San Clemente City Council
October 4, 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 Part I
6:00 p.m.- Closed Session
7:00 p.m.- Business Meeting Part II

CITY OF SAN CLEMENTE
Tuesday, October 4, 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 Council Chambers 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 October 4, 2022
CLOSED SESSION (3:00 P.M.)
A. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Pursuant to Government Code section 54957
Title: City Attorney
B. PUBLIC EMPLOYEE APPOINTMENT
Pursuant to Government Code section 54957
Title: City Attorney
C. PUBLIC EMPLOYEE APPOINTMENT
Pursuant to Government Code section 54957
Title: City Manager
D. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Initiation of litigation pursuant to Government Code section 54956.9(d)(4) Number of potential cases: 1
E. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Pursuant to Government Code section 54956.8
Number of items:1
Property: 199.24 acres of open space north and south of Camino del Rio, 92673 Assessor's Parcel Numbers: 678-091-07, 678-092-06, 679-242-06 Agency Negotiator: City Manager
Negotiating Parties: City of San Clemente, 88 Pacific, LLC. and/or their authorized agents or representatives
Under Negotiation: Price and terms of payment
BUSINESS MEETING PART 1 (5:00 P.M.)

CALL TO ORDER
INVOCATION – Dusty Davis, Director of Operations, 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.

2 City Council Regular Meeting Agenda October 4, 2022

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. 12. 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 CITY COUNCIL MEETING OF SEPTEMBER 20, 2022.

B. Commission/Committee Minutes
Staff Recommendation
Receive and file the following:
1) DESIGN REVIEW SUBCOMMITTEE MEETING MINUTES FROM AUGUST 10, 2022
2) INVESTMENT ADVISORY COMMITTEE REGULAR MEETING MINUTES OF APRIL 25, 2022
3) PUBLIC SAFETY COMMITTEE REGULAR MEETING MINUTES OF AUGUST 23, 2022
4) HUMAN AFFAIRS COMMITTEE SPECIAL MEETING MINUTES OF
SEPTEMBER 13, 2022

3 City Council Regular Meeting Agenda October 4, 2022
C. Warrant Register
1) Approve Wire Transfer Nos.
2718 through 2722 and Warrant Nos.
583590 through 583750, paid on
9-23-22, in the amount of…….……….……..…..…….… $ 1,867,444.30 2) Approve Warrant Nos.
583751 through 583917, paid on
9-30-22, in the amount of…….……….……..…..…….…..… $ 1,319,200.20 TOTAL WARRANT REGISTER………………………..........$ 3,186,644.50 Payroll Register
Warrant Nos. 881 through 884
Automatic Deposit Advises 81064
through 81366, for the period
9-5-22 through 9-18-22, paid
on 9-23-22, in the amount of ........................................................................$529,481.83 TOTAL PAYROLL REGISTER……………………………..............…….$529,481.83 D. RESOLUTION DESIGNATING CITY AUTHORIZED REPRESENTATIVES TO OBTAIN

FEMA AND CAL OES PUBLIC DISASTER ASSISTANCE
Staff Recommendation
Adopt Resolution No. 22-37, entitled A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF SAN CLEMENTE, CALIFORNIA, DESIGNATING THE CITY

MANAGER, PUBLIC WORKS DIRECTOR/CITY ENGINEER AND/OR UTILITIES DIRECTOR AS THE CITY’S AUTHORIZED REPRESENTATIVE(S) TO OBTAIN FEDERAL AND STATE FINANCIAL ASSISTANCE.

E. CONTRACT AWARD - PLAYGROUND EQUIPMENT REPLACEMENT AT SAN GORGONIO PARK AND RICHARD T. STEED MEMORIAL PARK
Staff and the Beaches, Parks and Recreation Commission Recommendation

1. Approve the conceptual design plans for the playground equipment replacement at San Gorgonio Park (Project No. 11148) and Richard T. Steed Memorial Park (Project No. 12107).

