public health, safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long-tem1 disposal service, and the continuatio~ of sound environmental management. • The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a more stable, predictable and reliablt: supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.

Official action approving this Agreement and determining ii to he in the public interest a11d authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof.

Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.

It is, therefore, agreed as follows:

Execution Copy
6-21-22 I 4M-15
SECTION 11
set forth below.

ARTICLE I

DEFINITIONS AND INTERPRETATION
DEFINITIONS. As used in this Agreement, the following terms shall have the meanings "Acceptable Waste" means all garbage, refuse, rubbish and other materials· and substances discarded or rejected as being spent, useless, worthless or in excess to tbe owners at the time of such discard or rejection and which are normal ly disposed of by or collected from residential (single family and multi-family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class Ill landfills under Applicable Law.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the Californ ia Public Resources Code), as amended, supplemented, superseded and replaced from time to time. "Agreement" means this Waste Disposal Agreement between the County and the City as the same may be amended or modified from time to time in accordance herewith. "Appendix" means an appendix to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof
"Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, C£QA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any Governmental Body having jurisdiction, applicable from time to time. to the siting, design, pennitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or mlltler contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and building codes). "Board" means the Californ ia Integrated Waste Management Board, "Capital Costs'' means all costs of the Disposal System that are classified as capital costs for purposes of the budget of the Department in accordance with procedures established by the County of Orange AuditorController in compliance with the California State Controller's Manual, including but not limited to all of the categories of costs of the Disposal System reported as "Buildings and Improvements, and Infrastructure" (Object Code 4200) or "Equipment" (Object Code 4000) in the County of Orange - Chart of Accounts, or any successor accounting or reporting system utilized by the County.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 el seq. as amended or superseded, and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A.-Section 960 I et seq., as amended or superseded, and the regulations promulgated thereunder. "Change in Law" means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance oftbe Disposal System or other matters to which Applicable Law applies:
( l) the enactment, adoption, promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than Applicable Law enacted by the County);
(2) the order or judgment of any Governmental Body (other than the County), on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or 2 Execution Copy
6-21-22 / 4M-16
omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or
(3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay, ,suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of wi llfu l or negligent action, error or omission or" lack of reasonable diligence of the County or of the City, whichever is asse11ing the occurrence of a Change in Law; provided, however that the contesting in good faith or tl)e fai lure in good faith to contest any such denial, delay, suspension, termination, in terruprion, imposition or failure shall not be construed as such a willful or negligeni action, error or omission or lack of reasonable diligence.

A "Change in Law" shall include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to fac ilities comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal, iransfer, recycling, processing or other waste related activities. "City" means, as applicable, the city or Sanitary District designated on the cover page of this Agreement and pa11y to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographicnl limits of the City, ·and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3. I (C) hereof).
"Commencement Date" means the date on which the obligations of the parties hereto commence, e~tablished as provided in Section 6.2(B) hereof.
"Contract Date" means the first date on which this Agreement has been executed by both parties hereto. "Contract Rate" has the meaning specified in Section 4.2 hereof. "Contract Year" means the fiscal year commencing on July I in any year and ending on June 30 of the following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposal location therefor and which is:
(I) Non-Recycled City Acceptable Waste;
(2) not generated from the operations of the Governmental Bodies which, under Applicable Law, have the independent power to arrange for the disposal of the waste they generate; and (J) collected and h~uled by Franchise Haulers.
"County" means the County of Orange, a political subdivision of the State of California and party to this Agreement.
"County Plan" means the integrated waste management plan ofrhe County approved by the Board pursuant to the Act as in effect from time to time.
3 Execution Copy
6-21-22 I 4M-17
"County Acceptable Waste" me~ns Acceptable Waste generated in the County. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County-wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof. "Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2 hereto with. respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County, as appropriate under Applicable Law. "Environmental Fund" means the fund or funds held by the County to pay unanticipated costs of environmental mitigation, remediation or liabili ty.
"franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services within the City pu rsuant to, or under authority granted by, a permit, contract, franchise or other agreement with the City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service. • "Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof acting within the scope of his or her authority.
"Hazardous Substance" has the meani'ng given such term in CERCLA, the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder. "Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in rnonality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste which is defined or regu lated as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (I) the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 260 I et seq.) and the regulations contained in 40 CFR Parts 76 1-766; (3) the California Health and Safety Code, Section 25 117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40 141 (West 1996); and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or {b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in IO CFR Part 40.
4 Execution Copy
6-21 ~22 I 4M-18
"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "Independent Haulers" means those waste collection/hauler companies primarily engaged as a principal husiness in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated lo de liver County Acceptable Waste to the Disposal System pursuant to a franchise, contract, permit or other authorization with a city in the County.
"Initial Tenn" has the meaning specified in Section 6.1 (A) hereof. "Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Disposal System or the perfo rmance of any obligation under this Agreement or the matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitrntion, administrative proceeding. and other legal or equitable proceeding having a bearing upon this Agreement. "Loss-and-Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs. "Net Import Revenues" has the meaning ascribed thereto in Section J.6(E). "Non-Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City Ac~cptable Waste.
"Overdue Rate" means the maximum rate of interest permilti,u by the laws of the State, ifupplicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower.
"Participating City" means any city or Sanitary District executi ng a Disposal Agreement in accordance with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof. "Plan of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by the United Slales Bankruptcy Court Central District of California in that Conformed Order Confirming Modified • Second Amended Plan of Adjustment, filed May 17, 1996.
"Posted Disposal Rate" means the per ton ripping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal· service at the Contract Rate pursuant to this Agreement.
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(I) Of a nature that they must be I isted as hazardous in State statutes and regulations:
(2) Toxic/ignitable/corrosive/reactive; and
(3) Carcinogen idmutagenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.

Execution Copy
6-21-22 / 4M-19
"Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from Acceptable Waste by the generator thereof or by processing and which is "recycled" within the meaning of Section 40180 of the Public Resources Code.
"Renewal Term" has the meaning specified in Subsection 6.1 (B) hereof. "Residue" means any material remaining from the processing, by any means and to any extent, of City Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing). "Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.A. Section 690 I et seq., as amended and superseded. "Restricted Reserves" has the meaning specified in Section 4.5. "Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time.
"Self-Hauled Waste" means City Acceptable Waste collected and hauled by Self-Haulers. "Self-Hauler" means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. "Service Coordinator" means the service coordinator for either party designated pursuant to subsection 3.S(C} hereof.
"Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof.
"Source-Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at the source or location of generation. •
"Source-Separated Household Hazardous Waste Disposal System" means the collection centers, facilities, contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of Source-Separated Household Hazardous Waste.
"State" means the State of California.
"Term" shall mean the Term of this Agreement.
'Ton" means a '"short ton" of 2,000 pounds.
"Transfer Station" means any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility to which solid waste colkcted for the City is delivered for processing before disposal in the Disposal System. "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums and closed containers: liquid waste, oil. human wastes: machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers. marine 6 Execution Copy
6-21-22 I 4M-20
(
vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law.
"Uncontrollable Circumstance'' means any act, event or condition affecting the Disposal System, the County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be cun~trued as willful or negligent action or o lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:
(I) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war. blockade or insurrec tion, riot or civil disturbance; and (2) a Change in Law.
"Unincorporated Area" means those portions of the County which are not contained within the jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within the Unincorporated Area.
"Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3. l hereof.

SECTION 1.2 INTERPRETATION. In this Agreement, unless the context otherwise requires:
(A) References Hereto. The tenns "hereby", "hereor•, " herein". "hereunder" and any similar terms refer to this Agreement, and the term " hereafter" means after, and the term "heretofore" means before, the Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.
(C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals.
(D) Headings. 111e table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. (E) No Third Party Beneficiari es. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement. (F) Counterparts. This Agreement may be executed in any number of original counterparts.

All such counterparts shall constitute but one and the same Agreement.

Execution Copy
6-21-22 I 4M-21
(G) APplicable Law. This Agreemenl shall be governed by and conslnied in accordance with the Applicable Laws of the State of California.
(H) Severability . . If any clause, provision, subsection, Section or Article of this Agreement shall be niled invalid by any court of j urisdiction, then 1he parties shall: ( I ) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (I) above, apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (J) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (I) and (2) above to effect the intent of the parties in the inv~liu provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary purpose of the Agreement. (I) Integration: Preservation of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect 10 such transactions; provided, however, that this Agreement shall not supersede the following agreements:

I) MOU, dated March I 0, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29, I 994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out-of-County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August I, 1984, between the City of Irvine and the County of Orange rcg11rding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of out-of-County waste 10 the Frank R. Bowerman Landfill; 5) MOU, dated Septcmbet 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out-of-County waste to the Prima Deshecha Landfill;
6) MOU, dated July I, 1997, between the City of San Clemente[. the Orange County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and 7) Cooperative Agreement, dated August IS, 2006, between the County and the City of Irvine,
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operat ive provisions of this Agreement, the operntive provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES
SECTION 2.1
warrants that:

REPRESENTATIONS AND WARRANTIES OF Tl-IE CITY. The City represents and (A) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State.
8 Execution Copy
6-21-22 / 4M-22
(B) Due Authorization. The City has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the City.

SECTION 2.2 REPRESENTATIONS AND WARRANTIES Of- THE COUNTY. The County represents and warrants that:
(A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State.
(B) Due Authorization. The County has duly authorized the execution nnd delivery of this Agreement, and this Agreement has been duly executed and delivered by the County.

ARTICLE III

DELIVERY AND ACCEPTANCE OF WASTE

AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal Covenant. Subject to the occurrence of the Commencement Date and throughout the Tenn of this Agreement, the City shal I exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith.
(B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the right of the re~itlents, businesses or organizations in the City to practice source separation, 'recycling, composting or other materials recovery activities, or to restrict the righl of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article IV hereof) and shall not constitute a breach of this Agreement. (C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable Waste by materials recovery, composting,- recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if, when and to the extent that the storage or diversion thereof can be reasonahly deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. /n order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article JV, such owner and/or operator must execute a direct agreement with the County, acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the Contract Rate. Such procedures may include requiring Transfer Stations to certify, under penalty of perjury, the source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the Disposal System for the Contract Rati::, Tra11sfer Stations must deliver Controllable Waste in loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers.
9 Execution Copy
6-21-22 I 4M-23
(0) Power to Obligate Waste Disposal and Comply with this Agreemenl. On or before the Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the right without material restriction on and after the Commencement Date to direct the delivery of all Controllable Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer starion as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal System as the disposal location pursuant to such franchise, contract, lease or· other agreement. On and after the Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise, con<ract, lease, agreement or obliga1ion, issue any pennit, license or approval, or adopt any ordinance, resolution or law which is materially inconsislenl with the requirements of the Waste Disposal Covenant, and (b) shall maintain non-exclusive or exclusive franchises or ocher co11tractual arrangements over any City Acceptable Wasce which, as of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City agrees that the· County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights. (E) Waste Flow Enforcement. (I) The City, in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficienrto assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall consisr of aniending City franchises, permits or authorizations wi1l1 all franchise Hault:rs, to the extent required by this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:
(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant, (ii) providing for and taking appropriate enforcement act ion under any such· franchise, license, or permit, such as but not limited to the suspen.sion, revocation and tennination of collection rights anrl privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers and (iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification, under the penalty <:Jf perjury, of che amounts of Controllable Waste received and Residue remaining from processing at such Transfer Station. •
(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number oftons that were delivered during the same month(s) closest in time when there was 110 such breach, even if such month(s) closest in time was prior to the Term, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County tenninates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such tennination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of months that would have remained in the Term of the Agreement had the termination not occurred. The· parties recognize that if the City fai}s to meet its obligations hereunder. the County will suffer damages and that it is and will be impraccicable and extremely difficult to ascertain and determine the exact amount of such damages.

Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to tile range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the statements made above and the fact that each palty had ample opponunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (F) legal Challenges to. Franchise System. The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or ocherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a 10 Execution Cop\'
6-21-22 I 4M-24
Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The City shall bear the_ cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final detennination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result that actual waste deliveries to the Disposal System foll below the Cumulati ve Tonnage Targets, the County shall be entitled lo avail itselfofthe remedies described in Section 4.2(8) hereof. (G) Franchi~e Haulers. The City shall compile and provide the Department with the following information concerning all Franchise Haulers: name, address and phone number; identification number; area of collection and transponation; and franchise and permit terms. (H) Waste Information System. The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compli«nce with this Agreement. Such information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported, stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored, processed and marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be required by the Department in connection with this Agreement. The City agrees to include in any revised franchise, contract, license or permit or other authorization granted to Franchise Haulers an obligation or the Franchise Hauler to proviue to the County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from which such Controllable Waste-was collected, tonnage by type of load (residential, commercial, roll-off box), customer service levels, tonnage delivered by transfer station or material recovery fac ility utilized, and other related in formation.
(l) City Actions Affecting County. The City agrees to carry oul and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the County hereunder, and not to take or omit to take any action with respect to Controllable Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability 10· achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers. (J) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery 10 the Disposc1I System of Acceptable Waste originating from or gcncrnted outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.

The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. (K) Annexations and Restructuring. ll is the intention of the parties that this Agreement and the obligati;ms and rights of the City hereunder, including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any territory with respect to which the City assumes, after March 30, 2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the Ci1y under Applicable Law.

SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY. (A) Service Covenant. Commencing on the Commencement Date, the County shall provide or cause the provision ofthe service of(!) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, includin"g transfer stations, as the County may determine to use), (2) disposing in accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess 11 E~ccu1io11 Copy
6-21-22 I 4.M-25
of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.J(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, tO the maximum extent permitted under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R.. Bowerman Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreernen1.

The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection, including without limitation all planning, development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or under1aken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste management practice and environmental considerations. (B) Particular Facilities. The Department and the City shall consult and cooperate in dctem1ining whether and to what extent from time to time other landfills other than that primarily used by the City shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill with in the Disposal System, its effect on the County's ability to perform its obligations hereunder, and the County's best estimate of the probable duration . The Department shall confirm such advice in writing within 24 hours of the occurrence of any such inability. The County shall-use its best efforts to resume nonnal operation of the landfill primarily used by the City as soon as possible. In the event of a temporary material increase in average daily deliveries of Controllable Waste from the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County ~hall have the right to redirect the increased Controlhible Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries; provided, however, that in such circumstances the County shall utilize reas.onable efforts to first redirect waste which is not Controllable Waste.
(C) Compliance with Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and wiihout interruption for the Term of this Agreement. In the event that any Change in Law or other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or methods then being employed by the County, the County shall implement alternative or substitute means and methods to enable it 10 satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law.

SECTION 3.3 COUNTYR!GHTTO REFUSE WASTE.
(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of:
(I) Hazardous Waste;
(2) Controllable Waste delivered at hours other than those provided in Section 3.5 hereof;
(J) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; and
(5) Controllable Waste consisting primarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded. 12 Execution Copy
6-21-22 I 4M-26
(
..
(BJ Identification of Unacceptable Waste. The Department shall have the right (but nol the duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded.

If the Department detem,ines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall cause the Franchise Haulers 10 observe and comply with Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System.
(C) Hazardous Waste and Hazardous Substances. The pa11ies acknowledge that the Disposal System has not been designed or permitted, and is not intended 10 be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the Cicy shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous Waste. lf Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with Appli cable Law.
(E) Source-Separated Household Hazardous Waste. The County shall maintain, as part of the Disposal System, a Source-Separated Household Hazardous Waste Disposal System for the disposal of SourceSeparated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may impose additional fees and charges for services relating to Source-Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion, contraction or modification of the Source-Separated Household Hazardous Waste Disposal System and its services to the extent necessary to ensure the Disposal System's viability; provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source-Separated Household Hazardous Waste Disposal System ead1 year during the term ·of this Agreement in an amount at least equal to the amount of funds expended for the Source-Separated Household Hazardous Waste Di~posal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index.

SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non-recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non-recycled Acceptable Waste generated in the Unincorporated Arca) against any challenge thereto, legal or otherwise, by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theOt)'. The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area). 13 Execution Copy
6-21-22 I 4M-27
SECTION 3.5 MISCELLANEOUS OPERATIONAL MA TIERS.
(A) Operating Hours. The County shall keep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this Agreement (subject to Applicable Law}.
(B) Scales and Weighing. The Department shall operate and maintain permanent scales at the Disposal System. The Depa1tment shall weigh all vehicles delivering waste by or on behalfofthe City (whether or not the County accepts such waste) and prepare a daily weight record with regard to such delivery. (C) Service Coordinator. The County and the City each shall designate in writing thirty days prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator"). Either party may designate a successor or substitute Service Coordinator at any time by notice to the other party. (D) Review of Records. Each party may review the other party's books and records with respect to matters relevant to the performance by _either party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the parties to this Agreement were natural persons for purposes of the Public Records Act).

SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM.
(A) On or Before ( • 2009]. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities with respect to Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the County, including ot/1er cities in the County, Sanitary Districts, Transfer Stations and Independent Haulers, which waste disposal agreements shall have tenns and provisions substantially identical to the tenns and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorable t~an the terms and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity).
(B) After [ . 2009. After (120 DAYS AFTER BOARD APPROVAL), the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city, Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must provide that the party delivering waste shall pay a Posted Disposal Rate at least 10% higher than the Contract Rate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than LO% higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party. (C) Receipt of• Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the abiliry of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Term tht::rt::of. The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of (i) December JI, 2015 or (ii) t~e date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 E~ecution Copy
6-21-22 I 4M-28
Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day o f the fiscal year commencing July I, 20 15.
(D) Self Haulers. The City and the Cou nty acknowledge that Self-Haulers shall be entitled to deliver Self-Hauled Waste to the Disposal Syste111, on a non-contract basis, at che Posted Disposal Rate. Such SelfHaulers shall not be entitled lo dispose of Acceptable Waste for the Contract Rate. (E) Application and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall cun~titutc revenues of the Disposal System.

Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such l111 ported Acceptable Waste at the Disposal System) ("Net hnpon Revenues") from the disposal of Imported Acceptable Waste by the Disposal System, and such Ne1 Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan or Adjustment.

Cosls attribt1table to the disposal of lmpone.d Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contracl Rate at rates below those which would otherwise prevail in the absence of such importation.

SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A ) County-Wide Recycling Services. This Agreement does not require the County to provide for any source reduction, materials recovery, recycling, composting, or other waste diversion services by the County nor any payrm:nt therefor by the City, by Franchise Haulers or by rntepayers; provided, however, any County-Wide Recycling Services may be funded through the County OC Waste&. Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion. (B) Separate City-County Diversion Service Agreements. Nothing in this Agreement is intende<l tn limit the right of the County to enter into a separate agreement wilh the City or any other person to provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such program conducted by the County, whether in participation with the City, any other of the Participating Cities, other Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non-County entity, shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated ~y the Disposal Agreements and shall not be funded through the general revenues of the Disposal System.

ARTICLE rv

CONTRACT RA TE
SECTrON 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof. · In addition, the City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Contract Rates.

SECTION 4.2 CONTRACT RA TE.
(A) £stablishment of Contract Rate. The Contract Rate payable by each Franchise Hauler shall be (x) $22.00 per ton from the Commencement Date th rough June 30, 20 I 0, and (y) $29.95 per ton on and after July I, 2010, in both cases contingent on the delivery to the Disposal System ofan amount of Acceptable Waste at 15 Execution Copy
6-21-22 I 4M-29
least equal to the Cumulative Tonnage Targets identified in Appendix 2. a11d subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2:
{ij increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law; (ii) costs incurred by the County (in excess of available insurance proceeds and amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any Participating City pursuant to subsection 7.3; or
(iii} tonnage shortfalls to the extent pennitted by Sections 4.2(B); (iv) average annual inflation prior to July I, 20 IO in excess of the levels set forth i11 Section 4.2(H) and escalation pursuant to Section 4.2(F); (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Changes in Law; or (vi) Capital Costs in excess of the Capital Costs at any point in time during the tenn hereof exceeding the Cumulative Capital Costs set forth in Appendix 3.

Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above, the County shall utilize the following remedies in the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and (y) utilize Unrestricted Reserves to pay costs of the Disposal System.

The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (iv), (v) or (vi) above.

Any adjustments to the Contract Rate pennitted by this Section shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized.

The County agrees that it will evaluate the feasibility of long. term financing for significant capital costs where appropriate.
(Bl County Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall utilize the following options, in the following order of priority, in order to remedy any adverse effects of such tonnage shortfall:
(i) reduce the costs of operating the Disposal System to the extent practicable; (ii} utilize Restricted Reserves described in clause (iii} of Section 4.5 to pay costs of the Disposal System;
(iii) utilize Unrestricted Reserves to pay costs of the Disposal System; and (iv} adjust the Comract Rate.

In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written 16 Execution Copy
6-21 -22 I 4M-30
notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to establish reserves intended to re0ect tbe potential for lower than expected annual waste deliveries in subsequent years, and that any such reserves shall constitute "Restricted Reserves". (C) [RESERVED]
(D) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries to the Disposal System are 25% or more below delivery projections for such Contract Year with the result that the· County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section 4.2(8) prior to the end of sut.:h Cu111rac1 Year; provided, however, that if al the end of such Contract Year, the Cumulative Tonnage Target is actually met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities.

Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment.
(E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle malerials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the. reasonable incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board of Supervisors of the County makes a detennination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in order to pay the costs of the study, development, planning, construction and/or operation of such facility.

Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section

4.2(1).
(F) Escalation. The Contract Rate shall be adjusted each July I, beginning July 1,2011 . The change will be equal to the positive percentage change in the Consumer Price Index - All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUURO000SA0 ("CPI") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July I, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to as year I and year 2 respectively in the following example.

Fonnula to calculate percentage change in the Contract Rate:

Step I:
[
October Year 2 CPI ~ - October Year l CPl ] - I = % increase in Contract Rate Step 2: Current Contract Rate x {l +%increase in Contract Rate) "' Contract Rate as of July I Year 2 On each April I, commencitig April I, 2011, the County shall provide the City with notice of the adjustment to the Contract Rate to be effective the following July I. Such notice shall contain the calculation of the adjustment set forth above. The County will calculate the new Contract Rate each year.

In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No adjustment under this Section 4.2(F) will take place unti\ the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adj ustment pursuant to this Section 4.1 (F), which will b~ considered "year I" in calculating the change in tile Contract Rate. 17 E,ecucion Copy
6-21-22 I 4M-31
For example, if the CPI is measured as follows: October 2009 = 205, October 20 IO = 204, October 20 I I = 20 I, October 2012 = 208, then there would be no adjustment in July 201 1, or July 20 I 2, and an adjustment equal to the change from 205 to 208 would be implemented on July I, 20 13.

Adjustments pursuant to this Section 4.2(F) shall not requ ire compliance with the provisions of Section

4.2(1).
(G) Adjustment Resulting from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the State's Integrated Waste Management fee, which is currently $1.40 per ton). The adjus1ment shall be elJUal tu the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee, The County shall provide notice of any increase pursuant to this Section 4.2(0) as soon as practicable after becoming aware of the imposition of any fees described above. ' Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provi;ions of Section

4.2(I).
(H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(A)(iv) for adjustments prior to July I, 20 l I, the inflation shall be calculated as the change in the CPI between July of the year of calculation and July I, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPI for July for the year of calculation (calculated in accordance with the fom,ula below) and July 2008 exceeds the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance with the fol lowing fonnula:
(July CPI of calculation year/ CPI for July 2008)
Year of Calculation Ratio
Julv I, 2008 1.0000
Julv I, 2009 1.0356
Julv I, 2010 1.0723
In the event the CPI is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shal I be used for purposes of this Agreement. In the event of an adjustment to the Con\racl Rate pursuant to this section 4.2(H), such adjustment shall be applied to the Contract Rate effective until June 30, 20 I 0, and the Contract Rate effective July I, 20 I 0, Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section

4.2(1).
(I) Procedure for Rate Adjustments. In the event the County determines-that it is entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(8), it shall utilize the procedures described in this Section 4.2(1). The County shall be required to provide the City with at least 90 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which require the adjustment. The notice shall also specify the earliest date on which the County Board of Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of Supervisors, the County shall provide the City with a report which shall contain the following information: a description of the specific event(s) or circumstances which require the adjustment; a description (including cost estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System) required in order to remedy such event or circumstance; certification by the County that it has implemented the remedies described in Section 4.2(A) or (8) prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjustment to the Contract Rate (hereinafter the "County Report").

In thc event the City disputes the adjustment, it shall provide the County with a written description of the reason for the dispute at least IO days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the "City Report"). The City Report shall be provided to the Board of Supervisors for 18 Execution Copy
6-21-22 / 4M-32
(
consideration al such meeting in connection with the proposed rate adjustment. Al any time from and after the date that the County provides the City with the County Report, upon the request of either party ,,the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. 111 any such meeting, the County shall be represented by the Director of the Departmenl or his or her designee. In the event the Board of Supervisors approves all or a po11ion of the proposed rate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sent by the County regardless of whether or not the procedures in Section 4.2(1) are utilized, but subject to potential reimbursement pursuant to clause ( 11) of Section 4.2(J).
(J) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event that, within 30 days after the -effective date of any Contract Rate adjustment made pursuant to Section 4.2(1), Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 4.2(J). then the provisions of this Section 4.2(1) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J). (I) In order to pursue the expedited judicial determination described in this Section (the "Expedited Rate Determination"), the Participating Cities which have · made the e lection described in the paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action") in the Orange County Superior Court with in 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally serve on the County Cuunst:I buth the sun1111ons and complaint, and a stipulation and request for the entering of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set· forth in this Section 4.2(J) (such stipulation ·and request for order is hereinafter referred to as the "Expedited Rate Determination Stipulation"). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate Detem1ination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The City and the County mutually agree that the duty to execute the Expedited Rate Detennination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(1) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific performance. •
(4) Within three (3) days of the date of service by the County upon the Challenging Cities of the fully signed Expedited Rate Determination Stipulation. the County and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set forth in this Section 4.2(1). (5) Within ten (I 0) days of the date of service by the County upon the Challenging Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist of, and be limited to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate, including but not limited to the County Report and the City Report prepared by each or any of the Challenging Cities pursuant to Section 4.2(1 ), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Execu1i~n Copy
6-21-22 / 4M-33
Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange County Waste Commission lo adjust the Contract Rate pursuant to Section 4.2(A) or (B). The record shall also include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall be decided solely ori the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the court.
(6) Witl)in ten ( I 0) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition brief. The opposition brief shall 1101 c::xc;eec.J 15 pages in length. (7) • Within five (5) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall not exceed IO pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing which shall be conducted at the date set by the cou1t in the e:r parie hearing conducted pursuant to Section 4.2(J)(4), or such other date and time ordered by the court. If the court re.quests Lhe parties to prepare supplemental briefs in response to any question or issue raised by the court, the parties may do so. (9) The standard of review .for the Expedited Rate Oetennination shall be the::
preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement.
( 10) The court shall issue its written statement of decision and enter judgment within thirty (30) days of the date of the hearing in the Expedited Rate Determination. ( 11) If the court determines that any portion of the County's adjusted Contract Rate which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days of the date oflhe statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the coun does not sign the order contained in the Expedited Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, fi le with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities fi le such summary judgment motion and/or motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 4J7(c). The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (12). ( 13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the morion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not lo honor the parties' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Execution Copy
6-21-22 I 4M-34
Surerior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (13). In this regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the Recol'd, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury trial. to any reconsideration of the decision of the court, to a new trial after the court renders a decision. and to any appeal or review of the decision of the court.

SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE. (A) Payment by City. In the event and to the extent (I) the City uses municipal collection forces directly for the haulage of Controllable Waste to the Disposal System ur (2) the City uses non-municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other action as rrioy_ be necessary to provide for the timely payment of the Contract Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the levy and collection of general or special taxes, the imposition of henefit assessments, or the collection of user fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in accordance with Applicable Law to levy and impose all such taxes, assessme11ts, fees or charges, and will take all steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become delinquent, to the full extent permined by Applicable Law. To the extent provided in Section 7.5 hereof, the obligation of the City for such Contract Rate; shall be limited to a!llounts in the City's Solid Waste Enterprise Fund.

