San Clemente City Council
September 20, 2022

910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Council Chambers
Mayor James
Mayor Pro Tem Duncan
Councilmember Ferguson
Councilmember Knoblock
Councilmember Ward
5:00 p.m. – Business Meeting I
6:00 p.m. – Closed Session
7:00 p.m. – Business Meeting II

CITY OF SAN CLEMENTE
Tuesday, September 20, 2022 5:00 PM
City Council
Regular Meeting Agenda
Information concerning City Council Meeting protocols and procedures is contained at the end of this agenda.

RULES FOR ADDRESSING COUNCIL
• Members of the public may address the City Council on matters within the jurisdiction of the City of San Clemente.
• If you wish to address Council, please complete one of the blue speaker cards located at the entrance to the Community Center Auditorium and turn it in to the City Clerk or Deputy City Clerk.
• Persons wishing to address Council concerning an agendized item will be invited to address Council during the time that Council is considering that particular agenda item.

Persons wishing to address Council concerning a non-agendized issue will be invited to address Council during the “Oral Communications” portion of the meeting. • When invited by the Mayor, please step to the podium, and if you wish, state your name and the City in which you reside, and make your presentation. Please limit your presentation to three minutes.

MISSION STATEMENT
The City of San Clemente, in partnership with the community we serve, will foster a tradition dedicated to:

Maintaining a safe, healthy atmosphere in which to live, work and play; Guiding development to ensure responsible growth while preserving and enhancing our village character, unique environment and natural amenities; Providing for the City’s long-term stability through promotion of economic vitality and diversity…
Resulting in a balanced community committed to protecting what is valued today while meeting tomorrow’s needs.

1 City Council Regular Meeting Agenda September 20, 2022 BUSINESS MEETING PART 1 (5:00 P.M.)

CALL TO ORDER
INVOCATION – Pastor George Hulse, Shoreline Community Church

PLEDGE OF ALLEGIANCE

ROLL CALL

1. Motion waiving reading in full of all Resolutions and Ordinances

2. Consideration of agendizing items requiring immediate action Any items agendized will be considered under New Business, unless otherwise determined by a majority vote of the City Council.

3. Oral Communications (Part 1)
Members of the audience who wish to address Council on matters that are within the jurisdiction of the City of San Clemente, but not separately listed on the agenda, may do so during the Oral Communications portion of the meeting. Speakers may address Council once during either Oral Communications Part 1 or Part 2. A total time limitation of 30 minutes is allocated for Oral Communications Part 1, with each speaker being allotted 3 minutes in which to give his or her presentation. Speaker order is determined by the order in which speaker cards are provided to the City Clerk or Deputy City Clerk at the meeting. Speakers that cannot be accommodated during Oral Communications Part 1 will be invited to address Council during Oral Communications Part 2, which appears on this agenda as Item No. 10. When invited by the Mayor, please step to the podium, and if you wish, state your name and the City in which you reside, and make your presentation. Subject to very limited exceptions, Council is not permitted to discuss or take action on items that do not appear on the agenda.

4. Consent Calendar
All items listed on the Consent Calendar are considered to be routine and will be enacted by one motion without discussion unless Council, Staff, or the public requests removal of an item for separate discussion and action.

A. City Council Minutes
Staff Recommendation
1) APPROVE THE MINUTES OF THE REGULAR AND SPECIAL CITY COUNCIL MEETING OF SEPTEMBER 6, 2022.

2 City Council Regular Meeting Agenda September 20, 2022 B. Commission/Committee Minutes
Staff Recommendation
Receive and file the following:
1) PLANNING COMMISSION REGULAR MEETING MINUTES OF AUGUST 3, 2022
2) PLANNING COMMISSION STUDY SESSION MEETING MINUTES OF AUGUST 3, 2022
3) HUMAN AFFAIRS COMMITTEE SPECIAL MEETING OF AUGUST 16, 2022 C. Warrant Register
1) Approve Wire Transfer Nos.
2707 through 2709 and Warrant Nos.
583176 through 583362, paid on
9-2-22, in the amount of…….……….……..….............…….…..… $ 4,473,476.76 2) Approve Wire Transfer Nos.
2710 through 2715 and Warrant Nos.
583363 through 583488, paid on
9-9-22, in the amount of…….……….……..….............……..…..…$ 3,220,641.04 3) Approve Wire Transfer Nos.
2716 through 2717 and Warrant Nos.
583489 through 583589, paid on
9-16-22, in the amount of…….……….……..…..…….…… $ 1,214,508.07 TOTAL WARRANT REGISTER……………….….………........…....$ 8,908,625.87 Payroll Register
Warrant Nos. 878 through 880
Automatic Deposit Advises 80775
through 81063, for the period
8-22-22 through 9-4-22, paid
on 9-9-22, in the amount of………..……..….................………..................$ 440,018.11 TOTAL PAYROLL REGISTER……………............................................….$ 440,018.11

3 City Council Regular Meeting Agenda September 20, 2022 D. CONTRACT AWARD - PURCHASE AND INSTALLATION OF STORM DRAIN

TRASH CAPTURE DEVICES FOR THE SAN CLEMENTE PIER AND PICO

CORRIDOR PROJECT AREA
Staff Recommendation

1. Approve a supplemental appropriation in the amount of $243,240 from the Clean Ocean Fund Reserve to Account No. 057-543-43690-000-28305.

2. Approve, and authorize the Utilities Director to execute, Contract No.C22-56, by and between the City of San Clemente and G2 Construction, Inc, providing for the San Clemente Pier and Pico Corridor runoff treatment, in the amount of $300,000, Project No. 28305.

E. NOTICE OF COMPLETION - PARK MONUMENT SIGN REPLACEMENT

PROGRAM
Staff Recommendation

1. Accept the Park Monument Sign Replacement Program, from the contractor Speedy Fix, Inc., CIP Project No. 29103.

2. Authorize the Public Works Director/City Engineer to execute and record, the Notice of Completion for the Park Monument Sign Replacement Program.

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation of the Notice of Completion upon verification with the Engineering Division that no liens have been levied against the Contractor, Speedy Fix.

F. CONTRACT AWARD - CITYWIDE CATCH BASINS REHABILITATION Staff Recommendation
Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. C22-57, by and between the City of San Clemente and Cheloletty Engineering, providing for Citywide Catch Basin Rehabilitation, in the amount of $148,600, CIP Project No. 21001.

4 City Council Regular Meeting Agenda September 20, 2022 G. RATIFICATION OF EMERGENCY PURCHASES AND SUPPLEMENTAL

FUNDING FOR CYPRUS SHORE PUMP STATION EMERGENCY

OPERATION
Staff Recommendation

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 a supplemental appropriation in the amount of $714,450 to Account 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve.

4. Ratify a change order with O’Connell Engineering and Construction, Inc. on a time and materials basis for $510,000 for Cyprus Shore Emergency Pump Station Bypass Operation, Project No. 12209.

H. BEACHES, PARKS & RECREATION COMMISSION - WORK PLAN FY 2022-23
Staff and the Beaches, Parks & Recreation Commission Recommendation Approve the FY 2022-23 Work Plan as presented by the Beaches, Parks and Recreation Commission.

I. GOLF COURSE COMMITTEE - WORK PLAN FY 2022-23
Staff and the Golf Course Committee Recommendation
Approve the FY 2022-23 Work Plan as presented by the Golf Course Committee.

5 City Council Regular Meeting Agenda September 20, 2022

5. Reports
A. Commissions and Committees
1) PUBLIC SAFETY COMMITTEE UPDATE OF SEPTEMBER 20, 2022 2) SCHEDULE MEETING FOR PUBLIC SAFETY COMMITTEE INTERVIEWS

AND APPOINTMENTS
Staff Recommendation
Schedule a date to conduct interviews and appoint one member to the Public Safety Committee for a two-year term.

B. City Manager
C. City Attorney
D. Council Members
E. Council Subcommittee Updates
CLOSED SESSION (6:00 P.M.)
A. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code section 54956.9(d)(2) Number of potential cases: 2
B. CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION
Number of cases: 1
Name of case: San Clemente v. Emergency Shelter Coalition Case No. 30-2014-0075880-CU-WM-CJC
BUSINESS MEETING PART 2 (7:00 P.M.)

6. Closed Session Report - City Attorney

7. Special Presentations
A. HUNGER MONTH PROCLAMATION
Presentation of Proclamation to Malia Cary, OC Hunger Alliance, proclaiming September as Hunger Month.

B. AUGUST UPDATE ON HOMELESS ISSUE

6 City Council Regular Meeting Agenda September 20, 2022

8. Public Hearings
The Public Hearing process includes a staff presentation, a presentation by the applicant not to exceed ten (10) minutes, and public testimony (not to exceed three minutes per speaker). Following closure of the Public Hearing, the City Council will respond to questions raised during the hearing, discuss the issues, and act upon the matter by motion.

A. 2021-2022 CONSOLIDATED ANNUAL PERFORMANCE EVALUATION REPORT (CAPER) FOR EXPENDITURE OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS.

Public Hearing to consider the proposed submission of the 2021-22 Consolidated Annual Performance and Evaluation Report (CAPER). The 15 day comment period was from September 2, 2022 through September 16, 2022.

Staff Recommendation
Approve and adopt the 2021-22 Consolidated Annual Performance Evaluation Report (CAPER) for submittal to the U.S. Department of Housing and Urban Development.

B. PUBLIC HEARING TO CONSIDER RESOLUTION TO ADOPT THE REVISED

HOUSING ELEMENT UPDATE
Public Hearing to consider a Resolution to adopt the revised Housing Element update.

Staff Recommendation

1. Adopt Resolution No. 22-36 entitled “APPROVING GENERAL PLAN AMENDMENT PLN20-03 TO ADOPT THE REVISED HOUSING ELEMENT UPDATE.”

2. Authorize staff to submit the revised Housing Element Update to the Department of Housing and Community Development.

9. Unfinished Business
None.

10. New Business
A. CAPISTRANO SHORES MOBILE HOME PARK - LETTER OF SUPPORT FOR HEIGHT OF REPLACEMENT COACHES (Agendized at the September 6, 2022 City Council Meeting by Councilmember Knoblock, with the support of Mayor James and Mayor Pro Tem Duncan)
Staff Recommendation
Authorize the Mayor to execute a letter of support to the California Coastal Commission regarding the height of replacement coaches at Capistrano Shores Mobile Home Park.

A sample letter is attached for Council consideration.

7 City Council Regular Meeting Agenda September 20, 2022 B. CITY OF SAN CLEMENTE EFFORTS REGARDING E-BIKE SAFETY (Agendized at the September 6, 2022 City Council Meeting by Mayor James, with the support of Councilmember Knoblock and Mayor Pro Tem Duncan) Staff Recommendation
Receive and file the Administrative Report dated September 20, 2022, and on file with the City Clerk.

C. EXCLUSIVE NEGOTIATING AGREEMENT (ENA) WITH PACIFIC MEDICAL

BUILDINGS (PMB) REGARDING THE PARCEL AT THE SOUTHWEST

CORNER OF AVENIDA VISTA HERMOSA AND AVENIDA LA PATA
Staff Recommendation
Approve, and authorize the Interim City Manager to execute, Contract No.C22-58, an Exclusive Negotiating Agreement by and between the City of San Clemente and Pacific Medical Buildings, LLC., for the City-owned parcel at the southwest corner of Avenida Vista Hermosa and Avenida La Pata.

11. Reports (continued from Business Meeting Part 1)
A. Commissions and Committees
1) PUBLIC SAFETY COMMITTEE UPDATE OF SEPTEMBER 20, 2022 2) SCHEDULE MEETING FOR PUBLIC SAFETY COMMITTEE INTERVIEWS

AND APPOINTMENTS
Staff Recommendation
Schedule a date to conduct interviews and appoint one member to the Public Safety Committee for a two-year term.

B. City Manager
C. City Attorney
D. Council Members
E. Council Subcommittee Updates

12. Oral Communications (Part 2)
Members of the audience who wish to address Council on matters that are within the jurisdiction of the City of San Clemente, but not separately listed on the agenda, may do so during the Oral Communications portion of the meeting. When invited by the Mayor, please step to the podium, and if you wish, state your name and the City in which you reside, and make your presentation, not to exceed three minutes. Subject to very limited exceptions, Council is not permitted to discuss or take action on items that do not appear on the agenda.

8 City Council Regular Meeting Agenda September 20, 2022

13. Adjournment
Adjourn to an Adjourned Regular Meeting to be held on October 4, 2022 at 3:00 p.m. for the purpose of meeting in Closed Session to review City Attorney Services. Part 1 of the Regular Business Meeting will commence at 5:00 p.m. and Closed Session will begin at 6:00 p.m. Part 2 of the Regular Business Meeting will commence at 7:00 p.m.

The meeting will take place in the Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

9 City Council Regular Meeting Agenda September 20, 2022

CITY COUNCIL MEETING PROCEDURES

PRESENTATION OF WRITTEN MATERIALS TO COUNCIL
In order to ensure that Councilmembers have adequate time to consider written materials concerning agenda items, it is strongly recommended that such materials be submitted to the City Clerk by noon the date preceding the Council meeting.

MEETINGS RECORDED AND TELEVISED
City Council meetings are broadcast live and are replayed periodically on Cox Communications Local Access Channel 854. Meetings are also available for live-stream or post meeting viewing from the City’s website.

Meetings are also recorded via audio CD and/or DVD and retained as a City record in accordance with the City’s records retention schedule.

USE OF ELECTRONIC VISUAL AIDS BY PUBLIC AT MEETINGS
To allow staff adequate time to confirm software compatibility, individuals wishing to utilize electronic visual aids to supplement their oral presentations at the meeting, must submit the electronic files to the City Clerk by no later than 12:00 p.m. on the day of the meeting. Only compatible electronic formats will be permitted to be used on City audio/visual computer equipment. Staff makes no guarantee that such material will be compatible, but will use its best efforts to accommodate the request.

LENGTH OF MEETINGS
At 11:00 p.m., the City Council will determine which of the remaining agenda items can be considered and acted upon at this meeting and will continue all other agenda items to a future meeting.

AMERICANS WITH DISABILITIES ACT
Pursuant to the Americans with Disabilities Act, persons with a disability who require a disability-related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, may request such modification or accommodation from the City Clerk at (949) 361-8200. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting.

COMMUNICATION DEVICES
To minimize meeting distractions and sound system interference, please be sure all personal communication devices are turned off or on silent mode.

MEETING SCHEDULE
Regular Council Meetings are held on the first and third Tuesdays of each month in the Council Chambers, located at 910 Calle Negocio, 2nd floor, San Clemente. Part 1 of the Business Meeting will begin at 5:00 p.m. and Closed Session begins at 6:00 p.m. Part 2 of the Business Meeting will commence at 7:00 p.m. Additional meetings of the City Council may be called as needed.

AGENDAS, ADMINISTRATIVE REPORTS AND SUPPLEMENTAL WRITTEN MATERIALS Agendas and Administrative Reports are available for review and/or copying at the City Clerk’s Department as soon as agendas are posted (a minimum of 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting). Agendas and Administrative Reports can also be viewed at the San Clemente Library, located at 242 Avenida Del Mar, or by accessing the City’s website at www.san-clemente.org. An “Inspection Copy” of agenda materials is also located at the entrance to the Community Center during meetings for public review. All written material distributed to a majority of the Council after the original agenda packet was distributed is available for public inspection in the City Clerk’s Department, located at 910 Calle Negocio, San Clemente, during normal business hours.

The City Clerk’s Department offers an agenda packet subscription service free of charge. If you wish to receive email copies of City Council agendas, which include hyperlinks to staff reports and other back-up material, register at http://san-clemente.org/enotification.

10 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 1)
Subject:

Approve the minutes of the Regular and Special City Council Meeting of September 6, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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CITY OF SAN CLEMENTE
Tuesday, September 6, 2022 5:00 PM
City Council
Regular and Special Meeting Minutes
Community Center
100 N. Calle Seville
San Clemente, California
www.san-clemente.org
5:00 p.m. – Business Meeting I
6:00 p.m. – Closed Session
6:30 p.m. – Business Meeting II (Special Meeting)
Mayor James
Mayor Pro Tem Duncan
Councilmember Ferguson
Councilmember Knoblock
Councilmember Ward
These minutes reflect the order in which items appeared on the meeting agenda and do not necessarily reflect the order in which items were actually considered.

A Regular and Special Meeting of the San Clemente City Council was called to order by Mayor James on September 6, 2022 at 5:00 p.m. in the San Clemente Community Center auditorium, located at 100 N. Calle Seville, San Clemente.

PRESENT: Duncan, Ferguson, Mayor James, Knoblock, and Ward STAFF PRESENT: Erik Sund, City Manager; Scott Smith, City Attorney; Megan Garibaldi, Deputy City Attorney; Joanne Baade, City Clerk; Laura Campagnolo, Legislative Administrator; Megan Jimenez, Deputy City Clerk
BUSINESS MEETING PART 1

INVOCATION
Michael Holmes, Student Director, Shoreline Community Church gave the invocation.

PLEDGE OF ALLEGIANCE
Amanda Quintanilla led the Pledge of Allegiance.

1. Motion waiving reading in full of all Resolutions and Ordinances Motion by Mayor James, second by Councilmember Knoblock, CARRIED to waive reading in full of all Resolutions and Ordinances.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

12 City Council Regular and Special Meeting Minutes September 6, 2022

2. Consideration of agendizing items requiring immediate action None.

3. Oral Communications (Part 1)
Brad (no last name provided) commented on the City's Legal Services contract for City Attorney; voiced concern with the Subcommittee recommendation for City Manager.

Martina (no last name provided) spoke on the need to reinstate an ethics policy; opined that campaign contributions could create a potential conflict of interest.

Eric Anderson, San Clemente, requested that Council support the Capistrano Shores Mobilehome Park with regard to California Coastal Commission building height requirements; provided a draft letter to Council, which is on file with the City Clerk.

George Gregory spoke on the City Council meeting agenda format and spoke to the importance of equal enforcement of laws.

Mikii Rathmann, PierPride Foundation volunteer, narrated a Powerpoint entitled "PierPride 2022 Update". A hard copy of the presentation is on file with the City Clerk.

Don Brown and Jim Nielsen, with the PierPride Foundation, announced the completion of the Snack Shack renovation; presented the City with a check in the amount of $75,000.

Concerned Citizen, San Clemente, narrated a PowerPoint on Municipal Code 8.48.090 relating to noise levels that create a public nuisance. A hard copy of the presentation is on file with the City Clerk.

Tyler Boden, speaking on behalf of the San Clemente Chamber of Commerce, spoke on the success of the Fiesta Music Festival held on August 14, 2022.

Dawn Urbanek spoke on a letter written and posted on social media by Mayor Pro Tem Duncan concerning his pro-choice stance.

Stuart Anderson spoke on the San Diego County Safe Parking Program and encouraged Council to consider a similar program in San Clemente.

Mark Enmeier, San Clemente, spoke on safety concerns for e-bikes and the need for additional bike lanes.

Amanda Q commented on the Town Hall Meeting concerning Max Berg Plaza Park and the effort to prevent RVs from parking along the park and school grounds.

13 City Council Regular and Special Meeting Minutes September 6, 2022 Safe Parking Program
Motion by Mayor Pro Tem Duncan to agendize consideration of a Safe Parking Program in San Clemente. Motion WITHDRAWN by Mayor Pro Tem Duncan.

Motion by Mayor Pro Tem Duncan, second by Councilmember Ward, FAILED to assign the Human Affairs Committee to evaluate the feasibility of a Safe Parking Program in San Clemente.

AYE: Duncan
NOE: Ferguson, Mayor James, Knoblock, and Ward
Capistrano Shores Building Heights
Councilmember Knoblock, with the support of Mayor James and Mayor Pro Tem Duncan, agendized consideration of a letter of support for the Capistrano Shores Mobilehome Park building height allowance under review by the California Coastal Commission at the September 20, 2022 City Council Meeting.