2. Determine that the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Article 19, Sections 15302 [Replacement of existing structures where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity] of California CEQA Guidelines and direct staff to file a Notice of Exemption (NOE) with the State Clearinghouse; and Approve the purchase and installation of playground equipment from Kompan Inc. for $766,783 utilizing the

4 City Council Regular Meeting Agenda October 4, 2022
Omnia Partners National Purchasing Cooperative Contract No. 2017001135.

3. Approve, and authorize the Public Works Director to execute, Contract No. C22-59, by and between the City of San Clemente and Kompan Inc., providing for playground replacements at San Gorgonio Park and Richard T. Steed Memorial Park, in the amount of $766,783.

4. Accept grant revenues of $220,000 to 014-000-33490 (State Grant) from Prop 68.

5. Approve a supplemental appropriation of $220,000 to Account # 014-820-45300- 000-11148.

F. CONTRACT AWARD - BEACH TRUNK SANITARY SEWER LINE REHABILITATION Staff Recommendation

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

2. Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. C22-60, by and between the City of San Clemente and Sancon Technology, Inc., providing for the Beach Trunk Sanitary Sewer Line Rehabilitation, CIP Project No. 28206, in the amount of $63,613.

G. NOTICE OF COMPLETION - AVENIDA PICO RECYCLED WATER PIPELINE

RELOCATION
Staff Recommendation

1. Accept the Avendia Pico Recycled Water Pipeline Relocation, Project No. 21402 from the Contractor, Mike Prlich and Sons, Inc.

2. Authorize the Utilities Director to execute and the City Clerk to record the Notice of Completion for the Avenida Pico Recycled Water Pipeline Relocation.

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation fo the Notice of Completion upon verification with the Utilitites Department that no liens have been levied against Mike Prlich and Sons, 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.

5 City Council Regular Meeting Agenda October 4, 2022
H. INSTALLATION OF A PLAQUE AT COURTNEY’S SANDCASTLE

PLAYGROUND HONORING NAMESAKE COURTNEY FAYE SMITH
Staff Recommendation
Accept a plaque donation recognizing the life of Courtney Faye Smith; and approve the installation of the plaque and monument at Courtney’s SandCastle Playground.

I. CONTRACT AWARD - RECYCLED WATER QUALITY IMPROVEMENTS

PROJECT
Staff Recommendation

1. Approve a supplemental appropriation in the amount of $495,207 from the Sewer Connection Fee Reserve Fund to Account No. 054-477-45300-000- 13203.

2. Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. C22-61, by and between the City of San Clemente and Lee+Ro, Inc., providing for the Recycled Water Quality improvements Project, in the amount of $905,207.

5. Reports
A. Commissions and Committees
B. City Manager
C. City Attorney
D. Council Members
E. Council Subcommittee Updates
CLOSED SESSION (6:00 P.M.) CONTINUED FROM 3:00 P.M.

BUSINESS MEETING PART 2 (7:00 P.M.)

6. Closed Session Report - City Attorney

6 City Council Regular Meeting Agenda October 4, 2022

7. Special Presentations
A. Alzheimer's Association Orange County Chapter - Walk to End Alzheimer's Presentation by Sindy Thomas, Relationship Events Manager, and Michelle Pichardo, Engagement Manager, representing the Alzheimer Association Orange County Chapter, concerning the Walk to End Alzheimer's on Sunday, October 23, 2022, at the Outlets at San Clemente.

B. Fire Prevention Week Proclamation
Presentation of Proclamation to Baryic Hunter, Division Chief, Orange County Fire Authority, declaring October 9-15, 2022 as Fire Prevention Week.