From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise. (B) Payment by f ranchise Haulers. With respect lo Controllable 'A'.aste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any sue~ failure, the County and the City ~hall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal proceedings to suspend, revoke or tem1inate the Franchise Hauler's franchise, permit or license rights. (C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billt::d amount and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection co or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal remedies.

SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill Contract Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the other provisions or this Agreement, the County shall have the right to modify or amend such manner of billing on reasonable notice to affected parties.

SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, "Restricted Reserves" means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Disposal System, or other arrangement. Such cash and ulher reserves are not required to be deposited in separate accounts or funds in order to constitute "Restricted Reserves" hereunder, and may be commingled with 21 Execution Copy
. 6-21-22 / 4M-35
Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System lo the extent required by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System; (iii) reserves established to protect the Disposal System against the adverse financial impact of potential dec reases in waste deliveries pursuant to Section 4.2(B); (iv) amounts reserved to pay the costs of capital improvements with respect to the Disposal System;
(v) amounts funded from revenues during the early years of the term of the Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of the Agreement;
(vi) amounts temporarily held by the County prior to payment to the State or other Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated Waste Management Board); •
(vii) reserves required to meer bond covenants pursuant to financing agreements for Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves identified in this Section;
(viii) security deposits from landfill deferred payment program users; (ix) amounts held by the County in the Environmental Fund (provided, however, that such amounts in the Environmental Fund will be made available and used by the County if required to pay costs relating to environmental remediation or other related costs); (x) AB939 surcharges;
(xi) amounts held by the County in the Corrective Action fund held pursuant to CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and (xii) an amount equal to three months of budgeted expenses for the Disposal System • for the current fiscal rear, representing working capital of the Disposal System.

SECTION 4.6 AUDITED FfNANCIAL STATEMENTS. The County shall annually, on or before January I each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year, accompanied by a certificate of an independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County 0C Waste Disposal Enterprise Fund as of the end of the Contract Year and revenue and expenses for the Contract Year.

SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall annually, on or before May I of each year, prepare or cause ro be prepared, an updated Ten-Year Financial Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements:
22 Execution Copy
6-21 -22 / 4M-36
I. County Acceptable Waste, in tons;

2. Imported Acceptable Waste, in tons;

3. Revenues and expenditures;

4. Cash fund balances, including all monies in the County Solid Waste Enterprise Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves, and all other fu nds of the System.

5. Projected l iabilities for closure and post closure ns well as reasonable reserves for other environmental costs.

The purpose of the Ten-Year Financial Projection is to keep the City fully informed about the future financial condition of the Disposal System. The County shall cause n copy of the Ten-Year Financial Projection to be delivered to !he City Manager of the City no later than May I of each year. Upon request, !he County shall make available to the Cities supporting infonnalion related to the ten-year financial projection

ARTICLE V

BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 BREACH. The parties agree that in the event either party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action al law or in equity (including actions for.injunctive relief, mandamus and specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement.

SECTrON 5.2 . CITY CONVENfENCE TERMINATION. The City shall have the right to terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Tenn hereof upon 90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this Section, the City shall pay the County R termination fee equal to the Contract Rate in effect at the time of such termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve months (or, if the City had been in breach of the Waste Disposal Covenant duri ng such prior months, such amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the number of years remaining in the Term of the Agreement.

SECTION 5.3 TERMINATION.
(A) By City. Except as expressly provided herein, the City shall have no right to terminate this Agreement for cause except in the event of !he repeated failure or refusal by the County substantially to perform any materi~l ubligatiuri umler this Agree,nent unless such failure or refusal is excused by an Unconcrollable Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless:
(I) The City has given prior written notice to the County stating that a specified fai lure or refusal to perform ex ist~ which will, unle5s corrected, constitute a material breach of this Agreement on the part of the County and which will, in its opinion, give the City the right to terminate th is Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The County has neither challenged in an appropriate forum (in accordance with Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from th e datt> of tl1e notice given pursuant to clause (I) of this subsection (but if the 23 bcculion Cop)'
6-21-22 I 4M-37
County shall have diligently taken steps to corTect such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach).
(B) By County. Except as expressly provided herein, the County shall have no right to tenninate th is Agreement for cause except in the event of the repeated failure or refusal by the City substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless:
l l) The County has given priur wrill~n notice to the City slating that a specified failure or refusal to perform exists which will , unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The City has neither challenged in an appropriate forum (in accordance with Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (I) of this subsection (but if the City shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of tennination for as long as the City is continuing to take such steps to correct such breach).

SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement (including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay by th~ Coun_ty or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy.

SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties thac all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction.

ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DA TE AND TERM.
(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June JO, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties. on or before June 30, 2018. for an additional tenn of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement by June 30, 2018, the Agreement shall expire on June 30, 2020. (C) Contract Rate During Renewal Term. In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6. 1 (B), the parties shall, on or before June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 Execution Copy
6-21-22 I 4M-38
(
Contract Rate to be applicable during any renewal period, in addition to the circumstances described m Section 4.2(A). the parties may take into consideration the following parameters, including but not limited to:
(i) actual cost of operations;
(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region; (v) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as reserves.
(D) Survjva!· Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections3.l(E)(2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.&, 7.9, and 7.10 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Tem1 of this Agreement, all other obligations of the parties shall tenninate.

SECTION 6.2 COMMENCEMENT L>A"ll::.
(A) Obligations of the Parties Prior to the Commencement Date. The parties acknowledge that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the participation threshold provided herein has been met and the other conditions to the occurrence of the Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City, each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect.
(8) Condition to the Commencement Date. The Commencement Date for the Agreement shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates attributed to such Cities in Appendix I). Unincorporated County is assumed to be a Participating City "ror the purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix I of this Agreement.
{C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of the condition to the Commencement Date, the County shall give written notice thereof to the cities which have theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the Commencement Date.
25 Execution Copy
6-21-22 I 4M-39
(D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated after the Commencement Date shall upon request be offered the opportunity by the County to become a Participating City. If any such City executes a Disposal Agreement and meets the applicable condition provided in subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be entitled to execute a \,1,,'aste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(8). (E) Failure of Condition. lfby ____ [120 DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to the Commencement Date specified in th is Section is not satisfied, either party hereto may. by notice in writing to the other party, terminate this Agreement. Neither party shall be liable tu th" other for the termination of this Agreement pursuant to this subsection, and each of the parties shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date.

Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions set forth therein.

ARTICLE VII

GENERAL PROVISIONS
SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department.

SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. (8) Notic~., Mitigation. The party experiencing an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days by a written description of ( 1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such pa11y 's obligations hen::under will be delayed, (3) the estimated amount, if any, by which the Contract Rate may.need to be adjusted as a result of such Unconlrullable Circumstance, (4) its esti111atcd impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might be taken by the County or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal System.

While the delay continues, the County or City shall give notice to the other party, before the first day of each succeeding month, updating the information previously submitted. (C). Impact on Contract Rate. If and to the extent that U11controllable Circumstances interfere with, delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior tu any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(8) hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the 26 Execution Copr
6-21-22 I 4M-40
Contrncl Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures, as applicable.

SECTION 7.3 INDEMNIFfCA TION. To the ex1en1 permitted by law, the County agrees that, it will protect, indemnify. defend and hold hannless the City from and against all Loss-and-Expense arising from the City's activity as an "arranger" (for purposes of and as such term is defined under CERCLA or comparable state statutes) of municipal solid waste disposal pursuant to this Agreement. In the even I the City shall determine thal because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County or the City provides kgal wunst:I. Any costs incurred by the County pursuant to this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled lo adjust the Contract Rate as provided in subsection 4.2(A) herein. The County shall not, however, be required to indemnify or defend the City from and against all. Loss-and-Expense arising fro1n any willful, knowing, illegal or negligent disposal of hazardous waste (other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and pem1itted to he disposed in Class Ill landfills under RCRA) which violates the County's landfiU permits or Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not create any obligation on the pa11 of the County to provide any indemnification or defense to any Franchise Hauler, whether franchised or not, or any lndependeM Hauler or Transfer Station, under any circumstances. The City • acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and shall, as a condition to this indemnity, coordinate fully with the County in the defense.

SECTION 7.4 RELATIONSHIP OF THE PARTfES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agenl or legal representative of the ocher party or to create any fiduciary relationship between the parties.

SECTION 7.5 LIMITED RECOURSE.
(A) To the City. Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund, no recourse sliall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Lossand-Expense of any nature arising from the performance or non-perfonnance of the City's obligations hereunder.

The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund. All amounts held in any City Solid Waste Enterprise fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the perfomiance of any obligation which may be due hereunder.
(B) To the County. No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the City hereunder, or the performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the perfon11ance or non-perfom1ance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitte.d and required thereby, and no such amounts shall constitute prope1ty of the City. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.

SECTION 7.6 PRE-EXISTrNG RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter.
27 Execu1ion Copy
6-21-22 / 4M-41
SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal System by reason ofzhis Agreement.

SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any liability incurTed by the City as a result of collecting Acceptnble Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing. authorizing or arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein.

SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the p~rformance or nonperformance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory.

SECTION 7. J"O AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modilicd, amended or waived except by written agreement duly authorized and executed by both parties.

SECTION 7. 11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or rhe County or any Legal Entitlement issued in connection herewith.

SECTION 7.12 FURTHER ASSURANCES. At a11y and all times the City and the County so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.

SECTION 7. 13 ASSIGNMENT OF AGREEMENT. (A) Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party, which may b_e withheld in the other party's sole discretion, Notwithstanding the foregoing, either party may assign this Agreement to another public entity, subj ect to the reasonable consent of the other party. In such circumstances the party not requesting the a~signmen t shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations ·of the assigning party.
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective date fo r such sale prior to the termination of this Agreement.

SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whe1her as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to tht: amount due, as accrued.

SECTION 7. 15 BIND! NG EFFECT. This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7 .13 "hereof.

SECTION 7. I 6 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party.
28 F,xec111ion Copy
6-21-22 / 4M-42
(
IN WITNESS WHEREOF. COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above wrinen.

Date -~=---'//f_7_-o_L<J __ _
Date _....,,~1~11~o~e_4""-#-,-·2~D-D~9-- -
APPROVED AS TO FORM:

COUNTY COUNSEL
C. .IF
29 Execution Copy

COUNTY OF ORANGE
Approved to Form:
/s{ Jeffrey ·M,Oderma.n aly Attorney
City of San Clemente
ATTEST: /I_____~
Joanne Baade, City Clerk
City of San Clemente
6-21-22 / 4M-43
.. .
faecu1ion Copy

APPENDIX I

ESTIMATED ANNUAL TONNAGE
(
6-21-22 I 4M-44
. •,
,.,

APPENDIX I
PERCENTAGE OF COUNTY ACCEPTABLE WASTE t\ TTRIBUT/\BLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b)
Jurisdiction Percentage of County
Accepta ble Waste
Anaheim 13.4%
Santa Ana 10.6%
Irvine 7.5%
Huntington Beach 6.0%
Orange 5.8%
Garden Grove 5. 1%
Fullerton 4.5%
Unincorporated Orange County en 4.3%
Costa Mesa 3.6%
Newoort Beach 3.0%
Lake Forest 2.6%
Buena Park 2.5%
Mission Viejo 2.3%
Westminster 2.3%
Yorba Linda 2.3%
Brea 2.1%
Tustin 2.0%
Cvoress 1.9%
La Habra 1.8%
San Clemente 1.7%
Fountain Valley 1.6%
Laeuna Niguel 1.6%
Placentia 1.6%
San Juan Capistrano 1.6%
Laguna Beach 1.4%
Dana Point 1.2%
Stanton 1. 1%
Rancho Santa Margarita 1.0%
Laeuna Hills 0.9%
Seal Be:ich 0.8%
Aliso Vieio 0.7%
Los Alamitos 0.5%
La Palma 0.3%
Laeuna Woods 0.2%
Villa Park 0.2%
Total 100%
(I) Unincorporated County 1s assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with Section 6.2(b) of this Agreement. (2) A Participating City will only be included for purposing of determining the Commencement Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii) e.xecution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating within such Participating City
Execu11on Copy
6-21 -22 I 4M-45
..;
Execution Copy
APPENDIX 2

CUMULATIVE TONNAGE TARGETS
6-21-22 I 4M-46
E,xeculion Copy
APPENDIX 2
Cumulative County Acceptable V,'~ste Tonnage Target to be Used for Purposes of Section 4.2 (8)
Fisclll Yellr Coun~)' Acceptable Wnste Cumulative Co1111ty Tonnage ;tcceptllble Waste To1111age
FY 2008-09
FY 2009-10
FY 20 10-11
FY 2011 -12
FY 2012-IJ
FY 2013-14
FY 2014-15
FY 2015-16
FY 2016-17
FY 2017-18
FY 2018-19
FY2019-20
3,170,387
3,092,806
3,185,590
3,344,870
J,445,216
3,514, 120
3,549,262
3,565,608
3,582,033
3,598,535
3,6 15,1 15
3,63 1,774
3,170,387

6.263,193
9,448,783
12,793,653
16,238,869
19,752,989
23,302,251
26,867,859
30,449,892
34,048,427
37,663,542
41,295,J 16
6-21-22 / 4M-47
Fiscal Year
(endi1111: June 30)
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
E~ccotion Copy
APPENDIX 3

CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4.2(A)vi
Annual Capital Costs Cumulative Capital Costs
$37,939,538 $37,939,538
$59,343,405 $97,282,943.
$ I 0,433,978 $ 107,7 16,921
$13,678,113 $121,395,034
$17,525,040 $ 138,920,074
$11,259,518 $ 150, 179,592
$37,682,758 $187,862,350
$5,068,800 $192,931, 150
$ I 0,662,265 $203,593,415
$29,397,698 $232,991 ,113
$8,263,795 $241,254,908
$45,103,805 $286,358,713
6-21 -22 I 4M-48
....

APPENOIX 4

FORM OF HAULER ACKNOWLEDGMENT
faecution Copy
6-21-22 I 4M-49

FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAU LER ACKNOWLEDGMENT, dated as of ____ , 2009 (the "Acknowledgment"), by and between the Ci1y of San Clemente (the "City") and CR&R Inc. (the "Franchise Hauler").

WITNESSETH
WHEREAS, the City -and the Franchise Hauler have heretofore entered into an agreement for "The Collection, Transportation, Recycling and Disposal of All Solid Waste and for Providing Temporary Bin/Rulloff • Services" dated as of August 6, 1997, including four subsequent amendments (the "Franchise"); and WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other au1horization (the "Authorization") which allows 1he Franchise Hauler to provide solid waste collection services within the City; and
WHEREAS, the Franchise provides for the collection and disposal of certain municipal solid waste as described 1herein ("Franchise Waste") generated within the City; and WHEREAS, Orange County lthe "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of ____ , 2009 (the "Disposal Agreement") determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal Sysrem"); am.I WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits IO the franchise Hau(er; WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment 10 assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement lo deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

I. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement.

Exccuuon Copy
6-21-22 I 4M-50
(

2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to rile Designated Disposal Facility in accordance with this Acknowledgment.

J. The City and the Franchise Hauler each hereby represent that this Acknowledgmer11 has been duly authorized by all necessary action of their respective governing bod ies.

4. The Franchise Hauler shall deliver or cause to be delivered oil Controllable Waste (inclllding all residue from the processing by any means, wherever conducted. of Controllable Waste), to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement.

5. The Franchise H~uler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such fac.il ity shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant.

6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement.

7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptabl~ Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations.

8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.

9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith.

JO. Th is Acknowledgment shall be in full force and effect and shall be legally binding upun tht: City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. 11 . The City and Hauler agree that the County shall be an express third party beneficiary of this Al:knowledgment, and shall be entitled lo independently enforce the obligations of the Franchise Halller hereunder

12. The Hauler agrees to assist the County in verify ing tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by j urisdiction, by load rype (residential, commercial. roll-off box). and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors.

Execution Copy
6-21-22 / 4M-51
IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of 3.:1.__ day of A9P.-i I, , 2009.

Execution Copy
CR&R, Inc.
(Franchise Hauler)
'
Signature~~ ~\-\r::=
Printed Name: )-;:.E:A,J A· R.\.\ ff~, t:)6~
Title: S,t.v\\),:1-e.. \,i U:- p J'l E: ~ I OE:.nl r
6-21-22 I 4M-52 /
Department:

Prep·ared By:

Subfect:

AGENDA REPORT
SAN CLEMENTE CITY COUNCIi!.. MEETING
Meeting Date: June 21 , 2022
Beaches, Parks & Recreation
Samantha WylIie, Beaches, Parks & Recreation Director
Agenda Item -4: N
Approvals:

City Manager 0' ___ J
Dept. Head ---
Attorney C,::f
Finance -Jt-,-
MURAL ON PIJBUC PROPERTY - NORTH BEA1CH CONCESSION/RESTROOM BUILDING Fisca1 Impact: Yes. If approved, Public Works would need to apply an anti-graffiti and UV sealant every two years at an estimated cost of $750 per occurrence.

Summary: Staff, the Beaches, Parks and Recreati:on Commission, and the Design Review Subcommittee recommend the City Council: approve a request to install a mural on the south side of the concession/restroom building located at North Beach proposed by San Clemente Sunrise Rotary and the San Clemente High School Interact Club.

Background: In 2017, the City Council approved the Artwork on Public Property procedure. This policy allows for individuals or organi1zations to apply to create and establish artwork on public property by going through a formal review process. This includes review b,y the Design Review Subcommittee and Beaches, Parks and Recreation Commission, ending with City Council approval1 and acceptance.

For many years, a mural was featured on the North Beach concession/restroom building depicting "Character Counts" messaging with a surf theme. This mural was designed and executed by the San Clemente Sunrise Rotary Club ("Rotary Club") and the San Clemente High Schoof Interact Club ("f nteract Club") in 2000-2001. See Exhibit 1 below. Due to the continued dilapidation of the North Beach concession building, in early 2017 the mural was removed to allow for critical repairs to be performed.

Exhibit A. Previous "Character
Counts Mural", installed 2000-01.

Beaches, Parks and Recreation Agenda Report
6-21-22 I 4N-1
'Agenda Report Page 2
In June 2022, the Beaches, Parks & Recreation Department received a public art application to re-establish the "Character Counts" mural at North Beach (Attachment 1 ). The mural request consists of a painted mural on the south wall of the North Beach concession building.

A public notice was posted on the proposed mural site on June 9, 2022. No comments from the public have been received at the time of report preparation.

The proposed mural was reviewed by the Beaches, Parks and Recreation Commission at its June 14, 2022 meeting and the Design Review Subcommittee at its June 15, 2022 meeting. Both groups recommended the City Council approve the proposed mural.

Discussion: The proposed mural seeks to replace the previous mural on the concession building.

The Rotary Club has been working with the Interact Club, SCHS Advanced Placement Art student Estella Olivares, and local professional artist, Josh Paskowitz, to prepare a new mural design that captures the essence of the previous mural while providing an update and modern appearance. The final installation of the mural will be completed by the students with support from the professional artist and members of the Rotary Club.

The applicant has submitted an in-concept design that will include youth surfers of varying ages holding surfboards that depict each of the pillars of the "Character Counts" program (Attachment 2). The final work product will be full-color utilizing similar color tones to the previous mural. Additionally, the mural will include the SCHS Triton logo, honoring the Interact Club's contribution, and the Rotary Club logo in the lower right corner, not to exceed 12" x 12", respectively.

The Rotary Club and the Interact Club have expressed an interest in beginning work on the mural before the July 4th holiday weekend to expedite the installation ahead of the peak summer season. The approved public art process dictates a public notice be posted on the mural site for 30 days. A public notice was posted on June 9, 2022, making a waiver of this requirement necessary to facilitate the applicant's timeline.

Staff recommends accommodating this request and can make all necessary site preparations within this timeframe.

Plan & Policy
Consistency: The project is consistent with related General Plan policies as shown in the table below.

Policy Project Consistency
UD-1.02 Design of Public Plazas and Consistent. The project proposes a Spaces. "We require public plazas and painted mural in a public space, spaces to be designed for safety, comfort, adding public art consistent with the convenience and universal accessibility. policy.

They should be well-defined by
surroundina buildinas, located near the
6-21-22 I 4N-2
Agenda Repo1t
Recommended
public street for good visibility and
convenience and incorporate amenities
such as seating, distinctive focal points,
public art, shade trees and/or eating and
entertainment facilities."

Action: STAFF, THE BEACHES, PARKS AND RECREATION COMMISSION, AND THE DESIGN REVIEW SUBCOMMITTEE RECOMMEND THAT the City Council
1) Waive the 30-day public notice posting requirement to facilitate an expedited mural installation process; and
2) Approve the "Character Counts" mural proposed by the San Clemente Sunrise Rotary and San Clemente High School Interact Club to be installed on the south wall of the North Beach concession and restroom building.

Attachments: 1. Application for Art on City-Owned Property

2. Proposed Conceptual Artwork
Notification: San Clemente Sunrise Rotary
6-21 -22 I 4N-3
ATTACHMENT l
City of San Clemente
Beaches, Parks and Recreation Department
100 N. Calle Seville, San Clemente, California 92672
Phone: (949) 361-8264 I Fax: (949) 361-8280

ART ON CITY-OWNED PROPERTY

PROCEDURE & APPLICATION
An important source of public art is that which is privately funded, but located in a public place. Usually, such works are commissioned by an indiVidual, a group of individuals, a non-profit or9anization or a business or corporationi. All interested parties must proceed through the following process.

SUBMITTAL OF PROPOSAL
All proposals for privately funded public art placed on City property must be submitted by using the Art on City-Owned Property Application. The form must be accompanied by drawings, models, photographs or any other graphic depiction that will help to clearly define the artwork. All proposals must be for original works of art and refrain from the use of any copyrighted or trademarked images. Applications should be submitted to the Recreation Division with attention the Recreation Manager.

EVALUATION &APPROVAL OF PROPOSAL
Evaluation Process
Once the proposal is received by the Recreation Manager, it will be reviewed within 4-6 weeks. The Manager will evaluate the project based on the guidelines below and may make suggestions for improvements before proceeding' forward through the remainder of the process.

Evaluation Guidelines
Project concepts will be evaluated based on, but not limited to, the following criteria:
• Understanding of the work that may be required by the City (ie. possible preparation of site) • Evaluation of artistic excellence related to the art theme and concept • Appropriateness of scale, form, material, content and design relative to the site • Relationship to the social, cultural and/or historical identity of the site • Compatibility and enhancement of the surrounding community • Appropriateness of proposed materials in regards to structural and surface integrity, public safety, potential weathering, and its protection against vandalism • Ease of long-term maintenance
• Any relevant experience in working on comparable projects • Projects proposed for areas of high historical sensitivity, such as the Ole Hanson Beach Club and surrounding area, should be given the closest possible scrutiny to determine if the project would be an enhancement to the area
Approval Process
Once a privately funded project is recommended for placement on City-owned property, it will be reviewed by the City departments and advisory bodies listed below. The Recreation Manager acts as the project manager for all projects and is responsible for guiding the requesting agent/agency through the following approval stages.

1. Recreation Manager receives and reviews the proposed project to assure that it complies with the preliminary guidelines listed above.

2. Public Works Director or his/her designee reviews the proposal to assure:

Version 10/27/2017 Page 1 of 4
6-21-22 / 4N-4
City of San Clemente I Art on City-Owned Property
a. that the artwork's placement will not create undue difficulties for maintenance of the surrounding area, and
b. that the proposed materials are durable and will not create significant maintenance problems for the artwork itself.

3. Public Notice is displayed at the site being requested. The notice will remain in effect for 30 days, affording the general community and surrounding neighborhood an opportunity to understand the project that is being considered. Notice will also be delivered through the press media, City social media networks, and by display on the City website.

4. Design Review Subcommittee reviews the proposal to assure that it abides by any possible architectural overlays or other related restrictions that maybe affected by the project.

5. Beaches, Parks and Recreation Commission reviews and provides recommendation to Council on how to proceed.

6. City Council makes additional recommendations and/or approves the concept and authorizes execution of the project.

Appeal Process
If the proposal is rejected at any stage, the requesting agent or agency has the right to appeal this decision to the City Council. The findings and rationale for rejecting the project will be made available to the Council when considering the appeal.

LABELING OF ARTWORK
Standard Plaque
The donor is directed to purchase and install a plaque for the artwork or the Recreation Manager may seek approval from Council to use public funds for the plaque. If the donor wishes to purchase and install the plaque, the following standard format must be used:
• Title of artwork
• Artist's name
• Date of completion
• Material(s) used (optional)
• Short explanation of work (optional)
Deviation from Standard Plaque
All requests to deviate from the standard plaque are made to the Recreation Manager.

FINAL ACCEPTANCE
Maintenance. The Recreation Manager provides the Public Works Department with a Public Art Maintenance Record form. See details regarding routine maintenance and scheduling in the section of this document titled 'Maintenance and Repair', this includes estimated lifespan of artwork.

Inspection and Acceptance. All donated projects on public property must have final inspection approval by the City's Public Works Department and the Recreation Manager. A formal letter of acceptance will be completed and delivered.

Ownership. Upon completion, the artwork becomes the property of the City of San Clemente. See details regarding routine maintenance and scheduling in the section of this document titled 'City's Right of Ownership'.

DEDICATION OF ARTWORK
Once installation is complete, the Recreation Division organizes a dedication ceremony that formally presents the piece to the community, recognizing the artistic efforts of the artist and/or organization(s).

Version 10/27/2017 Page 2 of 4
6-21-22 I 4N-5
City of San Clemente I Art on City-Owned Property

INSURANCE REQUIREMENTS
The City's Risk Manager will be consulted to determine the appropriate type and level of insurance that may be required to carry by an artist during the time the artwork is being installed.

Once artwork is formally accepted, the City assumes responsibility and liability for the art and insurance will not be required.

AGREEMENT/CONTRACT PREPARATION
Upon conceptual approval of the project by the City Council, the artist and/or requesting organization and the City will sign a contract establishing the terms of the proposed installation of public art in the designated public place. This contract will define responsibilities of both parties and will include insurance requirements, terms of installation, and other terms as may be deemed necessary through legal review. This contract can vary based on each individual project that is proposed and approved.

MAINTENANCE AND REPAIRS
Like all City facilities, public art requires maintenance and occasional repairs . The City's guidelines encourage artwork requiring "little or no maintenance", however artwork wil l vary in the amount of maintenance required, resistance to vandalism, and ease of repair. Maintenance shall be comprised of the following:
• Maintenance Record Form
It is essential that the artist and the City be clear about maintenance expectations from project initiation. Prior to final acceptance of the artwork, the Recreation Manager ensures that the artist has completed a Public Art Maintenance Record Form. The original copy of the form is kept by the Recreation Manager and a copy is forwarded to the Public Works Department. • Maintenance Responsibility
The Public Works Department is responsible for maintaining City facilities, and this includes all City-owned public art. A list that identifies which Public Works Department division is responsible for the maintenance of a particular piece of public art is available from the City's Public Art Manager.
• Types of Maintenance. The City is responsible for:
o Routine Maintenance. Such maintenance may include trash and graffiti removal, cleaning, waxing, and/or minor landscaping. Frequency will vary by type of artwork, but bi-weekly or monthly checks by maintenance staff during the normal course of their rounds would be typical.
o Cyclical Maintenance. Cyclical maintenance is done at regular, but much less frequent intervals. It involves more extensive treatment such as inspection and surface applications of protective coatings (e.g. repainting). Because this work could significantly affect the appearance and longevity of the artwork, it may require special knowledge or skills. Before proceeding with the work, staff should either:
■ Consult the artwork's Maintenance Record Form for specific procedures, or ■ Consult the artist or other art professional on use of cleaning compounds, paints, solvents, and surface coatings.
o Repair and Restoration. This involves the treatment of damaged or deteriorated artworks to return them to as close to their original appearance as possible. Extreme care must be used to maintain the artistic integrity of the artwork. The repairs must preserve the artist's intent in both design and materials. In many cases, such repairs require the involvement of the original artist, or if that is not possible, an art conservator trained in art restoration.

Again, the artwork's Maintenance Record Form, prepared by the artist prior to final City acceptance of the artwork, gives some guidance on this issue. In many cases restoration Version 10/27/2017 Page 3 of 4
6-21 -22 I 4N-6
(
City of San Clemente I Art on City-Owned Property
to original condition is not practical or achievable. The City will take the best possible care to maintain the artistic integrity of artwork.