E-Bikes
Mayor James, with the support of Mayor Pro Tem Duncan and Councilmember Knoblock, agendized the review of the Carlsbad Emergency Order concerning e-bikes and requested that the Public Safety Committee and the City's Traffic Engineer brief Council at the September 20, 2022 City Council Meeting on current efforts regarding the safety of e-bikes.

4. Consent Calendar
The following Items were removed from the Consent Calendar for discussion: 4C(2), 4G, 4H, 4I.

A. City Council Minutes
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to:
(1) APPROVE THE MINUTES OF THE REGULAR AND SPECIAL COUNCIL MEETING OF AUGUST 16, 2022.
(2) APPROVE THE MINUTES OF THE JOINT CITY COUNCIL MEETING OF AUGUST 30, 2022.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

14 City Council Regular and Special Meeting Minutes September 6, 2022 B. Commission/Committee Minutes
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to receive and file:
(1) Public Safety Committee Regular Meeting minutes of May 24, 2022 (2) Public Safety Committee Regular Meeting minutes of June 28, 2022 (3) Zoning Administrator Regular Meeting minutes of August 4, 2022 (4) Zoning Administrator Regular Meeting minutes of August 18, 2022 (5) Public Safety Committee Regular Meeting minutes of July 26, 2022 (6) Human Affairs Committee Special Meeting minutes of August 16, 2022.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
C(1). Warrant Register
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to:

Approve Wire Transfer Nos.
2699 through 2701 and Warrant Nos.
582951 through 583061, paid on
8-19-22, in the amount of…….……….……..…..…….…..… $ 648,171.86 AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
Warrant Register C(2) was removed from the Consent Calendar for discussion.

15 City Council Regular and Special Meeting Minutes September 6, 2022 Payroll Register
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to:

Approve Warrant Nos. 875 through 877
Automatic Deposit Advises 80452
through 80774, for the period
8-8-22 though 8-21-22, paid
on 8-26-22, in the amount of………..……..…..………….…….$ 485,946.05 TOTAL PAYROLL REGISTER………………………………….$ 485,946.05
AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
D. ORDINANCE NO. 1733 (SECOND READING) - PROHIBITING THE

UNLAWFUL POSSESSION OF CATALYTIC CONVERTERS
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to adopt Ordinance 1733 entitled AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE ADDING CHAPTER 10.54 (UNLAWFUL POSSESSION OF A CATALYTIC CONVERTER PROHIBITED) OF TITLE 10 (VEHICLES AND TRAFFIC) TO THE SAN CLEMENTE

MUNICIPAL CODE ESTABLISHING REGULATIONS PROHIBITING THE UNLAWFUL POSSESSION OF CATALYTIC CONVERTERS.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

16 City Council Regular and Special Meeting Minutes September 6, 2022 E. NOTICE OF COMPLETION - FY 2021 STREET IMPROVEMENT PROGRAM AND FY 2022 MAJOR STREET MAINTENANCE
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to:

1. Accept the FY 2021 Street Improvement Program and FY 2022 Major Street Maintenance, from the contractor Roy Allen Slurry Seal, Inc., CIP Project Nos. 11306 and 22303.

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for FY 2021 Street Improvement Program and FY 2022 Major Street Maintenance.

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation of the Notice of Completion upon verification with the Engineering Division that no liens have been levied against the Contractor, Roy Allen Slurry Seal, Inc.

4. Authorize the City Clerk to release the Performance Bond upon receipt of a Warranty Bond in the amount of 25% of the construction cost.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
F. CONTRACT AWARD - FY 2023 PAVEMENT PRESERVATION PROGRAM Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to:

1. Approve the plans and specifications for FY 2023 Pavement Preservation Program, Project No. 23303.

2. Approve, and authorize the Public Works Director/City Engineer to execute, Contract No.C22-51, by and between the City of San Clemente and Palp Inc.

DBA Excel Paving Company, providing for FY 2023 Pavement Preservation Program, in the amount of $238,550.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

17 City Council Regular and Special Meeting Minutes September 6, 2022 J. UPDATE TO POLICY AND PROCEDURE 601-8-19 (USE OF INFORMATION

TECHNOLOGY)
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to approve Policy and Procedure 601-8-19 (Use of Information Technology), effective September 6, 2022 and authorize the City Manager to update as needed.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
K. PURCHASE OF WATER METERS FOR FISCAL YEAR 2022-23.

Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to approve the purchase of water meters from Ferguson Waterworks and Metron-Farnier for Fiscal Year 2022-23 based on the fixed price quotes for a total amount not to exceed $102,000.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

ITEMS REMOVED FROM THE CONSENT CALENDAR FOR DISCUSSION
C(2). WARRANT REGISTER
Motion by Councilmember Ferguson, second by Mayor James, CARRIED to:

Approve Wire Transfer Nos.
2702 through 2706 and Warrant Nos.
583062 through 583175, paid on
8-26-22, in the amount of…….……….……..…..…….…..… $ 6,376,489.40 AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
G. SUPPLEMENTAL APPROPRIATION FOR SLOPE ANALYSIS AT 100 AVENIDA

PRESIDIO
Motion by Mayor James, second by Mayor Pro Tem Duncan, CARRIED to approve an appropriation of $110,000 from the General Fund Unassigned Fund Balance into account 001-411-43690-000-00000, Development Engineering - Other Professional Services and authorize the Public Works Director/City Engineer to execute Contract No.

C22-52 with the selected firm to perform the scope of services as depicted in their proposal and pursuant to their existing Professional Services Agreement.

AYE: Duncan, Ferguson, Mayor James, and Ward
NOE: Knoblock

18 City Council Regular and Special Meeting Minutes September 6, 2022 H. CONTRACT AWARD - WORKERS’ COMPENSATION THIRD PARTY

ADMINISTRATIVE SERVICES AGREEMENT
Motion by Councilmember Knoblock, second by Mayor James, CARRIED to approve, and authorize the City Manager to execute, Contract No. C22-53, by and between the City of San Clemente and Adminsure, Inc., providing for Workers' Compensation Claims Administration Services, for a period of one year.

AYE: Ferguson, Mayor James, and Knoblock
NOE: Duncan, and Ward
I. RECOMMENDATION OF THE PUBLIC SAFETY COMMITTEE TO CONSIDER SITE AT 380 AVENIDA PICO (THE CITY’S WATER RECLAMATION PLANT

PROPERTY) AS A POTENTIAL LOCATION FOR AN EMERGENCY FOOD

STORAGE UNIT
Motion by Mayor James, second by Mayor Pro Tem Duncan, CARRIED to table this item and schedule meetings with no more than two Councilmembers at a time with the Public Safety Committee and the vendor to discuss the details of the project.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

5. Reports
A. Commissions and Committees
None.

B. City Manager
Announcement of Contracts Approved and Executed by the City Manager
City Manager Sund reported that the following professional services contracts were executed under his signature authority: 1) GPA Consulting - Historic Preservation Consulting in the amount of $32,500 (an increase of $15,000); 2) O'Connell Engineering and Construction - Primary Clarifier No. 5 Concrete Repair in the amount of $16,825; 3) Bird Solutions International - On-Call Bird Trapping and Rehoming and Pier Netting Inspection and Maintenance Services $25,000.

City Council Administration
City Manager Sund provided an update on the City's new legislative software (Granicus), and on the Council Chambers construction at 910 Calle Negocio; reported that the City Council Meeting of September 20, 2022 will be held in the new chambers with additional equipment to be installed when available.

Staff to research to see if the approval queue can be made visible on the Administrative

19 City Council Regular and Special Meeting Minutes September 6, 2022 Reports.

C. City Attorney
City Attorney Smith provided an update on Senate Bill 1224 Watersheds: Wildlife Habitat: Counties of Orange and San Diego; noted the City's grant application to protect open space is almost complete and ready for submission.

D. Council Members
Miniature Golf
Motion by Councilmember Ferguson, second by Mayor James, CARRIED to issue a request for proposals in two months to consider a miniature golf course at the vacant area at the Vista Hermosa Sports Park.

AYE: Duncan, Ferguson, Mayor James, and Knoblock
NOE: Ward
Pickleball
Motion by Councilmember Ward to table the discussion of pickleballl until three Councilmembers want to agendize. Motion DIED for lack of a second.

Motion by Councilmember Knoblock, second by Mayor James, CARRIED to agendize for Closed Session at the September 20, 2022 City Council meeting a discussion of the Pickleball Noise Study, Ordinance and claim.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
Residential View Protection
Mayor James, with the support of Councilmember Knoblock and Mayor Pro Tem Duncan, agendized for the Council Meeting of October 4, 2022, consideration of codifying protection of residential views. Staff is to include an analysis of view Ordinances in effect in the cities of Del Mar, Laguna Beach, Palos Verdes and Tiburon.

Public Records Requests on the City's Website
Mayor James, with the support of Mayor Pro Tem Duncan, requested that staff make Public Records Act requests viewable and searchable on the City's website; and have staff return to Council if there are any costs involved.

Legal Services Review
Mayor James, with the support of Councilmember Knoblock and Councilmember Ferguson, agendized a closed session to review legal costs, litigation, and impacts of issuing a request for proposals for legal services. Council suggested beginning the Closed Session at 3:00 p.m. before a regularly scheduled meeting in October 2022.

20 City Council Regular and Special Meeting Minutes September 6, 2022 Surfing League Finals
Mayor Pro Tem Duncan discussed the world surfing league finals and the benefit to the community.

E. Council Subcommittee Updates
None.

CLOSED SESSION
Motion by Councilmember Ferguson, second by Councilmember Knoblock, CARRIED to recess to Closed Session at 6:27 p.m. to discuss the following:

A. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Existing litigation pursuant to Government Code section 54956.9(d)(1) Number of Cases: 1
Case Name: City of San Clemente v. Urban Development Corp, et al.

Case Number: OCSC 30-2022-01261890-CU-OR-CJC
B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Pursuant to Government Code Section 54956.8
Property: 2.2 acre section of and 80 acre parcel on the southwest corner of Avenida La Pata and Vista Hermosa, Assessor’s Parcel Number 678-163-01 Agency Negotiators: City Manager
Negotiating Parties: City of San Clemente, Pacific Medical Buildings on behalf of Hoag Under Negotiation: Price and terms of payment
AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
BUSINESS MEETING PART 2
Council reconvended at 7:00 p.m., with all Councilmembers present.

6. Closed Session Report - City Attorney
No Reportable Action.

7. Special Presentations
A. Presentation of Commendation to City Manager Sund
Concerned Citizen, San Clemente, presented a PowerPoint concerning the City Managers service. A hard copy of the subject PowerPoint is on file with the City Clerk.

Mayor James, presented a commendation to City Manager Sund for his years of exemplary service to the City of San Clemente.

21 City Council Regular and Special Meeting Minutes September 6, 2022 B. Recognition of Out-Going Commission and Committee Members Mayor James recognized the following out-going members of the City's Commissions and Committees and presented City tiles to those in attendance: Joe Janis, Public Safety Committee; John Bandaruk, Beaches, Parks and Recreation Commission; Vincent Hennessy, Beaches, Parks and Recreation Commission; Aaron Washington, Beaches, Parks and Recreation Commission; Shari Grace, Human Affairs Committee; William Kreutinger, Human Affairs Committee; Thomas Olds, Human Affairs Committee and Investment Advisory Committee.

C. Update on Homeless Issue
Donna Vidrine, San Clemente, spoke on the need for housing for the homeless.

The August Update to be provided at September 20, 2022 Council Meeting.

8. Public Hearings
None.

9. Unfinished Business
None.

10. New Business
Motion by Mayor James, second by Mayor Pro Tem Duncan, CARRIED to consider item 10E - Appointment of Sean Joyce as Interim City Manager, ahead of other items in New Business. Please see page 13 of these minutes for action.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
A. ESTABLISHMENT OF A CITIZENS SUBCOMMITTEE TO FURTHER ANALYZE THE FEASIBILITY OF AN AMPHITHEATER (Agendized by Council at the August 16, 2022 City Council Meeting.)
Motion by Councilmember Ferguson, second by Councilmember Knoblock, CARRIED to authorize each Councilmember to appoint one member to the newly formed Amphitheater Citizens Committee.

AYE: Ferguson, Mayor James, and Knoblock
NOE: Duncan, and Ward
Motion by Councilmember Ferguson, second by Councilmember Knoblock, CARRIED to sunset the Amphitheater Citizens Committee in two years.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

22 City Council Regular and Special Meeting Minutes September 6, 2022 B. REVIEW OF THE CITY’S CR&R SOLID WASTE AND RECYCLING

AGREEMENT BY MSW CONSULTANTS
David Davis, Founder, MSW Consultants narrated a PowerPoint entitled "Solid Waste Agreement: Negotiate or RFP". A hard copy of the presentation is on file with the City Clerk.

City Manager Sund to research the Lake Forest/ Laguna Niguel cooperative Request for Proposal for Waste and Recycling Services.

Motion by Councilmember Knoblock, second by Mayor Pro Tem Duncan, CARRIED to:

1. Authorize the City Manager to issue CR&R a notice of termination of the automatic renewal of the Franchise Agreement prior to September 30, 2022.

This will result in the Franchise Agreement terminating on June 30, 2024;

2. Direct City staff to:
a. Enter into negotiations with CR&R for a period not to exceed four months. b. If an agreement is not reached within four months, issue a Request for Proposals and solicit firms for a new solid waste and recycling Franchise Agreement.

3. Include an analysis for Street Sweeping services or revenue as part of recommended action number two.

4. Approve and authorize the City Manager to execute, Amendment No. 1 to Contract AC-1046, by and between the City of San Clemente and MSW Consultants, providing for solid waste and recycling negotiations. This Amendment increases the contract amount from $25,000 to an amount not to exceed $65,000 (an increase of $40,000).

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
C. APPROVAL OF LONG-TERM WASTEWATER SERVICES AGREEMENT WITH

SANTA MARGARITA WATER DISTRICT (SMWD)
City Attorney Smith recused himself for this item as he represents both the City of San Clemente and Santa Margarita Water District. City Attorney Smith left the meeting room at 8:30 p.m. Deputy City Attorney Garibaldi acted as legal counsel.

Utilities Director Rebensdorf narrated a PowerPoint entitled "Agreement for Wastewater Services and Recycled Water Purchases between the City and Santa Margarita Water District (SMWD)". A hard copy of the presentation is on file with the City Clerk.

23 City Council Regular and Special Meeting Minutes September 6, 2022 Dan Ferons, General Manager of the Santa Margarita Water District, responded to Council inquiries.

Motion by Councilmember Ferguson, second by Mayor James, CARRIED to review the process of having the City's operations annexed and review the annex documents from the City of San Juan Capistrano.

AYE: Ferguson, Mayor James, and Knoblock
NOE: Duncan, and Ward
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

1. Approve, and authorize the City Manager to execute Contract No.C22-54, by and between the City of San Clemente and the Santa Margarita Water District, providing for wastewater treatment services and recycled water purchases from July 1, 2022 through June 30, 2052.

2. Transfer $11,800 from account no. 054-447-47250-000-12605 to account no. 054-477-45300-000-12206.

3. Authorize expenditures in the amount of $3,100,000 from account no. 054- 477-45300-000-12207 for Trampas Regional Recycled Water Reservoir and $611,800 for Pico Recycled Water Pump Station from account no. 054-477- 45300-000-12206.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
City Attorney Smith returned to the meeting room at 8:51 p.m.

MEETING RECESSED
Council recessed at 8:51 p.m. and reconvened at 8:57 p.m., with all Councilmembers present.

D. POLICY AND PROCEDURE 1201-13 RELATING TO CITY COUNCIL USE OF LETTERHEAD AND STATIONERY (Agendized at the August 16, 2022 City Council Meeting by Mayor James, with support of Councilmember Ward and Councilmember Knoblock)
Motion by Mayor James, second by Mayor Pro Tem Duncan, CARRIED to approve Policy and Procedure 1201-13 (Use of City of San Clemente Letterhead and Stationery).

AYE: Duncan, Ferguson, Mayor James, and Knoblock
NOE: Ward

24 City Council Regular and Special Meeting Minutes September 6, 2022 E. APPOINTMENT OF SEAN JOYCE AS INTERIM CITY MANAGER
Note: this item was discussed earlier in the meeting. See page 11 of these minutes for action.

Motion by Councilmember Ferguson, second by Councilmember Knoblock, FAILED to table the item to the next Closed Session to allow Council to conduct 20 minute interviews per candidate.

AYE: Ferguson, and Knoblock
NOE: Duncan, Mayor James, and Ward
Motion by Mayor James, second by Councilmember Knoblock, CARRIED to recess to Closed Session at 7:30 p.m. to discuss Public Employee Appointment pursuant to Government Code 54957 Public Employee Appointment - Interim City Manager.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
Council reconvened at 7:43 p.m., with all Councilmembers present.

Motion by Councilmember Ward, second by Mayor Pro Tem Duncan, CARRIED to:

1. Adopt Resolution No. 22-35 A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF SAN CLEMENTE, CALIFORNIA, AUTHORIZING THE

APPOINTMENT OF SEAN JOYCE AS INTERIM CITY MANAGER AND

APPROVING AN EMPLOYMENT AGREEMENT IN CONNECTION
THEREWITH.

2. Approve, and authorize the Mayor to execute, Contract No. C22-55, by and between the City of San Clemente and Sean Joyce, providing for Interim City Manager Services, at the rate of $133.70/hour.

AYE: Duncan, Mayor James, and Ward
NOE: Ferguson, and Knoblock

11. Reports
The Reports portion of the agenda was considerted during Part 1 of the meeting.

Please refer to page 8 of these minutes for a summary of that discussion.

12. Oral Communications (Part 2)
None.

25 City Council Regular and Special Meeting Minutes September 6, 2022

13. Adjournment
Motion by Mayor James, second by Councilmember Ferguson, CARRIED to adjourn at 9:11 p.m. in memory of Courtney Faye Smith. The next Regular Meeting will be held on September 20, 2022. Part 1 of the Regular Business Meeting will commence at 5:00 p.m. and Closed Session will begin at 6:00 p.m. Part 2 of the Business Meeting will commence at 7:00 p.m. The meeting will take place in the City Hall Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None

_______________________________
MAYOR of the City of
San Clemente, California

_______________________________
CITY CLERK of the City of
San Clemente, California

26 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 1)
Subject:

Planning Commission Regular Meeting minutes of August 3, 2022 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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32 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 2)
Subject:

Planning Commission Study Session Meeting minutes of August 3, 2022 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
powered by Legistar™ 33
These minutes will be considered for approval at the Planning Commission meeting of 09-07-2022.

MINUTES OF THE

REGULAR STUDY SESSION

OF THE CITY OF SAN CLEMENTE

PLANNING COMMISSION
August 3, 2022 @ 5:00 p.m.

San Clemente Community Center Auditorium
100 Calle Seville, San Clemente, CA 92672
Teleconference via www.san-clemente.org/live or Cox Channel 854

CALL TO ORDER
Chair Crandell called the Study Session of the Planning Commission of the City of San Clemente to order at 5:04 p.m. The meeting was offered in person at The City of San Clemente Community Center Auditorium, located at 100 Calle Seville, San Clemente California, and also via live stream from the City’s YouTube Channel or live on Cox Channel 854.

ROLL CALL
Commissioners Present: Cameron Cosgrove, Brent Davis, Karen Prescott-Loeffler, Chair pro tem Scott McKhann, Chair Barton Crandell
Commissioners Absent: M. Steven Camp, Gary P. McCaughan, M.D.

Staff Present: Adam Atamian, Deputy Community Development Director Cecilia Gallardo-Daly, Community Development Director
Hong Dao Nguyen, Deputy City Attorney
Eileen White, Recording Secretary
AGENDA
Legal Best Practices (BBK)
Hong Dao Nguyen, with Best, Best and Krieger, narrated a PowerPoint Presentation entitled, “Planning Commission Training,” dated August 3, 2022. A copy of the Presentation in on file in Planning Division. While summarizing Legal Best Practices for Planning Commissioners, she discussed and defined pertinent topics such as The Brown Act, financial conflicts of interest, discussion of the various laws that regulate meetings, social media updates, guidelines for disqualifications, due process principles, motion & debate rules to encourage streamlining, application of findings, and other topics of interest. She encouraged the Commissioners to contact her with any questions they may have.
34 Planning Commission Study Session Minutes – August 3, 2022 Page 2 Deputy Director Atamian agreed to forward a copy of the PowerPoint Presentation to the Commissioners for further review.