C. HOMELESS UPDATE
The September update will be provided at the October 18, 2022 meeting.

8. Public Hearings
None.

9. Unfinished Business
None.

10. New Business
A. STATUS UPDATE ON SAN CLEMENTE POLICE SERVICES ENFORCEMENT EFFORTS AT MAX BERG PLAZA PARK (Agendized at the August 16, 2022 City Council Meeting by Mayor Pro Tem Duncan, with the support of Mayor James and Councilmember Knoblock)
Staff Recommendation
No action at this time as it pertains to increasing police service resources specific to Max Berg Plaza Park and allow time to gauge the effectiveness of park improvements and crime mitigation efforts.

B. VIEW PROTECTION ORDINANCE REVIEW (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 October 4, 2022, and on file with the City Clerk.

C. PUBLISHING OF CLOSED SESSION ITEMS (Agendized at the September 20, 2022 City Council Meeting by Councilmember Ferguson with the support of Councilmember Knoblock)

7 City Council Regular Meeting Agenda October 4, 2022
D. SECTION 115 PREFUNDING TRUST (Agendized at the August 16, 2022 City Council Meeting by Councilmember Knoblock, with the support of Mayor James and Councilmember Ferguson)
Staff Recommendation
Direct staff to pursue option 1 for the solicitation and creation of a Section 115 trust.

E. LETTER OF SUPPORT TO THE CALIFORNIA COASTAL COMMISSION (CCC) FOR THE SOUTH COAST WATER DISTRICT (SCWD) DOHENY
DESALINATION PROJECT. (Directed by Council at the April 19, 2022 City Council Meeting)
Staff Recommendation
Authorize the Mayor to sign a letter of support to the California Coastal Commission for the South Coast Water District Doheny Desalination Project.

11. Reports (continued from Business Meeting Part 1)
A. Commissions and Committees
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.

13. Adjournment
The next Regular Council Meeting is scheduled to take place on October 18, 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 Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

8 City Council Regular Meeting Agenda October 4, 2022
Items to be Considered at a Future Meeting
NOVEMBER 1, 2022: TRANSIENT OCCUPANCY TAX REVIEW
NOVEMBER 15, 2022 : REVIEW OF BEST BEST AND KRIEGER CONTRACT NOVEMBER 15, 2022 : CONSIDERATION OF NIGHT SURFING

9 City Council Regular Meeting Agenda October 4, 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 Council Chambers 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: 10/4/2022 Agenda Item: 1)
Subject:

APPROVE THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF SEPTEMBER 20, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/29/2022
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CITY OF SAN CLEMENTE
Tuesday, September 20, 2022 5:00 PM
City Council
Regular Meeting Minutes
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Council Chambers
3:00 p.m. – Closed Session
5:00 p.m. – Business Meeting I
6:00 p.m. – Closed Session
7:00 p.m. – Business Meeting II
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 Meeting of the San Clemente City Council was called to order by Mayor James on September 20, 2022 at 5:00 p.m. in the San Clemente Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

PRESENT: Duncan, Ferguson, Mayor James, Knoblock, and Ward Mayor Pro Tem Duncan arrived at 5:01 p.m.

STAFF PRESENT: Sean Joyce, Interim City Manager; Scott Smith, City Attorney; Joanne Baade, City Clerk; Laura Campagnolo, Legislative Administrator; Megan Jimenez, Deputy City Clerk
BUSINESS MEETING PART 1

INVOCATION
Councilmember Knoblock gave the invocation.

PLEDGE OF ALLEGIANCE
Amelia Mae Weinstein 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 Meeting Minutes September 20, 2022

2. Consideration of agendizing items requiring immediate action None.

3. Oral Communications (Part 1)
Brad Malamud opined on the Interim City Manager recruitment and appointment and noticing of Closed Session items.

Elizabeth Egan, San Clemente, expressed concerns over the change of aquatics class location and access issues at Ole Hanson Beach Club.

Mina Santoro/Don Glasgow narrated a PowerPoint concerning a memorial plaque for Courtney Faye Smith at Courtney's Sandcastle; announced a Celebration of Life for Courtney Faye Smith will be held on October 2, 2022. A hard copy of the presentation is on file with the City Clerk.