CITY'S RIGHT OF OWNERSHIP
Upon completion of artwork, the City assumes complete ownership of artwork installed in or around City owned properties. The City may adhere to the following standards:
• Relocation, Alteration or Removal
Over time City-owned artworks may need to be relocated, altered, or removed from public display.

Reasons for such changes could be as follows:
o significant changes occur in the design or function of the site or facility where the artwork is located;
o to avoid damage to the artwork, e.g. during construction activities or as a result of vandal ism, war or civil unrest, natural disasters, and environmental pollution; o to allow repairs or restoration that could not be effectively done in place; o supporting structure is no longer in fair condition, is deemed unsafe, and/or will require repairs beyond normal wear and tear; or
o to improve public health, safety or welfare.

As necessary as removal or relocation may seem, it should be undertaken only after careful consideration. Artworks are usually created for a specific location, and changes may not be consistent with either the City's or the artist's original intent. To ensure that all parties' needs and rights are considered, City Manager approval must be secured for the relocation, alteration, or removal of permanent, city-owned artworks.

Contract language on relocation, alteration or removal ensures that:
o The artist's contract clearly acknowledges the City's rights to relocate, alter or remove the artwork, with or without special conditions requiring written notice to the artist, prior artist permission, arbitration in the event of a dispute, or other provisions; o The City has the permanent addresses and phone numbers of the artist and/or organization of at least one responsible party who can be contacted regarding relocation, alteration or removal. It is the responsibility of the artist to keep this information current. • Approximate Lifespan
The lifespan of artwork can vary based on original application and unforeseen maintenance challenges. It is estimated that the approximate lifespan for coastal zone locations is 10 years and the approximate lifespan for inland location is 15 years.

Please retain this packet of information for your records throughout the art planning process.

Version 10/27/2017 Page 4 of 4
6-21-22 / 4N-7
City of San Clemente
Beaches, Parks and Recreation Department
100 N. Calle Seville, San Clemente, California 92672
Phone: (949) 361-8264 I Fax: (949) 361-8280

ART ON CITY-OWNED PROPERTY APPLICATION
Please review the procedure guidelines before completing this application. The donor/owner must complete and sign this application form. If the donor/owner is not the artist who created the artwork, the artist must also sign this Application below. In order to process your application as quickly as possible, the application must be submitted to the Recreation Division in complete form. Incomplete applications will be delayed in the review process and are grounds for denial.

APPLICANT INFORMATION
Donor/Organization Name: San Clemente Sunrise Rotary
Primary Contact: Sally Guan I Phone: I
E-mail Address:

Mailing Address:

Non-Profit ID #: 61-1952119 I SC Business License #: I 19454

ARTWORK INFORMATION
Tille of Artwork: Character Counts
Artist Name/Company: Stella Olivares*SCHS & Joshua Paskowitz*Muralist E-mail Address: I Phone: I
Mailing Address: TBD
Proposed Location: North Beach; south exterior wall of restroom & concession stand Description of Work: A multicultural mural depicts the heart and soul of San Clemente's (Attach additional youthful beach vibe demonstrating Character Counts in San Clemente. drawings, models, Six pillars of character are ethical values that transcends all photographs or other socioeconomic, cultural + religious differences. The playful boardwalk graphic depiction scene is a regular at our beaches as free-spirited youth eagerly celebrate which will help more surf-life in our coastal community. A strategically placed board adds life to clearly define the the mural and will serve as backdrop for photo-op by locals and tourists artwork) alike.

Goal of the A timeless mural at N. beach is iconic to our culture in San Clemente + N. artwork/significance to beach. A mural depicting our town where Character Counts will create the community: synergy in our community+ bring a nostalgic past to the present+ beyond Materials/Medium: outdoor water/weatherproof acrylic lattj Dimensions: !approx 25' w X 15' h Appraised Value: TBD
Is the artwork commissioned? □ Yes ■ No j Is the artwork donated? ■ Yes □ No If commissioned, please provide the artist's SC Business License#: I City of San Clemente Art on City-Owned Property Application Pg. 1 of 2 6-21-22 I 4N-8

ACKNOWLEDGEMENT OF APPLICATION AND EXPECTATIONS
By signing this Application below and in consideration for participating in the City's Art on City-Owned Property program, the artist/owner acknowledg.es and understands that upon completion and installation of the artwork, and upon its acceptance by the City Council, the work shall become tile property of the City of the San Clemente. The City retains the right to remove or relocate the artwork in its sole discretion as the interest of the public welfare, health and safety may require.

If the artwork is damaged, defaced, altered or destroyed by human acts or by acts of nature, the City retains the right to remove, restore, repair or replace the artwork at any time in keeping with the artist's original design intent, without consulting the artist, or his or her heirs or assigns. The City will make reasonable efforts to contact the artist, or if unavailable, another design professional, to advise or assist in any restoration work.
owner/ sponsor I have read, understand and accept the terms herein and represent that I am the--:--------- of the artwork which is the subject of this Application. (owner, artist, or owner/artist) Safly Guan/ San Clemente SunriSE;J
Print Name
J ~ c}J (,Oh.,
Signature
6/113/2022
Date
I have read, understand and accept the terms herein and represent that I am the of the artwork which is the subject of this Application. --(owner. -------- artist, or owner/artist) Print Name Signature Date
Please make a copy of the application for yourself, prior to submitting it to the Recreation Division. Your application will be circulated to all additional approval bodies and required City departments.

SUBMISSION CHECKLIST
o Application
o Copy of City of San Clemente Business License (plus, artist's if applicable) o Photo of proposed location
o Design Concept & Drawings
Please submit this application to the City of San Clemente Recreation Division by email at [email protected] or mail to 100 N. Calle Seville, San Clemente 92672. For questions, please contact Recreation at (949) 361-8264.

City of San Clemente Art on City-Owned Property Application Pg. 2 of 2 6-21 -22 I 4N-9
O>
I
N
.....

I
N
N
--.i,.
z
I
.....
0 ATTACHMENT 2
Department:

Prepared By:

Subject:

Fiscal Impact:

Summary:

Background:

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: June 21, 2022
City Manager
Jennifer Savage, Assistant to the City Manager
Agenda Item fJA
Approvals:

City Manager �
D.ept. Head ---
Attorney -;,,._,�--
Finance ·" · -;v-.,-

RESOLUTION AND ORDINANCE AUTHORIZING THE CITY OF SAN CLEMENTE TO IMPLEMENT

COMMUNITY CHOICE ENERGY AS A MEMBER OF THE CLEAN ENERGY ALLIANCE To be determined. San Clemente will be responsible for one third of the cost to update the Clean Energy Alliance Implementation Plan, sharing the cost with two other cities.

There are existing funds of $6,000 in account #001-151-43690-000-00000 for Community Choice Energy; staff would return to Council if an appropriation for additional funds is necessary.

Staff recommends that City Council introduce an Ordinance authorizing the City to implement Community Choice Energy pursuant to State law; and adopt a Resolution authorizing the City's membership in the Clean Energy Alliance through execution of its Joint Powers Agreement as amended, and to ratify the Mayor's appointment of a Councilmember and alternate to the Clean Energy Alliance Board of Directors.

Overview of Community Choice Energy
Coromunity Choice Energy (CCE) or Community Choice Aggregation (CCA) enables local jurisdictions to form a separate agency that purchases energy directly from power suppliers rather than Investor-Owned Utilities (IOUs), such as San Diego Gas and Electric (SDG&E). The IOU maintains the electricity grid, delivery of energy, and bills customers. However, with CCA, local jurisdictions have control over energy procurement to purchase power, set completive rates, and collect revenue. Revenue is often used to fund special programs such as rebates for solar panels.

Summary of Recent Steps
Although the City has considered CCE several times, the City Council has taken steps more recently to move towards implementation of CCE in San Clemente. On August 17, 2021, the City Council authorized Phase I of a CCA Feasibility Study. On October 19, 2021, the consultant presented the findings of Phase I (Attachment 3) and Council directed:

1. City staff to engage with Clean Energy Alliance (CEA) regarding next steps to join CEA;

2. Establish a Council subcommittee to be involved;

3. City staff to request SDG&E data; and

4. Offer meetings to keep Council apprised of the status.

Mayor James and Mayor Pro Tern Duncan make up the Council subcommittee, and City staff requested SDG&E data in January 2022. After CEA analyzed the data, CEA City Manager's Agenda Report
6/21/22/ 8A-1
•
NC'l~~ ~
,,
'
, ..$~('tj .. ~
.
•• ·,' •:-:::'.- ~~
C'4(1,=ov.~
;
'
~
!
1 I
I
6/21/22/8A-2
Agenda Report Page 2
presented their findings to the subcommittee in April 2022. CEA identified that, although energy costs fluctuate, there would be savings to San Clemente customers and this report provides an opportunity for City Council to pursue next steps to join CEA.

Requirements to Join
In order to join CEA, the City must adopt an Ordinance pursuant to California Public Utilities Code Section 366.2(c)(12) to implement CCE. In addition, the City must adopt a Resolution to execute the CEA's Joint Powers Agreement, and ratify the Mayor's appointment of a Councilmember and alternate to represent San Clemente on the CEA Board of Directors. If the City Council introduces and adopts an Ordinance and Resolution, the earliest launch of service is April 2024 (see Table 2 for additional timeline details).

Discussion: Financial Analysis
CEA conducted a financial analysis utilizing the City's 2021 SDG&E aggregate electrical load data. The analysis forecasts customer electricity rates, compares rates to SDG&E, and considers net operating costs and revenues with San Clemente's customers.

The full financial analysis and assessment was presented to the CEA Board on May 26, 2022 (Attachment 4). The financial analysis found savings to San Clemente customers would range from 0.82% to 2.80% over SDG&E costs depending the percent of renewable energy (Table 1 below). San Clemente's forecasted savings are in the range of customer savings in existing CEA members Cities of Carlsbad, Del Mar, and Solana Beach range from 0.6% to 3.64%; the Carlsbad and Del Mar 100% Renewable Green energy choice costs 1 % more than SDG&E costs.

Table 1. Estimated Savings for Average San Clemente Household Generation $60.94 $44.85 $44.85 $44.85
75%/100% Premium $0.40 $2.97
PCIA+FFS* $11.90 $11.90 $11.90
Generation Costs $60.94 $56.74 $57.14 $59.71
SDG&E Deliverv $89.32 $89.32 $89.32 $89.32
Total Avq. Monthly Bill $150.27 $146.07 $146.47 $149.04 $ Savinqs ($4.20) 7$3.80) . ($1.23)
% Savings 2.80% 2.53% 0.82%
*PCIA + FFS is the Power Charge Indifference Adjustment and Franchise Fee Surcharge **Average 396 kWh Usage
CEA strives for a minimum of 5% reserve contributions each year from electricity sales. The financial analysis notes that due to recent volatility and wholesale price increases in the energy market, reserve contributions would be lower than 5% without a 2.5% rate increase. The estimated savings in Table 1 above reflect the assumption of a 2.5% rate increase.
6/21/22 /8A-3
Agenda Report
Plan and Policy
Page3
Ordinance
California Public Utilities Code Section 366.2 requires that the City adopt an Ordinance (Attachment 1) to implement CCE. The ordinance states the City's intention to join CEA and identifies a customer's right to opt out of the program at any time if the customer wants to maintain power procured by SDG&E.

Resolution
In order to join CEA, the City must adopt a Resolution to execute an agreement with CEA (Attachment 2). If the City Council approves the resolution, the CEA Board of Directors will ratify San Clemente as a new member to the Joint Powers Authority (JPA) at a future CEA Board meeting.

As part of the resolution, the Mayor must appointment a Councilmember and alternative Councilmember to CEA's Board of Directors. The City of San Clemente will have authority in decisions regarding CEA operations and priorities.

Once San Clemente is ratified as a new member, CEA will amend its Implementation Plan to include the City. The City is required to provide a portion of up to $50,000 for the Implementation Plan. The Plan amendment would cost up to $50,000 and the cost would be shared with two other cities planning a 2024 implementation year - Oceanside and Vista. (Note: The last Plan amendment, conducted in 2021, cost $14,000}. In addition, the cost will be reimbursed. CEA must submit the Plan to the California Public Utilities Commission (CPUC) for approval.

Next Steps
After the City of San Clemente introduce and adopt an Ordinance and Resolution, the CEA Board would approve San Clemente's membership. The CEA Board would consider and adopt the Implementation Plan later this year to submit to the CPUC in December. Table 2 below identifies the key dates and steps.

Table 2. Timeline to Launch Community Choice Energy
March 2022
June/July 2022
Jul 2022
October 2022
November 2022
December 2022
March 2023
A ril 2024
San Clemente adopts Resolution to join CEA and Ordinance to im lement CCE
CEA considers Draft Implementation Plan Amendment
CEA a proves Im lementation Plan Amendment
CEA files Implementation Plan Amendment with CPUC
Launch CEA service in San Clemente
Consistency: The project is consistent with the following General Plan Goals Policies:
• Natural Resources Goal: Reduce consumption of non-renewable energy sources and ensure efficient use development and conservation of sustainable, non-polluting energy sources.
6/21/22/8A-4
Agenda Report
Strategic
Page4
• Policy NR-6.07. Renewable Energy Resources. We work with other agencies and utility providers to develop safe, economical and renewable energy resources, and we help reduce non-renewable energy use through public education and participation in energy conservation programs. • Energy Goal: Maintain a reliable, safe, and economically sustainable energy system that incorporates conservation and alternative energy resources to help decrease reliance on fossil fuels and reduce the impacts of global climate change.
• Policy PSFU-9.07. Renewable Energy Resources. We work with other agencies and utility providers to develop safe, economical, and renewable energy resources in San Clemente.

Priority: None.

Recommended
Action: STAFF RECOMMENDS THAT the City Council:

1. Introduce Ordinance No. entitled AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA,

AUTHORIZING THE IMPLEMENTATION OF A COMMUNITY CHOICE
AGGREGATION PROGRAM; and

2. Adopt Resolution No._ entitled A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF SAN CLEMENTE, CALIFORNIA, AUTHORIZING THE

EXECUTION OF THE JOINT EXERCISE OF POWERS AGREEMENT FOR

MEMBERSHIP IN THE CLEAN ENERGY ALLIANCE, A COMMUNITY JOINT POWERS AUTHORITY, with Agreement.

Attachments: 1. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE,

CALIFORNIA, AUTHORIZING THE IMPLEMENTATION OF A COMMUNITY

CHOICE AGGREGATION PROGRAM

2. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE,

CALIFORNIA, AUTHORIZING THE EXECUTION OF THE JOINT EXERCISE OF

POWERS AGREEMENT FOR MEMBERSHIP IN THE CLEAN ENERGY ALLIANCE, A COMMUNITY JOINT POWERS AUTHORITY, with Agreement

3. October 19, 2021 Agenda Report with Attachments

4. May 26, 2022 CEA Board Report
Notification: Clean Energy Alliance
6/21/22/8A-5
ATTACH.:\1ENT 1
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY • OF SAN · CLEMENTE, CALIFORNIA,
AUTHORl~ING THE . IMPLEMENTATION OF A

COMMUNITY CHOICE AGGREGATION PROGRAM
WHEREAS, California Public Utilities Code (the "Act") Section 366.2 authorizes cities and counties to individually or jointly provide retail electric service to an aggregation of customers with their jurisdictions, which is referred to as community choice aggregation (CCA); and
WHEREAS, the City completed Phase I of a feasibility study which determined that a CCA program could result in local benefits including the use of renewable energy at levels above the State Renewables Portfolio Standard, the provision of competitive rates to consumers, and economic opportunity for the City; and WHEREAS, pursuant to Section 366.2 of the Act, if each entity adopts the ordinance required by Public Utilities Code Section 366.2(c)(12), two or more public entities authorized to be a community choice aggregator under Section 331.1 of the Act may participate jointly in a CCA program through a Joint Powers Authority established pursuant to Government Code Section 6500 et seq.; and
WHEREAS, the City wishes to implement to CCA program at this time joining as a member to the Joint Powers Authority known as Clean Energy Alliance, consisting of the member agencies of Carlsbad, Del Mar, and Solana Beach; and WHEREAS, under section 366.2 of the Act, customers have the right to opt out of the CCA program and continue to receive bundled electric service from the incumbent utilities; and
WHEREAS, 366.2(c)(12) of the Act provides that an entity which elects to implement a CCA program within its jurisdiction must do so by ordinance; and WHEREAS, this ordinance is exempt from the requirements of the California Environmental Quality Action (CEQA) pursuant to the State CEQA Guidelines, as it is not a "project" and has no potential to result in a direct or reasonably foreseeable indirect physical change to the environment (Section 15061 (b)(3)). The ordinance is also categorically exempt because it is an action taken by a regulatory agency to assure the maintenance, restoration, enhancement or protection of the environment (Section 15308); and
NOW, THEREFORE, the City Council of the City of San Clemente, California, hereby ordains as follows:
6/21/22/8A-6
ATTACHMENT 1
Section 1: The above recitals are true and correct.

Section 2: • in order to provide businesses and residents within the jurisdictional • boundaries of the Qity with. a choice of electric service providers and with the benefits • described in the recitals above, the City Council hereby elects pursuant to Section · • • 366.2(c)(2) of the Act to implement a CCA program within the jurisdiction of the City of • San Clemente by participating in the CCA program of the Clean Energy Alliance, under the terms and conditions provided in its Joint Powers Agreement, on file with the City • Clerk.

Section 3: This Ordinance shall take effect and be in force thirty (30) days after its passage.

Section 4: The City Clerk shall certify to the passage of this ordinance and cause the same to be published as required by law, and the same shall take effect as provided by law. ~ v~'\COcJi'-tieg( Ord I V\ft./V~
APPROVED AND ADOPTED this __ day of _______ , 2022.

ATTEST:

City Clerk of the City of
San Clemente, California
Mayor of the City of San
Clemente, California
6/21/22 /8A-7

STATE OF CALIFORNIA

COUNTY OF ORANGE

CITY OF SAN CLEMENTE
)
) ss.
) >. >.
·ATTACHMENT 1
I, JOANNE BAADE, City Clerk ofthe City of San Clemente,· California, hereby certify that Ordinance No. ___ having been regularly introduced at the meeting of __________ , was again introduced, the reading in full thereof unanimously waived, and duly passed and adopted at a regular meeting of the City Council held on the . day of _________ _, and said ordinance was adopted by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this __ day of ________ ~ 2022.

APPROVED AS TO FORM:

CITY ATTORNEY
CITY CLERK of the City of
San Clemente, California
6/21/22/8A-8
ATTACHMENT2
RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF:
.. SAN· CLEMENTE, CALIFORNIA,· AUTHORIZING THE

EXECUTION OF THE JOINT EXERCISE OF POWERS

AGREEMENT FOR MEMBERSHIP IN THE CLEAN ENERGY

ALLIANCE, A COMMUNITY JOINT POWERS AUTHORITY
WHEREAS, Section 6500 et seq. of the Government Code authorizes the joint exercise by two or more public agencies of any power common to them as a Joint Powers Authority (JPA); and
WHEREAS, Public Utilities Code Section 366.2(c)(12)(B) specifically authorizes two or more cities and/or counties to conduct a Community Choice Aggregation (CCA) program through the creation of a Joint Powers Agency if each public entity adopts an ordinance; and WHEREAS, an existing JPA, known as Clean Energy Alliance (CEA) and currently including the Cities of Solana Beach, Del Mar, and Carlsbad, allows its members to share resources and jointly provide and achieve the environmental and economic benefits of a CCA program on a regional basis; and
WHEREAS, on October 19, 2021, the City Council received Phase I of a Community Choice Aggregation Feasibility Study, dated October 2021; and WHEREAS, on October 19, 2021, the City Council directed City staff to pursue joining the Clean Energy Alliance; and
WHEREAS, this Resolution and the creation of the CEA is exempt from the requirements of the California Environmental Quality Action ("CEQA"), as it involves organizational and administrative activities of government that will not result in direct or indirect physical changes on the environment, and therefore is not considered a "project" (Section 15378(b )(5)); and
WHEREAS, the City desires to enter into the existing JPA Agreement ("Agreement") to join the CEA along with the current Members identified in the Agreement, and any additional members approved by the JPA Board in the future.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby resolve as follows:

Section 1. All the recitals are true and correct.

Section 2. The Clean Energy Alliance Joint Powers Agreement, including any -amendments creating and governing the CEA, which is attached hereto as Exhibit A and is incorporated.

Section 3. The City Manager or his designee is further authorized to prepare, • negotiate and execute such other related applications, agreements and written documents 6/21/22/8A-9
• ·.Resolution No. Page 2
as may be required by CEA and related entities to implement the intent and purpose of this Resolution and State law.
• Section 4. Councilmember ______ is appointed to serve on the CEA Board • of Directors, and Couricilmember is appointed as alternate, Section 5. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this __ day of _______ _, 2_022.

ATTEST:

City Clerk of the City of
San Clemente, California
Mayor of the City of San
Clemente, California
6/21/22/8A-10
• Resolution No. Page 3

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §
CITYOF SAN CLEMENTE . )
I, JOANNE BAADE, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. ____ was adopted at a regular meeting of the City Council of the City of San Clemente held 6n the • - day of _________ ~---~ by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this __ day of _______ , 2022.

Approved as to form:

City Attorney
CITY CLERK of the City of
San Clemente, California
6/21/22 8A-11
Clean Energy Alliance Joint Powers Agreement
Effective: November 4, 2019
As amended by Resolution 2021-012 dated September JO, 2021 As further amended by Resolution 2021-014 dated November 18, 2021 and attached Amendment No. 1.

As further amended by Resolution 2021-015 dated December 17, 2021 I
-~------!-3045..008l\26&6345v-hdoc----~---------------------------- 6/21/22/8A-12
DocuSign Envelope ID: B641731S.68FD-480D-BADD-7A197A78682F )

CLEAN ENERGY ALLIANCE JOINT POWERS AGREEMENT
This Joint Powers Agreement (the "Agreement"), effective as of November 4, 2019, is made by the Parties of the Clean Energy Alliance and en.tered irito pursuant to the provisions of Title 1, Division 7, Chapter 5, Article I (Section 6500 et seq.) of the California Government Code relating to the joint exercise of powers among the public agencies set forth in Exhibit B.

RECITALS

1. The Parties are public agencies sharing various powers under California law, including but not limited to the power to purchase, supply, and aggregate electricity for themselves and their customers.

2. SB 350, adopted in 2015, mandates a reduction in greenhouse gas emissions to 40 percent below 1990 levels by 2030 and to 80 percent below 1990 levels by 2050. In 2018, the State Legislature adopted SB 100, which directs the Renewable Portfolio Standard to be increased to 60% renewable by 2030 and establishes a policy for eligible renewable energy resources and zero-carbon resources to supply I 00 percent of electricity retail sales to California end-use customers by 2045.

3. The purposes for the Founding Members (as such term is defined in Exhibit A) entering into this Agreement include procuring/developing electrical energy for customers in participating jurisdictions, addressing climate change by reducing energy-related greenhouse gas emissions, promoting electrical rate price stability and cost savings, and fostering consumer choice and local economic benefits such as job creation, local energy programs and local power development. It is the intent of this Agreement to promote the development and use of a wide range of renewable energy sources and energy efficiency programs, including but not limited to state, regional, and local solar and wind energy production and energy storage.

4. The Parties to this Agreement desire to establish a separate public agency, known as the Clean Energy Alliance ("Authority"), under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) ("Act") in order to collectively study, promote, develop, conduct, operate, and manage energy programs.

5. The Founding Members have each adopted an ordinance electing to implement through the Authority a Community Choice Aggregation program pursuant to California Public Utilities Caje Section 366.2 ("CCA Program"). The first priority of the Authority will be the consideration of those actions necessary to implement the CCA Program on behalf of participating jurisdictions.

6. By establishing the Authority, the Parties seek to:
(a) Provide electricity service to residents and businesses located within the jurisdictional boundaries of the public agencies that are members of the Authority in a responsible, reliable, innovative, and efficient manner;
2 13045-000 I \260634Sv I .doc
6/21/22 / 8A-13
• ··J'locu$1gn !=nYelope ID: B.6417318-6.BFD·480D-BADD•7 A 197 A78682F (b) Provide electric generation rates to all ratepayers tl!at are competitive with those offered by the Investor Owned Utility, San Diego Gas & Electric (SDG&E), for similar products with a target generation rate at least 2 percent below SDG&E's base product generation rate;
( c) Offer a mix of energy products for standard commodity electric service that provide a cleaner power portfolio than that offered by SDG&E for similar service and other options, including a 90 percent and a 100 percent renewable content options in which communities and customers may "opt-up" and voluntarily participate, with the ultimate objective of achieving- and sustaining-the Climate Action Plan goals of the Parties, at competitive rates; •
( d) Develop an aggregate electric supply portfolio with overall lower greenhouse gas (GHG) emissions than SDG&E, and one that supports near-term achievement of the Parties' greenhouse gas reduction goals and renewable electricity goals; ( e) Promote an energy portfolio that incorporates energy efficiency and demand response programs and pursues ambitious energy consumption reduction goals; (f) Pursue the procurement of local generation of renewable power developed by or within member jurisdictions with an emphasis on local jobs, where appropriate, without limiting fair and open competition for projects or programs implemented by the Authority;
(g) Provide a range of energy product and program options, available to all Parties and customers, that best serve their needs, their local communities, and support regional sustainability efforts;
(h) Support low-income households having access to special utility rates including California Alternative Rates for Energy (CARE) and Family Electric Rate_ Assistance (FERA) programs;
(i) Use discretionary program revenues to support the Authority's long-term financial viability, enhance customer rate stability, and provide all Parties an<l their customers with access to innovative energy programs, projects and services throughout the jurisdiction of the Authority; and
(j) Create an administering Authority that seeks to maximize economic benefits and is financially sustainable, well-managed and responsive to regional and local priorities.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions hereinafter set forth, it is agreed by and among the Parties as follows:
3 13045-0001 \2606345v l .doc
6/21/22 / 8A-14
DocuSlgn Envelope ID: B641731'8C68F°'4ildD-8ADD-7 A 197 A78682F

1. DEFINITIONS AND EXHIBITS

2. 1.1 Definitions. Capitalized tenns used in this Agreement shall have the meanings specified in Exhibit A, unless the context requires otherwise.

1.2 Documents Included. This Agreement consists of this document and the following exhibits, all of which are hereby incorporated into this Agreement:

Exhibit A: Definitions
Exhibit B: List of Founding Members and Parties added on or after October 1, 2020, per Section 2.4

FORMATION OF THE COMMUNITY CHOICE ENERGY AUTHORITY
2,1 Effective Date and Term. This Agreement shall become effective and the Authority shall exist as a separate public agency on the date this Agreement is executed by at least three Founding Members after the adoption of the ordinances required by Public Utilities Code Section 366.2(c)(l2). The Authority shall provide notice to the Parties of the Effective Date. The Authority shall continue to exist, and this Agreement shall be effective, until the Agreement is tenninated in accordance with Section 8.4 (Mutual Tennination), subject to the rights of the Parties to withdraw from the Authority under Section 8.1.

2.2 Formation of the Authority. Under the Act, the Parties hereby create a separate joint exercise of power agency named the Clean Energy Alliance. Pursuant to Sections 6506 and 6507 of the Act, the Authority is a public agency separate from the Parties. The jurisdiction of the Authority shall be all territory within the geographic boundaries of the Parties; however, the Authority may, as authorized under applicable law, undertake any action outside such geographic boundaries as is necessary to the accomplishment of its purpose.

2.3 Purpose. The purpose of this Agreement is to establish the Authority, to provide for its governance and administration, and to define the rights and obligations of the Parties. This Agreement authorizes the Authority to provide opportunities by which the Parties can work cooperatively to create economies of scale and implement sustainable energy initiatives that reduce energy demand, increase energy efficiency, and advance the use of clean, efficient, and renewable resources in the region for the benefit of all the Parties and their constituents, including, but not limited to, establishing and operating a CCA Program.