COMMISSION COMMENT
None
RECESS
The Commission recessed until the start of the regular session.

Respectfully submitted,
Barton Crandell, Chair
Attest:

Cecilia Gallardo-Daly, Community Development Director
35 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 3)
Subject:

Human Affairs Committee Special Meeting of August 16, 2022 ..body CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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These minutes will be considered for approval at the Special Meeting of the Human Affairs on 9/13/22.

CITY OF SAN CLEMENTE

MINUTES OF THE SPECIAL MEETING OF THE

HUMAN AFFAIRS COMMITTEE
August 16, 2022

1. CALL TO ORDER/ROLL CALL
Chair Edone called the Special Meeting of the City of San Clemente Human Affairs Committee to order on August 16, 2022 at 3:42 p.m. The meeting was held in the Friends Room at the San Clemente Aquatic Center.

Committee
Members Present: Stuart Anderson, Lisa Edone, Angeline Johnson, Rosemary Salas, Jill Schachter and Aaron Washington

Absent: Michelle Brooks
Guests: Mayor Gene James (arrived at 4:11 p.m.)
Staff Present: Janet Batchelor, Management Analyst
Tamara Tatich, Office Specialist

2. PLEDGE OF ALLEGIENCE
The Pledge was led by Committee member Washington.

3. APPROVAL OF MINUTES
A. Minutes from the June 14, 2022 Regular Meeting of the Human Affairs Committee.

MOTION BY COMMITTEE MEMBER SALAS, SECONDED BY COMMITTEE MEMBER SCHACHTER AND CARRIED 6-0-1, (Michelle Brooks-absent) to approve the minutes from the June 14, 2022 Regular Meeting of the Human Affairs Committee as submitted.

4. NEW BUSINESS
At Committee member Edone’s request, all Committee members and staff introduced themselves and gave a brief background summary.

A. Nominations and Selection of Human Affairs Committee Chair and Vice Chair
37

Minutes of the Regular Meeting of the Human Affairs Committee of August 16, 2022

A MOTION TO APPOINT LISA EDONE AS CHAIR OF THE HUMAN AFFAIRS

COMMITTEE WAS MADE BY COMMITTEE MEMBER AARON WASHINGTON AND SECONDED BY COMMITTEE MEMBER JILL SCHACHTER. MOTION PASSED 6-0-1 (Brooks absent).

A MOTION TO APPOINT AARON WASHINGTON AS VICE CHAIR OF THE

HUMAN AFFAIRS COMMITTEE WAS MADE BY COMMITTEE MEMBER JILL

SCHACHTER AND SECONDED BY COMMITTEE MEMBER ROSEMARY
SALAS. MOTION PASSED 6-0-1 (Brooks absent).

B. Consideration and Development of the Human Affairs Committee Work Plan
Chair Edone prefaced the discussion with a historical overview of the 2021-22 work plan development. Chair Edone requested that each Committee member review the five work plan projects, determine two to three that they would like to work on, then bring their choices to the next meeting. Chair Edone explained that the Committee does not have a budget; however the Chair is able to request funds for events and other essentials to meet the objectives of the Committee’s work plan.
 Project #1. Homeless Town Hall & Community Resource Fair Chair Edone summarized the various types of resources that are available to the community and the concept of an event that would be hosted at the Community Center. At the conclusion of a discussion, a date for the event would be determined if the project is accepted by the Committee.  Project #2. Resources Directory:

Chair Edone summarized the need to update the current Human Affairs Committee’s online directory resources, and that the page be organized in categories as “tiles” that roll down into “quick links.” The purpose is to enhance the site visitor experience and make resources more accessible.  Project #3. Overall Homelessness Strategy:

Chair Edone advised that the responsibility of solving the homeless issues in San Clemente rests on the City Council. The Human Affairs Committee can assist, but the overall reaching responsibility is the City and the County. Discussion followed and it was determined that the Chair will address the Mayor for more direction.
38

Minutes of the Regular Meeting of the Human Affairs Committee of August 16, 2022  Project #4. Mentorship Program for Young Adults & Grades 6-12 “A Day in the Life”:

Chair Edone gave a conceptual overview of the mentorship program that will engage local businesses and young adults. The work group will decide what the scope of the mentorship may be. Several Committee members expressed their interest in joining the work group.
 Project #5. “Every 15 Minutes” DUI Prevention Program:

Chair Edone gave a conceptual overview of the simulation program that would be held on the San Clemente High School campus and shared the efforts of Committee Member Salas. Discussion followed that supported this project.
 SCHS Humanitarian Award:

Chair Edone stated that this is an award that is presented every year to a San Clemente High School student. All agreed that this project will remain as part of the work plan.

Chair Edone will review any new items being added to the new 2022-23 work plan with Mayor Gene James, the outcome of which will be presented at the next Human Affairs Committee meeting.

The work plan is to be presented to the City Council on October 4, 2022, therefore a Special Meeting of the Human Affairs Committee is necessary to meet the timeline.

By consensus, the Committee approved to hold a Special Meeting on September 13, 2022 at 3:30 p.m. The purpose of the September Special Meeting is to focus on the work plan, add any additional content, break out into four work groups with two to three members in each based on the priority of the projects they prefer, and finalize the 2022-23 work plan.

5. ORAL AND WRITTEN COMMUNICATION
Mayor Gene James welcomed the members to the Human Affairs Committee and thanked each for their service to the community.
39

Minutes of the Regular Meeting of the Human Affairs Committee of August 16, 2022

6. COMMUNICATIONS FROM COMMITTEE MEMBERS AND STAFF
Staff circulated a Human Affairs Committee members’ contact directory and asked that each member approve their information and authorize staff to distribute to the other Committee members.

ADJOURNMENT
CHAIR EDONE ADJOURNED THE MEETING AT 4:28 P.M. TO THE JOINT

COUNCIL/COMMISSION/COMMITTEE MEETING TO BE HELD ON AUGUST 30, 2022 AT 6:00 P.M. AT WEDGEWOOD AT THE SAN CLEMENTE
MUNICIPAL GOLF COURSE LOCATED AT 150 E. MAGDALENA, SAN
CLEMENTE, CALIFORNIA.

Respectfully submitted,
______________________________
Lisa Edone, Chair
Attest: ______________________________
Janet Batchelor, Management Analyst
40 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 1)
Subject:

Approve Wire Transfer Nos.
2707 through 2709 and Warrant Nos.
583176 through 583362, paid on
9-2-22, in the amount of…….……….……..…..…….…..… $ 4,473,476.76 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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52 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 2)
Subject:

Approve Wire Transfer Nos.
2710 through 2715 and Warrant Nos.
583363 through 583488, paid on
9-9-22, in the amount of…….……….……..…..…….…..… $ 3,220,641.04 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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64 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 3)
Subject:

Approve Wire Transfer Nos.
2716 through 2717 and Warrant Nos.
583489 through 583589, paid on
9-16-22, in the amount of…….……….……..…..…….…… $ 1,214,508.07 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/15/2022
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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: D.

Department: Public Works
Prepared By: Amir K. Ilkhanipour, Principal Civil Engineer Subject:

CONSTRUCTION CONTRACT AWARD TO G2 CONSTRUCTION, INC. FOR PURCHASE AND

INSTALLATION OF STORM DRAIN TRASH CAPTURE DEVICES FOR THE SAN CLEMENTE PIER AND PICO CORRIDOR PROJECT AREA, PROJECT NO. 28305
Fiscal Impact:

Yes. The total estimated project cost is $360,000. The current project account balance is $116,760. A supplemental appropriation in the amount of $243,240 is requested from the Clean Ocean Fund Reserve. To minimize the impact on the Clean Ocean Fund Reserve, the City was approved for a $240,000 grant that will be funded at project completion from the Orange County Transportation Authority. There is sufficient funding in this account.

Summary:

Staff recommends approval of a construction contract with G2 Construction, Inc. in the amount of $300,000 for installation of trash capture devices in 66 storm drains in the San Clemente Pier and Pico Corridor Area.

Background:

On April 7, 2015 the State Water Resources Control Board (SWRCB) adopted Resolution 2015-0019 (Resolution) amending the Water Quality Control Plan for Ocean Waters of California (California Ocean Plan) to control trash impacts to the surface waters of California. This Resolution finds that trash in California’s surface water is a pervasive problem and adversely affects numerous beneficial uses including, but not limited to, wildlife habitat, marine habitat and human water contact and noncontact recreation. Studies have shown that trash is predominantly generated on land and then transported to surface waters through the storm drain system. This Resolution establishes a statewide narrative water quality objective and implementation requirements to control trash. The SWRCB directed each of the nine Regional Water Quality Control Boards to incorporate trash provision requirements into their Municipal Separate Storm Sewer System Permit (MS4 Permit).

The City is subject to a mandate requiring the installation of trash capture devices that capture litter and trash down to 5 mm in size to prevent this debris from reaching receiving waters such as rivers, creeks and the Pacific Ocean. The City has until 2031 to retrofit catch basins that drain commercial, industrial and high density residential land uses. See Attachment 1 for a map of these Priority Land Use Areas that account for 560 storm drain catch basins that must be retrofitted. To comply with this mandate the City will need to retrofit storm drains in multiple phases and spread construction costs over multiple years prior to the 2031 compliance date.

CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/15/2022
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Meeting Date: 9/20/2022 Agenda Item: D.

Discussion:

In May 2010, the Orange County Transportation Authority (OCTA) Board of Directors approved a twotier grant approach to the Measure M2 (M2) Project X Environmental Cleanup Program (ECP). Tier 1 funding is focused on small localized projects while Tier 2 funding consists of regional, potentially multi-jurisdictional capital-intensive projects. The M2 Project X ECP establishes a competitive process for projects that help improve water quality in Orange County from transportation-generated pollution. The funds are designed to supplement, not supplant, existing transportation-related water quality programs. Because of the competitive nature of the application process, not all cities submitting applications will be guaranteed grant funding.

The M2 Project X ECP grant program is designed to mitigate the more visible form of pollutants, such as litter and debris that collects on roadways and in storm drains prior to being deposited in waterways and the ocean. The M2 Project X Program can fund equipment purchases and upgrades to existing storm drain catch basins and related best management practices such as screens, filters, inserts and other street-scale low-flow diversion projects.

The City was awarded a $240,000 M2 Project X ECP Tier 1 Grant from the OCTA in fall 2021. This project will entail retrofitting 66 City storm drain catch basins in the Pier and Pico Corridor area of the City including storm drains at the Pier and in the Rancho San Clemente commercial and residential area. This project will retrofit 12% of the required 560 storm drains. See Attachment 2 for a map of the 66 catch basins proposed for retrofit.

Three types of devices are proposed to be installed: Automatic Retractable Screens (ARS), Connector Pipe Screens (CPS), and Grate Inlet Trash Screen (GITS). The ARS units are installed at the opening of the catch basins to trap larger debris such as cups, straws and leaf litter. Street sweepers can collect this debris during their routine street sweeping process. The CPS units are installed inside the catch basin at its outlet and are sized to capture debris down to 5 mm in size, which is the size of a cigarette butt.

The grant guidelines allow for use of pre-qualified contractors and devices. The County of Orange Public Works (County) partnered with OCTA on a strategy to secure volume discounts for the purchase and installation of trash and debris control devices that would fulfill the requirements of the grant program and meet the SWRCB’s full capture equivalency of capturing debris down to 5 mm in size. The County pre-qualified six contractors through a formal bid process to purchase and install specific trash control devices (Attachment 3).

The OCTA M2 Project X ECP Grant Guidelines require that the devices proposed in the grant applications must be the product installed for projects awarded funding. City staff reviewed devices from the six approved contractors listed in Attachment 3 and determined that the three products proposed by G2 Construction for installation in San Clemente catch basins had the appropriate specifications for the catch basins proposed for retrofit, were of excellent quality material and design, and were comparable in price to other contractor devices. Thus City staff included three G2 Construction devices in the City’s grant application. See Attachment 4 for a copy of the contract between County of Orange, Public Works and G2 Construction. Utilities Staff recommend entering into a contract with G2 Construction (Attachment 5) using the existing contract held between the County of Orange, Public Works and G2 Construction to “Piggyback” under California Public Contract Code 20652. This code allows for the use of “piggyback” contracts from other public agencies.

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Meeting Date: 9/20/2022 Agenda Item: D.

The City was awarded $240,000 from OCTA and will provide the required 20% match amount of $60,000. City Council approved the submittal of the grant application (https://www.sanclemente.org/home/showpublisheddocument/64100) and providing the required match via Resolution 21-15 at its June 1, 2021 meeting (Attachment 6).

Project costs are estimated as follows:

Administration, Permitting and Engineering Design $10,000 Construction Management and Inspection 20,000
Construction 300,000
Construction Contingency (approx. 10%) 30,000
Total Estimated Project Cost $ 360,000
Recommended Actions:

Staff Recommendation

1. Approve a supplemental appropriation in the amount of $243,240 from the Clean Ocean Fund Reserve to Account No. 057-543-43690-000-28305; and,

2. Approve, and authorize the Utilities Director to execute, Contract ________, by and between the City of San Clemente and G2 Construction, Inc., in the amount of $300,000, providing for the San Clemente Pier and Pico Corridor Runoff Treatment Project, Project No. 28305.

Attachment:

1. City Map of Priority Land Uses

2. San Clemente OCTA Grant Project Map

3. Orange County Public Works Contract Award Letter to G2 Construction

4. Orange County Public Works Contract with G2 Construction, Inc. for Trash and Debris Capture Devices

5. City of San Clemente Contract with G2 Construction, Inc.

6. City Council Resolution 21-15
Notification:

None
CITY OF SAN CLEMENTE Page 3 of 3 Printed on 9/15/2022
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Legend
Vortex Drainage Area
San Clemente Priority Land Use
Commercial
High-Density Residential
Industrial
Non-PLU
$WWDFKPHQW1
79 1
5 6
4 3
2 7
66 CBs
- 64 CPS-Mod & ARS-CL devices
- 2 GITS under-grate screens
City of San Clemente 2022 Attachment 2
80 MAP# 1 City of San Clemente 2022 10 CBS
81 MAP# 2 City of San Clemente 2022 10 CBS
82 MAP# 3 City of San Clemente 2022 16 CBS
Finca St. 12224 7’w
83 MAP# 4 City of San Clemente 2022 10 CBS
84 MAP# 5 City of San Clemente 2022 4 CBS / 2 Alt CBs
Map #3
Map #4
11834 10’w ALTERNATE
11833 10’w ALTERNATE
85 MAP# 6 City of San Clemente 2022 7 CBS
Finca St.
86 MAP# 7 City of San Clemente 2022 9 CBS
Finca St.
87 Attachment 3
88 Pg 1 of 34
Attachment 4
89 Pg 2 of 34
90 Pg 3 of 34
91 Pg 4 of 34
92 Pg 5 of 34
93 Pg 6 of 34
94 Pg 7 of 34
95 Pg 8 of 34
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1 CITY OF SAN CLEMENTE

CONSTRUCTION CONTRACT

STORM DRAIN TRASH CAPTURE DEVICES
FOR

THE SAN CLEMENTE PIER AND PICO CORRIDOR AREA

1. PARTIES AND DATE.

This Contract is made and entered into this _____ day of ____________, 2022 by and between the City of San Clemente, a public agency of the State of California (“City”) and G2 Construction, Inc., with its principal place of business at 1352 E. Borchard Ave. Santa Ana, CA 92705 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.

2. RECITALS.

2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing Installation of Storm Drain Trash Capture Devices related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: California Contractor License “A”.

2.3 Project. City desires to engage Contractor to render such services for the Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area (“Project”) as set forth in this Contract.

2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, a performance bond, a payment bond, and all insurance documentation, as required by the Contract.

3. TERMS

3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
• Federal Requirements (Exhibit “G”)
Attachment 5
123
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2 • Insurance Requirements (Exhibit “H)
• Addenda
• Change Orders executed by the City
• 2018 Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid

3.2 Contractor’s Basic Obligation; Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.

3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in writing by a valid change order executed by the City. Should Contractor request a change order due to unforeseen circumstances affecting the performance of the Work, such request shall be made within five (5) business days of the date such circumstances are discovered or shall waive its right to request a change order due to such circumstances. If the Parties cannot agree on any change in price required by such change in the Work, the City may direct the Contractor to proceed with the performance of the change on a time and materials basis.

3.2.2 Substitutions/“Or Equal”. Pursuant to Public Contract Code Section 3400(b), the City may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article.

The burden of proof as to the equality of any material, process or article shall rest with Contractor. 124
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3 The City has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.

Contractor shall bear all of the City’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.

3.3 Period of Performance.

3.3.1 Contract Time. Contractor shall perform and complete all Work under this Contract within One Hundred-Eighty (180) days, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer damage.

3.3.2 Force Majeure. Neither City nor Contractor shall be considered in default of this Contract for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Contract, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; pandemics or epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. Should such circumstances occur, the nonperforming party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Contract. Contractor’s exclusive remedy in the event of delay covered under this section shall be a non-compensable extension of the Contract Time.

3.3.3 Liquidated Damages. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of Eight Hundred Dollars ($800) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.

3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the 125
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4 State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including any required business license, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.

3.5 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor 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, and workers’ compensation insurance.

3.6 City’s Basic Obligation. City agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the belowreferenced compensation in accordance with compensation provisions set forth in the Contract.

3.7 Compensation and Payment.

3.7.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of Three Hundred Thousand Dollars ($300,000.00) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the City.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein.

On or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments. 126
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5 3.7.3 Prompt Payment. City shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.

3.7.4 Contract Retentions. From each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.

3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of: (1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.

3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code Section 22300, the City will permit the substitution of securities for any monies withheld by the City to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with a state or federally chartered bank in California as the escrow agent, and thereafter the City shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the City has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the City.

3.7.7 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items. 127
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6 3.7.8 Labor and Material Releases. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.

3.7.9 Prevailing Wages. Contractor 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, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract upon request. Contractor 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 Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.

3.7.10 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.

3.7.11 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.

3.7.12 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as 128
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7 determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.

The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.7.13 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work 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.

3.7.14 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City.

Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

3.8 Performance of Work; Jobsite Obligations.

3.8.1 Water Quality Management and Compliance.

3.8.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.

3.8.1.2 Compliance with the Statewide Construction General Permit. Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one 129
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8 acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.

3.8.1.3 Other Water Quality Rules Regulations and Policies.

Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

3.8.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of The Work. Therefore, the Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.

3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the City and its officials, officers, employees, volunteers and agents for any alleged violations. In addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.

3.8.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City’s attorney’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.

3.8.1.7 Training. In addition to the standard of performance requirements set forth in paragraph 3.4, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.8.1. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.8.1 as they may relate to the Work provided under this Agreement. Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.

3.8.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state 130
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9 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 as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.

3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.8.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, any required business license. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City’s business license fee, if any. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.

3.8.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.

3.8.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II 131
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10 or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City shall promptly investigate the conditions to determine whether a change order is appropriate.

In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.

3.8.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.

3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to "portable equipment", which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.8.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.

3.9 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a reinspection by the City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.

Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.

3.10 Claims; Government Code Claim Compliance.

3.10.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes. 132
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11 3.10.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the City, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the City. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract Documents. Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra Work, disputed Work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.

3.10.3 Supporting Documentation. The Contractor shall submit all claims in the following format:

3.10.3.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made

3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other

3.10.3.3 Chronology of events and correspondence

3.10.3.4 Analysis of claim merit

3.10.3.5 Analysis of claim cost

3.10.3.6 Time impact analysis in CPM format

3.10.3.7 If Contractor’s claim is based in whole or in part on an allegation of errors or omissions in the Drawings or Specifications for the Project, Contractor shall provide a summary of the percentage of the claim subject to design errors or omissions and shall obtain a certificate of merit in support of the claim of design errors and omissions. 133
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12 3.10.3.8 Cover letter and certification of validity of the claim, including any claims from subcontractors of any tier, in accordance with Government Code section 12650 et seq.

3.10.4 City’s Response. Upon receipt of a claim pursuant to this Section, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the claim will be processed and made within 60 days after the public entity issues its written statement.

3.10.4.1 If City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, City shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.

3.10.4.2 Within 30 days of receipt of a claim, City may request in writing additional documentation supporting the claim or relating to defenses or claims City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor.

3.10.4.3 City’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 days (if the claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

3.10.5 Meet and Confer. If the Contractor disputes City’s written response, or City fails to respond within the time prescribed, the Contractor may so notify City, in writing, either within 15 days of receipt of City’s response or within 15 days of City’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, City shall schedule a meet and confer conference within 30 days for settlement of the dispute.

3.10.6 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, City shall provide the Contractor a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after City issues its written statement. Any disputed portion of the claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with City and the Contractor sharing the associated costs equally. City and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing, unless the parties agree to select a mediator at a later time.

3.10.6.1 If the Parties cannot agree upon a mediator, each Party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. 134
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13 3.10.6.2 For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.

3.10.6.3 Unless otherwise agreed to by City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.

3.10.6.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed.

3.10.7 Procedures After Mediation. If following the mediation, the claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written claim pursuant to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet and confer conference or mediation.

3.10.8 Civil Actions. The following procedures are established for all civil actions filed to resolve claims subject to this Section:

3.10.8.1 Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of these procedures.. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.

3.10.8.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.

3.10.8.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

3.10.9 Government Code Claims. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such 135
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14 Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City. A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.

3.10.10 Non-Waiver. City’s failure to respond to a claim from the Contractor within the time periods described in this Section or to otherwise meet the time requirements of this Section shall result in the claim being deemed rejected in its entirety. City’s failure to respond shall not waive City’s rights to any subsequent procedures for the resolution of disputed claims.

3.11 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to Section 3.17.3; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.

3.12 Indemnification.

3.12.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend (with counsel reasonably approved by City), indemnify and hold the City, its officials, employees, agents and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.

3.12.2 Additional Indemnity Obligations. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in 136
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15 connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.

3.13 Insurance. Contractor agrees to procure and maintain, at Contractor’s expense all insurance specified in Exhibit “H” attached hereto and by this reference incorporated herein.

Contractor shall require all subcontractors to carry the same policies and limits of insurance that the Contractor is required to maintain, unless otherwise approved in writing by the City.

3.13.1 3.14 Bond Requirements.

3.14.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

3.14.2 Performance Bond. If specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

3.14.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.

3.14.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.15 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified 137
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16 in writing by the City of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected Work.

Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.

Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.16 Employee/Labor Certifications.

3.16.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he 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 Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.

3.16.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. 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.

3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.

3.17 General Provisions.

3.17.1 City’s Representative. The City hereby designates the General Manager, or his or her designee, to act as its representative for the performance of this Contract (“City’s 138
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17 Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.17.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the City (“′Contractor’s Representative”). Following approval by the City, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the City, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the City’s written approval.

3.17.3 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract.

3.17.4 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from City, the matter shall be referred to City’s Representative, whose decision shall be binding upon Contractor.

3.17.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the City tender final payment to Contractor, without further acknowledgment by the Parties.

3.17.6 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
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18 CONTRACTOR:

G2 Construction, Inc.
1352 E. Borchard Ave.

Santa Ana, CA 92705
Attn: Eric Taylor
CITY:

City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: Amir Ilkhanipour, Principal Civil Engineer
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.17.7 Time of Essence. Time is of the essence in the performance of this Contract.

3.17.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.

3.17.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.17.10 Laws, Venue, and Attorneys’ Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California.

3.17.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.

3.17.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.

3.17.13 [Reserved]

3.17.14 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor 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 Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to terminate this Contract without liability. 140
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19 3.17.15 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor 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 Contractor, 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 Contract, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Work.

3.17.16 Certification of License.

3.17.16.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.

3.17.16.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.

Box 26000, Sacramento, California 95826.

3.17.17 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.

3.17.18 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.

3.17.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.17.20 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects.

3.17.21 Federal Provisions (NOT APPLICABLE). When funding for the Services is provided, in whole or in part, by an agency of the federal government, Contractor shall also fully and adequately comply with the provisions included in Exhibit “G” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”).

With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. 141
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20 [SIGNATURES ON NEXT PAGE]
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21 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures.

CITY OF SAN CLEMENTE
By:________________________________
ATTEST: Its:_______________________________
______________________________ Dated: ____________________, 20____ CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:

BEST BEST & KRIEGER
____________________________
City Attorney

APPROVED AS TO AVAILABILITY
OF FUNDING:
________________________________
Finance Authorization

__________________________
(“CONTRACTOR”)
By:_____________________________
Its:_____________________________
Dated: __________________, 20____
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22 EXHIBIT “A”

SERVICES / SCHEDULE
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G2 Quote - City of San Clemente OCTA Grant Lic. #801253 - A, C8, C60 1352 E. Borchard Ave.

DBE, MBE, & SBE Certified Santa Ana, CA 92705
714.748.4242
Customer: City of San Clemente Date: 3/22/2022
910 Calle Negocio Good Until: Dec. 31, 2022
San Clemente, CA 92673 Eric H. Taylor
Contacts: Jake Ohana By: Eric H. Taylor
Engineering Project Manager VP Bus. Dev. 714.679.2550
<[email protected]> 949.542.4669 [email protected] G2 CPS-Mod™ patented connector pipe screens made of 304 stainless steel, with custom fab & install.

G2 ARS-CL™ patented curb-opening screens made of 304 stainless steel, custom fab & install.

G2 GITS™ patented grated inlet trash screen made of 304 stainless steel, custom fab & install.

Item QTY Unit
OCPW /
OCTA Unit
Price*
Total
Amount
1 CPS-Mod™ (up to 6.0 sqft) Measure, fabricate & install. 64 device $1,284 $82,176 2 ARS-CL-05 (<=5'; 1 screen) Measure, fabricate & install. 8 device $1,363 $10,904 3 ARS-CL-07 (7'; 2 screens) Measure, fabricate & install. 19 device $2,390 $45,410

DESCRIPTION
San Clemente Pier and Pico Corridor Runoff Treatment Project QUOTE
City of San Clemente
CPS-Mod ™, ARS-CL™ & GITS for 66 PLU Catch Basins
OCTA ECP Tier 1 Grant Application '21-22
OCPW / OCTA MA-080-20011478 for Trash and Debris Capture Devices Product or Service
G2 Construction (G2) proposes to custom fabricate and install our patented CPS-Mod™ full-capture system storm water protection screens, and patented ARS-CL™ curb-opening screens in 64 City CBs, and 2 Grated Inlet Trash Screens (GITS) in 2 drop inlets. All 66 catch basins are in priority land use (PLU) areas: industrial, retail, or arterial roads.

This proposal utilizes G2's Master Purchase Agreement with OCPW / OCTA MA-080-20011478 for Trash and Debris Capture Devices for the City of San Clemente's 2021-22 OCTA ECP Project X grant. The City qualifies for this piggyback contract, as an Orange County city, which guarantees the best product, service, and pricing.

G2 will install 64 CPS-Mod™ screens, 170 unique ARS-CL™ screens, and 2 GITS devices. Costs for required traffic control and catch basin cleaning are included. Products to be installed are :
1 of 2
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G2 Quote - City of San Clemente OCTA Grant
continued
Item QTY Unit
OCPW /
OCTA Unit
Price*
Total
Amount
4 ARS-CL-10 (10'; 2 screens) Measure, fabricate & install. 23 device $2,623 $60,329 5 ARS-CL-14x (14'; 4 screens) Measure, fabricate & install. 3 device $4,204 $12,612 6 ARS-CL-21x (21'; 6 screens) Measure, fabricate & install. 10 device $6,150 $61,500 7 ARS-CL-28x (28'; 8 screens) Measure, fabricate & install. 1 device $7,843 $7,843 8 GITS 40x24 Measure, fabricate & install. 1 device $2,736 $2,736 9 GITS 24x24 Measure, fabricate & install. 1 device $2,499 $2,499 10 66 CB $47 $3,102
11 6 day $2,427 $14,562
12 1 Project
TTL 2.5% $7,500
13 62 CB -$50 -$3,100
14 1 LS -$8,073 -$8,073
PROJECT TOTAL $300,000
* Pricing based on OCTA MA-080-20011478
Project Bonds
Combo-Discount
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Catch Basin Cleaning
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EXHIBIT “B”

PLANS AND SPECIFICATIONS
(SEE ATTACHED EXHIBIT A)
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EXHIBIT “C”

SPECIAL CONDITIONS
ARTICLE 1. BONDS
Within ten (10) calendar days from the date the Contractor is notified of award of the Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Exhibit “F” to the Contract.

Failure to do so may, in the sole discretion of City, result in the forfeiture of Contractor’s bid security. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.
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EXHIBIT “D”

WORKERS 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)
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 insurance, as required by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract. My workers' compensation insurance carrier and policy number are:

Carrier____________________________________________________ Policy Number______________________________________________

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 California, and I hereby agree to indemnify, defend, and hold harmless the City of San Clemente and all of its officials, 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 WORKERS’ COMPENSATION COVERAGE IS

UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES 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. 155
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Dated: ________________________, 20____
________________________________
Consultant
By: ________________________________
________________________________
Title
________________________________
Address
________________________________
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EXHIBIT “E”

PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/PublicWorks.html for additional information.

No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.

Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:

DIR Registration Number:

DIR Registration Expiration:_________________________
Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
• Contractor shall maintain a current DIR registration for the duration of the project. • Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project. • Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.

Name of Contractor
Signature
Name and Title
Dated

1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.”
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EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS
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PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of San Clemente (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
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(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title

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(Corporate Seal) Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of
process in California, if different ___________________________________________ from above)
___________________________________________
(Telephone number of Surety and ___________________________________________ Agent or Representative for service
of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer
Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of San Clemente (hereinafter designated as the “City”), by action taken or a resolution passed ___________ , 20____has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or 163
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subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title

(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer
Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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EXHIBIT “G”

FEDERAL REQUIREMENTS
(NOT APPLICABLE)
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EXHIBIT “H”

INSURANCE REQUIREMENTS

3.13 Insurance.

3.13.1 Time for Compliance. Contractor shall not commence work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract as required in section 1.1.12 of this agreement.

3.13.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Contract for work to be performed hereunder, and without limiting the indemnity provisions of the Contract, the Contractor, in partial performance of its obligations under such Contract, shall procure and maintain in full force and effect during the term of the Contract the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Contractor agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, and shall be no less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits.

The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Contract.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities shall be in an amount of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Builder's Risk Insurance [“All Risk”]: The City has obtained Builder’s Risk [“All Risk”] extended coverage insurance for the Project. Contractor shall NOT procure Builder’s Risk [“All Risk”] insurance for this Project, and shall NOT include the cost of said coverage in its bid price/the Contract Price.
(E) Contractors Pollution Liability: Not Used.

3.13.3 Endorsements. Required insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
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(A) Commercial General Liability
(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 Contract.

Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Contractor; or (4) contain any other exclusions contrary to the terms of purposes of this Contract.

For all policies of Commercial General Liability insurance, Contractor shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement.
(2) 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. (B) Automobile Liability:
(1) 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. (C) Workers' Compensation:
(1) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents and volunteers.
(2) 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.

3.13.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability, Automobile Liability insurance (if required) 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.

3.13.5 Waiver of Subrogation. All policies of Commercial General Liability, Automobile Liability insurance (if required) shall contain or be endorsed to waive subrogation against the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

3.13.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention in excess of $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 168
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would have been protected had the policy or policies not contained a deductible or self-insured retention.

3.13.7 Evidence of Insurance. The Contractor, concurrently with the execution of the Contract, 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 shall be filed with the City. If such coverage is cancelled or reduced, and not replaced immediately so as to avoid a lapse in the required coverage, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.13.8 Failure to Maintain Coverage. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Contract, effective upon notice.

3.13.9 Acceptability of 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 to 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 any federal law.

3.13.10 Enforcement of Contract Provisions (non estoppel). Contractor acknowledges and agrees that actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.

3.13.11 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.

3.13.12 Insurance for Subcontractors. Contractor shall include all Subcontractors as additional insureds under the Contractor's policies, or the Contractor shall be responsible for causing Subcontractors 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 Subcontractor's policies. All policies of Commercial General Liability insurance provided by Subcontractors shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13. Contractor shall not allow any Subcontractor to commence work until it has received satisfactory evidence of Subcontractor’s compliance with all insurance requirements under this Contract, to the extent applicable. The Contractor shall provide satisfactory evidence of compliance with this section upon request of the City. 169
&��w���§rAW
CALIFORNIA. HEREBY CERTIFY UNDER
PENAL TY OF PERJURY TI-J: FOREGOING

INSTRUMENT TO BE A FULL, TRUE AND

CORRECT COPY OF THE ORIGINAL NOW

ON FILE IN MY OFFICE
DATE:

RESOLUTION NO. 21-15

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF SAN CLEMENTE, CALIFORNIA, AUTHORIZING AN

APPLICATION FOR FUNDS FOR THE ENVIRONMENTAL
CLEANUP, TIER 1 GRANT PROGRAM UNDER ORANGE
COUNTY LOCAL TRANSPORTATION ORDINANCE NO.
3 FOR THE SAN CLEMENTE PIER AND PICO CORRIDOR
RUNOFF TREATMENT PROJECT.

WHEREAS, Orange County Local Transportation Ordinance No.3, dated July 24, 2006, and is known and cited as the Renewed Measure M Transportation Ordinance and Investment Plan makes funds available through the Environmental Cleanup Program to help protect Orange County beaches and waterways from transportation-generated pollution (urban runoff) and improve overall water quality; and
WHEREAS, the Environmental Cleanup, Tier 1 Grant Program consists of funding purchases and installation to catch basins with Best Management Practices, such as screens, filters, inserts, and other "street-scale" low flow diversion projects; and WHEREAS, OCTA has established the procedures and criteria for reviewing proposals; and
WHEREAS, the City of San Clemente possesses authority to nominate water quality improvement projects that have a transportation pollution nexus to finance and construct the proposed project; and
WHEREAS, by formal action the City Council authorizes the nomination of the San Clemente Pier and Pico Corridor Runoff Treatment Project, including all understanding and assurances contained therein, and authorizes the person identified as the official representative of the City of San Clemente to act in connection with the nomination and to provide such additional information as may be required; and
, WHEREAS, the City of San Clemente will maintain and operate the equipment acquired and installed; and
WHEREAS, the City of San Clemente will give OCTA's repre�entatives access to and the right to examine all records, books, papers or documents related to the funded Tier 1 Grant Project; and
WHEREAS, the City of San Clemente will cause work on the project to be commenced within a reasonable time after receipt of notification from OCTA and that the project will be carried to completion with reasonable diligence; and Attachment 6
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172

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: E.

Department: Public Works
Prepared By: Amir K. Ilkhanipour, Principal Civil Engineer Subject:

ACCEPTANCE AND NOTICE OF COMPLETION FOR THE PARK MONUMENT SIGN REPLACEMENT PROGRAM, CIP PROJECT NO. 29103
Fiscal Impact:

Yes. The total project construction cost of $97,340 is within the approved construction budget of $106,740 from the General Fund.

Summary:

Acceptance and Notice of Completion for Speedy Fix, Inc. for contract work on the Park Monument Sign Replacement Program, at Verde and Bonita Canyon Parks. Refer to Attachment 1 for Location Map and Attachment 2 for Notice of Completion.

Background:

On September 7, 2021, City Council awarded a construction contract to Speedy Fix, Inc. to replace monument signs at Verde and Bonita Canyon Parks (Attachment 3). The replacement monument signs were per the approved conceptual Master Wayfinding Sign Program.

A summary of the total construction expenditures is provided below:

Construction Management, Inspection
and Materials testing $22,800
Construction 74,540
Total Project Construction cost $97,340
Discussion:

None.

Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
· Urban Design - Maintenance Goal: Achieve a sustained level of maintenance and improvement of properties, buildings, landscaping and infrastructure that protects values, encourages additional public and private investments and promotes San Clemente’s high quality of life.
· Policy UD-4.06. Maintenance of Infrastructure and Public Realm. As resources allow, we maintain and where appropriate, improve infrastructure and the public realm, including landscaping, sidewalks, signage, furniture and other streetscape elements.

CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/15/2022
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Meeting Date: 9/20/2022 Agenda Item: E.

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects best available technology and service in that the project maintains City infrastructure.

Recommended Actions:

1. Accept the Park Monument Sign Replacement Program, CIP Project No. 29103, from Speedy Fix, Inc.;

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the Park Monument Sign Replacement Program, CIP Project No. 29103; and

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation of the Notice of Completion upon verification with the Engineering Division that no liens have been levied against the Contractor, Speedy Fix, Inc.

Attachment:

1. Location Map

2. Notice of Completion

3. Staff Report Dated September 7, 2021 (without attachments) Notification:

None
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LOCATION MAP
Park Monument Sign
Replacement Program

PROJECT

LOCATIONS
Attachment 1
PN 29103

NOT TO SCALE
175
Attachment 2
Recording Requested By:

City of San Clemente
When Recorded, Mail To:

Public Works Department
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Recorded for the benefit of the City of San
Clemente and exempt from recording fees
pursuant to Government Code Section 27383.

Space above this line is for Recorder’s Use Only

NOTICE OF COMPLETION
Notice is hereby given by the City of San Clemente, a Municipal Corporation, that a public work of improvement has been completed as follows:

1. Project title or description of work: Park Monument Sign Replacement Program, Project No. 29103

2. Date of completion: August 9, 2022

3. Street address or legal description of the project site: Bonito Canyon Park and Verde Park, San Clemente, CA 92672

4. Name of owner: City of San Clemente

5. Interest or estate of owner: Public Parks

6. Address of owner: 910 Calle Negocio, San Clemente, CA 92673

7. Name and address of contractor: Speedy Fix, Inc., 3621 W MacArthur Blvd., #101, Santa Ana, CA, 92704.

I am the Public Works Director/City Engineer for the City of San Clemente, a Municipal Corporation, the owner of the indicated interest or estate in the property described above.

I make this verification on behalf of the City of San Clemente. I have read this Notice of Completion and know its contents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on __________________________ in San Clemente, California. ________________________________________
Kiel Koger, Public Works Director/City Engineer
City of San Clemente
176
Attachment 3
177
178
179

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: F.

Department: Public Works
Prepared By: Amir K. Ilkhanipour, Principal Civil Engineer Subject:

CONSTRUCTION CONTRACT AWARD TO CHELOLETTY ENGINEERING FOR THE CITYWIDE CATCH BASINS REHABILITATION, CIP PROJECT NO. 21001
Fiscal Impact:

Yes. The estimated total construction cost of $178,000 is within the available approved project budget of $180,000 from the Storm Drain Depreciation Reserve fund, CIP Project No. 21001.

Summary:

Staff recommends approval of a construction contract with Cheloletty Engineering, in the amount of $148,600 (i.e. base bid and selected alternate items), for the Citywide Catch Basin Rehabilitation.

Background:

Catch basins are vital components of the storm drain systems throughout the City. Some of these catch basins are in need of repair to improve their useful life and prevent flooding. The proposed project will replace and reconstruct existing catch basins decks, sidewalks, curb and gutter within the catch basin repair areas at various locations in the City of San Clemente.

On July 19, 2022, City Council rejected all bids and directed staff to revise the bid package and re-bid the project (Attachment 2). A new bid package for the Citywide Catch Basin Rehabilitation project was re-advertised for competitive bidding on the PlanetBids website. The new bid package included alternative bid items that could be added to the base bid, at the City’s discretion, at the time of contract award. Four bids were received on August 23, 2022, ranging from $123,000 to $198,900 (i.e. base bid), as shown on Attachment 3. The lowest responsive bidder was Cheloletty Engineering of Villa Park, California, at $123,000.