2.4 Addition of Parties, After the initial fonnation of the Authority and prior to October 1, 2020, any incorporated municipality, county, or other public agency authorized to be a community choice aggregator under Public Utilities Code Section 331. I and located within the service territory of SDG&E may become a member of the Authority if it has completed a positive CCE Feasibility Study, adopted a CCA ordinance pursuant to Public Utilities Code Section 366.2(c)(l2), approved and executed this Agreement, and paid or agrees to pay its share of the 4 13045-0001 \2606345Y l.doc
6/21/22 / 8A-15
DocuSign Envelope ID: B6417318-,68FD,480D.SADD-7A197A76682F , ,, - Initial .Costs pursuant to Section 7.3.2_ of this Agreement. Notwithstanding the foregoing, such public agen_cy may be denied membership in the Authority if the Board determines within 60 days after the submittal of the CCE Feasibility Study that the addition of the public agency would create an undue risk or financial burden to the Authority or to the achievement of the CAP goals of the Parties.

On or after October I, 2020, any incorporated municipality, county, or other public agency authorized to be a community choice aggregator under Public Utilities Code-Section 331.1 and located within the service territory of SDG&E may apply to and become a member of the Authority if all the following conditions are met:

2.4.1 Adoption ofa resolution by a two-thirds vote of the entire Board authorizing membership in the Authority;

2.4.2 Adoption by the proposed member of a CCA ordinance as required by Public Utilities Code Section 366.2(c){l2) and approval and execution of this Agreement and other necessary program agreements by the proposed member;

2.4.3 Payment of a membership fee, if any, as may be required by the Board to cover Authority costs i_ncurred in connection with adding the new party; and

2.4.4 Satisfaction of any other conditions established by the Board.

2.5 Continuing Participation. The Parties acknowledge that membership in the Authority may change by the addition, withdrawal and/or termination of Parties.

The Parties agree to participate with such other Parties as may later be added by the Board, as described in Section 2.4 (Addition of Parties) of this Agreement.

The Parties also agree that the withdrawal or termination of a Party shall not affect this Agreement or the remaining Parties' continuing obligations under this Agreement.

3. POWERS

3.1 General Powers. The Authority shall have the powers common to the Parties which are necessary or appropriate to the accomplishment of the purposes of this Agreement, subject to the restrictions set forth in Section 3.4 (Limitation on Powers) of this Agreement.

3.2 Specific Powers. Specific powers of the Authority shall include, but not be limited to, each of the following powers, which may be exercised at the discretion of the Board:
3 .2.1 make and enter into contracts;
5 l 3045~000l\2606345v I ,doc
6/21/22 / 8A-16
• ··: ·, DocuSlgh 6nvelope'lb: B64173!8-68FD'480D-8ADD-7A197A78682F

3.2'.2 • employ agents-and employees, including but not limited to a Chief Executive Officer;
• 3.2.3 acquire, own, contract, manage, maintain, and operate any buildings, public works, improvements or other assets including but not limited to public electric generation resources;
3 .2.4 acquire property for the public purposes of the Authority by eminent domain, or otherwise, except as limited under Section 6508 of the Act and Sections 3.6 and 4.12.3 of this Agreement, and to hold or dispose of any property; provided, however, the Authority shall not exercise the power of eminent domain within the jurisdiction of a Party without its affirmative vote under Section 4.12.2;

3.2.5 lease any property;

3.2.6 sue and be sued in its own name;
3 .2. 7 incur debts, liabilities, and obligations, including but not limited to loans from private lending sources pursuant to its temporary borrowing powers authorized by law pursuant to Government Code Section 53850 et seq. and authority under the Act;

3.2.8 issue revenue bonds and other forms of indebtedness;

3.2.9 apply for, accept, and receive all licenses, permits, grants, loans or other aids from any federal, state or local public agency;

3.2.10 form independent corporations or entities, if necessary, to carry out energy supply and energy conservation programs;

3.2.11 submit documentation and notices, register, and comply with applicable orders, tariffs and agreements for the establishment and implementation of the CCA Program and other energy programs;

3.2.12 adopt rules, regulations, policies, bylaws and procedures governing the operation of the Authority;
3 .2.13 make and enter into service agreements relating to the provision of services necessary to plan, implement, operate and administer the CCA Program and other energy programs, including the acquisition of electric power supply and the provision ofretail and regulatory support services; 3 .2.14 receive revenues from sale of electricity and other energy-related programs; and
6 l 3045-0001 \2606345vl .doc
6/21/22/ 8A-17
. Pocu~ign.Eoselopo 10: B¥1131.S,aBFo,..480D-BADD-7A197A78682F · 3,2.15 Partner or otherwise work cooperatively with other CCA's on the acquisition of electric resources, joint programs, advocacy and other efforts in the interests of the Authority.

3.3 Additional Powers to be Exercised. In addition to those powers common to each of the Parties, the Authority shall have those powers that may be conferred upon it by law and by subsequently enacted legislation. 3,4 Limitation on Powers. As required by Section 6509 of the Act, the powers of the Authority are subject to the restrictions upon the manner of exercising power possessed by the City of Solana Beach and any other restrictions on exercising the powers of the Authority that may be adopted by the Board.

3.5 Obligations of the Authority. The debts, liabilities, and obligations of the Authority shall not be the debts, liabilities, and obligations of any of the Parties unless a Party agrees in writing to assume any of the debts, liabilities, and obligations of the Authority with the approval of its Governing Body, in its sole discretion, A Party that has not agreed in writing, as duly authorized by its Governing Body, to assume an Authority debt, liability, or obligation shall not be responsible in any way for such debt, liability, or obligation, regardless of any action by the Board. Further, the debts, liabilities and obligations of the City of Solana Beach related to or arising from its existing CCA program, commonly known as the Solana Energy Alliance, shall not be the debts, liabilities or obligations of the Authority or any of the Parties except the City of Solana Beach unless the Board approves assuming specific contracts entered into by the City of Solana Beach. Any such contracts assumed by the Authority shall be obligations of the Authority only and not of any of the Parties. Notwithstanding Sections 4.12.1 and 9.8 of this Agreement, this Section 3.5 shall not be amended or its liability limitations otherwise modified by an amendment to another part of this Agreement unless such amendment is approved by the Governing Body of each Party.

3.6 Compliance with Local Zoning and Building Laws. Notwithstanding any other provisions of this Agreement or state law, any facilities, buildings, structures or other projects (the "project") developed, constructed or installed or caused to be developed, constructed or installed by the Authority within the territory of the Authority (which consists of the territorial jurisdiction of the Parries) shall comply with the General Plan, zoning, land use regulations, building laws and any applicable local Coastal Plan of the local jurisdiction within which the project is located.

3.7 Compliance·wlth the Political Reform Act and Government Code Section 109.0, The Authority and its officers and employees shall comply with the Political Reform Act (Government Code Section 81000 et seq.) and Government Code Section 1090 et seq. The Board shall adopt a Conflict of Interest Code pursuant to Government Code Section 87300. The Board may 7 13045--000 I \260634Svl .doc
6/21/22 / 8A-18
. Oo6u~1iin e~veiop~ io, ·iii,;i'1.ri1 s'-68Fii.\iaoo;aAoo-rA 1 srA7a682F • adopt additional conflict of interest regulations in the Operating Policies and Procedures.

4. GOVERt"IANCE
• 4.1 Board of Directors.

4.1.1 The Governing Body of the Authority shall be a Board of Directors ("Board") consisting of one Director for each Party appointed in accordance with Section 4,2 (Appointment and Removal of Directors) of this Agreement.

4.1.2 Each Director must be a member of the Governing Body of the appointing Party. Each Directo.r shall serve at the pleasure of the Governing Body of the Party that appointed such Director and may be removed as Director by such Governing Body at any time. If at any time a vacancy occurs on the Board, then a replacement shall be appointed to fill the position of the previous Director within 45 days after the date that position becomes vacant.

4.1.3 The Governing Body of each Party also shall appoint an alternate to serve in the absence of the primary Director. The alternate also shall be a member of the Governing Body of the appointing Party. The alternate shall have all the rights and responsibilities of the primary Director when serving in his/her absence.

4.1.4 Any change to the size and composition of the Board other than what is described in this section shall require an amendment of this Agreement in accordance with Section 4.12.

4.2 Appointment and Removal of Directors. The Directors shall be appointed and may be removed as follows:

4.2.1 The Governing Body of each Party shall appoint and designate in writing one regular Director, who shall be authorized to act for and on behalf of the Party on matters within the powers of the Authority. The Governing Body of each Party shall appoint and designate in writing one alternate Director who may vote on matters when the regular Director is absent from a Board meeting. The alternate Director may vote on matters in committee, chair committees, and fully participate in discussion and debate during meetings. All Directors and alternates shall be subject to the Board's adopted Conflict oflnterest Code.

4.2.2 A Director may be removed by the Board for cause in accordance with procedures adopted by the Board. Cause shall be defined for the purposes of this section as follows:
a. Unexcused absences from three consecutive Board meetings. 8 J 3045-0001 \2606345vl .doc
6/21/22 / 8A-19
DocuSlgn Envelope ID: B6417318-68FD-480D-8ADD·7A197A78682F , b. Unauthorized disclosure of confidential jnfonnation or documents from a qlosed session or the unauthorized disclosure of infonnation or documents provided to the Director on a confidential basis and whose public disclosure may be hannful to the interests of the Authority.
c. Violation of any ethics policies or code of conduct adopted by the Board.

Notwithstanding the foregoing, no Party shall be deprived of its right to seat a Director on the Board and any such Party for which its Director and/or alternate Director has been removed may appoint a replacement.

4.3 Director Compensation. The Board may adopt by resolution a policy relating to the compensation or expense reimbursement of its Directors.

4.4 Terms of Office. Each Party shall detennine the tenn of office for its regular and alternate Director.

4.5 Purpose of Board. The general purpose of the Board is to:

4.5.l Provide structure for administrative and fiscal oversight;

4.5.2 Retain a Chief Executive Officer to oversee day-to-day operations of the Authority;
• 4.5.3 Retain legal counsel;

4.5.4 Identify and pursue funding sources;

4.5.5 Set policy;

4.5.6 Optimize the utilization of available resources; and

4.5.7 Oversee all Committee activities.

4.6 Specific Responsibilities of the Board. The specific responsibilities of the Board shall be as follows:

4.6.1 Fonnulate·and adopt an annual budget prior to the commencement of the fiscal year;

4.6.2 Develop and implement a financing and/or funding plan for ongoing Authority operations and capital improvements, if applicable;

4.6.3 Retain necessary and sufficient staff and adopt personnel and coinpensation policies, rules and regulations;
9 13045-000 I 12606345vl.doc
6/21/22/ 8A-20
DocuSign Envelope ID: B6417318-68FD-480D-8ADD'7A197A78662F ••

4.6.4 Adopt policies for procuring electric supply and operational needs such as professional services, equipment and suJ?plies;

4.6.5 Develop and implement a Strategic Plan to guide the development, procurement, and integration of renewable energy resources consistent with the intent and priorities identified in this Agreement;

4.6.6 Establish standing and ad hoc committees as necessary;

4.6.7 Set retail rates for power sold by the Authority and set charges for any other category ofretail service provided by the Authority;

4.6.8 Wind down and resolve all obligations of the Authority in the event the Authority is terminated pursuant to Section 8.2;

4.6.9 Conduct and oversee Authority operational audits at intervals not to exceed three years including review of customer access to Authority programs and benefits, where applicable;

4.6.10 Arrange for an annual independent fiscal audit;

4.6.11 Adopt such bylaws, rules and regulations necessary or desirable for the purposes set forth in this Agreement and consistent with this Agreement;

4.6.12 Exercise the Specific Powers identified in Sections 3.2 and 4.6 except as those which the Board may elect to delegate to the Chief Executive Officer; and

4.6.13 Discharge other duties as appropriate or necessary under this Agreement or required by law.

4. 7 Startup Responsibilities. The Authority shall promptly act on the following matters:

4.7.1 Oversee the preparation of, adopt, and update an implementation plan for electrical load aggregation pursuant to Public Utilities Code Section 366.2(c)(3);

4.7.2 Prepare a statement of intent for electrical load aggregation pursuant to Public Utilities Code Section 366.2(c)(4);

4.7.3 Obtain financing and/or funding as is necessary to support start up and ongoing working capital for the CCA Program; and

4.7.4 Acquire and maintain insurance in accordance with Section 9.3.

4.8 Meetings and Special Meetings of the Board. The Board shall hold at least four regular meetings per year, but the Board may provide for the holding of regular 10 13045~0001 \260634Sv I .doc
6/21/22 / 8A-21
DocuSlgn ,Envelope ID: B6417318-68FD480D-BADO: 7 A 197 A78682F meetings at more-frequent intervals. The date, hour, and place of each regular · meeting shall be. fixed annually by resolution of the Board. The location of regulat<meetings may rotate for the convenience of the Parties, subject to Board approval and availability of appropriate meeting space. Regular meetings may be adjourned to another meeting time. Special meetings of the Board may be called . in accordance with the provisions of Government Code Section 54956. Directors may participate in meetings telephonically, with full voting rights, only to the extent permitted by law. Board meeting agendas generally shall be set, in consultation with the Board Chair, by the Chief Executive Officer appointed by the Board pursuant to Section 5.5. The Board itself may add items to the agenda upon majority vote pursuant to Section 4.11.1.

4.9 Brown Act Applicable. All meetings of the Board shall be conducted in accordance with the provisions of the Ralph M. Brown Act (Government Code Section 54950, et seq.).

4.10 Quorum. A simple majority of the Directors shall constitute a quorum. No actions may be taken by the Board without a quorum of the Directors present.

4.11 Board Voting. Except for matters subject to Special Voting under Section 4.12, Board action shall require the affirmative votes of a majority of the Directors on the entire Board. The consequence of a tie vote shall be "no action" taken.

4.12 Special Voting.

4.12.1 The affirmative vote of two-thirds of the Directors of the entire Board shall be required to take any action on the following:
a. Issuing bonds or other forms of debt;
b. Adding or removing Parties or removing Directors; and c. Amending or terminating this Agreement or adopting or amending the bylaws of the Authority except as provided in Sections 3.5 and

4.12.3. At least 30 days advance written notice to the Parties shall be provided for such actions. Such notice shall include a copy of any proposed amendment to this Agreement or the bylaws of the Authority. The Authority shall also provide prompt written notice to all Parties of the action taken and attach the adopted amendment, resolution or agreement.

4.12.2 An affirmative vote of three-fourths of the entire Board shall be required to initiate any action for Eminent Domain and no eminent domain action shall be approved within the jurisdiction of a Party without the affirmative _ vote of such Party's Director.

4.12.3 An unanimous vote of the entire Board shall be required to amend the following provisions in this Agreement:
11 I 3045-000 I \2606345v Ldoc
6/21/22 / 8A-22
• DocuSlgn Envelripe lb: '6641731~6BF0"480D-8ADD-7A197A78682F

5. a. Section 2.3 (Purpose ofAgreement)
• b. Section 3.6 (Compliance with Local Zoning)
c. Sections 4.11 and 4.12 (Voting Requirements)
d. Section 4.12.2 (Eminent Domain)
e. Section 6.5 (Power Supply Requirements)
f. Section 6.6 (Solana Energy Alliance Transition)

INTERNAL ORGANIZATION

5.1 Elected and Appointed Officers. For each fiscal year, the Board shall elect a Chair and Vice Chair from among the Directors and shall appoint a Secretary and a Treasurer as provided in Government Code section 6505,5. No Director may hold more than one such office at any time. Appointed 9fficers shall not be elected officers of the Board.

5.2 Chair and Vice Chair. For each fiscal year, the Board shall elect a Chair and Vice Chair from among the Directors. The term of office of the Chair and Vice Chair shall continue for one year, but there shall be no limit on the number of terms held by either the Chair or Vice Chair. The Chair shall be the presiding officer of all Board meetings, and the Vice Chair shall serve in the absence of the Chair. The Chair shall perform duties as may be required by the Board. In the absence of the Chair, the Vice-Chair shall perform all of the Chair's duties. The office of the Chair or Vice Chair shall be declared vacant and a new selection shall be made if: (a) the person serving dies, resigns, or the Party that the person represents removes the person as its representative on the Board, or (b) the Party that he or she represents withdraws from the Authority pursuant to the provisions of this Agreement. Upon a vacancy, the position shall be filled at the next regular meeting of the Board held after such vacancy occurs or as soon as practicable thereafter.

5.3 Secretary. The Board shall appoint a qualified person who is not on the Board to serve as Secretary. The Secretary shall be responsible for keeping the minutes of all meetings of the Board and all other office records of the Authority. If the appointed Secretary is an employee of any Party, such Party shall be entitled to reimbursement for any documented out of pocket costs it incurs in connection with such employee's service as Secretary of the Authority, and full cost recovery for any documented hours of service provided by such employee during such Party's normal working hours.

5.4 Treasurer/Chief Financial Officer and Auditor. The Board of Directors shall appoint a Treasurer who shall function as the combined offices of Treasurer and Auditor and shall strictly comply with the statutes related to the duties and responsibilities specified in Section 6505.5 of the Act. The Treasurer for the 12 13045~0001 \2606345v l,doc
6/21/22 / 8A-23
, , ·, , ,Docu$ign·~nvelope ID; B6417318-68FD-480D-8ADD-7 A 197 A78682F Authority shall be the depository and have custody of all money of the Authority. from whatever source and shall draw all warrants ang pay demands against the Authority as approved by the Board. The Treasurer shall cause an independent audit(s) of the finances of the Authority to be made by a certified public accountant, or public accountant, in compliance with Section 6505 of the Act.

The Treasurer shall report directly to the Board and shall comply with the requirements of treasurers of incorporated municipalities. The Board may transfer the responsibilities of Treasurer to any qualified person or entity as the law allows at the time. The duties and obligations of the Treasurer are further specified in Section 7. The Treasurer shall serve at the pleasure of the Board. If the appointed Treasurer is an employee of any Party, such Party shall be entitled to reimbursement for any documented out of pocket costs it incurs in connection with such employee's service as Treasurer of the Authority, and full cost recovery for any documented hours of service provided by such employee during such Party's normal working hours.

S.S Chief Executive Officer. The Board shall appoint a Chief Executive Officer for the Authority, who shall be responsible for the day-to-day operation and management of the Authority and the CCA Program. The Chief Executive Officer may not be an elected member of the Board or otherwise represent any Party to the Authority. The Chief Executive Officer may exercise all powers of the Authority, except those powers specifically reserved to the Board, including but not limited to those set forth in Section 4.6 (Specific Responsibilities of the Board) of this Agreement or the Authority's bylaws, or those powers which by law must be exercised by the Board. The Chief Executive Officer may enter into and execute power purchase agreements and other contracts, in accordance with criteria and policies established by the Board.

S,6 General Counsel, The Board shall appoint a qualified person to act as the Authority's General Counsel, who shall not be a member of the Board, or an elected official or employee of a Party.

S. 7 Bonding of Persons Having Access to Property. Pursuant to the Act, the Board shall designate the public officer or officers or person or persons who have charge of, handle, or have access to any property of the Authority exceeding a value as established by the Board, and shall require such public officer or officers or person or persons to file an official bond in an amount to be fixed by the Board.

S.8 Privileges and Immunities from Liability. All of the privileges and inununities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, workers' compensation and other benefits which apply to the activities of officers, agents or employees of a public agency when performing their • respective functions shall apply to the officers, agents or employees of the Authority to the same degree and extent while engaged in the performance of any of the functions and other duties of such officers, agents or employees under this Agreement. None of the officers, agents or employees directly employed by the Board shall be deemed, by reason of their employment by the Authority to be 13 13045-0001 \2606345vl .doc
6/21/22 / 8A-24
: 6dciisign Envelope ID: B6417318;68FD-4800-8ADD-7 A 197 A 78682F employed by the Parties or by reason of their employment by the Authority, to be subject to any of the requirements of the Parties.

5.9 Commissions, Boards and Committees. The Board may establish any advisory commissions, boards, and committees as the Board deems appropriate to assist the Board in carrying out its functions and implementing the CCA Program, related energy programs, and the provisions of this Agreement. To the extent possible, the commissions, boards, and committees should have equal representation from each Party. The Board may establish criteria to qualify for appointment on its commissions, boards, and committees. The Board may establish rules, regulations, policies, or procedures to govern any such commissions, boards, or committees and shall determine whether members shall be entitled to reimbursement for expenses. The meetings of the commissions, boards, or committees shall be held in accordance with the requirements of the Ralph M.

Brown Act, as applicable.

6. IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS

6.1 Preliminary Implementation of the CCA Program.

6.1.1 Enabling Ordinance. In addition to the execution of this Agreement, each Party shall adopt an ordinance in accordance with Public Utilities Code Section 366.2(c)(l2) for the purpose of specifying that the Party intends to implement a CCA Program by and through its participation in the Authority.

6.1.2 Implementation Plan. The Authority shall secure Board approval of an Implementation Plan meeting the requirements of Public Utilities Code Section 366.2 and any applicable Public Utilities Commission regulations, and consistent with the terms of this Agreement, as soon after the Effective Date as reasonably practicable but no later than December 31, 2019.

6.2 Authority Documents. The Parties acknowledge and agree that the affairs of the .

Authority will be implemented through various documents duly adopted by the Board through Board resolution or minute action, including but not necessarily limited to operational procedures and policies, the annual budget, and specific plans such as a local renewable energy developrilent and integration plan and other policies defined as the Authority Documents by this Agreement. All such Authority Documents shall be consistent with and designed to advance the goals and objectives of the Authority as expressed in this Agreement. The Parties agree to abide by and comply with the terms and conditions of all such Authority Documents that may be adopted by the Board, subject to the Parties' right to withdraw from the Authority as described in Section 8 (Withdrawal and Termination) of this Agreement.
14 13045-000 I \2606345v I .doc
6/21/22 / 8A-25
DocuSlgn Envelope ID: B6417318-68FQ"480D-8ADD,7 A 197 A(8682F

6.3 Integrated Resource Plan and Regulatory Compliance. The Authority shall ca11se to be prepared an Integrated Resource Plan in accordance with California Public Utilities Commission regulations, and consistent with the terms of this Agreement, that will ·ensure the long-term development and administration of a variety of energy programs that promote local renewable resources, conservation, demand response, and energy efficiency, while maintaining compliance with other regulatory requirements inciuding th.e State Renewable Portfolio Standard (RPS) and customer rate competitiveness.

6.4 Renewable Portfolio Standards, The Authority shall provide its customers energy primarily from Category 1 and Category 2 eligible renewable resources, as defined under the California RPS and consistent with the goals of the CCA Program. The Authority shall avoid the procurement of energy from Category 3 eligible renewable resources (unbundled Renewable Energy Credits or RECs) to the extent feasible. The Authority's ultimate objective shall be to achieve- and sustain-a renewable energy portfolio with 100 percent renewable energy availability and usage, at competitive rates, within the Authority service territory by no later than 2035, and then beyond.
6,5 Power Supply Requirements, The Authority's power supply base product will be greater than or equal to 50% qualified renewable resources. The Board shall establish product options with higher renewable and/or GHG-free content that each Party may select (such as 75% or I 00% renewable content). In no event will the Authority's power supply base product contain a lesser amount of renewable resources than the base product provided by SDG&E to its customers. Power supply options established by the Board will allow each Party the flexibility to achieve its CAP goals without impeding any other Party from doing the same. 6,6 Continuation and Transition of City of Solana Beach's Existing CCA Program. The City of Solana Beach has beeo operating a CCA program within its jurisdiction since 2018. The City of Solana Beach shall be permitted to continue to operate its existing CCA program until the Authority's CCA Program commences service to customers within the jurisdiction of the City of Solana Beach. The transition of CCA customers within the City of Solana Beach to the Authority's CCA Program shall be implemented in accordance with the Authority's implementation plan approved by the Board and certified by the CPUC and any policies and requirements established by the Board. 7, FINANCIAL PROVISIONS

7.1 Fiscal Year. The Authority's fiscal year shall be 12 months commencing July I and ending June 30. The fiscal year may be changed by Board resolution.

7.2 Depository.
15 13045~000 l\2606345vl.doc
6/21/22 / 8A-26
DocuSign Envelope ID; 86417318-68FGl480D-6ADD-7A197A7B682F

1.2.l • All funds of the Authority shall be held in separate accounts in the name • of the Authority and not eommingled with funds of any Party or any other person or entity ..

7.2.2 All funds of the Authority shall be strictly and separately accounted for, and regular reports shall be rendered of all receipts and disbursements, at least quarterly during the fiscal year. The books and records of the Authority shall be open to inspection and duplication by the Parties at all reasonable times. Annual financial statements shall be prepared in accordance with Generally Accepted Accounting Principles of the United States of America within 6 months of the close of the fiscal year. The Board shall contract with a certified public accountant to make an annual audit of the financial statements of the Authority, which shall be conducted in accordance with the requirements of Section 6505 of the Act. 7 .2.3 All expenditures shall be made in accordance with the approved budget and upon the approval of any officer so authorized by the Board in accordance with its policies and procedures.

7.3 Budget and Recovery Costs.

7.3.1 Budget. The initial budget shall be approved by the Board. The Board may revise the budget from time to time as may be reasonably necessary to address contingencies and unexpected expenses. All subsequent budgets of the Authority shall be prepared and approved by the Board in accordance with its fiscal management policies that should include a deadline for approval.

7.3.2 Funding oflnitial Costs. The Initial Costs of establishing the Authority . and implementing its CCA Program shall be divided equally among the Founding Members. In the event that the CCA Program becomes operational, these Initial Costs paid by the Founding Members shall be included in the customer charges for electric services to the extent permitted by law. The Authority may establish a reasonable time period over which such costs are recovered and reimbursed to the Founding Members. In the event that the CCA Program does not become operational, the Founding Members shall not be entitled to any reimbursement of the Initial Costs they have paid from the Authority or any Party.

7.3,3 CCA Feasibility and Governance Report Costs. In the event that the CCA Program becomes operational, any costs incurred by the Parties in preparing CCA Feasibility or Governance Reports in connection with establishing the Authority shall be included in the customer charges for electric services to the extent permitted by law. The Authority may establish a reasonable time period over which such costs are recovered and reimbursed to the Parties that incurred such costs. In the event that the 16 13045-0001 \2606345v l .doc
6/21/22 / 8A-27
DoeySlgn Eovelope ID, B641731a•68FD-480D-8ADD•7 A 197 A78662F CCA Program does not become operational, no Party shall be entitled to any reimbw:sement of these costs from the Authority or any Party, . .

7.3.4 Program.Costs. The Parties intend that all costs incurred by the Authority that are directly or indirectly attributable to the provision of electric or other services under the CCA Program, including the establishment and maintenance of various reserve and performance funds, shall be recovered through appropriate charges to CCA customers receiving such services.

7.3.5 No Requirement for Contributions or Payments. Parties are not required under this Agreement to make any financial contributions or payments to the Authority, and the Authority shall have no right to require such a contribution or payment unless expressly set forth herein (for example, as provided in Section 2.4.3, with respect to Additional Members, Section 7.3.2 with respect to Initial Costs and Section 8.1, with respect to Withdrawal), or except as otherwise required by law.

Notwithstanding the foregoing, a Party may voluntarily enter into an agreement with the Authority to provide the following:
a. contributions of public funds for the purposes set forth in this Agreement;
b. advances of public funds for the purposes set forth in this Agreement, such advances to be repaid as provided by such written agreement; or
c. its personnel, equipment or property in lieu of other contributions or advances.

No Party shall be required, by or for the benefit of the Authority, to adopt atiy local tax, assessment, fee or charge under any circumstances.

7.4 Accounts and Reports. The Treasurer shall establish and maintain such funds and accounts as may be required by good accounting practice or by any provision of any trust agreement entered into with respect to the proceeds of any bonds issued by the Authority. The books and records of the Authority in the hands of the Treasurer shall be open to inspection and duplication at all reasonable times by duly appointed representatives of the Parties. The Treasurer, within 180 days after the close of each fiscal year, shall give a complete written report of all financial activities for such fiscal year to the Parties. The Treasw:er shall cooperate with all audits required by this Agreement.