Based on the low base bid and selected alternate bid items, the construction cost is estimated as follows:

Construction Management, Administration $15,000
Construction Contract 148,600
Contingency (10%) 15,000
Total Estimated Construction Costs $178,600
As required by City Policy and State Law, the Contractor will be required to provide performance and payment bonds simultaneously with execution of the construction contract (Attachment 4). Project plans and specifications are on file in the City Clerk's Office.

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Meeting Date: 9/20/2022 Agenda Item: F.

Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
· Urban Design - Maintenance Goal: Achieve a sustained level of maintenance and improvement of properties, buildings, landscaping and infrastructure that protects values, encourages additional public and private investments and promotes San Clemente’s high quality of life. · Policy UD-4.06. Maintenance of Infrastructure and Public Realm. As resources allow, we maintain and where appropriate, improve infrastructure and the public realm, including landscaping, sidewalks, signage, furniture and other streetscape elements.

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects best available technology and service in that the projects maintains City infrastructure.

Recommended Actions:

Staff Recommendation
Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. ______, by and between the City of San Clemente and Cheloletty Engineering, in the amount of $148,600, for the Citywide Catch Basin Rehabilitation, CIP Project No. 21001.

Attachment:

1. Location Map

2. Staff Report dated July 19, 2022

3. Bidders' List

4. Contract
Notification:

None.

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182
Department:

Prepared By:

Subject:

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: July 19, 2022
Public Works / Engineering Division
Belgin Cuhadaroglu, Associate Civil Engineer
Agenda Item 4\)
Approvals:

City Manager
Dept. Head
Attorney
Finance (JR
REJECT BIDS FOR THE CITYWIDE CATCH BASINS REHAB/LITA T/ON, PROJECT No. 21001.

Fiscal Impact: None, if bids are rejected.

Summary: Staff recommends rejecting all bids for the Citywide Catch Basins Rehabilitation project as further discussed below.

Discussion: Catch basins are vital components of the storm drain systems throughout the City.

Recommended
Some of these catch basins are in need of repair to improve their useful life and prevent flooding. A bid package for the project was prepared and advertised for competitive bidding on the PlanetBids website. Two bids were received on May 12, 2022, ranging from $288,825 to $307,874, as shown on Attachment 1.

Therefore, the bids are significantly higher than the current project budget of $188,000, and available funding in the Storm Drain Depreciation Reserve Fund is limited. Staff recommends rejecting the bids and re-bidding the project with a reduced scope. Section 21066 of the Public Contract Code gives the City Council the discretion to reject any bids and re-advertise the project.

Action: STAFF RECOMMENDS THAT the City Council:

1. Reject all submitted bids for the Citywide Catch Basins Rehabilitation, Project No. 21001, pursuant to Section 20166 of the Public Contract Code; and

2. Authorize staff to revise the bid package and re-bid the project.

Attachments: Bidder's Listing
Notification: Project bidders.
s:\cdlengineering\secure\admin\202216-21 \6-21-1 r.docx Public Works Agenda Report 7-19-22 I 4D-1
Attachment 2
183
Bid Results for Citywide Catch Basins Rehabilitation Project (PN 21001) Issued on 04/14/2022
Bid Due on May 12, 2022 2:00 PM (PDT)
Contractor Name Address City State
Gentry General PO Box 322 Rancho Cucamonga CA
Enaineerina
Wright Construction 2625 S Santa Fe Ave San Marcos CA
Enaineerina Coro
(
ATTACHMENT 1
Zip Co< Bid Amount Format
91729 $288,825.00 Electronic
92069 $307,874.50 Electronic
7-19-22 I 4D-2
184
185
55452.01510\32905704.2
39 SECTION 00500

CONTRACT
SECTION 00500

CONTRACT
THIS CONTRACT is made this _____ day of _________, 2022, in the County of Orange, State of California, by and between the City of San Clemente hereinafter called City, and Cheloletty Engineering, hereinafter called Contractor. City and the Contractor for the considerations stated herein agree as follows:

ARTICLE 1. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated the contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5 below for the following Project:

Citywide Catch Basins Rehabilitation
The Contractor and its surety shall be liable to City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION. The Work shall be commenced on the date stated in City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within Sixty (60) working days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE. City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of One hundred Forty Eight Thousands and Six Hundred Dollars ($148,600). Payment shall be made as set forth in the General Conditions.

At any time during the term of the Contract, City may, pursuant to the terms and provisions of the Contract Documents, request that the Contractor perform additional work. Contractor shall not perform, nor be compensated for, additional work without written authorization from the City pursuant to the terms and provisions of the Contract Documents.

ARTICLE 4. LIQUIDATED DAMAGES/EARLY COMPLETION INCENTIVE. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay City the sum of $800 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event that Liquidated Damages are not paid, the Contractor agrees City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents.

DRAFT
Attachment 4
186
55452.01510\32905704.2
40 SECTION 00500

CONTRACT
ARTICLE 5. COMPONENT PARTS OF THE CONTRACT. The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Bid Form
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration form
Iran Contracting Act Certification
Public Works Contractor Registration Certification
Performance Bond
Payment Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.

ARTICLE 6. PROVISIONS REQUIRED BY LAW. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.

ARTICLE 7. INDEMNIFICATION. Contractor shall provide indemnification as set forth in the General Conditions.

ARTICLE 8. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available online at http//www.dir.ca.gov/dlsr. and which must be posted at the job site.

IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures.

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187
55452.01510\32905704.2
41 SECTION 00500

CONTRACT

CITY OF SAN CLEMENTE
By:________________________________
ATTEST: Its:_______________________________
______________________________ Dated: ____________________, 20____ CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:

BEST BEST & KRIEGER
____________________________
City Attorney

APPROVED AS TO AVAILABILITY
OF FUNDING:
________________________________
Finance Authorization

__________________________
(“CONTRACTOR”)
By:_____________________________
Its:_____________________________
Dated: __________________, 20____

END OF CONTRACT
DRAFT
188

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: G.

Department: Utilities
Prepared By: David Rebensdorf, Utilities Director
Subject:

RATIFICATION OF EMERGENCY PURCHASES AND SUPPLEMENTAL FUNDING FOR CYPRUS SHORE PUMP STATION EMERGENCY OPERATION, PROJECT NO. 12209.

Fiscal Impact:

Yes, $1,152,625 has been budgeted for the initial 300 days of emergency bypass pump station operation. An additional 181 days of operation is recommended, with funding from a supplemental appropriation in the amount of $714,450 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.

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.

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). The City Council further approved an initial appropriation of funding for expenditures, including construction management/inspection services for Dudek Engineering and 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, February 15, 2022, June 21, 2022 and July 19, 2022.

To allow for procurement of materials and construction of a temporary pump station, an additional 181 days is needed for emergency wastewater pumping operation.

Background:

Additional funding for pump watch and equipment and materials is needed to continue sewer service to approximately 400 homes within the Cyprus community while construction is completed of a temporary pump station with electric power and monitoring capabilities. Staff is anticipating 181 additional days to allow the contractor to procure material and start construction. Unfortunately, the project has been delayed due to supply chain issues and negotiations with the Cyprus Shore Homeowners Association regarding the location of the pump station and electrical equipment. Staff continues to explore opportunities to minimize pump watch, which can only occur once electric power and a new wet well are constructed in December/January depending upon the availability of equipment.

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Meeting Date: 9/20/2022 Agenda Item: G.

Staff is recommending the City Council ratify the Interim City Manager’s approval of a contract change order with O’Connell Engineering and Construction for as needed pump watch based on the estimated costs for rental and purchase of materials, such as, electrical equipment, piping, pumps, emergency generator and fuel to operate the temporary pump station as shown below.

Emergency Wastewater Operation Cost Estimate
Pump, Piping and Fittings $ 8,200/month
K-Rail 1,075/month
Generator 11,000/month
Diesel Fuel 3,800/month
Pump Watch (O’Connell) 85,000/month
Contingency 10% 10,000/month
Subtotal 119,075/month
Total (Assumes six months of operation) $714,450
Plan and Policy Consistency:

The approval is consistent with the following General Plan Goals and Policies:
• Goal: Maintain and improve a comprehensive system of potable water supply, storage and distribution, and wastewater treatment, reclamation, and reuse to meet daily and emergency needs in San Clemente.
• Policy: PSFU-5.10. Wastewater System. We provide and maintain a system of wastewater collection and treatment facilities to adequately convey and treat wastewater generated in the City of San Clemente service area.

Council Strategy:

The approval is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects best available technology and service - in that Utilities is providing uninterrupted sewer and storm drainage service to approximately 400 homes within the Cyprus Shore community with temporary solutions while more permanent facilities are designed and constructed.

Recommended Actions:

Staff Recommendation
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. Declare that the public interest and necessity demand the immediate expenditure of CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/15/2022
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Meeting Date: 9/20/2022 Agenda Item: G.

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 $714,450 to Account Number 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve; and

4. Ratify Change Order No. 05 with O’Connell Engineering and Construction, Inc. on a time and materials basis for $510,000 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 Report without attachments.

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

5. June 21, 2022 City Council Agenda Report without attachments.

6. July 19, 2022 City Council Agenda Report without attachments.

7. O’Connell Engineering and Construction Contract Change Order No. 05.

Notification:

None.

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VISTA AZUL VIA RANCHO

CLE CAMPESINO

CLE MARLENA

CLE ISABELLA

CLE LISA

CLE ARIANA

CLE LOUISA

AVE DE LAS PALMERAS

AVE VISTA DEL OCEANO

CLE ARIANA

CLE TIARA

VIA CALANDRIA

VIA ADELIA

CLE DE LAS FOCAS

CLE POTRANCA CLE DEL ESTABLO

VISTA BLANCA

CLE TIBURON

CLE POTRO

L PRESIDENTE
REAL (COAST HWY) A. T. & S. F. R. R.

A. T. & S. F. R. R.

AVE LUCIA

AVE DOLORES

AVE BUENA VENTURA

AVE SAN FERNANDO

AVE PALA

AVE SANTA MARGARITA AVE CARMELO

CLE FRANCESCA

VIAJASMIN

VIA COLORSO

AVE SAN DIEGO CLE ISABELLA

SAN DIEGO FREEWAY

LOCATION MAP
Cyprus Shore Storm Drain and
Pump Station Relocation
Attachment 1
PN 12004 & 12209

NOT TO SCALE

PROJECT

LOCATION
192
10-19-21 / 9B-1
Attachment 2
193
10-19-21 / 9B-2
194
10-19-21 / 9B-3
195
10-19-21 / 9B-4
196
Attachment 3
197
198
199
200
Attachment 4
201
202
Attachment 5
203
204
205
Attachment 6
206
207
208

CITY OF SAN CLEMENTE

CONTRACT CHANGE ORDER
PROJECT: Cyprus Shore Emergency Bypass Monitoring Contract 05 PROJECT NO. :

OWNER: City of San Clemente
PROJ. MGR.: David Rebensdorf, Utilities Director
CONTRACTOR:
36572 Deauville Road Date: 9/9/2022
Winchester, CA. 92596 Page 1 of 1
Original Contract Amount: $83,988.00
Previous CCO(s) Amount: $759,000.00
This CCO Amount: $510,000.00
Revised Contract Amount: $1,352,988.00
Notice to Proceed Date: 10/20/21
Original Contract Completion Date (30 Days): 11/03/21
Extended Calendar Days Through Previous CCO's: 270
Extended Calendar Days By This CCO: 181
Total Extension Calendar Days: 451
Extended Date for Completion: N/A
Substantial Completion Date: 01/31/23
O’Connell Engineering and Construction Inc
(Approval)
By: ____________________________________ Title:________________________ Date: _______________

CITY OF SAN CLEMENTE
(Approvals)
By:____________________________________ Title: Utilities Director/Construction Mgr Date: _______________ By:____________________________________ Title: City Manager Date: _______________ 12209
O’Connell Engineering and Construction Inc
Change Order No.:

We hereby agree to extend the original contract by 181 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.

Attachment 7
209

CITY OF SAN CLEMENTE

CONTRACT CHANGE ORDER
Exhibit “A”
Cyprus Shore Emergency Bypass Monitoring Contract CCO#: 05 Project No.: 12209 Date: 09/09/22
Page: 2 of 2
Force Acct. or Time Extension Total Time
Item Contract Extended Negotiated (Calendar Days) Extension No. Description Qty. Unit Unit Price Total Price weather Other (CD) Account # 054-476-45300-000-12209
Continued monitoring services through
1/31/23
SUBTOTALS: $0.00 $510,000.00
Total Price for this Contract Change Order = $510,000.00 Total Time Ext. = 451 A LS n/a n/a $510,000.00 0 181 451
Cyprus Shore Emergency Bypass
Monitoring Contract 1
B
C
210

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: H.

Department: Beaches, Parks and Recreation
Prepared By: Teri Rousseau, BP&R Commission Chairperson; Samantha Wylie, Beaches, Parks & Recreation Director
Subject:

BEACHES, PARKS & RECREATION COMMISSION - WORK PLAN FY 2022-23 Fiscal Impact:

None. Any projects derived from this work plan would come back to City Council for budget adoption or subsequent appropriations, as needed.

Summary:

Staff and the BP&R Commission recommend that City Council approve a Work Plan for the BP&R Commission as presented by the Chairman. The purpose of the Work Plan is to provide direction and objectives to the Commission for FY 2022-23.

Background:

In 2021, City Council approved changes to the format of Commissions and Committees that included the direction that each appointed body shall develop an annual work plan that would provide the footprint of discussion and matters to be reviewed in the coming year.

Discussion:

Pursuant to City Council’s direction, the BP&R Commission has prepared the attached draft Work Plan for FY 2022-23 for City Council consideration. The Chair of the Commission, Teri Rousseau, will be present at the meeting to answer any questions that City Council may have.

Plan and Policy Consistency:

The approval is consistent with the San Clemente Municipal Code (“S.C.M.C.”) in that it complies with S.C.M.C. 2.36.020(e), which states that the Committee will develop an annual work plan with specific goals and objectives for the coming year. The work plan, with recommendations, shall be submitted to the City Council no later than October 1 of each year.

Council Strategy:

Not applicable.

Recommended Actions:

Staff and the Beaches Parks & Recreation Commission Recommendation Staff and the Beaches, Parks & Recreation Commission recommends that the City Council approve the FY 2022-23 Work Plan as presented by the BP&R Commission.

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Meeting Date: 9/20/2022 Agenda Item: H.

Attachment:

Beaches, Parks & Recreation Commission Draft Work Plan FY 2022-23 Notification:

Beaches, Parks & Recreation Commission
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213
214
215
216
217

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: I.

Department: Beaches, Parks and Recreation
Prepared By: Rick Divel, Golf Committee Chairperson; Samantha Wylie, Beaches, Parks & Recreation Director
Subject:

GOLF COURSE COMMITTEE - WORK PLAN FY 2022-23
Fiscal Impact:

None. Any projects derived from this work plan would come back to City Council for budget adoption or subsequent appropriations, as needed.

Summary:

Staff and the Golf Committee recommend that City Council approve a Work Plan for the Golf Course Committee as presented by the Chairman. The purpose of the Work Plan is to provide direction and objectives to the Commission for FY 2022-23.

Background:

In 2021, City Council approved changes to the format of Commissions and Committees that included direction that each appointed body shall develop an annual work plan that would provide the footprint of discussion and matters to be reviewed in the coming year.

Discussion:

Pursuant to City Council’s direction, the Golf Committee has prepared the attached draft Work Plan for FY 2022-23 for Council consideration. Chair of the Golf Course Committee, Rick Divel, will be present at the meeting to answer any questions that Council may have.

Plan and Policy Consistency:

The approval is consistent with the San Clemente Municipal Code (“S.C.M.C.”) in that it complies with S.C.M.C. 2.36.020(e) which states that the Committee will develop an annual work plan with specific goals and objectives for the coming year. The work plan, with recommendations, shall be submitted to the City Council no later than October 1 of each year.

Council Strategy:

Not applicable.

Recommended Actions:

Staff and the Golf Course Committee Recommendation
Staff and the Golf Committee Recommends that the City Council approve the FY 2022-23 Work Plan as presented by the Golf Committee.

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Meeting Date: 9/20/2022 Agenda Item: I.

Attachment:

Golf Course Committee Draft Work Plan FY 2021-22
Notification:

Golf Committee
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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 1)
Subject:

Public Safety Committee Update of September 20, 2022
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Code Compliance Memorandum
Memorandum
Public Safety Committee
September 20, 2022
To: City Council
From: Rick Loeffler, Chair of the Public Safety Committee Subject: Notice of Urgent Matter – San Gorgonio Park Parking and Traffic Copies: Sean Joyce, Interim City Manager
Kiel Koger, Public Works Director
Adam Atamian, Deputy Community Development Director
From time to time, the Public Safety Committee (PSC) is made aware of potential matters of importance related to public safety outside the PSC’s Council-approved Work Plan. To address these unanticipated issues in a timely fashion, the PSC’s Work Plan includes a project entitled, “Review of Urgent Matters,” which allows the committee to evaluate and investigate a situation and determine whether a memorandum to City Council is necessary to ensure the effective and efficient provision of public safety services and the maintenance of the public's safety.

At the PSC’s August 23, 2022 meeting, the Committee received a comment from a member of the public concerning traffic and parking issues at, and adjacent to, San Gorgonio Park. These concerns relate to a reported blind curve causing vehicles to fail to stop at the stop sign, scheduling of park activities and special events causing overflow parking into surrounding areas, reported unsafe pedestrian crossings, and red curbs causing vehicles to block fire hydrants.

The PSC requests Council direction on whether to investigate this matter further.

Should Council direct the PSC to investigate this matter, the Public Safety Committee will report its findings, with any recommendations, to the Council for further action.
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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 2)
Department: City Clerk
Prepared By: Laura Campagnolo, Legislative Administrator Subject:

Schedule Meeting for Public Safety Committee Interviews and Appointment Fiscal Impact:

None.

Summary:

Following the recent interviews and appointments for Public Safety Committee, one Public Safety Committee member that was selected to serve a two-year term had to resign from the Committee.

Council directed staff to solicit applications to fill the two-year term. The application period closed on September 8, 2022, and staff received applications for three qualified candidates. Staff would like Council to select a date to interview and appoint one person to fill a two-year term on the Public Safety Committee.

Recommended Actions:

Staff Recommendation
Schedule a date to conduct interviews and appoint one member to the Public Safety Committee for a two-year term.

Attachment:

None.

Notification:

None.

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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: A.

Department: Community Development
Prepared By: Cecilia Gallardo-Daly, Community Development Director Agendized by: Cecilia Gallardo-Daly
Subject:
2021-2022 CONSOLIDATED ANNUAL PERFORMANCE EVALUATION REPORT (CAPER) FOR EXPENDITURE OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS.

Fiscal Impact:

There is no fiscal impact related to filing the CAPER.

Summary:

This is the review and approval of the Fiscal Year 2021-22 CAPER Report, which summarizes the Community Development Block Grant (CDBG) program's expenditures and accomplishments. Each year the City submits an Annual Action Plan Report in May and CAPER in September to satisfy federal grant funding requirements to continue to receive funding from the Department of Housing and Urban Development (HUD). During the 2021-22 reporting period, the City received $329,535 in CDBG funds. In addition, $168,795 in prior year uncommitted funds and $7,509 in program income (i.e., housing rehabilitation loan repayments) were also available. In 2020, the City received $654,596 in Community Development Block Grant-Coronavirus (CDBG-CV) funds from HUD. These funds were authorized under the CARES Act of 2020. The City has three years to expend 80 percent of CDBG-CV funds and six years to spend 100 percent of grant funds. The City continued to expend CDBG-CV funds during FY 2021-22
Background:

Each year, HUD determines the amount of CDBG funds the City is entitled to receive based on population, income, and housing needs. To continue receiving CDBG funds, the City Council must approve the CAPER, which summarizes program expenditures and accomplishments for each CDBG -funded activity for the prior Fiscal Year 2021-22 reporting period. The City must submit the CAPER to HUD within 90 days after the end of the fiscal year, or by September 28, 2022. The CAPER requires a 15-day notice period to allow the public to submit comments in writing. Residents are also given the opportunity to provide comments at the City Council meeting on September 20, 2022. A public meeting is required twice each year to receive Federal CDBG grants. The first hearing is for adopting the Annual Action Plan, typically submitted in May, to use funds during the following fiscal year. Through the Annual Action Plan, the City outlines the projects, activities, and programs the City will undertake to meet the goals identified in the City’s Consolidated Plan. A second meeting is held at the end of the fiscal year to review the CAPER and evaluate how the funds were spent; this meeting meets that requirement.