7.5 Funds. The Treasurer shall receive, have custody of and/or disburse Authority funds in accordance with the laws applicable to public agencies and generally accepted accounting practices, and shall make the disbursements required by this Agreement in order to carry out any of the purposes of this Agreement. 17 1304S-0001\2606345vl.doc
6/21/22 / 8A-28
Dot~Signi'!nv•l6pe ·1D:'864'1 i'ai a:681'0!480D-8ADD-7 A 197 A78682F 7:6 Discretionary Revenues. The Board shall establish policies concerning the expenditure of discretionary revenues. As detennined by the Board in such policies, discretionary revenues may be used to (I) provide programs and develop projects of the Authority or (2) allow Parties to direct fonds into qualified Authority programs and projects, or provide other ratepayer benefits. The Board shall endeavor to achieve a balanced distribution of program and project benefits substantially commensurate with each Party's energy load ("balanced distribution"). The Board shall conduct periodic audits no less than every two years in order to verify the balanced distribution of program and project benefits and take any corrective action necessary to achieve or continue to maintain a balanced distribution.

7. 7 Rate Related Programs, The Authority will maintain residential net energy metering and low-income rate discount programs.

8. WIIBDRAWALANDTERMINATION

8.1 Withdrawal

8.1.1 Withdrawal by Parties. Any Party may withdraw its membership in the Authority, effective as of the beginning of the Authority's fiscal year, by giving no less than one year advance written notice of its election to do so, which notice shall be given to the Authority and each Party. The Board, in its discretion, may approve a shorter notice period on a case by case basis.

In addition, a Party may immediately withdraw its membership in the Authority upon written notice to the Board at any time prior to the Authority filing its first year-ahead load forecast with the CPUC that included the Party's load (anticipated to occur in April 2020) without any financial obligation other than its share of Initial Cosl~ that shall not be reimbursed and any costs directly related to the resulting amendment of the Implementation Plan. Withdrawal of a Party shall require an affirmative vote of the Party's Governing Body.

8.1.2 Amendment. Notwithstanding Section 8.1.1 (Withdrawal by Parties) of this Agreement, a Party may withdraw its membership in the Authority upon approval and execution of an amendment to this Agreement provided that the requirements of this Section 8.1.2 are strictly followed. A Party shall be deemed to have withdrawn its membership in the Authority effective one year ( or earlier if approved by the Board) after the Board approves an amendment to this Agreement if the Director representing such Party has provided notice to the other Directors immediately preceding the Board's vote of the Party's intention to withdraw its membership in the Authority, should the amendment be approved by the Board.

8.1.3 Continuing Liability; Further Assurances. A Party that withdraws its membership in the Authority may be subject to certain continuing 18 13045--0001 \2606345 v 1,doc
6/21/22 / 8A-29
DocuS!gn Envelope ID: B6417318-68FD-480D-BADD-7A197A78682F liabilities, as described. in Section 8.5 (Continuing Liability; Refund) of · this Agreement, including, but not limited to, power purchase agreements and other Authority contracts and operational obligations. The withdrawing Party and the Authority shall execute and deliver all further instruments and documents and take any further action that may be reasonably necessary, as determined by the Board, to effectuate the orderly withdrawal of such Party from membership in the Authority. The Board shall also consider, pursuant to Section 3.2.12, adoption of a policy that allows a withdrawing Party to negotiate assignment to the Party of costs of electric power or other resources procured on behalf of its customers by the Authority upon its withdrawal. In the implementation of this Section 8.1.3, the Parties intend, to the maximum extent possible, without compromising the viability of ongoing Authority operations, that any claims, demands, damages, or liabilities covered hereunder, be funded from the rates paid by CCA Program customers located within the service territory of the withdrawing Party, and not from the general fund of the withdrawing Party itself.

8.2 Termination of CCA Program. Nothing contained in Section 6 or elsewhere in this Agreement shall be construed to limit the discretion of the Authority to terminate the implementation or operation of the CCA Program at any time in accordance with any applicable requirements of state law.

8.3 Involuntary Termination, This Agreement may be terminated with respect to a Party for material non-compliance with provisions of this Agreement or Authority Documents upon a two-thirds vote of the entire Board excluding the Vote of the Party subject to possible termination. Prior to any vote to terminate this Agreement with respect to a Party, written notice of the proposed termination and the reason( s) for such termination shall be delivered to the Party whose termination is proposed at least 30 days prior to the regular Board meeting at which such matter shall first be discussed as an agenda item. The written notice of proposed termination shall specify the particular provisions of this Agreement or the Authority Documents that the Party has allegedly violated.· The Party, subject to possible termination, shall have the opportunity at the next regular Board meeting to respond to any reasons and allegations that may be cited as a basis for termination prior to a vote regarding termination. A Party that has had its membership in the Authority terminated may be subject to certain continuing liabilities, as described in Section 8.5 (Continuing Liability; Refund) of this Agreement.

8.4 Mutual Termination. This Agreement may be terminated by mutual agreement of all the Parties; provided, however, the foregoing shall not be construed as limiting the rights of a Party to withdraw its membership in the Authority, and thus terminate this Agreement with respect to such withdrawing Party, as described in Section 8.1 (Withdrawal) of this Agreement. • 19 13045•0001\2606345v I .doc
6/21/22 / 8A-30
Docu$lgn Envelope ID: B6417318-68FD-480D-8ADD-7A 197A78682F

8.5 Continuing Liability; Refund. Upon a withdrawal or involuntary termination of a Party, the Party shall.be responsible for any claims, demands, damages, or liabilities attributable to the Party through the effective date of its withdrawal or involuntary termination, it being agreed that the Party shall not be responsible for any claims, demands, damages, or liabilities commencing or arising after the effective date of the Party's withdrawal or involuntary termination.

Notwithstanding the foregoing or any other provisions of this Agreement, such Party also shall be liable to the Authority for (a) any damages, losses, or costs incurted by the Authority which result directly from the Party's withdrawal or termination, including but not limited to costs arising from the resale of capacity, electricity, or any attribute thereof no longer needed to serve such Party's load; and (b) any costs or obligations associated with the Party's participation in any program in accordance with the program's terms, provided such costs or obligations were incurred prior to the withdrawal of the Party. From and after the date a Party provides notice of its withdrawal or is terminated, the Authority shall reasonably and in good faith seek to mitigate any costs and obligations to be incurred by the withdrawing or terminated Party under this Section through measures reasonable under the circumstances, provided that this obligation to mitigate does not impose any obligation on the Authority to transfer any cost or obligation directly attributable to the membership and withdrawal or termination of the withdrawing or terminated party to the ratepayers of the remaining members. Further, the liability of the withdrawing or terminated Party shall be based on actual costs or damages incurred by the Authority and shall not include any penalties or punitive charges imposed by the Authority. The Authority may withhold funds otherwise owing to the Party or may require the Party to deposit sufficient funds with the Authority, as reasonably determined by the Authority, to cover the Party's liability for the costs described above. The withdrawing or terminated Party agrees to pay any such deposit determined by the Authority.

Any amount of the Party's funds held on deposit with the Authority above that which is required to pay any liabilities or obligations shall be returned to the Party. In the implementation of this Section 8.5, the Parties intend, to the maximum extent possible, without compromising the viability of ongoing Authority operations, that any claims, demands, damages, or liabilities covered hereunder, be funded from the rates paid by CCA Program customers located within the service territory of the withdrawing Party, and not from the general fund of the withdrawing Party itself. The liability of a withdrawing Party under this Section shall be only to the Authority and not to any other Party.

8.6 Disposition of Authority Assets. Upon termination of this Agreement and dissolution of the Authority by all Parties, after payment of all obligations of the Authority, the Board may sell or liquidate Authority property and shall distribute any remaining assets to the Parties in proportion to the contributions made by the · _existing Parties. Any assets provided by a. Party to the Authority shall remain the asset of th_at Party and shall nqt be .subject to distribution under this section.

9. MISCELLANEOUS PROVISIONS
20 13045~000 l \2606345vl.doc
6/21/22 / 8A-31
DocuSlgn Envelope ID: B6417318-68FD"480D,8/.>JJD-7A197A78682F

9.1 Dispute Resolution.· The Parties and the Authority shall make reasonable efforts to settle all disputes arising out of or in connection with this Agreement. Before exercising arty remedy provided by law, a Party or the Parties and the-Authority • shall engage in nonbinding mediation in the manner agreed upon by the Party or Parties and the Authority. The Parties agree that each Party may specifically enforce this section. In the event that nonbinding mediation is not initiated or does not result in the settlement of a dispute within 60 days after the demand for mediation is made, any Party and the Authority may pursue any remedies provided by law.

9.2 Liability of Directors, Officers, and Employees. The Directors, officers, and employees of the Authority shall use ordinary care and reasonable diligence in the exercise of their powers and in the perfonnance of their duties pursuant to this Agreement. No current or fonner Director, officer, or employee will be responsible for any act or omission by another Director, officer, or employee.

The Authority shall defend, indemnify and hold harmless the individual current and fonner Directors, officers, and employees for any acts or omissions in the scope of their employment or duties in the manner provided by Government Code Section 995 et seq. Nothing in this section shall be construed to limit the defenses available under the law, to the Parties, the Authority, or its Directors, officers, or employees. In addition, pursuant to the Act, no Director shall be personally liable on the Authority's bonds or be subject to any personal liability or accountability by reason of the issuance of bonds,

9.3 Insurance and Indemnificatio11 of Parties. The Authority shall acquire such • insurance coverage as is necessary to protect the interests of the Authority and the Parties. The Authority shall defend, indemnify and hold harmless the Parties and each of their respective governing board members, officers, agents and employees, from any and all claims, losses, damages, deductibles or self-insured retentions, costs, fines, penalties, injuries and liabilities of every kind arising directly or indirectly from the conduct, activities, operations, acts, errors, omissions or negligence of the Authority or its officers, employees, agents, contractors, licensees or volunteers.

9.4 No Third Party Beneficiaries. The provisions of this Agreement are for the sole benefit of the Parties and the Authority and not for the benefit of any other person or entity. No third party beneficiary shall be created by or arise from the provisions of this Agreement.

9.5 Notices. Any notice required or pennitted to be made hereunder shall be in writing and shall be delivered in the manner prescribed herein at the principal place of business of each Party. The Parties may give notice by (I) personal delivery; (2) e-mail; (3) U.S. Mail, first class postage prepaid, or a faster delivery method; or (3) by any other method deemed appropriate by the Board.

Upon providing written notice to all Parties, any Party may change the designated address or e-mail for receiving notice.
21 13045-0001 \2606345v I.doc
6/21/22 / 8A-32
• DocuSTgn Env~lbpe ID: E!64173'1 B'MFD'48DD-8ADD'7 A 197 A78682F All written notices or correspondence sent in the described manner will be ·deemed given to a party on whichever date occurs earliest: (!) the date of personal delivery; (2) the third business day following deposit in the U.S. mail, when sent by "first class" mail; or (3) the date of transmission, when sent byemail or facsimile.

9.6 Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of each Party.

9.7 Assignment. Except as otherwise expressly provided in this Agreement, the rights and duties of the Parties may not be assigned or delegated without the advance written consent of all of the other Parties, and any attempt to assign or delegate such rights or duties in contravention of this section shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the approved assigns of the Parties. This section does not prohibit a Party from entering into an independent agreemerit with another agency, person, or entity regarding the financing of that Party's contributions to the Authority, or the disposition of the proceeds which that Party receives under this Agreement, so long as such independent agreement does not affect, or purport to affect, the rights and duties of the Authority or the Parties under this Agreement. .9.8 Amendment. This Agreement may be amended by a written amendment approved by the Board in accordance with the Special Voting requirements of Section 4.12.

9.9 Severability, If any one or more of the terms, provisions, promises, covenants, or conditions of this Agreement were adjudged invalid or void by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants, and conditions of this Agreement shall not be affected thereby and shall remain in full force and effect to the maximum extent permitted by law.

9.10 Governing Law. This Agreement is made and to be performed in the State of California, and as such California substantive and procedural law shall apply.

9.11 Headings. The section headings herein are for convenience only and are not to be construed as modifying or governing the language of this Agreement.

9.12 Counterparts. This Agreement may be executed in any number of counterparts, and upon execution by all Parties, each executed counterpart shall have the same force and effect as an original instrument and as if all Parties had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages.

The Parties hereto have executed this Joint Powers Agreement establishing the Clean Energy Alliance.
22 13045~0001 \260634511 I .doc
6/21/22 / 8A-33
CITY
By:

DATE: \Doer~
ATTEST:
\ A,_ k·rrlytj. By: · 'fu'rl\v, N)..· ~ 4v,,__;
~City Clerk
APPROVED AS TO FORM:
-23 -
Oct. 8, 2019 Item #5 Page 32 of 42
6/21/22 / 8A-34
ATTEST:

By: AshGiJ.,~tftd
APPROVED AS TO FORM:

By:
-23 -
Oct. 8, 2019 Item #5 Page 33 of 42
6/21/22 / 8A-35
CITY OF So L--A,-,.JA ~l>C,#+
,, ,l:ityManager ~
DATE: _ _:_l.:.._l -__:.+_-_,...L1 ___ _
ATIEST:

By:

APPROVED AS TO FORM:

By:

Oct. 8, 2019 ltem#S Page 34 of 42
6/21/22 / 8A-36

CLEAN ENERGY ALLIANCE JOINT POWERS AQREEMENT

CITY OF ESCONDIDO
By; ,,,,,,.--·. -·-.--..:...··----
~ ~m.Clty Mil.tla(!llt
DATBL t't,/tfit{uii~\ ·\-
6/21/22 / 8A-37
'.' J
DocuSlgn Envelope ID: B6417318-68FD-480D-8ADD-7 A 19ZA78682F

CLEAN ENERGY ALLIANCE JOINT POWERS AGREEMENT
CIT1f1Jib&lt~ MARCOS
..LJM)'., .)j+
By: ~''1J'i'Af¥·
a r, 1 "city Manager
DATE: 1/13/2022
AT~'J""'••.,..••·
By:!~~.~d:

Phi 11 i p Seo 11 i c~ City Clerk
;P,~JUORM:
y._, ...

He 1 en Ho 7 mes P<elty Attorney
6/21/22 / 8A-38
Doeu·sIgn· Envelbpe ID: B64173"1 ~68FD480D-8ADD-7 A 197 A78682F Exhibit A: Definitions
"AB 117'' means Assembly Bill 117 (Stat. 2002, Ch. 838, codified at Public Utilities · Code Section 366.2), which created Community Choice Aggregation. "Act" means the Joint Exercise of Powers Act of the State of California (Chapter 5, Division 7, Title I of the Government Code commencing with Section 6500). "Agreement" means this Joint Powers Agreement.
"Authority" means the Clean Energy Alliance.
"Authority Document(s)" means document(s) duly adopted by the Board by resolution or motion implementing the powers, functions and activities of the Authority, including but not limited to the Operating Policies and Procedures, the annual budget, and plans and policies.
"Board" means the Board of Directors of the Authority.
"Community Choice Aggregation" or "CCA" means an electric service option available to cities, counties, and other public agencies pursuant to Public Utilities Code Section 366.2.
"CCA Program" means the Authority's Community Choice Aggregation program established, conducted and operated under Public Utilities Code Section 366.2. "Days" shall mean calendar days unless otherwise specified by this Agreement. "Director" means a member of the Board representing a Party appointed in accordance with Sections 4.1 (Board of Directors) and 4.2 (Appointment and Removal of Directors) of this Agreement.
"Effective Date" means the date on which the Agreement shall become effective and the Authority shall exist as a separate public agency, as further described in Section 2.1 (Effective Date and Tenn) of this Agreement. "Founding Member" means any jurisdiction that becomes a member of the Authority before October I, 2020, as identified in Exhibit B.
"Governing Body" means for any city, its City Council; and for any other public agency, the equivalent policy making body that exercises ultimate decision-making authority over such agency.
"Initial Costs" means reasonable and necessary implementation costs advanced by the Founding Members in support of the fonnation of the Authority and approved by the Board for reimbursement, which are (a) directly related to the establishment of the 23 13045.0001 \2606345v I ,doc
6/21/22 / 8A-39
DoouSign Envelope ID: 86417318-68FD-480D-8ADD•7A197A78682F Authority and its CCA program, and (b) incurred by the Authority or its Members relating to the initial operation of the Authority, such as the hiring of the executive and operations staff, any required accounting, administrative, technical and legal services in support of the Authority's initial formation activities or in support of the negotiation, preparation and approval of power purchase agreements, and activities associated with drafting and obtaining approval of the Authority's implementation plan, Initial Costs do not include costs associated with the investigation of the CCA model, attendance at routine planning meetings, or a Party's pre-formation reports related to their decision to pursue CCA or join the Authority. Initial costs also do not include the costs incurred by the City of Solana Beach relating to the termination of its CCA program. The Authority Board shall determine the repayment timing and termination date for the Initial Costs. "Investor Owned Utilities" means a privately-owned electric utility whose stock is publicly traded and is subject to CPUC regulation.
"Parties" means, collectively, the signatories to this Agreement that have satisfied the conditions as defined above for "Founding Members" or in Section 2.4 (Addition of · Parties) of this Agreement, such that they are considered members of the Authority. "Party" means, singularly, a signatory to this Agreement that has satisfied the conditions as defined above for "Founding Members" or in Section 2.4 (Addition of Parties) of this Agreement, such that it is considered a member of the Authority. 24 13045•000I \2606345v I.doc
6/21/22 / 8A-40
DocuSign Envelope ID: B6417318-68FD-480D-8ADD-7A197A78682F Exhibit B: List of Founding Members and Parties added on or after October 1, 2020, per Section 2.4
Any public agency that becomes a member by October 1, 2020 City of Carlsbad
City of Del Mar
City of Solana Beach
Any public agency that becomes a member after October 1, 2020 I 3045--0001126-06345v I .doc
City of Escondido
City of San Marcos
I
6/21/22 - 8A-41
DocuSign Envelope ID: B6417318-68Fil,48QD-8ADD-7A197A78682F AMENDMENT NO. 1 TO CLEAN ENERGY ALLIANCE JOINT POWERS

AGREEMENT
This Amendment No. I to the Clean Energy Alliance Joint Powers Agreement, dated November 4, 2019, by and among the Parties (hereinafter referred to as the "Agreement") amends the Agreement as follows:

I. Section 5.1 Elected and Anpointed Officers is hereby amended to amend the first sentence of this section to read:
"For each calendar year, the Board shall elect a Chair and Vice Chair from among the Directors and for each fiscal year shall appoint a Secretary and a Treasurer as provided in Government Code Section 6505.5.

2. Section 5.2 Chair and Vice Chair is hereby amended to amend the first sentence of this section to read:
"For each calendar year, the Board shall elect a Chair and Vice Chair from among the Directors."

3. Except as specifically amended above, all other provisions of the Agreement shall remain in full force and effect.

This proposed Amendment No. I was presented to the Board of Directors of the Clean Energy Alliance on July 29, 2021, and was adopted as amended by the Board at its September 30, 2021, meeting per Resolution 2021-012, attached hereto.
2 13045-0001 \2606345v l .doc
6/21/22 / 8A-42
DocuSign Envelope ID: 56D38309-50D4-488D-B04D-AAD0228E5BCF

CLEAN ENERGY ALLIANCE
RESOLUTION NO. 2021-012

A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CLEAN ENERGY ALLIANCE APPROVING AMENDMENT NO. 1 TO THE JOINT POWERS

AUTHORITY AGREEMENT REGARDING TERM OF CHAIR AND VICE CHAIR WHEREAS, the Clean Energy Alliance (CEA) is a joint powers agency, formed in November 2019, by the founding member cities of Carlsbad, Del Mar, and Solana Beach; and WHEREAS, Sections 5.1 and 5.2 of the Clean Energy Alliance Joint Powers Agreement (JPA) provides that for each fiscal year, the Board shall elect a Chair and Vice Chair from among the Directors; and
WHEREAS, the calendar year aligns the term of Chair and Vice Chair to coincide with the term of elected office for each Board Director; and
WHEREAS, proposed Amendment No. 1 to the JPA was presented to the Board at its July 29, 2021, meeting for review and the Board directed that this amendment be presented to the Board for adoption at its September 30, 2021, meeting; and WHEREAS, the member cities were provided a minimum 30-days advance written notice of the proposed amendment, iricluding a copy of the Amendment No. 1.

NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of the Clean Energy Alliance, as follows:

Section 1. The Board of Directors of the Clean Energy Alliance hereby adopts Amendment No. 1 to the Clean Energy Alliance Joint Powers Agreement amending Sections 5.1 and 5.2 as follows:
"Section 5.1. Elected and Appointed Officers. For each fisral calendar year, the Board shall elect a Chair and Vice Chair from among the Directors and for each fiscal year shall appoint a Secretary and Treasurer as provided in Government Code section 6505.5. " "Section 5.2. Chair and Vice Chair. For each fisral calendar year, the Board shall elect a Chair and Vice Chair from among the Directors. "
1 6/21/22 / 8A-43
DocuSign Envelope ID: 56D38309-50D4-488D-B04D-AAD0228E58CF The foregoing Resolution was passed and adopted this 30th day of September 2021, by the following vote:

AYES: Druker, Bhat-Patel, Becker
NOES: None
ABSENT: None
ATTEST:

APPROVED:

Kristi Becker, Chair
Sheila Cobian, Interim Board Secretary
2 Department:

Prepared By:

Subject:

Fiscal Impact:

Summary:

Background:

Discussion:

Recommended

AGENDA REPORT
.. $AN CLE:MENTE CITY COUNCIL MEETING
ly1E1eting Date: October 19, 2021
City Manager's Office
Jennifer Savage, Ass·istant to the City Manager

COMMUNITY CHOICE ENERGY FEASIBILITY STUDY- PHASE I
ATTACHMENT 3,0(,2,
Agenda !tern �--D \c'-
Approvals:

City Manager "2 ,}J
Dept. Head ---
Attorney ---
Fimince
Yes. Phase I of the feasibility study i$ $5,000 and funded from account #001-151- 43890. If Counci.1 directs further study, future phases would cost up to $40,000 and require a supplemental appropriation from the General Fund assigned fund balance to account #001-151-43890.

Phase I of a Community Choice Energy (CCE) Feasibility Study discusses the various options for a CCE in the City of San Clemente, including risks and benefits.

On August 17, 2021, City Council authorized Phase I of a CCE Feasibility Study. The Phase I report is included as Attachment 1.

The report (Attachment 1) provides a broad overview of CCE also known as Community Choice Aggregation (CCA). The · report compares risks and benefits between options for San Clemente to form o'r
join a CCE:
• Forming a stand-alone enterprise-based entity
• Forming a San Clemente CCE and joining 'CCEA JPA for management and administrative services
• Joining an existingCCE JPA
If, after reviewing the options, City Council is interested In forming or joining a CCE, Council should determine what option to pursue and determine whether to amend the Professional Services Agreement with the consultant (Attachment 2) for Phases II and Ill, which can be performed in sequence or concurrently:

II. Detailed review Of one particular CCE -This task provides a deta!led analysis of a CCE's proposals, Joint Powers Agreement, Implementation Plan, Integrated Resource Plan, and other documents. This phase would cost $10,000.

Ill. Financial feasibility of one particular CCE - This task provides a load forecast, SDG&E rate forecast, power procurement portfolio, and pro forma analysis.

This task models the financial feasibility of a particular CEE with various price and cost assumptions. This phase would cost $30,000.

Action: STA.FF RECOMMENDS THAT the City Council:
·

1. Determine what Community Choice Ehergy option to pursue.

2. Authorize staff to request usage data from SDG&E.

Finance Agenda Report 10-19-21 / 88-1
6/21/22 / 8A-45
6/21/22 / 8A-46
ATTACHMENT 3
Agenda Report Page2
• 3. Take one of the following actions: · (
a) Approve, and authorize the City Manager to execute, Amendment No. 1 to contract AC-1001, by and between the City of San Clemente and .MRW & Associates; providing for Phase II of the feasibility analysis relating to Community Choice Energy. This amendment increases the contract amount from $5,000 to $15,000, an Increase of $10,000. In addition, appropriate $10,000 from the General Fund unassigned fund balance, account 001-000-23430 into account 001-151-43890.
b) Approve, and authorize the City Manager to execute, Amendment No. 1 to contract AC-1001, by and between the City of San Clemente and MRW & Associates, providing for Phases II and Ill of the feasibility analysis relating to Community Choice Energy. This amendment increases the contraat amount from $5,000 to $45,000, an increase of $40,000. In addition, appropriate $40,000 from the General Fund unassigned fund balance, account 001-000-23430 into account 001-151-43890.

Attachments: 1. CCA Options, Risks and Benefits for the City of San Clemente prepared by MRW & Associates

2. Professional Services Agreement
Notification: None.
(
(
10-19-21 / 8B-2
6/21/22 / 8A-47
ATTACHMENT 3
ATTACHMENT 1
CCA Options, Risks and Benefits for the
City of San Clemente
Prepared by:

MRW & Associates, LLC
1736 Franklin Street, Ste 700
Oakland, CA 94612
October 2021
10-19-21 / 8B-3
6/21/22 / 8A-48
• ATTACHMENT 3
This report was prepared by MRW & Associates. MRW has been working on Community Choice Aggregation (CCA) issues since they were authorized by the California State Legislature in 2002. MR W has prepared and critiqued nwnerous CCA feasibility plans and is providing rate forecasting and other ongoing support to CCAs throughout the state.

This Study is based on the best information available at the time of its preparation, using publicly available sources for all asswnptions to provide an objective assessment regarding the prospects of CCA operation in the City. It is important to keep in mind that the findings and recommendations reflected herein are substantially influenced by current market conditions within the electric utility industry and state regulations, both of which are subject to sudden and significant changes.
10-19-21 / 88--4
/
6/21/22 / 8A-49
ATTACHMENT 3
CCA Options for San Clemente
Table of Contents
Executive Summary ............................................................................................................... z What is CCA? ................................................................................................................................ 2 CCA Options Available to San Clemente ........................................................................................ 3 Is San Clemente too small to form its own CCA? ............................................................................ 4 Introduction and Background ................................................................................................ 5 CCA Background ........................................................................................................................... s What Is a CCA? ..................................................................................................................................... 5 Status of CCAs In Californla .................................................................................................................. s Why Does San Clemente Want to Form or Join a CCA? ................................................................. 12 Rate Competitiveness and Financial Stabllity .................................................................................... 12 contribute to Climate Objectives ...................................................................................................... 12 Additional Objectives ......................................................................................................................... 13 CCA Options Available to San Clemente .............................................................................. 14 Forming a Single City Agency ....................................................................................................... 14 Joining CalCholce Energy Authority .............................................................................................. 15 Forming/Joining a Joint Powers Agency (Generically) ................................................................... 16 CCA Failures ................................................................................................................................. 17 Review of Existing CCA Options ......................................... : ................................................. 18 Orange County Power Authority .................................................................................................. 18 Size and Members ................ : ............................................................................................................. 18 .Board of Directors and Voting ........................................................................................................... 18 Financial Exposure .......... ; ........... : ........................... , .......................................................................... 19 Withdrawing from the JPA ................................................................................................................. 20 Clean Energy Alliance ............... , ................................................................................................... 20 Size and Members .............................................................................................................................. 20 Board of Directors and Voting ........................................................................................................... 20 Financial Exposure ............................................................................................................................. 21 Withdrawing from the JPA ................................................................................................................. 22 Are There Operating City-Only CCAs Similar to San Clemente? ...................................................... 23 Comparison of San Clemente Options .......................................................................................... 25 October 2021 MRW &Associates, LLC
10-19-21 / 8B-5
6/21/22 / 8A-50
ATTACHMENT 3
CCA Optio11s for San Clemente
Executive Summary
The City of San Clemente has retained MR W & Associates (MRW) to outline the Community Choice Aggregation (CCA) 1 options available to the City. More specifically, this report discusses options for the City of joining an existing Joint Powers Authority (JPA) based CCA or fom1ing a San Clemente-only CCA, as well as the benefits and risks associated with these choices.

What is CCA?
California Assembly Bill 117, passed in 2002, established Community Choice Aggregation in California, for the purpose of providing the opportunity for local governments or special jurisdictions to procure or pro.vi de electric power for their residents and businesses. San Diego Gas & Electric (SDG&E) must provide transmission and distribution system services to deliver the electricity supplied by a CCA to the CCA's customers at the same price and at the same level of reliability to customers taking CCA service as it does for its own full-service customers.