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Meeting Date: 9/20/2022 Agenda Item: A.

Discussion:

CDBG FUNDED PROGRAMS
Every five years, the City prepares a Consolidated Plan describing the proposed use of CDBG and other applicable federal program funds. The Consolidated Plan, which was updated and adopted in May 2020, identifies the City’s overall vision and strategy for addressing housing and non-housing needs in the City. At the end of each year, the City is required to submit to HUD its year-end performance report, the CAPER.

One of the high priority needs identified in the City’s Consolidated Plan is to provide programs to meet low-and moderate-income San Clemente residents' housing needs. The City has provided loans and grants for Home Rehabilitation since 1994 and continues to do so with CDBG funds.

During fiscal year 2021-22, the rehabilitation of two single-family housing units was completed.

CDBG funds were also utilized to improve the City’s public infrastructure. The FY 2021-22 Action Plan provided additional funding to reconstruct sidewalks and ADA compliant curb ramps on the 100 and 200 Block of Avenida Cabrillo. This capital improvement project represented the largest portion of the FY 2021-2022 CDBG spending plan. The project was initially funded in FY 2019-2020; however, due to staffing issues and subsequently, the COVID-19 pandemic, design and specifications were not completed until January 2022. A construction contract was awarded February 15, 2022 and construction began in March 2022. During excavation, the contractor discovered buried concrete, which delayed the project demolition. Work was suspended on May 5, 2022, due to project supply issues, but resumed on June 1, 2022. It is anticipated the project will be completed during FY 2022-23.

CDBG funding is also allocated to support various public service programs. Public service programs are intended to benefit the community, families, and individuals by addressing housing, health, and social service needs. During the 2021-22 fiscal year, the service providers assisted 3,496 residents through services funded by CDBG. Additionally, CDBG Program Administration funds were allocated to the Fair Housing Foundation and to CDBG program consultants, who help the City administer the grant.

Every year there is typically some funding that is not entirely spent on projects and activities. During the year, the City also receives repayments of past home rehabilitation loans. These funds are carried over to the following fiscal year to help fund additional rehabilitation loans. Attachment (1) summarizes the CDBG funded programs and funds expended.

CDBG-CV FUNDED PROGRAMS
Additionally, during the FY 2021-22 reporting period, the City continued to implement activities to prevent, prepare for, or respond to local impacts of the COVID-19 pandemic. Pursuant to the CARES Act of 2020, HUD allocated the City $654,596 in CDBG-Coronavirus (CDBG-CV) funds in two rounds of funding. HUD requires that 80 percent of CDBG-CV funds be spent in three years and 100 percent spent in six years. The City allocated CDBG-CV funds for services that assisted lowerincome San Clemente residents that were potentially at risk of losing housing or utility services due to a COVID-19 related financial impact, or that required COVID-19 testing. Funds were also allocated to provide homeless outreach and engagement services. The latter services were critical to linking CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/15/2022 powered by Legistar™228
Meeting Date: 9/20/2022 Agenda Item: A.
to provide homeless outreach and engagement services. The latter services were critical to linking the homeless to COVID-19 testing, vaccinations, and other service and housing interventions.

During the FY 2021-22 reporting period, 293 lower-income San Clemente residents and homeless were assisted with CDBG-CV funding.

Unexpended CDBG-CV funds were carried into FY 2022-23 for homeless outreach and engagement services. Attachment (1) summarizes the CDBG-CV funded programs and funds expended.

The CAPER is provided as Attachment (2), and provides details of funded programs and identifies how program goals were met.

Recommended Actions:

Staff Recommends that the City Council approve and adopt the 2021-22 Consolidated Annual Performance Evaluation Report (CAPER) for submittal to the U.S. Department of Housing and Urban Development.

Attachment:
(1) Summary of Funded Programs
(2) 2021-2022 CAPER Report
Notification:

Orange County Register
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Attachment (1)
CDBG FUNDED PROGRAMS - FY 2021-2022

CDBG PROGRAM
GRANT
FUNDED
AMOUNT

EXPECTED
NUMBER
ACTUAL
NUMBER

GRANT FUNDS

EXPENDED
Housing Rehabilitation: Housing
Rehabilitation assistance for owneroccupied & rental housing.$77,062 3 2 $46,513 Public Improvements:
 Sidewalk Improvements (Av. Cabrillo) $295,606 1 0 $302,189 Business Signs and Façade
Improvements: Grants to local small
businesses to upgrade business signs or
minor façade improvements
$12,000 5 1 $2,000
Public Services:
 Camino Health Ctr - Medical care for
uninsured
 Family Assistance Ministries – Food
Bank Homelessness Prevention
Services
 Laura’s House - Domestic Violence
Services & Shelter
 City of San Clemente - Fun on the Run
$15,508
$15,508
$9,122
$8,574
2,600
350
214
120
2,463
739
141
120
$15,508
$15,508
$9,122
$8,574
CDBG Administration & Planning:
 Program oversight
 Fair Housing Counseling
$60,450
$4,500
NA
50 NA
71 $26,829
$4,500
TOTAL 2021-22 Grant Funded Amount $498,330 $430,743

CDBG-CV PROGRAMS
FY 2021-22 CDBG-CV PROGRAM
(YEAR 2 OF GRANT)

GRANT FUNDED
AMOUNT
(MULTI-YR. GRANT)
NUMBER

ASSISTED
FY 21-22

GRANT FUNDS

EXPENDED
(OVER 2 YRS.)
Public Services:
 Family Assistance Ministries – Rent, utility & food
bank Services
 City of San Clemente’s Community Outreach Worker
– COVID-19 Related Homeless Outreach &
Engagement Services
$40,000
$112,024
185
108
$40,000
$92,119
CDBG-CV Administration:
 Program oversight $69,378 NA $25,725
Cumulative CDBG-CV Program
TOTAL CDBG-CV Funded Amount $654,596 1,629 $591,038
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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: B.

Department: Community Development
Prepared By: Jennifer Savage, Assistant to the City Manager Subject:

PUBLIC HEARING TO CONSIDER RESOLUTION TO ADOPT THE REVISED HOUSING ELEMENT UPDATE
Fiscal Impact:

None.

Summary:

Staff recommends that the City Council adopt the revised Housing Element Update (General Plan Amendment PLN20-03), and authorize staff to submit the revised Housing Element Update to the Department of Housing and Community Development (HCD).

Background:

The City Council adopted the City’s 6th Cycle Housing Element Update on October 5, 2021. The following events have occurred since adoption:
· On January 12, 2022, HCD issued a comment letter (Attachment 1). · On April 8, 2022, the City posted revisions for the required seven-day public review period.

Due to the scope of comments received (Attachment 2), city staff offered and held meetings with commenters and made further revisions to the Housing Element. · On June 16, 2022, the City posted the revisions for the seven-day public review period. · On June 23, 2022, the City submitted the revisions to HCD. · Additional comments were submitted to HCD (Attachment 3) · On August 22, 2022, HCD issued a comment letter requesting further revisions (Attachment 4).

Over the last year, the Housing Element was revised to address public comments and HCD comments. The revisions (Attachment 5) were posted on September 9, 2022 for the required sevenday review period.

Discussion:

Adoption by City Council is required prior to HCD certification. Revisions are identified in underlined text and revisions that address HCD’s August 22, 2022 comment letter are highlighted in yellow in Attachment 5.

Plan and Policy Consistency:

The approval and adoption is consistent with the following General Plan Goals and Policies:
· Land Use Goal: Achieve the City’s Vision by establishing and maintaining balance of uses that CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/15/2022
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Meeting Date: 9/20/2022 Agenda Item: B.
provides: a diversity of residential neighborhoods and housing opportunities: . . . · Land Use Goal: The Land Use Plan seeks to . . . provide opportunities for new residential, commercial, and job-generating uses in targeted areas . . . · Land Use Goal: Achieve a mix of residential neighborhoods and housing types that meets the diverse economic and physical needs of residents, that is compatible with existing neighborhoods and the surrounding environmental setting, and that reflects community expectations for high quality.
· Policy LU-1.01. General. We accommodate a variety of housing types, styles, tenure and densities that are accessible to and meet preferences for different neighborhood types (e.g., mixed use pedestrian environments and traditional suburban neighborhoods), physical abilities and income levels, pursuant to the Land Use Plan and Housing Element. · Land Use Goal: Promote and support development in areas designate for Mixed Use that is attractively designed, adds vitality and pedestrian activity, enhances economic opportunities, reduces vehicle trips and associate air pollution and offers convenient and affordable housing for all income levels.
· Policy LU-3.01. Horizontal and Vertical Mix. We permit a range of horizontally and vertically mixed uses appropriate to key areas of the City.
· Policy LU-3.02. Flexibility. We apply flexible development standards to respond to changing market demands, where it can be demonstrated that by doing so, the proposed development or land use will help achieve General Plan goals.
· Policy LU-9.03. Institutional, Residential and Office Uses. We encourage the transition of the Pico Plaza commercial center through means of a Professional/Office Overlay that requires a master plan for employment and or educational/institutional uses. The Pico Plaza is also identified in the Housing Element as having potential for mixed, residential and commercial uses with an affordable housing component. Existing uses, including residential uses that are consistent with the underlying Community Commercial land use designation, will continue to be allowed.
· Policy ED-2.05. Jobs-Housing Balance. We shall give priority to City initiatives, investments, Council decision and the allocation of City resources, and development approvals that improve the jobs/housing ratio by creating job opportunities for residents and housing opportunities for employees.
· BPR-3.06. Compact Neighborhoods. We support compact, neighborhood-serving development that provides healthy foods or essential services within walking or biking distance from residential neighborhoods, schools and parks.
· Growth Management Goal: To be a City that allows new infill development that is compatible with existing land uses, mitigates environmental impacts, and provides funds or mitigation to meet increase resident demands for services and facilities, generated from new development.

Council Strategy:

The action is consistent with Council Strategy 2 in that adopting the revised Housing Element to address comments and obtaining certification from HCD would grow confidence in City operations.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council:

1. Adopt Resolution No. ___ entitled “APPROVING GENERAL PLAN AMENDMENT PLN20-03 TO ADOPT THE REVISED HOUSING ELEMENT UPDATE,” and

2. Authorize staff to submit the revised Housing Element Update to the Department of Housing and Community Development.

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Meeting Date: 9/20/2022 Agenda Item: B.

Attachment:

1. January 12, 2022 HCD Comment Letter

2. Public comments received regarding April 2022 draft revisions

3. Public comments received regarding June 2022 draft revisions

4. August 22, 2022 HCD Comment Letter

5. Revised Housing Element Update, dated September 2022

6. Resolution Adopting the Revised Housing Element Update Notification:

An 1/8 page notice was published in the OC Register
Housing Element E-mail Interest List
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STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
January 12, 2022
Erik Sund, City Manager
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Dear Erik Sund:

RE: City of San Clemente’s 6th Cycle (2021-2029) Adopted Housing Element Thank you for submitting the City of San Clemente’s housing element adopted on October 5, 2021 and received for review on October 14, 2021. Pursuant to Government Code section 65585, subdivision (h), the California Department of Housing and Community Development (HCD) is reporting the results of its review. In addition, HCD considered comments from the Emergency Shelter Coalition, San Clemente Affordable Housing Coalition, Welcoming Neighbors Home Initiative, Public Law Center, Josh Albrektson, Bahram Esfahani, Kathy Esfahani, Deana Gullo, William (Bill) Kreutinger, Joan Thompson, Jacky Trani, Fran Turner, and Paula Wojtaszek pursuant to Government Code section 65585, subdivision (c).

The adopted element addresses many statutory requirements described in HCD’s August 6, 2021 review; however, revisions will be necessary to comply with State Housing Element Law (Article 10.6 of the Gov. Code). The enclosed Appendix describes revisions needed to comply with State Housing Element Law.

As a reminder, the City’s 6th cycle housing element was due October 15, 2021. As of today, the City has not completed the housing element process for the 6th cycle. The City’s 5th cycle housing element no longer satisfies statutory requirements. HCD encourages the City to revise the element as described above, adopt, and submit to HCD to regain housing element compliance.

For your information, pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021), if a local government fails to adopt a compliant housing element within 120 days of this statutory deadline, then any rezoning to accommodate the regional housing needs allocation (RHNA), including for lower-income households, shall be completed no later than one year from the statutory deadline. Otherwise, the local government’s housing element will no longer comply with State Housing Element Law, and HCD may revoke its finding of substantial compliance pursuant to Government Code section 65585, subdivision (i).
291
Erik Sund, City Manager

Public participation in the development, adoption and implementation of the housing element is essential to effective housing planning. Throughout the housing element process, the City should continue to engage the community, including organizations that represent lower-income and special needs households, by making information regularly available and considering and incorporating comments where appropriate.

Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.

HCD appreciates the hard work, professionalism, and dedication of Cecilia GallardoDaly and Jennifer Savage during the review. We are committed to assist the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Marisa Prasse, of our staff, at [email protected].

Sincerely,
Paul McDougall
Senior Program Manager
Enclosure
292
City of San Clemente’s 6th Cycle Adopted Housing Element Page 1 January 12, 2022

APPENDIX

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

Housing element technical assistance information is available on HCD’s website at http://www.hcd.ca.gov/community-development/housing-element/housing-element-memos.shtml.

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

A. Housing Needs, Resources, and Constraints

1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).) Integration and Segregation: The adopted element includes additional data for segregation by race/ethnicity, disability status, familial status, and income at the regional level; however, the analysis must still incorporate local data and knowledge and other relevant factors. In addition, the element must analyze any unique attributes about the City related to fair housing issues such as coincidence across various components (e.g., segregation and integration and disproportionate housing needs) of the assessment of fair housing. This analysis should particularly address patterns and trends related to incomes. Local data and knowledge should complement federal, state, and regional data where appropriate to capture emerging trends and issues, including utilizing knowledge from local and regional advocates and service providers. Other relevant factors should analyze historical land use, zoning, governmental and nongovernmental spending including transportation investments, demographic trends, historical patterns of segregation, or other information that may have impeded housing choices and mobility.

Furthermore, the summary of integration and segregation does not appear to reflect the data. For example, the data appears to show significant differences within the City and between the City and the region related to race/ethnicity, familial status, and income.

Concentrated Areas of Affluence: While the adopted element was revised to include an analysis of Racially Concentrated Areas of Affluence (RCAA) at the local level, it should incorporate local data and knowledge, other relevant factors, and evaluate coincidence across the components of the assessment of fair housing as described above. 293
City of San Clemente’s 6th Cycle Adopted Housing Element Page 2 January 12, 2022
Disparities in Access to Opportunity: The adopted element was revised to include data on spatial trends regarding access to opportunity metrics; however, the element should incorporate local data and knowledge, other relevant factors, and evaluate coincidence across the components of the assessment of fair housing as described above.

Disproportionate Housing Needs, Including Displacement: The adopted element includes additional information regarding spatial patterns in the city for overcrowding, substandard housing, cost burden and homelessness. However, the element should incorporate local data and knowledge, other relevant factors, and evaluate coincidence across the components of the assessment of fair housing as described above. In addition, the City should consider additional displacement data from the Urban Displacement Project. Please see https://www.urbandisplacement.org/maps/losangeles-gentrification-and-displacement/.

Site Inventory: The adopted element includes additional data regarding sites and concentrations of socio-economic characteristics. However, the element should analyze the location and impact on the existing patterns to evaluate if the site inventory improves or exacerbates conditions, particularly related to patterns of income and concentrated areas of affluence. This analysis of identified sites should address any lack of housing opportunities for lower-income households in the portions of the city that are proportionally whiter and more affluent. Furthermore, the analyses in the element indicate that the site inventory exacerbates segregation by race/ethnicity, segregation by familial status, segregation by income, and access to opportunity in the City. The element should be accompanied by adequate programs to ameliorate these impacts.

The element should expand the programs and list of sites to better formulate development opportunities, goals, actions, and metrics that will result in broader equitable quality of life throughout the community.

Contributing Factors to Fair Housing Issues: Some of the contributing factors listed in the adopted element appear detached from the Assessment of Fair Housing analyses, while other salient fair housing issues identified in the Assessment of Fair Housing are missing from the list of contributing factors (e.g., regional patterns of segregation by race/ethnicity and income, access to opportunity). Based on a complete analysis, the contributing factors should be reassessed, prioritized, and revised to reflect the most salient fair housing issues.

Goals, Priorities, Metrics, and Milestones: The element largely did not address this finding. The element must add, or revise programs based on a complete analysis, listing, and prioritization of contributing factors to fair housing issues. Goals and actions must significantly seek to overcome contributing factors to fair housing issues and include metrics and milestones to target meaningful fair housing results. Currently, the element identifies outreach-focused programs to encourage and promote affordable housing; however, most of these programs do not appear to facilitate meaningful change nor address affirmatively furthering fair housing (AFFH) requirements, including metrics or targeted numerical outcomes. Given that the city is significantly whiter and wealthier than the region, the element could focus on programs that enhance housing mobility and encourage development of more affordable housing choices in an inclusive 294
City of San Clemente’s 6th Cycle Adopted Housing Element Page 3 January 12, 2022
manner throughout the community. Furthermore, the element should include programs with substantial place-based investments and protection against displacement in areas of increased segregation and poverty.

2. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov.

Code, § 65583, subd. (a)(3).)
Small Sites: The element was not revised to address this requirement. Please see HCD’s prior review.

Environmental and Other Constraints: While the element now notes some sites have environmental impacts and mitigation measures would result in less than significant impacts.

As noted in the prior HCD review, several sites appear to have conditions that may impede or preclude development and the element should include analysis as appropriate. Please see HCD’s prior review.

Suitability of Nonvacant Sites: The element was not revised to address this requirement.

Please see HCD’s prior review.

Electronic Site Inventory: As noted in the prior review, pursuant to Government Code section 65583.3, subdivision (b), the City must utilize standards, forms, and definitions adopted by HCD when preparing the sites inventory and submit an electronic version of the sites inventory. As of today, HCD has not received an electronic version of the sites inventory and the form must be submitted. Any future re-adopted versions of the element must also submit the electronic version of the sites inventory.

Zoning for a Variety of Housing Types (Emergency Shelters): The element now includes some information about capacity within the identified zone for emergency shelters and a brief mention of unsuccessful past interest in the zone. However, the element generally does not address the findings from the prior review. Please see HCD’s prior review.

3. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures… (Gov. Code, § 65583, subd. (a)(5).)
Land-Use Controls: The element was not revised to address this requirement. Please see HCD’s prior review.

Local Processing and Permit Procedures: The element must describe and analyze its written procedures for compliance with SB35 to streamline ministerial approval for eligible 295
City of San Clemente’s 6th Cycle Adopted Housing Element Page 4 January 12, 2022
projects. For additional information, see the Updated Streamlined Ministerial Approval Process Government Code Section 65913.4 Guidelines at https://www.hcd.ca.gov/policyresearch/docs/sb-35-guidelines-update-final.pdf.

Constraints on housing for Persons with Disabilities: The element now lists conditional use permit (CUP) findings for group homes for seven or more persons and states a reasonable accommodation request can be uses to provide exception. However, the element should evaluate the findings as constraints and include programs to address the procedure as a constraint to objectively facilitate approval certainty for these housing types, without exception processes such as a reasonable accommodation procedure.