By state law, SDG&E also must provide all metering and billing services, That is, CCA customers receive a single electric bill each month from SDG&E, which differentiates the charges for generation services provided by the. CCA from the charges for SDG&E delive1y services.
' '

ELECTRICITY
CCA procures
po1iver

DELIVERY
SDG&E delivers the
energy and maintains
the grid

CUSTOMER
Receives CCA
power
Per California law, when a CCA is formed, all of the residential electric customers within its boundaries are placed, by default, onto CCA service. However, customers retain the right to return to their incumbent utility's service at will, sul'.!iect to whatever administrative fees the 1 Also sometimes referred to as Community Choice Energy or CCR October2021 2 MRW &Assoc/otes, LLC
10-19-21 / 8B-6
6/21/22 / 8A-51
ATTACHMENT 3
CCA Options for San Clemente
CCA may choose to impose. The CCA may offer service to commercial and industrial • customers toe), but also on the same "opt-out" basis.

CCA Options Available to San Clemente
San Clemente's three primary options for CCA are: joining an existing CCA; forming a standalone San Clemente-only enterprise-based CCA; or forming a San Clemente CCA and joining the Ca!Choice Energy Authority (CCEA).
• Joining an existing CCA. If the City decides to join an existing CCA, the Clean Energy Alliance (CEA) or Orange County Power Authority (OCPA) would be the most reasonable options due to the geographic proximity of their service territories to the City of San Clemente. •
• forming a stand-alone enterprise-based CCA.
• Forming a stand-alone CCA and joining CCEA.

CCEA is a "hybrid" IPA, where the JPA provides services to its member CCAs but does not control any ofits general policies or programs.2 The primary benefits of either of the San Clemente-only CCA options are more local control over procurement practices and budgets and services better tailored to San Clemente. Joining with CCEA greatly reduces the administrative burden relative to keeping all the CCA activities in-house for San Clemente. The primary benefits of joining with an existing CCA are foregoing the need to provide upfront financing for the CCA's startup process (which could be $500,000 or more), less potential financial exposure to the City as the JPA will be a financially distinct entity, economies of scale which can translate into lower average operating costs and reduced administrative burdens.

Table ES-1 qualitatively shows how these CCA options compare across a few key metrics. 2 See, https://californiachoiceenergyauthority.com/ CCEA was formed by the city of Lancaster, the first City enterprise CCA in the State and the first CCA in California. Lancaster found that it was receiving so many inquiries from other Southern California cities about CCA that it formed CCEA to serve other smaller cities seeking CCA fonnation. CCEA, just like Lancaster Choice energy, is governed by the Lancaster City Council.

October 2021 3 MRW & Associates, LLC
10-19-21 / 8B-7
6/21/22 / 8A-52
ATTACHMENT 3
CCA Options for San Clemente
.Table ES-1: Comparison of San Clemente CCA Options
~---
GHG Reduction Potential
Local Control/Governance
Local Economic Benefits
i 1 Start Up Costs/Cost to Join
Level of Effort
i Timing (earliest)
Comparable/
modestly lower
Some
Some
Some
Non.e
Minimal
f----- i·
' 2024 I
Com parable/
mode stly lower .

Some
--·-
G reater
·-······--··-···--·
G realer
----------
s ome
-------------·
5 ome
2 024
------
Comparable/
modestly lower
Bas e
Some Bas e
·------------
Greatest Non e
Greatest Mini mat
----- ... ------- ----·---
Greatest Non e
·-··-·--·
Greatest Non e
---· - f--------· -
2024 N/A
. ----··.

Is San Clemente too small to form its own CCA?
Currently, there are at least eight established city-only CCAs with under I 00,000 residents in California. San Clemente, with a population of around 68,000, would represent one of the larger city-only CCAs within this population grouping, as well as the first of its size in SDG&E territory. Among the city-only CCAs of similar size to San Clemente, only one is not a CCEA member: King City. This situation highlights the value that CCEA is able to provide city-only CCAs who may not have the resources or personnel to operate a city-only CCA alone. Although King City is not a CCEA member, it fully outsources all of its operations to a contractor.

October 2021 4 MRW & Associates, LLC
10-19-21 / 8B-8
6/21/22 / 8A-53
. ATTACHMENT 3
CCA Options for San Clemente
Introduction and Background
The City of San Clemente has retained MRW & Associates (MRW) to outline the Community Choice Aggregation (CCA) options available to the City. More specifically, this report discusses options for the City of joining an existing Joint Powers Authority (JPA) or forming a San Clemente-only CCA, as well as the benefits and risks associated with these choices.

CCA Background
What is a CCA?
California Assembly Bill 117, passed in 2002, established Community Choice Aggregation in California, for the purpose of providing the opportunity for local governments or special jurisdictions to procure or provide electric power for their residents and businesses.

Under existing rules administered by the California Public Utilities Commission (CPUC), an investor-owned utility (IOU) must use its transmission and distribution system to deliver the electricity supplied by a CCA in a non-discriminatory manner, That is, it must provide these delivery services at the same price and at the same level of reliability to customers taking their power from a CCA as it does for its own full-service customers. By state law, an IOU also must provide all metering and billing services, its customers receiving a single electric bill each month from the IOU, which would differentiate the charges for generation services provided by the CCA as well as charges for IOU delivery services. Money collected by the IOU on behalf of the CCA is remitted in a timely fashion (e.g., within 3 business days).

As a power provider, the CCA must abide by the rules and regulations placed on it by the state and its regulating agencies, such as maintaining demonstrably reliable supplies and fully cooperating with the State's power grid operator. However, the State has no rate-setting authority over the CCA; the CCA may set rates as it sees fit so as to best serve its constituent customers.

Per California law, when a CCA is formed, all of the residential electric customers within its boundaries will be placed, by default, onto CCA service. The CCA may offer service to commercial and industrial customers, too, but also on the same "opt-out" basis. However, customers retain the right to return to their incumbent utility's service at will, subject to whatever administrative fees the CCA may choose to impose.

Status ofCCAs in California
Even though the enabling legislation was enacted in 2002, the first CCA to provide power, Marin Clean Energy (MCE), did not enroll customers until 2010. For the next five years, others investigated CCA formation, with a few early adopters stepping up in 2014 through 2016. As shown in Figure 1, once these early adopters showed that CCAs could work, the flood gates opened in 2017. As shown in the figure below, by the end of 2021, CC As are expected to serve October 2021 5 MRW & Associates, LI£
10-19-21 / 8B-9
6/21/22 / 8A-54
, ATTACHMENT 3
CC:A Options for San Clemente
over 55,000 GWhs,3 with some projecting that by the mid-2020s, between 50 to 80 percent of the load in the three main IOU service territories will be served by non-utility entities (CCAs and Direct Access providers).

60.0UO
40,0(1()
30 0%
.l.OJJOO
0 Figure L California CCA Load Growth4
50,040
55253
44,400
12,3Q0
5,400
-
I! C(A 2016 i'9 CCA }i'Jll M (Ch 20J 8 ■ CCJ.\ 2019 '.i CCJ.\. 2020 ;\\I CC.A ?..021 * Figures for 2020/2021 are projections based on expected launches Table 1 lists the active or established CCAs in California, inclnding those which have announced intended launches, along with their location and governance structure. As the table shows, most of the current CCAs are located in PG&E's service area, but the growth in 2021- 2022 will come from new CCAs in Southern California Edison's (SCE) territory. Currently there are two CCAs in San Diego Gas & Electdc's (SDG&E) territory: Clean Energy Alliance and San Diego Community Power.

The table also shows that the majority of CCAs are organized as JP As. There are also many smaller cities in SCE's area that use the "JPA Light" model, in which the CCA is technically a city enterprise that relies upon the California Choice Energy Authority (CCEA) to provide the technical operations. There are also three fully stand-alone city CCA enterprises: San Francisco, SMl=,~~City. •
3 55 GWh roughly corresponds to the electricity use of750,000 homes, 4 Figure courtesy ofCalCCA.

October 2021 6 MRW & Associates, LLC
10-19-21 /8B-10
6/21/22 / 8A-55
ATTACHMENT 3
. CCA Options for San Clemente
Table 1. CCAs in California
i CCAs delivering power In California
i~C_lean Power S~n Francisco _ -~-~1 · -PG&E_ _; ___ ~!ty __ ., __ ..:.... __ .....c ·---------- ________ .:

May-16 I 3,083 I
: East Bay Community Energy PG&E JPA ·-·--·· ----•·· ----- -- PG&E
Jan-18
-+-·--
5,951
' : Marin Clean Energy JPA May-10
!
5,879 J , Central Coast Community Energy Mar-18 4,507
-----·---··· - . - _JPA ___ I ••------'----
. Peninsul~Cl;;~-E~·;:;~- --- - r _PG~E _ JPA Oct-16 i 3,290 ____ j__ 2018 i 1,187
631
Pioneer Community Energy PG&E JPA .. ··-----·-------··--··•-··-----•.•. ··-····I· : San Jose Clean Energy
May-17 -··-··-----------
i
: Redwood Coast Energy Authority PG&E JPA ------ -·-·· - -- t . ,., ·--····---· ·---+-----~--'---~ 1__;;~icon Valley Clean Energy
, Sonoma Clean Power
Valley Clean Energy Alliance
I PG&E City Sep-18 4,462
---~-·1~----+--------'-~-- PG&E JPA I Apr-17 ' 3,991 :

I -
I -------·-· PG&E JPA May-14 2,335 __ . .....j.

I ·- - .

PG&E I 1
~~--·---- King City Community Power ···1
Clean Power Alliance
1 ----··--·-··-·-··---------· ----------- "
! Apple Valley Choice Energy
/ Lancaster Choice Energy • I
Pico Rivera Innovative Municipal Energy ... --------
Rancho Mirage Energy Authority
San Jacinto Power
Baldwin Park
l_Desert CommunltyEnergy .....
j San Diego Community Power
JPA -.-------~ . .. L._
PG&E ----··---- I City i
I
SCE i JPA -·-----·· .. j. -----•--
¼
CE1 City; CCEA
.

City; CCEA . -- -------- --•-
City; CCEA
SCE I City; CCEA ' • -··------ - - '
SCE I City; CCEA !
I SCE City; CCEA ' ! -·-·---- ------·-
SCE i JPA ··-·-- ! _. ____
SDG&E : JPA _____ ,..
i Clean Energy Alliance
rP/anned Launch
I SDG&E . .l -·- -·--·--.... JPA
Dec-16 737 -·--- ·-·--·- Jul-18 486 6 ! ·----- ·• Feb-18 11,113 .. " ___ ., ______________ i ....... , Apr-17 235 - I May-15 I I 551 i - -i
Sep-17 243 ! ·-
May-18 266 I
----- ---------
Apr-18 160
20207 I 253 8 I
I - Apr-20 1,433
' -- --
Mar-21 I 3,2279
-... - -~--- May-21 14410
!
i Butte County ~---·
: Hanfor_d ___ _ ' --r- _P:-t-/--ilf--c-it·y-J;P_;_CE-A----~-~-2D4_......,. ___ l_~o-8:-o __ j '2019 Load (GWh) reported by CalCCA: https://ca\-cca.org/cca-impact! Note: Clean Energy Alliance's Load is based on the 2021 from its Integrated Resource Plan.
6 King Power Community Power Label 7 F AO (baldwi park.com) 3 Cominunity Choice Aggregation (baldwinpark,com) 9 San Diego-Community Power IRP 1 ° Clean Energy Alliance fRP (in 202 l)
October 2021 7 MRW & Associates, LLC
10-19-21 /8B-11
6/21/22 / 8A-56
f Santa Barbara (City) f .... _SCE . [. City; CCEA .
i Pa~mdale ..... ··--.. .... -·- .. -- [ __ SCE ___ City; CCEA 2021
TBD
ATTACHMENT 3
21111
655
2022 4,052 Orange County Power Authority. __ -······( ,.._ ... ___ , __ , ____ j_ ____ ,,_ ~-·--·-------··- 5 sCCEE j JPA
Com_'.'le':e_ _ _ ____ ______ + City;~C_Ei'I_ TBD __ 21312 Pomona Choice Energy ____ J ___ S~E__ City; ~C.:_f:, __ o~:21~' , ---~5_':'_' ______ j Figure 2. Active and Expected California CCA Loads (GWhs) (2021) Clean Power Alliance V'P:>=~"'"""'""''""w""r.'"'-o/""'""'""""m""""""'"'· """"•"'r>,·o,•.::::ms:1.',"-""'=·~=1Z.m=.i-1wu:l;;azo"' East Bay Community Energy
Marin Clean Energy
C~ntral Coa$t Communr.y Energy (Monterey Bay)
San Jose Clean Energy
Orange County Power Authority f.lll,.1;-:,.i;=i:.tmllll"..=.m,.-:.1:l.T,1;;,,:1 Silken Valley Clean Energy
Peninsula C!ean Energy
San Diego Comrnunity Power
Clean Power San Francisco
Sonoma Clean Power
Desert Community Erergy i.;;J,11!,;.l!eJE~.)}I
Pioneer Community Energy -
Butte County -
Valley Cle::in Energy Alllance -
Palmdale lm'JV.1
Pomona Choice Energy "''""'
Rec!\ltood'coastEnergy Authority -
Lancaster Choice EMrgy 1t,m;-i
King City Community Pcwer -
Hanford ~
Rancho Mirage Energy Authority ,~1
Baldwin Park w
Pico Rivera Innovative Municipal Energy 1rJ
Apple Valley Choice Ene ~
Santa Barbara (City) 1,'\1
Commerce m
San Jacinto Power re
Cle.an Energy All!once
0 2,000 4,(){X) 6,000 8,CXXJ
Annual Load [GWh}
1 SDG&E tu SCE ■ PG&E
11 Santa Barbara Implementation Plan 12 Commence fRP 13 FAQs ( Pomo1rn Choj_gJ~ Energy 14 Pomona~ Jmp!ementation-P la11-Adopteck.v ith-Re.so.pdf (pomonachoiceenergy .org} 10,o:)() 12,000
October 2021 8 MRW & Assoc/ates, I.LC
10-19-21 / 8B-12
6/21/22 / 8A-57
ATTACHMENT 3
CCA Options for San Clemente
CCA Evolution
Over the first years of operation, many California CCAs have been evolving from a simple commodity procurement entity-providing power, albeit greener, at a competitive rate, After a . year or two ( or more), many CC As have expanded into providing targeted and specialized customer programs that while customized for their communities, are variations of services provided by their incumbent utility or are generally proven in the industry. Examples of this include offering rooftop solar programs and feed-in-tariffs for local renewable generation projects that connect "in front of' the customer meter or installing additional electric vehicle (EV) charging stations and encouraging EV purchasing and leasing.

The third phase in evolution observed with California CCAs is moving into innovative and less common power-related programs and services. These are programs that are not common in California or elsewhere and may be more in the "demonstration" part of the program/technology lifecycle. Many of these programs emphasize community economic development, local renewable generation, or grid resiliency, Examples of these programs include Sonoma Clean Power's efforts to electrify the areas that were destroyed in wildfires (i.e., work with PG&E to perhaps not provide gas service to these areas) or the microgrid programs being pursued by Redwood Coast Energy Authority, Table 2, below, shows a range of the programs being pursued by some California CCAs. 15 These non-commodity program offerings are becoming the focus of CCAs in the state. At the Business of Local Energy Symposium, a large CCA-oriente<l conference held in June 2019 in Irvine, CA, the speakers, panels and presentations overwhelmingly focused on innovation that CCAs can do and are doing. 16 None addressed power procurement or cost competitiveness. is https:J/cal-cca.org/Cca-programs/ The Table is from. The California Community Choice Association, the trade group representing CCAs in the state. It was prepared in 2020 and as such does not include OCPA, as it is not operational, nor CEA, which was fonned in 2021.
16 https :/ /theclirnatecentor.orglthe-busin ess-of-local-energy-sym pos iu m -201 9-presentations/ October 2021 9 MRW & Associates, LLC
10-19-21 I 88-13
6/21/22 / 8A-58
'?
<D
N '
-
CX) CD
'
....

CCA Options for San Clemente
17 https.://cal-cca.org/cca-programs/
October 2021
Table 2. Sample California CCA Program Offerings 17
10 MRW & Associates, LLC
()
I
m
c,:,
6/21/22 / 8A-59
-
?
(0
-
N
-
-
00 OJ
' -
en
CCA Options for San Clemente
October 2021 11 MRW & Associates/ LLC
.~ ~ (")
I
s:::
rn
z
-i
(,)
6/21/22 / 8A-60
ATTACHMENT 3
CCA Option~ .. fc~San_Clemente
Why Does San Clemente Want to Form or Join a CCA?
Before San Clemente can decide which CCA option is best for the city (if any), City decisionmakers should understand why the City may want to form a CCA. This section lays out the typical CCA goals and objectives and how they might apply to San Clemente.

Rate Competitiveness and Financirtl Stability
A CCA serving San Clemente should expect to offer rates that are "competitive" with those offered by the incumbent electric utility, San Diego Gas & Electric (SDG&E). If they could not, it is not reasonable to assume that a CCA would be formed. "Competitive" here means that the CCA, over the long run, could offer rates that are equal to or less than those offered by SDG&E. It does not mean that in each and every year a specific rate savings is offered. In fact, many CCAs current rates are slightly higher than those offered by their host utilities.

In addition, the CCA would be committed to providing equitable treatment of all classes of customers without undue discrimination in setting rates. At the same time, the rates would have to generate sufficient revenue to the CCA, so that
all liabilities are covered in a manner consistent
with an investment-grade entity. The CCA
should not move forward unless there is
confidence that both rate competitiveness and
financial stability can be achieved.

The CCA would also intend to offer long-term
rate stability to its customers as well as maintain
its own financial condition. This could be
accomplished through conservative phasing in of
customers and projects; establishing and
maintaining appropriate lines of credit and
financial reserves; and contracting with only
experienced and financially solid providers of
goods and services.

Contribute to Climate Objectives
The prime motivation of some CCAs is meeting
local climate action goals and the reduction of
greenhouse gas emissions. [n considering how
climate goals can fit into a CCA, it must be noted
that California is also moving toward a similar
carbon-free electricity policy. Senate Bill I 00,
which was signed into law by Governor Brown on
September 17, 2018, increases the renewable
power content requirement of all retail power
October 2021 12
CCA and SDG&E Rates
A CCA provides only generation
services: the actual power that CCA
customers use. The incumbent
utility, SDG&E, would still deliver
the power to the home or business,
even though the CCA is providing
the power.

Therefore, the CCA customer
would still pay the SDG&E
delivery rates, but instead of paying
SDG&E's generation rates, they
would pay the CCA 's generation
rates. CCA customers also pay an
additional fee so that the remaining
SDG&E customers are not harmed
by the CCA (the "PCIA" charge).

Because a customer pays the same
de! ivery rates no matter who
provides their power, the rate
comparisons here focus on the CCA
rate (plus the PCIA charge) versus
SDG&E's generation rate.

MRW & Associates, LLC
10-19-21 / 8B-16
6/21/22 / 8A-61
. ATTACHMENT 3
CCA Options for San Clemente
providers, including utilities and CCAs, from 50% to 60% by 2030. The bill also says, "that it is • the policy of the state· that eligible renewable energy resources and zero-carbon resources supply 100% ofretail sales of electricity to California end-use customers by December 31, 2045," and that all state agencies regulating electricity build this goal into their planning. This effectively means that the difference between the electricity carbon content of the CCA and remaining with status quo utility service may not be significant.

Additional Objectives
CCAs can also serve as a vehicle to pursue other objectives that benefit the City, its residents, and businesses. Examples of additional objectives could include the following:

Economic development. A CCA can potentially contribute to local economic development in two ways. First, if the CCA offers reduced electricity rates, additional dollars can flow into the local economy as households and businesses spend their incomes on items and services other than electricity. Second, the CCA can offer programs that allow households and businesses to reduce their power consumption, such as energy efficiency and distributed energy resources, Local jobs and employment, Beyond the potential jobs that could result from the economic stimulus of possibly lower rates, the CCA can more directly incentivize and support local job creation. This includes employing residents in CCA administration, using local contractors for energy efficiency programs, and distributed energy generation ( e.g., rooftop solar installers and maintainers). The CCA can also partner with local community colleges and/or trades apprenticeship programs to support quality local job opportunities.

Prioritization of renewable power development. Beyond support of locally sited distributed energy generation ("DEG," e.g., rooftop solar), a CCA may prioritize siting larger, grid connected DEG and utility-scale renewable project locally.

Local citizen input and participation. A primary purpose of a CCA is to better reflect its community's interests and values than an investor-owned utility like SDG&E can. For example, a CCA can commit to providing opportunities for citizens to provide input into its programs and policies, such as having a citizens' advisory board or having a non-voting, atlarge community seat on tb.e CCA' s board of directors.

October 2021 13 MRW &Associates, LLC
10-19-21 / 88-17
6/21/22 / 8A-62
ATTACHMENT 3
CCA Options for San Clemente
CCA Options Available to San Clemente
San Clemente's three primary options for community choice aggregation (CCA) are: joining an existing CCA, specifically the Clean Energy Alliance (CEA) or the Orange County Power Authority (OCPA); forming a stand-alone San Clemente-only enterprise-based CCA; or forming a San Clemente CCA and joining the CalChoice Energy Authority.

Forming a Single City Agency
In a sole jurisdiction approach, the City establishes the CCA as an enterprise and maintains full flexibility-and responsibility-for developing policies and procedures. This means that they can be specifically tailored to and responsive to the City's stakeholders and constituents and based upon their own objectives. The City would be responsible for setting policy priorities in general and making specific decisions about power generation, staffing policies, local economic development activities and strategies, formulation of financial and debt policies, and development of customer-focused programs, such as those promoting energy efficiency, electric vehicles (EV), and distributed generation (e.g., rooftop solar PV). Along with greater autonomy, the City would assume all risk, liability, and costs associated with operating the CCA. In this case, the likely path would be for the City to establish the CCA as an enterprise and work with appropriate legal counsel to explore options for controls and structural safeguards to financially insulate the CCA and minimize risk to the City's general fund.

Enterprises are commonly used for public utilities such as electric, water and wastewater, or other city functions where a public service is operated and provided in a manner similar to a separate business enterprise. Fees and charges are collected for services provided and accounting and budgeting are separate from a city's general fund. Establishing an enterprise provides management and CCA customers with visibility and accountability, and the ability to more easily separate and measure performance, analyze the impact of management decisioru, determine the cost of providing electric service, and use this information to develop electric rates and services. Enterprise accounting would allow the City to demonstrate to customers, the public, and other stakeholders that the cost of power is being recovered through its rates, and not being subsidized or comingled with other City funds or functions.

Within the city-only option, the San Clemente CCA would have to determine ifit is to be a fully in-house operation with existing or added City staff, or if the City would outsource some of or all of the activities, with the City only administering contracts and managing vendors. Examples of some of the categories of operating activities that would need to be performed in-house or outsourced include:

October 2021
•
•
•
•
•
•
Power procurement and operations
Finance, budgeting, and accounting
Coordinating with SDG&E on billing
Customer service
Communications, outreach, and public relatioru
Customer service programs (EE, EV, or rooftop solar PV) 14 MRW & Associates, UC
10-19-21 / 8B-18
6/21/22 / 8A-63
. ATTACHMENT 3
CCA Options for San Clemente
• Regulatory monitoring and compliance (e.g., CPUC filings) The likely best short-term option would be to outsource the highly technical functions and maintain some of the management, planning, and other public-facing functions, like communications, in-house. The range of options depends upon the degree of operating control. the City wishes to maintain, the costs associated with maintaining those functions, and the degree of risk it is willing to accept on its own, or delegate to third-party providers to assume these responsibilities.

Forming a stand-alone CCA also requires financial support from the City. The City would need to fund initial feasibility studies, a business plan, and implementation plan, as well as the initial start-up capital to get the CCA going. For example, the City of Irvine funded the initial feasibility study.and implementation activities ofOCPA, along with a working capital loan of $2 million, which is slated to be repaid over the first few years of OCPA operation. 18 If San Clemente were to form a city-only CCA, it should expect to have to supply a loan to the CCA on the order of $300,000 to $500,000, which would be paid back during the first 2 to 5 years of operation.

If the San Clemente CCA were to pursue additional services, it would require at least one or two managers, supported by analyst professionals, som~ of whom could be shared with other San Clemente departments.

There are currently three fully stand-alone city enterprise CCAs in California: San Francisco, San Jose, and King City. Being relatively large, San Francisco and San Jose perform most of the CCA functions in-house using city staff. King City, being one of the smallest CCAs (by load served), fully outsources its CCA operations, with one staff member-the city manageracting as the link between King City and the contractor. Before forming CEA, the City of Solana Beach also operated in this fully-outsourced model.

Joining CalChoice Energy Authority
CalChoice Energy Authority (CCEA) is described as a "hybrid" JPA, where the JPA provides requested services to its member CCAs but does not control any of its general policies or programs. 19 More specifically, CCEA provides to its members, as desired:
• Power, including contract procurement, portfolio management, load forecasting and scheduling, and complying with and demonstrating procurement-related regulatory requirements (e.g., resource adequacy, renewables, etc.), • Regulatory and compliance support, including preparing and filing compliance reports to the California Public Utilities Commission, the California Energy Commission, and the California Independent System Operator; and general regulatory advocacy. 13 Per initial JPA Agreement, Irvine provide a $2 million loan. Due to tight credit markets and low CCA margins,·- OCPA's banker has requested Irvine provide an addition $5 million of load guarantees. 19 Seei https://califomiachoiceenergyauthority.com/ October 2021 15 MRW & Associates, LLC
10-19-21 / 8B-19
6/21/22 / 8A-64
• 'ATTACHMENT 3
CCA Options for San Clemente
• Billing and data management, including interface with SDG&E and call center operations.
• Treasury, inciuding CAISO invoice validation, rate design development, and risk· management.

Thus, CCEA is effectively a non-profit outsource for all of the detailed activities of a CCA.

This is a good match for smaller cities such as San Clemente who are interested in the local control of the CCA but not interested in performing the day-to-day management needed to operate a CCA.

CCEA members that are providing power are: Lancaster Choice Energy, San Jacinto Power, Pico Rivera Innovative Municipal energy, Rancho Mirage Energy Authority, and Apple Valley Choice Energy, Baldwin Park Resident Owned Utility District, City of Commerce, and Pomona Choice Energy. The cities Palmdale and Santa Barbara are recent members and plan to offer service to customers in October 2022 and October 2021, respectively.

All of the city-only CCAs in SCE's territory are CCEA members. This makes sense in that they are all small. It also presents a potential obstacle to San Clemente joining CCEA, as it is located in SDG&E's territory. CCEA would thus need to expand its services to interact with SG&E.

Were it to join CCEA, San Clemente would be responsible for setting policies, setting rates, marketing and customer outreach, and the implementation of any desired local programs. It would also still have to provide any start-up loans and any collateral or loan guarantees needed to acquire financing,
The CCEA Board of Directors is the Lancaster City Council. The actual services provided by CCEA are via contractors and consultants supervised by City of Lancaster personnel (e.g., Lancaster City Manager, Lancaster Choice Energy's Executive Director.) Thus, CCEA's administrative simplicity (the city not having to acquire expertise or expert contractors) is a traded off against the fact that San Clemente would have to accept the contractors and service providers selected by CCEA. The bottom line is that CCEA is by design more of a client; San Clemente would remain fully in. control of the power that the JP A purchased on its behalf as well as which services the JPA provides to the City.

Forming/Joining a Joint Powers Agency (Generically)
The second option would be the formation of a JPA, where the JP A is an independent agency that operates on behalf of the public agencies which are party to its creation. In this approach, the City effectively shares responsibility with the other agencies participating in the JP A. The divisions of these responsibilities and the sharing of decision-making authority would be determined at the time the JPA is created. Other critical 'ground rules' are negotiated and memorialized, such as financial and possibly staffing commitments of each participating agency, and the composition of the board and voting procedures.

The JP A structure reduces the risks of implementing a CCA program for the City by completely separating its books from the financial assets and liabilities of the City and the other October 2021 16 MRW &Associates, LLC
10-19-21 / 8B-20
(
\.
6/21/22 / 8A-65
ATTACHMENT 3
CCA Options for San Clemente
participating agencies, and distributing the risks and costs associated with the CCA among the participating entities. It cot1ld also provide the benefits of scale and economy for certain aspects or'CCA operatio1\, sucli ·as pow~r procurement ~r back office billing and accot1i1ting functions.

Key tradeoffs to the benefits of a JPA are that decision making is allocated amongst the parties and management independence is diminished. Objectives of participating agencies will likely differ and reduced autonomy can manifest when setting priorities for local generation, economic development activities, and importance of support programs.

As described in detail in the nest section, the 1P As that the City of San Clemente would likely join due to geographic proximity would be OCPA or CEA. If the City of San Clemente were to join OCPA, it would be the only member city within that JPA that is located in SDG&E service territory. There is one other CCA that have member cities served by two or more different utilities: Central Coast Community Power, whose communities are all in PG&E's area except for southern Santa Barbara County, which is in SCE's.

CCA Failures
To date there has been only one CCA failure: Western Community Energy (WCE) in Riverside County, which was comprised of the cities of Eastvale, Norco, Hemet, Jurnpa Valley, Perris, and Wildomar. WCE was formed in 2018 and began servicing member cities in spring 2020. On May 17, 2021, WCE filed a declaration of emergency and authorized the filing for Chapter 9 bankruptcy protection. WCE cited several contributing factors that impacted its financial wellness, including non-payment from customers due to COVID-19, a power price spike in August 2020, and insufficient hedging and power price risk management. While other CCAs experienced similar challenges, they were able to rely on reserves accumulated over years of operation. WCE, beginning service April and May 2020, had no reserves to fall back on, a contributing factor to its decision to file for bankruptcy.

Other cities of chosen to "decertify," that is, chosen not to move forward with CCA after having submitted a CCA implementation plan to the California Public Utilities Commission. These cities include Hanford, Industry and Palmdale. One city, Baldwin Park, is instituting decertification and ceasing serving it residents and businesses because of the current challenges of offering rates lower than those of its incumbent utility, Southern California Edison.20 io http:/ibaldwinpark.2rnnicus.com/GeneratedAgendaViewer.php?vle\V id-· l O&clip id-2730 Agenda Item 18.

October 2021 17 MRW & Associates, LLC
10-19-21 / 88-21
6/21/22 / 8A-66
CCA Options for San Clemente
Review of Existing CCA Options
Orange County Power Authority
• ATTACHMENT 3
In this section, we outline the composition, governance, and voting structure of Orange County Power Authority (OCP A). This section highlights where the OCPA JP A differs from, or is consistent with, other CCA JP As.

Size and Members
OCPA is composed of four member agencies: the Cities of Huntington Beach, Irvine, Buena Park, and Fullerton. These cities are all located within SCE's service territory. Tue CCA estimates that it will have to serve an estimated load of 4,052 GWh.

If San Clemente were to join OCPA, it would only marginally increase OCPA's load, but it would be the only SDG&E member of OCPA. This would make OCPA onp of the few CC As to have members who are not all part of the same utility jurisdiction. Having customers in two different utility service territories would add complexity to OCP A's operations and remove some of the economies of scale that are achieved in the formation of the JP A. Specifically, OCP A would have to implement systems to interface not only with Southern California Edison (SCE) (which currently serves the OCP A cities) but also San Diego Gas & Electric (SDG&E) which serves San Clemente. OCPA would also have to create specific rates for San Clemente, as SCE and SDG&E's rate structures are not the same. •
Board of Directors and Voting
The OCP A is governed by a Board of Directors, with one director appointed by each JP A member21 , except for the City of Irvine, which would initially have two directors but would drop down to one director once Irvine's loan to the OCP A is paid off.22 This structure is unique; all other California CCA JPA agreements that MRW has seen specify that each member community would have one member on its JP A Board.

The JP A also provides for a second "Voting Shares Vote."23 The JP A states that during the same Board Meeting after an affirmative or tie vote, two or more Directors may request a "voting share vote" to reconsider the action approved by a first vote. (Both Directors cannot be from Irvine.) The voting shares are proportional to the annual energy use of the community.

This voting shares vote option is common. East Bay Community Energy (EBCE), Marin Clean Energy (MCE), Clean Power Alliance, Peninsular Clean Energy, Sonoma Clean Energy, and Silicon Valley Clean Energy are all major CCAs that allow for a "voting shares vote" for a 21 The OCPA JPA Agreement states that the director (and alternative director) shall be a member of the governing body of the Party Gurisdiction) when appointed (Section 3.2). 22 OCPA JPA Agreement, Section 3.1 •
zi OCPA JPA Agreement, Section 3.9,2
October 2021 18 MRW & Associates, LLC
10-19-21 /8B-22
(
6/21/22 / 8A-67
ATTACHMENT 3
CCA Options for San Clemente
particular matter if requested by a certain number of board directors. MRW is not aware of any CCA Board of Directors exercising a Voting Share Vote.

The OCPA JP A Agreement also explicitly states that membership does not require any financial obligations: "Parties are not required under this Agreement to make any financial contributions or payments to the Authority, and the Authority shall have no right to require such a contribution or payment."24 Instead, the City of Irvine is providing the initial capital loan and collateral to the OCP A. However, the Board may adopt a membership fee that additional (new) parties would be required to pay upon entering into a JP A agreement with OCPA. 25 Financial Exposure
Generally, all CCAs have similar stipulations in their JP A agreement to those of OCPA regarding the financial obligations of their members. Individual member jurisdictions are not held responsible for the debts, liabilities, or obligations of a JP A unless the governing board of each member jurisdiction (i.e., its City Council) agrees to assume a debt, liability, or obligation.

Additionally, CCAs typically indemnify and hold harmless member jurisdictions and their associated staff from any claims, losses, damages, costs, injuries, and liabilities arising direcily or indirectly from the conduct, activities, operations, acts, and omissions of the ·JP A. For those JP As that allow for members to be required to make contributions or pledge assets as a condition of continued participation in a CCA program, the JP A agreement requires a vote of at least 75% of all directors and the approval of the governing boards of each member jurisdictim1s who are being asked to contribute.

The establishment of many JP As necessitated that the initial implementation costs of a CCA Program be funded by an itritiai member jurisdiction. In these sJtuations, the member jurisdiction providing the initial funding was not entitled to any reimbursement of these cost if the CCA program did not become operational.

OCPA's initial members are each known as "Founding Party" members, while members who join the JPA after 2021 become an "Additional Party."26 Being a Founding Party automatically plaqes the new member's Director on the JP A's Executive Committee. The benefits and obligations of being a member of the Executive Committee are laid out in the JP A. The Executive committee would be formed if the Authority's membership reaches nine or more members. San Clemente would join as an Additional Party and potentially be subject to a membership fee uponjoining. 27 This tiered membership, which provides privileges to the initial members, is unique among CCAs,
24 OCPA !PA Agreement Section 5,6,
25 OCPA 1P A Agreement Section S .6. 26 OCP A IP A Agreement, Preamble. 27 OCPA !PA Agreement Section 5.6.

October 2021 19 MRW &Associates, LLC
10-19-21 / 8B-23
6/21/22 - 8A-68
' , ' ' ATTACHMENT 3
CCA Options for San Clemente
· Withdrawing from the JPA
The JP A agreement also provides for the right to withdraw from JP A membership: If a member party withdrew from the JPA agreement before April 1, 2021, it would withdraw without liability or cost upon providing the Authority fifteen (15) days advance written notice, 28 After • April 1, 2021, any current member city (or new member city) could withdraw from the JPA effective at the beginning of an OPCA's fiscal year by providing no less than 180 days written notice, A member city who exercises this latter withdrawal option may be responsible for the various damages and losses its withdrawal might cause to the JPA. 29 These damages would likely be associated with the value of power purchase contracts entered into by the OCP A on the member city's behalf which the OCPA could not liquidate.

Other CCA JP As allow member jurisdictions to withdraw from the authority after giving a certain amount of notice in advance, usually 180 days. Like OCP A, some JP As also require an affirmative vote from the governing board of the departing jurisdiction (i.e., City Council) before the jurisdiction can withdraw. However, JP As will typically hold departing jurisdictions responsible for certain continuing liabilities or financial obligations, such as power purchase agreements. These liabilities and obligations are typically costs incurred by the JP A on behalf of the departing jurisdiction.

Clean Energy Alliance
In this section, we outline the composition, governance, and voting structure of Clean Energy Alliance (CEA). This section highlights where the CEA JPA differs from, or is consistent with, other CCA JPAs.

Size and Members
Three member cities make up CEA: Solana Beach, Carlsbad, and Del Mar. Like San Clemente, all these member cities fall under SDG&B' s jurisdiction. The CEA estimates that it will have to serve an estimated load of 969 GWh in 2022 associated with an estimated 58,000 customer accounts. 30
Board of Directors and Voting
The CEA is governed by a Board of Directors, with one director appointed by each JP A member. 31 Bach director must be a member of the city council of the appointing party.

In general, Board action requires the affirmative votes of a majority of the Directors on the entire Board, with a tie vote resulting in no action being taken. For any matter related to the issuing of bonds or other forms of debt, adding or removing member cities, removing Directors, adopting or amending most bylaws of the JP A, or amending or terminating the JP A agreement, 28 OCPA JP A Agreemen~ Section 6.1.
"OCPA JPA Agreemen~ Section 6.3,
3° CEA Implementation Plan, pp, 22-23. 31 CEA JPA Agreemen~ Section 4.11.

October 2021 20 MRW & Assoclates,,LLC
10-19-21 I 88-24
I
I
(
\
6/21/22 / 8A-69
. ATTACHMENT 3
CCA Options for San Clemente
a special voting structure is instituted that requires the affirmative vote of two-thirds of the directors of the entire Board. Any action·s on Eminent Domain requires the affirmative vote of three-fourths of the entire Board, with no eminent domain action being approved without the affirmative vote of the Director representing the member city being directly affected. Lastly, a unanimous vote is required from the Board to amend JPA agreement provisions pertaining to the Purpose of the Agreement, Compliance with Local Zoning, Voting Requirements, Eminent Domain, Power Supply Requirements, and the Solana Energy Alliance Transition. 32 The CEA JP A Agreement also explicitly states that members are not required to make any financial obligations: "Parties are not required under this Agreement to make any fmancial contributions or payments to the Authority, and the Authority sball have no right to require such a contribution or payment." 33 The initial start-up costs of the CCA were divided equally between the three founding members of CEA, with the founding members not being entitled to any reimbursement of these cost if the CCA program did not become operational. 34 Financial Exposure
Under the CEA JP A agreement, individual member jurisdictions are not held responsible for the debts, liabilities, or obligations of the JP A unless the governing board of each member jurisdiction (i.e., its City Council) agrees to assume a debt, liability, or obligation. Additionally, CEA indemnifies member jurisdictions and their associated staff from any liabilities arising directly or indirectly from the conduct, activities, operations, acts, and omissions of the Jp A.

The JP A agreement states that the JP A does not requ.ire members to make any financial contributions or payments to the Authority nor may the JP A require a contribution or payment. 35 However, the JP A agreement does allow for member jurisdictions to voluntarily enter into an agreement with the JP A for contributions of public funds, advance of public funds, and personnel, equipment, or property in lieu of other contributions and advances. 36 Additionally, the lP A may require a new member to pay a membership fee to cover costs associated with adding a new jurisdiction. 37
It is important to note that one of CEA' s founding member jurisdictions, the City of Solana Beach, had been operating a city-only CCA, known as Solana Energy Alliance, since 2018. By joining CEA, the City of Solana Beach agreed to transfer its CCA customers to CEA. The CEA JPA agreement stipulates that other CEA member jurisdictions are not helcl responsible for the debts, liabilities, and obligations of Solana Energy Alliance. 32 CEA JP A Agreement Section 4.12
"CEA JPA Agreemen~ Section 7.3.5
"CEA lPAAgreemen~ Section 7.3.2
"CEA JPA Agreemen~ Section 7.3.5 36 CEA JPA Agreemen~ Section 7.3.5 37 CEA JPA Agreement Seotion 2.4.3 October 2021 21 MRW & Associates, LLC
10-19-21 / 8B-25
6/21/22 / 8A-70
• •• " 'ATTACHMENT 3
CCA Options for San Clemente
Withdrawing from the JPA
The JP A agreement provides for the right to withdraw from JP A J11.embership. Any in ember city can withdraw from the JP A effective at the beginning of a CEA fiscal year by providing no less than one year advance written notice. A member city who exercises this withdrawal option may be responsible for the various damages and losses its withdrawal might cause to the JP A. 38 Similar to other CCAs, CEA' s JP A agreement allows for involuntary termination of a member city's membership with the CCA after a two•thirds vote of the entire Board excluding the vote of the member subject to the termination. 39
"CEA IPA Agreemen~ Section 8.1.3. 39 CEA IP A Agreement, Section 8.3.

October 2021 22 MRW &Associates, LLC
10-19·21 / 88·26
(
6/21/22 / 8A-71
ATTACHMENT 3
CCA Options for San Clemente
Are There Operating City-Only CCAs Similar to San Clemente? Ct1nently, there are at lea~t ~ight e;tablished city-only CCAs with under I 00,000 residents in California. Most of these CCAs are located in SCE territoty. San Clemente would represent one of the larger city-only CCAs within this population grouping, as well as the first of its size in SDG&E territory. Climatologically, San Clemente would be one of the few of these city-only CCAs with a Mild Coastal climate. Under this climate type, the city would likely not require large amounts of air-conditioning relative to inland cities due to the City's mild climate.

Therefore, a city-only CCA in San Clemente would not likely need to procure large amounts of generation capacity due to the expected lack of air-conditioning load in the City. Among the city-only CCAs of similar size to San Clemente, only one CCA is not a CCEA member (King City). This situation highlights the value that CCEA is able to provide city-only CCAs who may not have the resources or personnel to operate a city-only CCA alone. Table 3 below outlines the different city-only CCAs similar in size to San Clemente.

Table 3. City-Only CCAs with under 100,000 residents
t~jty .Population•• Climate Territory CCEA n:iembet(;
San Clemente 64,551 Mild Coastal ! SDG&E -------l---·-
Santa Barbara 90,254 Mild Coastal SCE Yes
, Baldwin Park 74,480 _rvio_derate lnlan_~_L_ _ SCE Yes iAp-pl~V~ll;y-- 1 • 74,061 Semi Desert SCE Y;s ---- -
'
Pico Rlve_ra__ __ J __ G_l_,3_3_8 __ +-M_od __ e_ra_te_In_la_n_d_+ ___ s __ C_E __ -1-___ Ye_s __ San Jacinto 51,122 Semi Desert SCE Yes
---+-----
Rancho Mirage 18,954 Desert SCE Yes
Commerce 12,450 Moderate Inland SCE Yes
King City PG&E -r - - No ...... __ "_,,_ .. ___ - . ·--~~ ··--·----~---·-- . 13,968 Moderate Inland
.L·--·--·-----~------~
Table 4 below shows the rate differential for residential service between particular CCAs and the incumbent utility. These rate differentials were calculated based on the most current rates for each CCA and associated utility. A rate differential that results in a bill savings signifies a lower CCA rate than the rate offered by the utility for a comparable rate product, while a bill premium signifies a higher CCA rate than the utility rate. The table feature two sets of rate differentials, with one set comparing a CCA's most basic Green energy offering (least 40 Pop·ulation values based on 2020 US Census data estimates. https://www.census.gov/progr2.mssurvey s/j;io Pe st/tee hn i cal -docu ri1 en I at ion/ research/ eva I ua ti on -estim ates/202 0 -eva I ua ti on• e sti ma tes-/2 0 l Os-cities~ . and-towns--total .html
October 2021 23 MRW & Associates, LLC
10-19-21 / 8B-27
6/21/22 / 8A-72
ATTACHMENT 3
CCA Options for San Clemente
rencwables) with the utility's basic Green energy offering (typically 50% renewablcs) and the second set comparing the CC A's I 00% renewable Green energy product with the utility's I 00% renewable product. As shown in the table, several city-only CCAs cannot currently offer any bill savings compared to the incumbent utility for either Basic Green energy products or l 00% Renewable energy products. However, some CCAs, such as CEA and Baldwin Park, currently offer rates that are competitive with or provide bill savings relative to the local utility, Although the current rate differential situation among CCAs is likely to improve in the near future, some CCAs have still been able to provide competitive rates despite current market conditions. If San Clemente were to join CEA, it is likely that this CCA would be able to provide the City's residents with competitive rates relative to SDG&E's rates. Unfortunately, OCPA has not published any rates at this time (OCP A is expected to start operations in 2022) and therefore we are unable to provide a rate comparison for this CCA at this time.

Table 4. Residential Rate Bill Savings/Premiums for Comparable Cities ' i
~~CPA ·--- I SCE
I CEA -.. ·--1 SDG&. E __ 0.1% BUI Premiurn_~l.4% Bill Savings ·.·-··1' _l'~:_o_~i".:raJ:RIM_E~ ___ .l_SCE _ 0.8% Bill Premium !},9% Bill Prerri~ti_ni _____ _ Baldwin Park : SCE 2.6% Bill Savings 2.9% Bill Savings
!
: (BPROUD)
41 +·······- _____ --+--------.. -!
! San Jacinto Power , SCE 3.4% Bill Premium 7.5% Bill Premium ' ~-----~----- --- ---+---·----.--•·-···· ! Apple Valley (AVCE) ! SCE , 2.2% Bill Premium N/A •• --··--·-- . . ···-·-·r·-··-··-···. -······ . ··---·-··-· .. ·--· ······-··········· ! 1:l~a~ Power Alliance ! SCE _____ J~~9~ ~ill Pr."_n1~u_rri__ 6.6% Bill~r::niurn_ ___ I The fact that all of the CCAs in Table 4 but Baldwin Part are CLmently offering service at a premium is unusual. Prior to late 2020, all CCAs had offered residential rates that were equal to or lower than those of their incumbent utility. The change in late 2020 was primarily due to a temporary spike in the exit fee (Power Cost Indifference Amount or "PCIA''). When MR W perfo,rned a similar survey in early 2020, CCAs were typically offering savings of 1-3%, with only two environmentally focused Northern California CCAs having rates higher than their incumbent utilities.
41 BPROUD has not changed its rates since beginning service in October 2020. Rather than increasing rates to cover its projected costs 1 the City of Baldwin Park is choosing to discontinue CCA service, (See footnote 20,) October 2021 24 MRW &Associates, LLC
10-19-21 / 8B-28
6/21/22 / 8A-73
ATTACHMENT 3
CCA Options for San Clemente
Comparison of San Clcmcutc Options
Table 5 below qualitatively compares San Clemente's three CCA optidns agains.t remaining with SDG&E. First, MRW cannot project any quantifiable difference in rate or GHG savings between the three CCA options. The stand-alone and CCEA options offer greater flexibility and control, but atthe price of higher start-up costs, greater staff effort,.and higher financial risk.

Lastly, joining an existing CCA like OCPA or CEA is the quickest option, allowing for CCA formation at least one year sooner than the other two options.

Table 5. Comparison of San Clemente CCA Options
t~riterion Join Existing . • Use CCEA Stand-atone Stay with ; !ifr • CCA . • • -. JPA • Enterprise SDG&E ~: .-., , ·.,, ,' .. ,._ ... ·•,:-",·-•, .' ·-;; ,, .~ ., I I Rates
f-
: GHG Reduction Potential
: Over Forecast Period
Comparable/
modestly
lower
Some
Comparable/ j Comparable/ I
modestly modestly
lower lower
---- - -- ---·- -------·-·· .,
Some Some
Base
Base
; Local 5 l
; Control/G __ av_ ernanc_ e ·- ome , Greater i Greatest ~ None i Local Economic_B_e_n_e_fi_ts_j-_ -~N~o~n1~ee - -r' -- _GS~oe-ma~eer--~- GGrreeaatteesstt --1,,1- Minimal ! Sta.rt Up Costs/Cost to . =--1· None
i Join ----·----.. --~~-------1 I
!
' Level of Effort Minimal Some Greatest None
i
Timing (earliest) 2023 2024 2024 N/A
October 2021 25 MRW &Associates, UC
10-19-21 / 88-29
6/21/22 8A-74
'· ATTACHMENT3
ATTACHMENT 2 /IC- /OD l

CITY OF SAN CLEMENTE

PROFESSIONAL CONSUL TANT SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this 27th day of August, 2021, PY and between the City of San Clemente., a municipal corporation, organized under the laws of the State of Cal~ornia, with its principal place of business at 910 cane Negoolo, Sctn Clemente., California, 92673 ("City") and MRW & Associates, a LIMITED LIABILITY COMPANY, with its Principal place of business at 1736 Franklin $!reel, suite 700, Oakland, CA 94612 r'Consultanf'). City and Consultant are sometimes individually referred to herein as "Party" and collectively as 'Partfes.'r •

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional Community Choice Energy {COE) consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents lhat It is experienced In provlc!lng professlon11I CEE consulting services to public clients, is licensed In the State Of California, if appllcE1b.le, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such professional COE consulting services for the Qualitative Review and Comparison of COE Options project (''Project'? as set forth in this Agreement

3.. TE~MS,

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees lo furnish to the City all labor, materials, tools, equipment, services, and Incidental and cust9mary Wbrk necessary to fully and adequately supply the professional CCE consulting services necessary for the Project ("Services'?, The Services are more particularly described in Exhibit "A" attached hereto and Incorporated herein by reference. All Services shall be subject to, and performed In accordance with, this Agreement, the exhibits attached hereto an~ incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from August 27, 2021 to completion of services, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other estal;>llshed schedules and deadlines.

3.2 Responsibllitles of Consultanl

3.2.1 Independent Contractot. Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will detemilne the means, methods and details of performing the Services subject to the requirements of this 1 55452.01100\31193624.S
10-19-21 I 8B-30
6/21/22 / 8A-75
ATTACHMENT 3
. Agreement. City-retains Cqnsultant on an independent .contractor basis and not as an employee, Corl$ultant retains the-rlghtlo peiforrn similar-or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direqtion an.d control. Neither City, nor any of Its officials, officers, dfrectors, employees or agents shall hava control ovei the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth In this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as. required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but Ti.oi limited to: social security taxes, Income tax withholding, unemployment Insurance, dlsabillty insurance, and workers' compensation insurance. .

3.2.2 Schadule of Seajces. Consultant shall perform the Services expeditiously, withln the term of this Agreement, and in accordance With the Schadule of Services se\ forth in E;xhjb~ ''B" attached hereto ·and incorporated herein by reference. consultant represents that It has the professional and technical personnel raquireq to perform the Services in conformance with such conditions. In order fo facilltaie Consultant's conformance with the Schedule, City shall . respond to Consultant's su.bmitt?ls In a timely m1anner, Upon re(tuest of City, Consultan\ shall provide a more detailed sc/ledula of anticipated performance to meet the Schedule of Services.

3.2.3 Endorsement on PS&E/ other Data. Consultant shall sign all plans, specifications, estimates (PS&E) and engineering <;lata furnished by Consultant, and where appropriate will Indicate Consultant's al#)orl,zed signature and professional registration number.

3.2.4 Gonformance to Applicable Requirements. All work prepareq by Consult,mt shall be subject to the approval of City. 3,2.5 Substitution of Key Personnel. Consultant has represented ·1o City that certain key personnel will perform and coordinate the Services under this Agreemeht. Should one or more of such personnel become un,ivailable, Consultant may substitute other personnel of at least equal com!X)tence upon written approval of City. In the event that City and Consultant cannoi agree as to the substltutlol\ of key personnel, City shall be entitled to terminate this Agreement foi cause. As discussed below, any personnel who fail or refuse to perform the Services In a manner acceptable to the City, or who are datermined by the City to be un90operatlve, incompetent, a threat to the adequate or timely completion of the Project or a thr1;1at to the safety of persons or property, shall be promptly removed from the Project by th.e Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Mark E, Fullmer.
3,2.6 City's Representative. The City oereby designates Jennifer Savage, Assistant to the City Man~ger, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of th!s Agreement f'Clty's Representative").

City's Representative shall have the power to act on behalf of the City for review and approval of all products submittad by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due. to Consultant under this Agreement. The City Manager shall be ,iuthorized to act on City's behalf and to exacute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained In Section 3,3 of this Agreem!lnl Consultant shall not accept dlrectlon or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.7 Consultant's Representative. Consultant hereby designates Mark E. 2 66452,01100\31193624.6
10-19-21 / 8B-31
6/21/22 / 8A-76
• ATTACHMENT 3
F.u.llrner, or his/her deslgi:ree, to act as its representative for the performance of this Agreement ("Consultant's Representative"), Consultant's Representative shall have full authorttyto represent and .act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall lie responsible for an means, methods, techniques, sequences, am;i procedures and for the satisfactory coordination of all portions of the Servlce.s under this Agreement.

3.2.~ Coordlnatlon of Services, Consultant agrees to work closely with City sWf fn the perforl)iance of services and shall be available to City's staff, consultants and other staff at all reasonable times,

3.2.9 Standard of Oare: Perfonnance of E;mployees, Consultant shall perform all Services under this Agreement In a skillful ah~ competent manner, consistent with the standards generally recognized as being employed by professionals In the same discipline in the State of ~lifornla, Consultant represents Md maintains that It Is sk,l!leq in the professional caiiing necessary to perform the Services, Consuftant warrants that all employees anq suboonsuttants shall have sufficient s.klll and experience to perform the Services assigned to them. Flilally, Con$~Itant represents thaf It, Its employees and suboons·u1tants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the $ervlces, and that such ncenses .and approvals shall be maintained throughout the term of this Agreen:ient.

As provided for tn the indemnification provisions of this Agreement, Consult,mt shall perform, at its awn cost ang expense and Without reimbursement from the City, any services necessary fo correct errors or omlssfons. which are caussid by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or Its sub-coni,ultants who is determined by the City to be uncooperative, incompetent, a threat to the adequiite or timely 00111pletlon of the Project, a threat to the safety of persons or property, or any employee who falls or refuses to perform the Services In a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3,2.1 a Laws and Regulations, Consultant shall keep ttselffully Informed of and In compliance with all local, sta\e and federal !('!\'IS, nules and regulations In any manner affecting the perfqrmance of the Project or the Services, Including all CaVOSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of .such laws and regulations in connection with Services, If Consultant perfqrms any work knowing tt to be contrary to such laws, rules and regulations, Consultant shall be solely resp6nslble for all costs arising therefrom. Consuttant shall defend, Indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the lndernnlTlcation provisions of .this Agreement, from any claim or liability arlsing out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2, 11 ~. Consultant shall execute and maintain Its work so as to avoid Injury or damage to any person or property, In carrying out Its Services, the Consultant shall at all times be In compliance with all applicable local, state and federal laws, rules and regulafions; and shall exarcise all necessary precautions for the safety of employe,is appropriate to the nature of the work and the conditions under which the wotk Is to be performed, Safety precautions, where applicable, shall Include, but shall not be limited to; (A) adequate life protectfon and lifesaving equipment and procedures; (B) lnstnuctions In accident prevention for all employees and subbonsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,. trenching and shoring, equipment and other safety devices, equipment and wearlng apparel as are necessary or lawfully required to prevent acoklents or Injuries; and (C) adequ,1te facllltles for the proper inspection and maintenance of all safety 3 55452,01100\31193624,5
10-19-21 / 88-32
6/21/22 / 8A-77
'ATTACHMENT 3
rneasures.