4. An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the availability of financing, the price of land, the cost of construction, the requests to develop housing at densities below those anticipated in the analysis required by subdivision (c) of Government Code section 65583.2, and the length of time between receiving approval for a housing development and submittal of an application for building permits for that housing development that hinder the construction of a locality’s share of the regional housing need in accordance with Government Code section 65584... (Gov. Code, § 65583, subd. (a)(6).) Developed Densities and Permit Times: The element now includes information on time between receiving approvals and building permits but must still analyze requests to develop housing at densities below those anticipated in the sites inventory.

B. Housing Programs

1. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).) As noted in Finding A2, the element does not include a complete site analysis, therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types. In addition, Program 15 should be revised based on a complete analysis as described in Finding A2 and should be expanded as described in HCD’s prior review.

3. Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of 296
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housing, including housing for all income levels and housing for persons with disabilities.

The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. (Gov. Code, § 65583, subd. (c)(3).)
As noted in Finding(s) A3 and A4, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.

In addition, the element now includes actions in Program 14 (Zoning Ordinance Amendments) to address the CUP for multifamily uses in multifamily zones as a constraint. However, the action will only remove the CUP if a project meets certain conditions, potentially raising additional constraints and uncertainty. The Program should either specify these conditions to ensure no constraints on multifamily uses or remove the clause.

4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics protected by the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2), Section 65008, and any other state and federal fair housing and planning law. (Gov. Code, § 65583, subd. (c)(5).) As noted in Finding A1, the element must include a complete analysis of AFFH. Based on the outcomes of that analysis, the element must add or modify programs.

5. The housing program shall preserve for low-income household the assisted housing developments identified pursuant to paragraph (9) of subdivision (a). The program for preservation of the assisted housing developments shall utilize, to the extent necessary, all available federal, state, and local financing and subsidy programs identified in paragraph (9) of subdivision (a), except where a community has other urgent needs for which alternative funding sources are not available. The program may include strategies that involve local regulation and technical assistance. (Gov. Code, § 65583, subd. (c)(6).) Program 17 (Preserve At-risk Housing) now includes information on other at-risk units but as noted in the prior review, it must still be revised to include tenant education and assistance and assistance with funding, such as supporting applications by nonprofits for funding to purchase at-risk units.

C. Quantified Objectives
Establish the number of housing units, by income level, that can be constructed, rehabilitated, and conserved over a five-year time frame. (Gov. Code, § 65583, subd. (b)(1 & 2).) 297
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While the element includes new objectives for at-risk preservation, objectives should still be expanded as described in the prior review.

D. Public Participation
Local governments shall make a diligent effort to achieve public participation of all economic segments of the community in the development of the Housing Element, and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(8).) The element adds more information on public participation such as workshops, discussions and the availability of the draft housing element but it must still demonstrate how public comments were considered and incorporated in the element. 298

CONNOR, FLETCHER & HEDENKAMP LLP

ATTORNEYS AT LAW
2211 MICHELSON DRIVE, SUITE 1100 IRVINE, CALIFORNIA 92612 T: 949.622.2600
E-MAIL: [email protected]
April 15, 2022
April 15, 2022
Ms. Marisa Prasse, Housing Policy Analyst and Specialist California Department of Housing and Community Development [email protected]
Mr. Paul McDougall, Housing Policy Manager
California Department of Housing and Community Development [email protected]

VIA EMAIL
Re: City of San Clemente 2021-2029 Draft Housing Element, Dated April 2022 Dear Ms. Prasse and Mr. McDougall:

We have reviewed the City of San Clemente’s Revised Housing Element, dated April 2022 (“SCHE”). Regrettably, due to the dismal efforts of the City to adequately address the findings of HCD in support of the State Housing Element Law, we are compelled to respond, especially in light of the City’s failure for more than a decade to set forth an effective housing plan for the homeless and underprivileged residents of San Clemente. Specifically, the City has completely disregarded the comments and findings of HCD in its prior letters dated August 6, 2021, and January 12, 2022, as well as the recommendations of ESC in its letters of June 28, 2021, August 9, 2021, and December 6, 2021. As William Shakespeare famously stated, “Nothing comes from doing nothing,” and here, the City has done nothing, leaving little hope for future achievements without strong mandates from HCD.

1. HCD’s August 6, 2021 Letter Requesting Detailed Revisions:

In its August 6, 2021 letter, HCD called for the City to make detailed revisions to its draft Housing Element. These included a description of the characteristics and suitability of the zone(s) for emergency shelters, pursuant to the elements specified in Section “A. Housing Needs, Resources and Constraints,” and Finding 4, which states in pertinent part as follows:
“An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code § 65583, subd. (a)(3).)…
“Sites and Zoning for a Variety of Housing Types – Emergency Shelters: The element must describe the characteristics and suitability of the zone(s) for emergency shelters. In particular, the element should analyze the limit of 35 beds per shelter as a 299
April 15, 2022

constraint, the lack of interest in developing an emergency shelter in the last planning period, and the efficacy of the ride share program. In addition, as per public comments, given any past or current litigation involving the Rancho San Clemente Business Park, the element should analyze the suitability of the sites identified, challenges, and constraints, and if deemed unsuitable, identify additional sites where emergency shelters can be accommodated by-right.”
Unfortunately, in its Housing Element dated October 5, 2021, the City did little to address the specific key factors outlined in HCD’s letter.

2. HCD’s January 12, 2022 Letter Noting That The City’s Housing Element Did Not Address the Findings from the Prior Review:

Consequently, HCD raised these issues again in its January 12, 2022 letter as follows:
“Zoning for a Variety of Housing Types (Emergency Shelters): The element now includes some information about capacity within the identified zone for emergency shelters and a brief mention of unsuccessful past interest in the zone. However, the element generally does not address the findings from the prior review. Please see HCD’s prior review.”

3. The City’s April 2022 Housing Element Again Fails to Address the Findings from HCD’s Prior Review:

Despite HCD’s specific requests, the City’s April 2022 Housing Element still does not provide an analysis or evaluation of the key factors outlined by HCD. The City simply added a few paragraphs with some general, broad-based statements, many of which were inaccurate and incomplete. As detailed below, these revisions do not come close to “hitting the mark,” and HCD should continue to insist on full and complete compliance, or the corresponding consequences for the City’s failure to do so.
a. Claims of Engaging the Public and Other Stakeholders:

In its opening statements, the City asserted that it was continuing to engage the public and had revised the SCHE to address comments from HCD and other stakeholders. The City’s revisions are set forth in these redlined changes:
“The City continues to engage the public throughout the development and adoption of the Housing Element. The Adopted Housing Element was revised to address additional comments from the State Department of Housing and Community Development (HCD) and other stakeholders who submitted comments to the City and HCD. The revised Housing Element was available for public review between April 8 and April 15, 2022, on the City website. Individuals and agencies/organizations that have previously commented on the Housing Element were notified. The City also sent out an email notification to its list of stakeholders and interested parties.” (See SCHE, p. HE-2.) Disappointingly, the City paid no heed to HCD’s specific directions, at least with respect to the emergency shelter overlay and corresponding concerns. The City also made no effort to address the six (6) recommendations detailed in ESC’s December 6, 2021 letter, a copy of which is attached hereto as Exhibit A.

In fact, the City appears to have gone to great lengths to avoid addressing ESC’s recommendations, because that would have required real change in the immediate future, which the City is undoubtedly seeking to avoid.
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b. The City’s Disingenuous Comments Concerning the Proposed Expansion of the Emergency Shelter Overlay to Include ESC’s 10 Acres:

With respect to HCD’s requests for a detailed analysis of the sites and zoning for a variety of housing types, including several key factors involving the development and plans for emergency shelters, the City simply included the following redlined changes:
“Expansion of Emergency Shelter Overlay
“During the development of the Housing Element, the City received suggestions for expanding the ES Overlay to include 10 areas of open space. These areas are located in the vicinity of the ES Overlay. However, these areas are protected by a voter initiative (Measure V) to be preserved as open space. The preservation of sensitive habitat makes these areas unsuitable and unfeasible to be included in the ES Overlay. “Both the national and statewide policy directions toward addressing homelessness focus on rapid rehousing and permanent supportive housing. Even HCD staff recognize that funding for emergency shelters has continued to decline. Nevertheless, the City will explore additional and/or alternative locations to be designated ES Overlay (see Program 15).” (SCHE, p. HE-47.)
As is evident from these comments, the City is well aware of the letters that ESC and several other advocates sent to HCD, in which we strongly urged and recommended that the City include ESC’s 10 acres in its Emergency Shelter Overlay Zone (“ESOZ”), since the current Rancho San Clemente Business Park (“Business Park”) is an unworkable site for the much-need homeless shelters and supportive housing. In an attempt to dissuade HCD from considering this obvious solution of including ESC’s 10 acres in the ESOZ, the City raised concerns about the voter initiative Measure V Open Space Ordinance (“Ordinance”) for ESC’s site, as well as the alleged “sensitive habitat” on ESC’s land – both of which are unfounded and without merit as set forth below.
(i) There Are Exceptions to the Measure V Open Space Ordinance That Would Allow ESC’s 10 Acres to be Included in the ESOZ
With respect to Measure V, i.e., City Ordinance No. 1475, the City has failed to inform HCD of two (2) important solutions to the Open Space zoning for ESC’s parcels that should be taken into consideration.

First, the City failed to address the specific provisions of its Ordinance, which was adopted nearly 14 years ago on November 4, 2008, and provides several important exceptions to a Citywide voter-approved change for non-Open Space uses, including exception No. 2:

Notwithstanding the foregoing, a General Plan amendment, Specific Plan amendment, Zoning Ordinance amendment, Specific Plan adoption, or zone change that authorizes or permits Non-Open Space Uses in an Open Space Area shall not be subject to this Section V.Y and shall be permitted without City voter approval in the following circumstances only: …
“2. Upon the application of an affected landowner to convert the Open Space Area to a residential use if the City Council determines that doing so is necessary to comply with federal or state law regarding the provision of housing. The City Council may do so only if it first makes each of the following findings based on substantial evidence in the record: (a) a specific provision of federal or state law requires the City to accommodate the proposed housing; (b) the amount of land to be reclassified is no 301
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greater than necessary to accommodate the required housing; (c) no alternative site within the City that is not an Open Space Area could be used to satisfy the applicable federal or state housing law; and (d) the proposed housing will be located adjacent to already developed lands and roads …” (Id.; emphasis added.)
As stated in ESC’s December 6, 2021 letter, there is a state law requiring the City to provide affordable housing. Specifically, the Regional Housing Need Assessment (“RHNA”) has established that there is a definite need for such housing in San Clemente. Moreover, each of the required four (4) factors are supported by substantial evidence in the record, including subparagraph (c). As discussed above, at this point, the City has in fact failed to identify an alternative site within the City that is not an Open Space Area that could be used to satisfy the applicable state housing law, since the Business Park is simply not feasible for even one (1) homeless shelter, let alone three (3) of them as would be required to meet the needs of the City’s homeless and unhoused residents.

Second, exception No. 5 to Measure V would permit the City Council to reclassify up to one acre of a given open space area, such as ESC’s land, to be utilized for non-open space uses in order to benefit public health, safety, or welfare. Revising the City’s Housing Element to designate one acre of ESC’s property to be developed for an emergency shelter, supportive housing, and/or other affordable housing uses would clearly meet the requirement of benefiting public health, safety, or welfare. Accordingly, since, by simply having the City Council vote to invoke exception No. 2 and/or exception No. 5 to Measure V, no vote of the citizens of San Clemente would be required to amend that Measure, the City has no legitimate excuse for not including ESC’s land in the City’s ESOZ and/or designating it as a site for affordable housing uses, including permanent supportive housing.

ESC continues to be willing to cooperate with the City and discuss solutions for the benefit of all interested parties, and requests HCD’s assistance in compelling the City to seriously consider these options to ensure immediate change and the City’s full compliance with its requirements under State Housing Element Law.
(ii) There is No “Sensitive Habitat” on ESC’s 10 Acres That Makes Them Unsuitable or Unfeasible for the ESOZ.

Since the City is aware of the viable exception to Measure V, the City has disingenuously tried to claim, with no proof whatsoever, that it cannot add ESC’s 10 acres to the ESOZ because this land is supposedly “sensitive habitat” that needs to be preserved. This latest pretextual assertion by the City is flatly contradicted by two undeniable facts. First, on April 21, 2020, in making CEQA compliance findings in connection with adopting its Resolution of Necessity No. 20-27 (the “RON”) to acquire ESC’s property by eminent domain, the City Council expressly found that: “the [property] is not located in a particularly sensitive environment such that the exception in subdivision (a) of State CEQA Guidelines, section 15300.2 applies.” Secondly, in opposing the adoption of the RON in April 2020, and in order to determine whether there were any sensitive resources or wetland habitat areas present on ESC’s 10 acres that could possibly support the City’s unfounded claim that the land was purportedly being acquired by the City because it was suitable to serve as a mitigation bank, ESC engaged the services of Bill Tippets, a former Deputy Regional Manager and Environmental Program Manager for the Department of Fish and Game, with degrees in Biological Sciences, Ecology, and Fisheries Biology. In a sworn Declaration submitted to the City Council (a copy of which is attached as Exhibit B hereto), Mr. Tippets stated that, during his inspection of ESC’s property, he observed that (1) there are no streambeds or wetland habitats on the property and (2) approximately 99% or more of the plant species on the property are non-native. 302
April 15, 2022

Not surprisingly, the City did not dispute Mr. Tippets’ findings at the time that the RON was adopted and, to date, the City has produced no evidence whatsoever that ESC’s 10 acres is an environmentally sensitive habitat area. Such areas are typically designated as environmentally sensitive due to special biological significance, or because they provide habitat for locally unique biotic species/communities or rare or endangered species of plants, birds, or animals. Here, ESC’s 10-acre site is covered in invasive mustard grass that is required to be mowed and maintained each year under the City’s Weed Abatement Program. ESC’s 10-acre site has not been designated as having biological significance, for example, in the California Coastal Program, and it is not subject to any Department of Fish and Wildlife or Army Corp of Engineers permits because of threatened or endangered species.

Moreover, ESC has researched the environmental documents associated with the permits for Business Park, including its 10 acres, and it has been unable to find any biological assessment on this property. Finally, the San Clemente General Plan and associated environmental impact report do not identify this area as having any natural resource significance, and there is absolutely no evidence of the City’s “habitat sensitive” contention.

In light of the foregoing, ESC submits that an Amendment to the ESOZ should include all land within the Business Park Specific Plan, and especially ESC’s Parcel Nos. 688-011-01 and 688- 011-02. This would best ensure the development of an emergency shelter, transitional and supportive housing, and much-needed affordable housing for the extremely low, very low, and low-income residents of the City.
c. The City’s Development Standards for Emergency Shelters, and Its 50-Unit Limit for Supportive Housing Units, Will Effectively Preclude the Development of any Shelters or the Necessary RHNA Units, and Must Be Revised:

The SCHE continues to impose standards that prohibit the development of emergency shelters, including (1) a “Separation” standard with a requirement that emergency shelters cannot be located within 300 feet of each other, and (2) a “Maximum Number of Beds” standard that imposes a 35-bed limit for an emergency shelter. These standards are not justifiable because they prevent the development of an emergency shelter in the ESOZ, and must be revised.

Moreover, the City’s Program 14: Zoning Ordinance Amendments, states that the City will amend the zoning ordinance to allow Supportive Housing to a maximum of 50 units by right. However, there is no justification provided for this 50-unit limit, especially since there is a RHNA need for a total of 449 housing units for the Extremely/Very Low (282) and Low (164) Income Groups. Since it is very difficult to develop even one (1) project of Extremely/Very Low-Income units, it is simply not plausible to develop 5 to 6 such projects. This 50-unit limit is also not based on site size or zoning density. Thus, the maximum unit limitation should be eliminated to provide a feasible housing program to meet the City’s RHNA requirements.
d. The City’s Revisions to Program 15 Reveal Its True Intent to Delay the Development of A Homeless Shelter for As Long As Possible, In Hopes That the City Will Never Have One:

For its Program 15: Monitoring of Emergency Shelter Overlay revisions as referenced above, the City has now proposed that it should not be required to evaluate additional areas for inclusion in the ESOZ or make any amendments to add sites for another 2-4 years – which effectively means that any development of an emergency shelter or related housing would be delayed for a minimum of at least 5-8 years, if ever. These revisions clearly show the City’s true intentions of postponing any activity for many years, in hopes that no homeless shelters or supportive housing 303
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will ever be developed in the City of San Clemente. Such intentions cannot be rewarded, and the City must be required to comply in a prompt and timely manner with its obligations under the State Housing Element Law. Specifically, the City’s redlined revisions are as follows:
• “In 2024, evaluate additional areas in the City of San Clemente for inclusion in the Emergency Shelter Overlay (ESO). If appropriate, amend the ESO in 2026 to expand the boundaries to include additional areas. Evaluate amending ESOZ operating and development standards, including parking, so ensure development standards comply with State law and are not impediments to siting shelters. Update the ESOZ development standards, including bed‐limit and maximum separation requirement allowable under State law, to reflect and accommodate the most recent‐point‐in‐time count.” (SCHE, p. HE-47.) In addition to the unacceptable delay periods for conducting evaluations in 2024, and possibly amending the ESOZ in 2026, there are no statements of the measures that the City would use to conduct such evaluations, such as, for example, if an unsheltered need has not been met, or if no emergency shelter has been developed. Further, there is no defining standard or measure by which the words “if appropriate” would be considered for purposes of expanding the ESOZ boundaries.

It is significant to note that, since the City established the ESOZ, no emergency shelter has ever been established. This is no surprise, of course, since the ESOZ has failed to provide an adequate site for an emergency shelter for many years due to the high cost of land purchases and rents in the Business Park, along with the inadequate building and parcel sizes.

Consequently, with these revisions, Program 15 only further delays providing shelter for the homeless residents and neighbors of the City. The SCHE should be revised to evaluate additional areas for inclusion in the ESOZ now, and not years in the future.

In light of the foregoing, ESC respectfully submits that the City has failed to comply with the State Housing Element Law. ESC request that the SCHE be substantially revised so that the City can satisfy its objectives and meet the needs of the unsheltered and the extremely and very lowincome residents. Absent a significant effort on the part of the City to bring its Housing Element into full compliance in a timely manner, ESC requests that the HCD revoke any finding of substantial compliance pursuant to Government Code section 65585, subdivision (i), and thereby allow the City to face all legal and related consequences arising therefrom.

Thank you for your consideration of our comments.

Laura Lee Blake
General Counsel, ESC
cc: Ms. Jennifer Savage, San Clemente Senior Planner
Ms. Cecilia Gallardo-Daly, San Clemente Community Development Director ESC Board of Directors
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Exhibit A
305

CONNOR, FLETCHER & HEDENKAMP LLP

ATTORNEYS AT LAW
2211 MICHELSON DRIVE, SUITE 1100 IRVINE, CALIFORNIA 92612 T: 949.622.2600
E-MAIL: [email protected]
December 6, 2021
Ms. Marisa Prasse, Housing Policy Analyst and Specialist California Department of Housing and Community Development (“HCD”) [email protected]
Mr. Paul McDougall, Housing Policy Manager
California Department of Housing and Community Development (“HCD”) [email protected]

VIA EMAIL
Re: City of San Clemente 2021-2029 Housing Element, Dated October 5, 2021 Dear Ms. Prasse and Mr. McDougall:

We thank you both for joining the Zoom meeting on November 15, 2021 that was organized by Kathy Esfahani of the San Clemente Affordable Housing Coalition, with numerous attendees, including several of us participating on behalf of the Emergency Shelter Coalition (“ESC”) i.e., Ed Connor, Sue Whittaker, and me. As you indicated during the meeting, HCD sent a letter to the City of San Clemente on August 6, 2021, with an Appendix of necessary changes that the City would be required to make to its June 7, 2021 draft of the 2021-2029 Housing Element to fully comply with the State Housing Element Law (Article 10.6 of the Gov. Code).

Two months after receiving HCD’s letter, on October 5, 2021 the City Council voted unanimously to adopt its 2021-2029 Housing Element. Regrettably, however, the City did little to address the designated changes in HCD’s letter concerning “Housing Needs, Resources, and Constraints,” especially involving emergency shelters, or the proposed amendments in ESC’s two (2) letters dated June 28 and August 9, 2021, each of which requested that the City make important revisions for compliance purposes.

As detailed below, rather than respond to the specific issues in each of these letters, the City, instead, used a series of circular arguments by which it basically claimed that the ES Overlay Zone is suitable simply because we say so (e.g., “[t]he vacant and underutilized parcels within the ES Overlay provide realistic capacity for development of an emergency shelter, and the services within and adjacent to the ES Overlay provide suitable capacity”). In making such assertions, the City made no attempt to provide adequate zoning for emergency shelters, and it continued to promote unrealistic land use controls of only 35-beds per shelter and a 300-foot separation that will needlessly deter any development of the three (3) emergency shelters necessary to meet the City’s population of 96 unhoused residents (which is likely much higher now due to the Covid-19 pandemic, rising inflation, and rapidly increasing residential leasing and housing prices).
306
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

Sadly, however, none of this should come as a surprise to anyone. Here, the City has not changed its behavior over the past many years involving the development of emergency shelters.

In fact, the City appears to have become only more entrenched in making sure that there are never any homeless shelters developed in the area. The City’s latest approval of the 2021-2029 6th Cycle Housing Element is no different. The City made no mention whatsoever of any efforts to get this done, and simply added a few sentences here and there to make it appear the City was still seeking compliance. But, with such a lackluster response, ESC can only conclude that the City will continue to just spin its wheels doing nothing -- unless and until it is truly forced to start making changes.

As detailed below, ESC respectfully requests that HCD take a firm stance to ensure that, if the City continues to circumvent the list of revisions identified by HCD for the development of emergency shelters, and does not take immediate action to cause positive changes, there will be serious consequences. ESC submits that the delay game by the City must be brought to a halt by HCD. The City cannot be allowed to continue obstructing the development of emergency shelters for yet another eight (8) years, while the unhoused residents of the City are left to fend for themselves on the streets of San Clemente.

ESC further submits that, with a few key changes to the Housing Element, and HCD holding fast to its position that the City must adopt such revisions, positive changes will occur.

The City will modify its behavior because it will make a difference for the City to do so. Most importantly, however, we will finally see the development of emergency shelters and supportive housing for those most in need.

A. HCD’s August 6, 2021 Letter Provided a List of Specific Revisions to the City’s Draft Housing Element, Including Elements for Emergency Shelters In its August 6, 2021 letter, HCD called for the City to step up and make revisions under the elements specified in Section “A. Housing Needs, Resources and Constraints,” and Finding 4, which states:
“An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code § 65583, subd. (a)(3).)…
“Sites and Zoning for a Variety of Housing Types – Emergency Shelters: The element must describe the characteristics and suitability of the zone(s) for emergency shelters. In particular, the element should analyze the limit of 35 beds per shelter as a constraint, the lack of interest in developing an emergency shelter in the last planning period, and the efficacy of the ride share program. In addition, as per public comments, given any past or current litigation involving the Rancho San Clemente Business Park, the element should analyze the suitability of the sites identified, challenges, and constraints, and if deemed unsuitable, identify additional sites where emergency shelters can be accommodated by-right.”
Unfortunately, in its Housing Element dated October 5, 2021, the City made little effort to address the factors outlined in HCD’s letter, as detailed below. 307
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

B. The City Failed to Adequately Describe the Characteristics and Suitability of the Zone(s) for Emergency Shelters

1. Failure to Adequately Describe the Characteristics of the ES Overlay Zone(s) for Emergency Shelters:

With respect to the characteristics of the Emergency Shelter Overlay (“ES Overlay”) Zone, the City described its location within a portion of the Rancho San Clemente Specific Plan (“RSC Business Park” or “Business Park”), and attached a Figure 3-1 showing that the General Plan Land Use was “LI – Light Industrial.” However, the City did not describe the characteristics of the Business Park, or explain that it principally consists of office complexes and industrial buildings typically ranging from 9,000 sq. ft. to 43,000 sq. ft. in size, and with prices between $188 to $264 or more per square foot. The City also did not explain that the smaller spaces are typically in multi-tenant buildings, making it unlikely that a landlord would rent to an emergency shelter, or that the building would have the required fire exits needed for an overnight shelter.

The City identified a few criteria that it used to select the ES Overlay Zone, but failed to fully explain or adequately describe them, including the last one (i.e., “Realistic potential for development,” presumably because the City knew it was untrue), as follows:
 Close to public transit
 Near public services
 Near job centers
 Free from environmental constraints
 Realistic potential for development

2. Failure to Adequately Describe the Suitability of the ES Overlay Zone(s) for Emergency Shelters:

For the suitability element, the City carefully avoided addressing the relevant issues. For example, under the heading of “Capacity of the ES Overlay,” the City opened with statements about its estimates of the amount of square feet needed per each shelter bed, and surmised that “a 35-bed shelter would require a building of about 5,250 feet.” In the post-pandemic environment, this undetailed estimate begs the question as to how possibly such a small shelter could feasibly provide shower, laundry, kitchen dining, intake, and other facilities, as well as hygienic sleeping quarters that were not just beds stacked on top of each other. The City must be required to provide a floorplan to support this patently unreasonable estimate.

The City also alleged that an “[a]dequate number of parcels/buildings in the ES Overlay can accommodate shelters of about 5,000 square feet.” Finally, to address HCD’s questions, it made the unsupported statement, that “The vacant and underutilized parcels within the ES Overlay provide realistic capacity for development of an emergency shelter, and the services within and adjacent to the ES Overlay provide suitable capacity.” (See, HE-44.) As discussed in greater detail below, the City’s statements about the RSC Business Park having an adequate number of parcels and buildings to accommodate emergency shelters, and the purported claims that there is a realistic capacity for development of same, are simply untrue.

Not only did the City fail to include any evidence to support such misleading statements, but the examples offered by the City showed the opposite. In the end, it is clear that the ES Overlay Zone must be expanded to include other areas, and the City’s unreasonable land use constraints must be lifted to achieve full compliance with the State Housing Element Law. 308
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

3. Failure To Analyze The Limit Of 35 Beds Per Shelter as a Constraint:

The City’s adopted Housing Element, dated October 5, 2021, failed to accurately describe the characteristics and suitability of the ES Overlay, as required by HCD’s Finding 4.

For example, on page HE-44, the Housing Element stated that a 35-bed shelter would require a building of about 5,250 square feet. It further indicated that, as of March 2021, there are four (4) vacant parcels in the ES Overlay. Two (2) of the parcels are large (over five (5) acres) but the other two (2) are smaller at 1.4 to 1.9 acres, and each of them “can easily accommodate shelters.” (HE-44; emphasis added.)
In making this assertion, the City failed to mention that none of these parcels is for sale, and three (3) of the parcels are located within 300 feet of each other, meaning that the development of three (3) separate 35-bed shelters to meet the needs of the 96 unhoused City residents could not be accommodated in the ES Overlay Zone (unless one shelter operator had excess millions of funds and resources to purchase or lease, build, and operate all of them).

Indeed, the City’s land use constraint of 35-bed maximum per shelter significantly prohibits the development of a shelter. Using the City’s example of the smallest vacant parcel of 1.4 acres, the current zoning would actually allow the development of a building consisting of 30,492 square feet at the allowable .5 FAR. Thus, the cost to purchase the 1.4-acre parcel, coupled with the restriction of being allowed to only host a maximum 35-bed emergency shelter in a building of 5,250 square feet, would be an enormous economic disadvantage and entirely cost prohibitive.

This constraint alone has, to date, precluded the development of any shelters in the ES Overlay Zone, and undoubtedly will continue to do so as long as it remains on the books.

The City is fully aware of this, but true to form, the City asserted otherwise. The City’s Housing Element described the ES Overlay area as having 25 parcels with building sizes of less than 10,000 square feet, as well as numerous other buildings of over 10,000 to 30,000 square feet, to suggest that the City was offering a plausible area for the ES Overlay Zone. As the attorney for the RSC Business Park, Mr. Tom Mauriello, however, admitted in an October 2019 informational meeting about the sale of the 10 acres of land across from the Business Park to ESC, it is unlikely a shelter will ever be built in the RSC Business Park because of economy of scale. He explained that “They’ve been tough parcels to get people interested in. We’ve talked to various buyers over the years and those efforts were unsuccessful.” In other words, the buildings and parcels are too large and too expensive for even one 35-bed shelter, let alone three (3) of them. (See attached Kidder Mathews report of the October 2019 meeting, attached hereto as Exhibit 1, p. 6.)
The City’s Housing Element also concluded that the RSC Business Park typically has some vacancies in its office buildings, with a range of sizes, to accommodate the development of a shelter, and this allegedly provided a “realistic capacity for development of an emergency shelter.” Based on a recent Commercial Office Space search dated November 18, 2021, however, even now with the over-supply of commercial office space in Southern California due to the Covid 19 pandemic, there are absolutely no sites in the RSC Business Park suitable for an emergency shelter. Using the City’s own estimated 5,250 square foot building size for a 35-bed maximum shelter, the list of available spaces are either way too small, and located adjacent to other commercial business office spaces in multi-unit business buildings, or are way too big for a 35-bed shelter since they constitute an entire building. Please see examples below and the attached example of available properties attached hereto as Exhibit 2:
309
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

In addition to the lack of available properties for sale or lease in the RSC Business Park, many of the properties are in commercial condominium configurations that are unsuited for use by an emergency shelter because of possible conflicts with neighboring businesses sharing a parking lot. The ideal situation would be for a shelter to be located on a separate parcel (such as ESC’s 10 acres of land) with its own parking lot to manage the security of its residents.

The City’s Housing Element further described the possibility of using the so-called “remaining parcels” on which there are no building structures for the development of shelters, because these may be used as parking, storage, maintenance yards, or for other purposes. But again, it is highly improbable that any property owner in the RSC Business Park would lease its office parking lot or an outside storage area for use by an emergency shelter provider because these parcels are used and designed for business-related purposes. The Housing Element did not indicate where these types of remaining parcels are located, or the likelihood of a shelter being developed on these remaining parcels.

The Housing Element claimed that a portion of a large industrial building could accommodate a 5,000 sq. ft. shelter, but, again, failed to support this statement with anything but conjecture. Therefore, the statement that the RSC Business Park, as the site for the ES Overlay Zone, provides realistic capacity for development of an emergency shelter is not supported by any credible evidence.

Finally, the Housing Element asserted that unidentified service providers from unknown locations were polled by an anonymous pollster concerning the 35-bed limit and other shelter development standards, and they responded that they had no issues or concerns with them, but acknowledged that the anticipated cost to operate an emergency shelter is an impediment. (HEB9.) Since the City is relying on this survey to substantiate its continued use of the 35-bed limit and 300-foot separation, the survey should be included in the Housing Element and available for review. The lack of transparency concerning this important survey raises questions about whether the service providers understood the constraints to development and the economy of scale to lease or purchase parcels within the RSC Business Park that comprises the ES Overlay Zone.

Without more, this survey cannot be the sole basis of support for the City’s 35-bed maximum limit.

4. Failure To Analyze The 300-Foot Separation Between Shelters as a Constraint:

The Housing Element continued to require a 300-foot separation between shelters. As indicated above, however, three of the four vacant parcels listed in the Housing Element are within 300 feet of each other and therefore only one 35-bed shelter could be developed. The opportunity to develop a shelter in the ES Overlay area is so limited by economy of scale, and the 300-foot separation land control only further exacerbates the high unlikelihood of a shelter ever being developed.

List of Currently Available Properties in the RSC Business Park Address Space Available Suitability
940 Calle Negocio, 1 office space 790 sq. ft. Too small 901 Calle Amanecer, 1 office space 2,785 sq. ft. Too small 940-946 Calle Amanecer, 3 office spaces 4,540 sq. ft. Too small 901 Calle Amanecer, 7 office spaces 20,076 sq. ft. Too large 927 Calle Negocio, entire office building 71,397 sq. ft. Too large 310
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

5. Failure To Explain The Lack Of Interest In Developing An Emergency Shelter In The Last Planning Period
Setting aside for a moment the logistical barriers of trying to find available parcels suitable for the development of three (3) 35-bed, maximum-capacity emergency shelters, that are located 300 feet from each other, in the RSC Business Park, the City also failed to address the loud objections by the Business Park owners to the establishment of any emergency shelter(s) in the Park, or the surrounding areas.

The RSC Business Park owners have strongly protested and taken firm action to prevent the use of any Business Park parcels from being leased or sold for purposes of establishing an emergency shelter. In 2018-2019, ESC experienced this firsthand when it was searching for a parcel to lease or purchase for an emergency shelter in the RSC Business Park. Specifically, as soon as a Business Park owner discovered that ESC wanted the parcel or office building for an emergency shelter, the communications were cutoff.

Significantly, on this point, the Housing Element tried to rely on two (2) attempts to locate a shelter within the ES Overlay area, as proof that: “There has been interest in establishing an emergency shelter in the ES Overlay. However, both examples cited by the City turned out to be complete failures, thus underscoring the fact that the RSC Business Park is an unsuitable location for a shelter.
 “In 2015, Family Assistance Ministries (FAM) proposed to install a shelter for families with children within the ES Overlay. However, their target clients, families, would not have satisfied SB 2 [and it would have not provided a noticeable impact for the unhoused residents of the City since most of them are single men].  “In [August] 2019, there was interest in developing a shelter in the ES Overlay but it was found to be cost prohibitive.”” (HE-44; emphasis added.) The City’s admission that, in 2019, it was cost prohibitive to locate a shelter in the ES Overlay area speaks volumes. Yet, despite this admission, the City offered no program to address this issue. Although the Housing Element provided a brief discussion of general funding resources, there was no discussion of any efforts San Clemente has made to obtain funds to develop a shelter.

The fact that the City relied on these two examples to establish alleged suitability is quite surprising. As ESC pointed out in its letter to HCD dated August 9, 2021, there could be no greater example of the overwhelming objections to the development of emergency shelters in the ES Overlay than what occurred in August 2019 when it was found to be cost prohibitive to locate a shelter in the RSC Business Park. At that time, City staff had submitted a proposal to develop a shelter in the ES Overlay. But as recorded in the August 20, 2019 City Council meeting minutes, there were initially more than twenty (20) public comments offered (the majority of which were in strong opposition to the proposal) before the City Council took a straw vote, by which it unanimously rejected the proposal. This was followed by another 16 public comments (with more vehement objections), and then a City Council final vote that again unanimously rejected the recommendations for the development of a homeless shelter in the ES Overlay / Business Park. 311
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

It is important to again raise these points in this letter, because the initial public comments at the 2019 City Council included those of Gene James, who at the time was not a City Council member, but was later elected to the position and is currently serving in the role of Mayor Pro Tem. Notably, Mayor Pro Tem James is recognized as one of the most outspoken and strident opponents of the development of emergency shelters and affordable housing in the City.

The public comments at the August 2019 City Council meetings also included opposition from various business owners from the RSC Business Park. For example, RSC Business Park owner Glen[n] Walker not only opposed such a proposal during this August 2019 City Council meeting, but approximately six (6) months later became a plaintiff in a lawsuit filed by several Business Park owners against the RSC Business Park Community Association Board of Directors and ESC for the sale of the 10 acres, in the lawsuit known as Olen Properties Corp. v. Rancho San Clemente Bus. Park Comm. Assoc., et al, OCSC Case No. 30-2020-01130657-CU-OR-CJC.

At about this same time in the summer/fall of 2019, ESC was negotiating with the RSC Business Park to purchase the 10 acres that it currently owns. When this news was released, a meeting was hastily arranged in October 2019 of interested RSC Business Park owners and related parties, to determine how best to oppose ESC’s purchase of the 10 acres. The RSC Business Park’s attorney, Mr. Tom Mauriello, went so far as to suggest that even the “CC&Rs [of the RSC Business Park that comprises the ES Overlay Zone] may preclude the development of a shelter, if the land remains within the CC&Rs, for a variety of reasons.” (See, id, at Exhibit 1.) Moreover, then-San Clemente City Manager, Mr. James Makshanoff, stated that the City had filed an amicus brief in opposition to the Ninth Circuit case of Martin v Boise (9th Cir. 2019) 920 F.3d 584, and it was his hope that this would result in changes to the enforcement of camping ordinances, such that emergency shelters would not be required in San Clemente.

A video of the meeting with panel members including then-San Clemente City Manager Mr. Makshanoff, attorney Mr. Mauriello, and Mr. Wynne of Kidder Mathews, is located at:
https://www.wynnecre.com/news/san-clemente-homeless-shelter-vote-update-error-in-judgement This video confirms the intent of the City and the RSC Business Park owners to prevent the development of a shelter within the ES Overlay Zone.

In light of the foregoing, the facts do not support the Housing Element’s conclusion that there are an adequate number of available parcels/buildings in the ES Overlay to accommodate three (3) shelters of about 5,250 square feet each, that are set a minimum of 300 feet apart, and with the public outcry against any shelters being developed in the RSC Business Park ES Overlay Zone, there clearly will be no opportunities for any shelter operator(s) to obtain any such parcels or buildings for that purpose.

6. Failure To Address The Efficacy Of The Ride Share Program The City’s adopted Housing Element discussed access to public transportation by listing the number of SC RIDES trips in the area between 2017 and 2021. (See, e.g., page HE-46.) This discussion unfortunately failed to mention that these trips included the “Summer-Only” beach trolly program, which undoubtedly increased these numbers substantially. The City also conceded that it did not know how many, if any, of the listed trips were taken by homeless persons. At the current time, Family Assistance Ministry (“FAM”) has stated that it will no longer give transportation vouchers to any unhoused residents to access FAM’s services in the RSC Business Park. Lyft drivers are also refusing to give rides to homeless individuals seeking service, even if they have a “special code” for a trip. 312
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021

In light of these recent developments, it appears there is no established transportation program serving homeless residents to access services in the ES Overlay or elsewhere in the City, and the City has failed to adequately address the efficacy of the Ride Share program.

7. Failure to Identify Additional Sites Where Emergency Shelters Can Be Accommodated By-Right
In response to requests for the City to identify additional sites for emergency shelters, the City identified a 1.9-acre parcel located adjacent to Heritage Christian Fellowship. This parcel is within the ES Overlay, and is also designated as a Site Inventory Parcel for low income housing, as well for the Affordable Housing Overlay under Program 1. (See, the depiction set forth as Figure 4-1: Residential Sites and Rezone Sites Inventory, HE-87; see, also, aerial photo below.) Notwithstanding the City’s attempts to declare this site as a prime parcel for many different purposes, it has been reported that Heritage Christian Fellowship has already designated churchspecific uses for this parcel, such that it is highly unlikely any 35-bed shelter or affordable housing will ever be developed on this site: https://heritagesc.org/parking-lot-project [plans for parking lot].

On the related topic of possible alternatives, in Appendix B of the City’s Housing Element, which is entitled “Review of Past Accomplishments,” the City highlighted its achievements with Programs 13 and 14, but the information contained therein is nonfactual and untrue.

Appendix B: Program 13: For the Program 13: “Zoning Ordinance Monitoring” discussion, the City alleged that it is in the process of collaborating with neighboring cities to apply for State grants and other resources in order to address the needs of the unsheltered. However, on October 28, 2021, Council member Gene James is quoted in the OC Voice as stating that the City tried to partner with neighboring cities on a temporary shelter in an unincorporated part of the county to allow the sheriff’s department to enforce camping laws. “Unfortunately, our neighboring cities rejected the idea.” (See, October 28, 2021 article attached as Exhibit 3.) 313
Ms. Marisa Prasse
Mr. Paul McDougall
December 6, 2021