3.2, 12 Insurance. Consultant agrees to procure and maintain, at Consultant's expense all Insurance specified In Exhibtt 'C'' attacheq hereto and by this reference incorporated herein, Consu1ta11t shall require all subcOhsultants to· carry the same policies and lim_its of insurance that the Consultant is requlred to maintain, unless otherwise approved in wdtlng _by the City. •

3.3 Fees and Payments.
3 .. 3.1 Compllnsation. Consultant shall receive compensation, Including authorized reimbursemiints;for all Services rendered under this Agreement at the rates set forth In Exhibit ''D" attached hereto and incorporated herein by reference. The total compensation shali not exceed five thousand dollars ($5,000) without written approvsl of the City Councll or City Manager as applicable, Extra Woik may be aulhorized, as described below, and W aulhorized, will bi:, compensated at the rates and manner set forth in this Agreement. .3,3,2 Payment of Compensatlon·, Consultant shall st,1bm_it to City a monthly Invoice which indicates work completed and t)ours of Services rendered by Consultant. The Invoice sh_aj/ des.or/be the am,;,unt of Services. provided since the lrtlt!al commencement date, or since the start of the subsequent billing peri6tls, as appropriate, through the date of the lnvo1ce, City shall, within 30 days of receiving such lnvciice, review the invoice and pay all nqn-gjspu1ed and approved charges thereoh. If the City disputes any of Consultant's fees, the City shall give wrltfen notice to Consultant Wi\hin thirty (30) days of receipt of an invoice of any dlsputec,I fees set forth therein.
• 3;3,3 Reimbursement for Ex/lenses. Consultant shall not b_e reimbursed for any expenses unless authorized in writing by City, or included In Exhibit "D" of'thls Agreement.

3.3.4 Extra Work. At any time d1.1rtng the term of this Agreemeht, City may request that Consult~nt perform Extra Work, As used herein, "Extra Work" means any work which Is d<;iterm1ne<1 by City to .I>,! n.ici'l$Sary for the proper completion of the Project, but which th.e Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultahl shall not perform, nor be compensated for, Extra Work withoul written au1holizatlon from the City.
3,3,5 Rate Increases. In the event that this Agreement Is renewed pursuant to Section 3.1.2, the rate set forth lh Exhibit 'D" inay be adjusted each year at the time of renewal as set forth in Exhibit 'D,' •
3,3,6 Labor Code Requirements.

3.3,6.1 Prevailing Wages. Consultant Is aware of the requirements of California Labor Code Section 1720, .§1 §rut., and 1770, et §N., as well as California Cotje of Regulations, Title 8, Section 16000, et seq., {'Prevailing Wage Laws'), which require the payroent of prevalllng wage rates and the performance of other requirements on "public works" and "maintenance" projects, IF the Services are being performed as part of an applicable "public works" or "maintenance' project, as defined by the Prevalllng Wage Laws, and IF the total compensation Is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consuttant shall make ooples of the prevailing rates of per diem wages, for each craft, classification or type of worJler needed to execute the Seivlces available to interested parties upon request, and shall post cop/es at the Consultant's principal place of business and at the 4 55452.01100\31193624,5
10-19-21 / BB-33
6/21/22 / 8A-78
'ATTACHMENT 3
project site .. Consultant shall defend, Indemnify and hold the City, Its officials, officers, emptoyeei,, ,agents, and volunteers free and harmless from any claim or llablllty arising out of ,my failure or alleged failure to comply with the Prevaltlng Wage Laws.

3.3.6,2 Registration. If the Servlces are being performed as part of an appllca~te "public works" or 'maintenance' project, in addltlon to the foregoing, then pursuant to Labor Code sections 1725.5 and 177-1.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations ("DIR"). Conau!tant snail tnatntaln registration for the duration of the project and require the same of any subconsullants. This project may also be subject to compliance rnatiitanng ahd enforcement by the DIR. It shall be Consultant's sole responsibility to oompJy wtth all applicable registration and labor compliance requirements, including the submission of payroll records dlrectlyto the DIR. Notwlthstan\llng the foregoing, the contractor registration requlrem.ents mandated by Labor Code $eclions 1725.5 and 1771.1 shall not apply to Services performed on a public works project that Is exempt pursuant to the small project exemption spe¢ttied in Labor Code sections 1725.5 and 1771.1.

3.4 Accounting Records.
3A.1 Maintenance and Inspection. Gonsuttant shall maintain complete and accurate recorcls with respe91 to !'Ill cost,, and expenses Incurred under this Agreement. All such records shall be clearly ldentlllab!e .. consultaht shall allow a representative of Clty during normal business hours to examine, audit, and make transcripts or copies of such records_ anct any oµJer documents created pursuant to this Agreement. Consultant shall allow inspection of all work, d,1ta, documents, proceedings, and acllvitie.s related to the Agreement fot a period of four (4) years from the date Qf final payment under this Agreement.

3.5 General Provisionfi.

3.5.1 Termination of Agreement.

3.5, 1.1 Grounds for Termination. City may, by written notice to Consuttant, terminate the whole or any part of this Agreement <1t any time, viith or Without cause, by giving written notice to Consultant of such tennlnation, and specifying the effeo\ive daje thereof, at least seven I.J) days before the eff.ectlve date of such tenmination, Upon termJnaJlon, Consultant shall be compensated only for those services which haye t)een adequ;;tely rendE!fed. to City, and Consultant ~hall be entitled to nQ further compensation. Consultant may not tetminate this Agreement except for cause, •

3.5,1.2 Effect of Termination. If this Agreement is terminated as i;ir6vided herein, City may require Consultant to provide all finished or unfinishe<l Documents and Data and other information of any kind prepared by Gonsullant 1n connection with the performance of Services .under this Agreement Consultant shall be requir~ to provide such document and other lnfonnatlon within fifteen (15) days of the request.

3.5.1.3 Additional Services. In the event this Agreement Is te!'1111nated In whole or In part as provided herein, City may procure, upon such terms and In such manner a$ It may detenmine appropriate, servlc.es similar to those terminatSQ.

3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide In writing for this purpose: • • 5 65452.01100\31193624.6
10-19-21 / 88-34
(
6/21/22 / 8A-79
Consultant:

CJ!y:

ATTACHMENT 3
MRW & As.sociates
1736 Franklin Street Suite 700
Oakland, CA 94612
ATTN: Mark E. Fullmer, Principal and Pres.ldent
Cjjy of San Clemente
910 Calle Negocio
S@n Clemente, CA 92673
ATTN: Jennifer Savage, Assistant to the City Manager
Such notice shall be deenieci made When personally dellveted or When mailed, forty-eight (48) hours after deposit In the U.S. Mall, first class postage. prepaid and addressed lo thsi p,,irty at Its applicable address. Actual notice shall be deemed adequate notlce on ihe d~te actu,il notice occurred, regardless of the method of .service.

3.5.3 ownership bl Materials and Cohfldentlality.

3.5.3.1 Documents & Data: Licensing of Intellectual Property. This Agreement creates a noh-exolus1ve and perpetual license for Qlty to copy, use, rnQdlfy, reuse, or subllcense any and all copyrights, qeslgns, and .olher i.ntellectual properly embodied iii plans, specifications, studies, <;ltawings, es~matl;lS, .ahd other documents or works of authorship fixed 111 any tanglple medium of expression, inclucling but not llinlted to, physical drawings or data magnetically or othet'Mse recorded on computer diskettes, which are prep~rl;ld or caused to be prepared by Consultant under this Agreement C'Documents & Pat.a'?. consuttant Sha.II require all subconsultants to agree In writing that City ls granted a non-exclusive and perpetual license for any Documents il, Pala the subc-Ohsuliaht prepares under this Agreement. Consultantrepresenti; and. warrants that Cohsuluint has the legal right to license any and all Documents & Data.

Consultant makes no such representation and warrant{ In ri)gard to Dqoumeh\s & Data which were prepared by design prolesslonals other than Consultant or ·provided to Consultan.t by the City. City shall not be lirnlt<:l\l in any way fn Its use ofthEl Documents & Data al aliytlme, provided that any such use n.ot within the purposes intended by this Agreement shall be at City's sole risk,

3.5.3.2 Confidentiatity. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, compuier program data, input record data, written infonmatlon, and qther Documents & Data either created lly or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the pHor written consent of Cily, be used by Con.su.ltant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entlly not connected with the .performance of the Services or the Project. Nothing furnished to Consultant which Is otherwise known to Consultant or is generally known, or has become known, to the related Industry shall be deemed confldentlal. Consultant shall not use City's hame or Insignia, photographs of the Project, or any publicity pertaining to the serv1ces or • the Project In any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.5.3,3 Confidential Information. The City shall refrain from releasing Consultant's proprietary information ("Proprietary lnfonmatlon'? unless the City's legal counsel determines that the release of the Proprietary Information Is required qy the Callfomla Public Records Act or other applicable state or fe<!eral law, or order of a court of competent Jurisdiction, in which case the Clly shall notify Consultant of Its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall 6 55452.01100\31 f 93il24.5
10-19-21 / 88-35
6/21/22 / 8A-80
ATTACHMENT 3
Indemnify, defend and hold harmless the City, and i~ offlcE>rs, directors, employees, and agents from and against all liability, loss, cost or expense (Including attorney's fees) arising out of a legal action brought to compel the release of Propriet,iry Information. Ctty shall not release !he Proprietary Information after receipt of the Objection Notice unless either: (1) Consuliant fl;lils to fully indemnify, defend (with City's choice of legal counsel), and hold City hamiless from any legal action brought to compel such release; and/oi (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such Information.

3.q.4 Cooperation: Further Acts. The Parties shall fully cooperate w)th one another, and shall take any additional acts or sign any addition al documents as may be necessary, approprtate or convenient to attain the purposes of this Agreement.

3.5.5 Attorney's Fees. Ii either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party In such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such ;;rctlon. 3,5.6 Indemnification.

3.5.6.1 To ihe fullest extent permitted by law, Consultant shall defend (with counsel of City's choosing), indemnify ahd hold the City, It!!\ directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, c,iusss of action., costs, expenses, liablltty, loss, damage or Injury of any kind, In law or equity, to property or persons, Including wrongful death, in any mahnar arising out of, pertaining to, or incident to any alleged acts, emirs or omissions, or willful misconduct· of Consultant, Its officials, officers, employees, subcontractors, c9nsultants or agents in connection with the performance of the Consultant's. Services, the .Project or this Agreement, Including wlthOut limitation the payment of all damages, expert witness • fees .and attorney's fees and other related costs and expenses. Consultant's obligation to Indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officlals, officers, employees, agents, or volunteers.

3.5.6.2 If Consultant's obfigalion to defend, indemnify, ancUor hold hamiless artses out of Consultant's performance as a 'design professiqnal" (as that t!'lrtn Is defined under CMI Cod"' section 2782.~), then, and. only to the extent required by Civil Code sectlon 2782Ji, which Is fully incorporated herein, Consultant's indemnificalioh obligation shall be limited to claims ·that arise out of, pertain to, or relate to !he negligence, recklessness, or willful misconduct of the Consultant, and, upon Consul\ant obtaining a nnal a(lj~dication by a court of competent Jurisdiction, Consultant's liability for such Qlaim, including the cost to defend, shall not exceed the Consultant's proportionate pi,tcentage of fault

3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject' matter hereof, and supersedes all prior nego1ialions, understandings or agreements. This Agreement may only be modlffed by a writing signed by both parties.

3.5-8 Governing Law. This Agreement shall be governed by the laws of the State of Calffornla. Venue shall be in Orange County.

3.5.9 Time of Essence. Time Is of the eS$ence for each and every provision of this Agreement.

3.5.10 City's Right to Employ Other Consultants. City reserves right to employ 7 66462,01100\31193il24,5
10-19-21 / 8B-.36
(
\
6/21/22 / 8A-81
ATTACHMENT 3
other consultants In connection with this Project

3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so .shall be null ahd void, ahd any assignees, hypothecates or transfereE)S shall acquits no rtght or Interest by reason of such attempted assignment, hypothecatlon or transfer.

3.5.13 Constructlon; References: Captions. Since the Partles or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not stricUy for or ~gainst any Party. Any term referencing time, days or j:>ertod for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and swbconsultants of Consultant, except as otherwise specified In this Agrl!Srnenl All refet'ena.,s to Ofty Include Its elected officials, officers, employees, agenis, and voiunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience an(f ease of refarehce only, and do not define, limtt, augment, or describe the scope, content, or intent of this Agreement

3.5.14 Amendment Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed In writing and signed by both Parties.

3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No walv,ir, benef'rt, prMlege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights lly custom, estoppel, or otherwise. •

3.5.16 No Third-Party Beneficiaries. There are no Intended third party beneficiaries of any riQht or obligation assumed by the Parties.

3.5.17 Invalidity: Severability. If any portion of this Agreement Is declared invalid, illegal, or otherwise unenforceable by a court of competent jurlsdlcUon, the remaining provisions • shall O<)ntinue In full force and effect. •

3.5.18 Prohibited Interests. Consultant maintains and warrants that It has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that It has not paid nor has ·11 agreed to pay any company or person, other thah a bona fide employee working solely for Consultant any fee, commission, percentage, brokerage fee, gift or other consideration contingent upoh or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right lo rescind this Agreement w'rthout liablllty. For the term of th~ Agr~ent, no mern~t, officer or employee of City, during the term of his or her service with City, shall have any direct interest In this Agreement, or obtain any present or anticipated material benefit arising therefrom. •

3.5.19 Equal Opportunity Employment. Consultant represents that It is an equal opportunity employer and it shall not discrtmlnate against any subconsultant, employee or . applicantfor employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such hOn-dlscriminatlon shall Include, but not be limlted to, all activities related to ·a
55452.01100\31193624.5
10-19-21 / 8B-37
6/21/22/ 8A-82
ATTACHMENT 3
initial employment, upgrading, de/notion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also epmply with all relevant provi1;ions of City's Minority Business Enterprtse program, Affirmative Action Plan or other related pro.g'rams or guidelines currently In effect or hereinafter enacted.

3.5,20 Labor Certification. By Its signature hereunder, Consuliant certifies that It is aware of the provisions of Section :i700 of the California La~or Code which require every employer to be insured agalhSt liability for Worker's Compensation or to undertake self-Insurance In accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5.21 Authority to Enter Agreement. Consultant has all requistte power and authority to conduct Its business and to execute, deliver, and perform the Agreement. Each Party warrants that the Individuals who have signed this Agreement have the legal power, right, and auth·orlty to make this Agreement and bind each respective Party,

3.5.22 Counterparts. This Agreement may be signed In counterparts, each of which shall constitute ah original.
3,6 Subcontracting.

3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as e)(pressly siatad herein, without prior written approval of City. supcontrsots, if any, shall CQritain a provision making them supject to all provisions stipulated in this Agreement.
9 55452,01100\31193624.6
10-19-21 / 88-38
(
6/21/22 / 8A-83
'ATTACHMENT 3
IN WITNESS WHEREOr, the partl~s hereio have caused this Agreement to be duly • executed on the respective dates set forth opposite of their signatures.

CITY OF' SAN CUM~
By: /4~
Its: Cl~ U.l..l...l~ G.U.

Dated:11.- , 20..!d_ I
APPROVE!) AS TO AVAJLA131LITY
OF~
Finance Authorization M /?,/1/ tfJ bo:-JC>.lef ll c_
• ~1f/4~ ::l£~
/ ('CONSUL TANT')
By: ,//J t1J;t if (A,;,1G
Its: J1r e5tdthl
Dated: 4us ZJ ' 20 ?,}
10 55452.01100\ll1193624,5
10-19-21 / 8B-39
6/21/22 / 8A-84
EXH.IEilT "A"
SCOPE OF .SERVICES
ATTACHMENT 3

QUALITATIVE REVIEW AND COMPARISON OF THE CCE OPTIONS

MRW WILL INFORM SAN CLEMENTE OF THE CCE OPTIONS IT HAS AVAILABLE AND COMPARE THE OPTIONS. THESE OPTIONS INCLUDE JOINING OCPA, JOINING AN

EXISTING CCE IN SAN DIEGO COUNTY, FORMING A NSW JPA WITH NEIGHBORING SOUTH ORANGE COUNTY CITIES, AND FORMING A SAN CLEMENTl':l ONLY CCE. THI.S REVIEW WILL COMPARE AND CONTRAST THE BENEFITS AND DRAWBACKS 01= l':lACH GOVERNANCE 1\/!0DEL, NOTING THE RISKS-AND POTENTIAL REWARDS-TO THE CITY AND THE; SAN CLEMENTE C.OMMUNITY. MRW WILL INCLUDE A GENERAL PRIM.ER ON CCE IN THE STATl':l TO PROVIDE HISTORY AND CONT!:;XT.

THE WORK PRODUCTS INCLUDE:
1) A MEMORANDUM SUMMARIZING MRW'S FINDINGS.
2) A PRESENTATION TO THE CITY COUNCiL OF MRW'S FINDINGS. 3) ANSWERI.NG ANY QUESTIONS FROM THE COUNCIL ON CCE FORMATION AND ADVISEMENT ON POSSIBLE NEXT STEPS.

MRW WILL ALS.O IDENTIFY ORANGE COUNTY AND SAN DIEGO COUNTY CITIES THAT UTIL.IZE CCES, AND IDENTIFY CITIES IN SOUl'HERN CALIFORNIA, COMPARABLE IN SIZE TO SAN CLEMENTE, THAT HAVE CONVERTED TO CCE INDEPl:NDENTL Y, AS

OPPOSED TO PARTNERING WITH OTHER JURISDICTIONS,
11 55462.01100\31193624,5
10-19-21 / 8B-40
6/21/22 / 8A-110
ATTACHMENT 3
EXHIBIT"B"
• SCHEDULE OF SERVICES
1) A MEMORANDUM SUMM.ARIZING MRW'S FINDINGS- DUE TO CITY STAFF 4 WEEKS FROM EXECUTION OF Tl·HS CONTRACT
2) A PRESENTATION TO THE CITY COUNCIL OF MRW'S FINDINGS~ DUE AT CITY COUNCIL MEETING TENTATIVELY SCHEDULED FOR OCTOBER 19, 2021 3) ANSWERING ANY QUESTIONS FROM THE COUNCIL ON CCE FORMATION AND ADVISEMENT ON POSSIBLE NEXT STEPS - DUE AT CITY COUNCl,L MEETING TENTATIVELY SCHEDULED FOR OCTOBER 19, 20~1
65462.D1100\31193624,5
10-19-21 I 8B-41
6/21/22 / 8A-86
ATTACHMENT 3
EXHIBIT"C"
•• INSURANCE REQUIREMENTS

3.2.12 Insurance.
3,2.12.1 Time for Compliance. Consukant shall. not commence work under this Agreement untll It has provided evidence sS1tisfactory to the City that It has secured all insurance required under this section. In addltloh, Consultant shall not allow any subconsultant to commence Work on any subcontract untll It has provided evidence satisfactory to the City that the subconsultant has secured all Insurance required und<;>r this section.

3.2.12.2 Types of Insurance Rectujred. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of Its obligations under such Agreement, shall procure and main.lain in full force and effect during !ht, term of the Agreement the following policies of 1nsurance. If the existing policies do not meet the Insurance requirements set forth herein, Consu1tani agrees to amend, supplement or endorse the policies to doso.
(A) Commercial G.eneral Llabillty: Commercial General j.lability Insurance which affords coverage at least as broad as Insurance Services Oiflce "occurrence" fonm CG 0001, or the exact equivalent, with limits of not less Jhan $1,000,000 per occurrence and no less than $2,000,000 in the general eggregate. Defense costs shall be paid in addition to the limJts. The policy shall contain ho endorsements or provisions (1) limlt\ng ooverage for contractual liability; (2) excluding coverage for olaims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary lo the terms or purposes of this Agreem.ent. (B) Automobile (iabillty • Insurance: Automobile Llablllty l_nsurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1 ), or the exact equivalent, ooverlng bodily Injury and property damage for all activities with limits of not less than $1,000,000 combined llmlt for each occurrence. (C) · Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employe~s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily Injury and disease, (D) Professional Liability (Errors & Omissions): Professional Liability Insurance or Errors & Omissions insurance appropriate to Consultant's profession With limits of ~ot less than $1,000,000 per claim. covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work ta be performed (for example, any e.xcluslons relating to le.ad, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). if coverage is written on a clalm&-made basis, the retroactive date shall precede the effective date of the Initial Agreem<:int and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.

3.2.12.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
55452,01100121193624.5
10-19-21 / 8B-42
(
\
6/21/22 / 8A-87
.. ··,.:,.:· • ATTACHMENT 3
(A) . Commercial General Liability:
(1) AdcJitional Insured: The City, Its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be
restricted to "ongoing operations".; (2) exclude "contn,ctual liability"; (S) restrict coverage to "sole" liability pf Consurtsnt; pr (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability Insurance, Consultant shall provide endorsements In the form ·of ISO CG 20 10 10 01 (or endorsements proviqing the exact same coverage) to effectuate this requirement.
(2) Cancellation: Required Insurance policies shall not be cancel~d or the coverage reduced until a thirty (30) day written notice of cancellation has been S!ilrved upon the City except ten (10) days shall be allowed for non-p~yment of premium, (B) Automobile Liability:
(1) cancell,rtion; Requirlild Insurance policies shall not be canceled or the c:overage reduce<I until a thirty (30) day written notice of cancellation has been served ui)on the City except ten (1 0) days shall be allowed for non-payment of premium.

3.2.12.4 Professional Liability (Errors/!< Omissions):
(A) cancellation: Required insurance policies shall not be canceled or the coverage reduced unijl a thirty (30) day wntten notice of cancellation has been served upon the City except !en (10). days shall be allowed for non-payment bf premi.um. (B) contractual Llabllity Exclusion Dejeted: .This insurance shall Include contractual liability applicable to this Agreement The poijcy must "pay on behalf or the Insured and include a provision estabiishlng the insurer;s duty to defend.

3.2.12.5 Workers' Compensation:
(A) Cancellation: Required Insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.

3.2.12.6 Primary Md Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-Insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.2.12.7 Waiver of Subrogation. All policies of Commerolal General Liability and Automobile Llablllty Insurance shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery piior to a loss. consultant hereby waives tts own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers. and Insurance clauses from each of its subconsultants.
55452.01100\31193624.5
10-19-21 / 8B-43
6/21/22 / 8A-88
ATTACHMENT 3
3,2.12.8 Deductibles and Se~-lnsured Retentions. Any deductible or self-· • Insured retention greater than $5,000 must be approved In writing by the City and shall protect. the City, Its officials, officers, employees, a~ents, and volunteers In th.a same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or se~-lnsuretj retention.

3.2.12.9 'i;vldence of Insurance .. The Consultant, concurrently wtth the execution of the Agreement, and as a condition precedent to the effectiveness. thereof, shall deliver either certified copies of the required policies, or ortglnal certificates on forms approved by the City, together with all endorsements affecting each policy. Required Insurance policies shall no\ be In compliance If they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that Insurer to bind coverage on Its behalf, At least fifteen (15 days) prior to the expiration of any such policy, evidence of Insurance showing that such Insurance coverage has been renewed or extended shall be filed wtth the City. If such coverage is cancelle/;f or reduced and not replaced immediately so as to avoid a lapse In the required coverage, Consultant shall, within te'n (10) days after receipt of written. notlce of such cancellation or reduction of coverage, file with the Ctty evidence of Insurance showing that the requ1red insurance has been reinstated or has been provided through another insurance company . or companies.

3.2,12,1D Failure to Maintain Coyerage. In the event any policy of insurance required under this Agreement does not comply with these spec1ficati9ns or is canceled and not replaced Immediately so as to eivoid a lapse in !he required coverage; City has the right but not t{1e duty to o\)tain the insurance It deems necessary and any premlu·m paid by City Will be promptly reimbursed by Consultant or City wlll withhold amounts sufficient to pay premium from Consuitant payments. In the alternative, Ctty may cancel this Agreement effective 4pon notice.

3.2.12.11 Acceptability pf Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A- VII and authorized lo transact. business of insurance In the State of California, or otherwise allowed to place Insurance through surplus line brokers under applicable provisions of the California Insurance Code or !)ny federal law.
3,2.12.12 Enforcement of Agreement Provisions /non estoppal).

Consultant acknowledges and agrees that actual or alleged failure oh the part of the City to lnfomn Consultant of non-compliance with any requirement Imposes no addifonal obligation on the Ctty nor does it waive any rights hereunder.

3.2.12.13 Requirements Not Limiting. Requirement of specific coverage or minimum limits containe<j In this Appendix are not intended as a llmltatlon on coverage, limits, or other requirement, or a waiver of any coverage namnally provided by aily insurance.

3.2.12.14 Insurance for Subconsultants. Consultant shall Include all suboonsultants engaged In any work for Consultant relat[ng to this Agreement as addlllonal Insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, Including adding the Ctty, Its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commerol.al General Llab11lty Insurance provided by Consulta.nt's subconsultants perfomnlng Work relating to this Agreement shall b;i endorsed to name the Ctty, its officials, officers, employees, agents and 66462.01100\3119'3624,6
10-19-21 / 8B-44
\.
(
6/21/22 / 8A-89
•. ATTACHMENT 3
volunteers as addttlonal Insureds using endorsement form ISO CG 20 38 04 13 or ah ehdorsement providing equivalent coverage, Consultant shall hot allow any subconsultant to commenoe work on any suboontraot relating to this Agreement until It has received satisfactory evidence o.f subconsultant's compliance with all Insurance requirements under this Agreement, to the extent. applicable. The Consultant shall provide satlsfactoty evidence of compliance with this section upon reque$1 of the City.
65452,01100\31193624,5
10-19-21 / 8B-45
6/21/22 / 8A-90
56452.01100\31193624,5
· EXHIBIT "D"

COMPENSATION
$5,000
' ATTACHMENT 3
10-19-21 / BB-46
6/21/22 / 8A-91
ATTAC::HMENT'3'

WORKER'S COMPENSATION INSURANCE CERTIFIGATION

WORKERS' COMPENSATION DECLARATION
I hereby affirm under penalty of perjury one of the following declarations:
(ONE OF THE BOXES BELOW MUST BE CHECKED)
r
fx
I have and will maintain a certificate of consent from the Calforhia Labor Commission to self-Insure for workers' compensation, as provided for by Section 3700 of the Labor Code, for the performance of the work to be performed unc!er this contract.

I have and wlll maintain workers' compensation Insurance., as required by Section 3700 of the Labor Code, for the performance of the work to be performad under this contract. My workers' compensation insurance carrier and policy number are; Carrier __ H_a_ttl'_o_rd_P_ro_p_e_rty_&_C_a.s_u_a_lty ________ _ Policy Number 57WECM8M63
r I certify that, In the performance of the work under this Agreement, I shall not employ any person In any manner so as to become subject to the workers' compensation laws of Californla,.and I hereby agree to Indemnify, defend, and hold harmless the City Of San Clemente and all of Its officlais, employees, and. agents from and against any and all claims, liabilities, and losses relating to personal Injury or death, economic losses, and property damage arising out. of my failure to provide such worker's compensation Insurance. I further agree that, if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions,
WARNING: FAILURE TO SECURE WORK.ERS' COMPENSATION

COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO

CRIMINAL PENAL TIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITiON TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST; AND ATTbRNEY'S FEES.
65452q1100\31193624.5
10-19-21 / 8B-47
6/21/22 / 8A-92
Title
/;,?&? f&nfh,,, 51 Sh 7M
Address •
&z,i/4µ,J (A 9l/&1) z_
66452.0110013111)3624.5
ATTACHMENT 3
10-19-21 / 8B-48
/
\
\
6/21/22 - 8A-93
ATTACHMENT 4

CLEAN ENERGY ALLIAN C E
DATE:

TO:

FROM:

ITEM 10:

Staff Report
May 26, 2022
Clean Energy Alliance Board of Directors
Barbara Boswell, Chief Executive Officer
Receive Update and Assessment Report Related to the cities of Oceanside, San Clemente, and Vista Joining Clean Energy Alliance

RECOMMENDATION
Receive update and assessment report related to the cities of Oceanside, San Clemente and Vista joining Clean Energy Alliance.

BACKGROUND AND DISCUSSION
Clean Energy Alliance's New Member Addition Policy states the Board wi ll consider adding new agencies . under the following conditions:

1. The analysis of the proposed member usage data results in a positive feasibility study using CEA's financial proforma model;

2. The addition of the new member does not create an undue risk or financial burden to CEA;

3. Does not create an undue risk to the achievement of the goals of CEA, including the achievement of the Climate Action Plan goals of the current Members.

In order to analyze the financial impact of Oceanside, San Clemente, and Vista (Cities) joining CEA for purposes of complying with condition 1 above, CEA received the 2021 usage data for the three cities.

The electric usage was analyzed and input into CEA's current financial proforma model, using current approved customer rates and updated energy costs, the results of which have been summarized in the attached Assessment Report.
6/21/22 / 8A-94
Customer Information
ATTACHMENT 4
May 26, 2022
Assessment Report