Concerned Citizen narrated a PowerPoint concerning City regulations as they relate to nuisance noise. A hard copy of the presentation is on file with the City Clerk.

Martina (no last name provided) opined that the City prefers litigation over mitigation and that legal costs have increased with the City's current counsel.

Rick Loeffler spoke on behalf of the Friends of San Clemente Foundation and announced upcoming events; recognized Community Outreach Worker Hunter for assisting 11 homeless individuals into housing.

Denise (no last name provided) opined on the negative impacts that pickleball at San Gorgonio Park has on neighboring residents.

Marcus Schiro, San Clemente resident and owner of Epic Bikes, opined that the City banned e-bikes from the beach trail without reaching out to the e-bike community and announced they will begin offering safety classes.

4. Consent Calendar
The following Items were removed from the Consent Calendar for discussion: 4A(1), 4B(3) and 4C.

13 City Council Regular Meeting Minutes September 20, 2022 B. Commission/Committee Minutes
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to receive and file :
(1) Planning Commission Regular Meeting minutes of August 3, 2022. (2) Planning Commission Study Session Meeting minutes of August 3, 2022.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
Payroll Register
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

Approve 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 AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
D. CONTRACT AWARD - PURCHASE AND INSTALLATION OF STORM DRAIN

TRASH CAPTURE DEVICES FOR THE SAN CLEMENTE PIER AND PICO

CORRIDOR PROJECT AREA
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

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.

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

14 City Council Regular Meeting Minutes September 20, 2022 E. NOTICE OF COMPLETION - PARK MONUMENT SIGN REPLACEMENT

PROGRAM
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

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.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
F. CONTRACT AWARD - CITYWIDE CATCH BASINS REHABILITATION Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to 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.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
G. RATIFICATION OF EMERGENCY PURCHASES AND SUPPLEMENTAL

FUNDING FOR CYPRUS SHORE PUMP STATION EMERGENCY OPERATION Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

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 No. 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve.

15 City Council Regular Meeting Minutes September 20, 2022

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.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
H. BEACHES, PARKS & RECREATION COMMISSION - WORK PLAN FY 2022-23 Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to approve the FY 2022-23 Work Plan as presented by the Beaches, Parks and Recreation Commission.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
I. GOLF COURSE COMMITTEE - WORK PLAN FY 2022-23
Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to approve the FY 2022-23 Work Plan as presented by the Golf Course Committee.

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

ITEMS REMOVED FROM THE CONSENT CALENDAR FOR DISCUSSION
4A(1) City Council Minutes
Concerned Citizen commented that a specific statement from the City Attorney was not included in the minutes of September 6, 2022.

Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to amend the minutes to remove Councilmember Ward as the second to the Safe Parking Program motion on page 3 of the Regular and Special City Council Minutes dated September 6, 2022.

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

16 City Council Regular Meeting Minutes September 20, 2022 4B(3). Commission/Committee Minutes
Motion by Councilmember Ward, second by Councilmember Knoblock, CARRIED to amend the Human Affairs Committee (HAC)Special Meeting minutes of August 16, 2022 to remove the reference to Mayor James on page 2 under project #3 Overall Homeless Strategy and to remove reference to Mayor James on page 3 of the minutes relating to the HAC workplan.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
4C. Warrant Register
Brad Malamud opined that Best Best and Krieger was in violation of its contract by utilizing attorneys other than Scott Smith and Mal Richardson and the City should not pay for services by other Best Best and Krieger attorneys.

Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to:

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 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 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 AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
Legal Services Contract
Councilmember Knoblock, with the support of Mayor James and Councilmember Ferguson, agendized a review of Best Best and Krieger's contract in open session.

17 City Council Regular Meeting Minutes September 20, 2022

5. Reports
A. Commissions and Committees
1) PUBLIC SAFETY COMMITTEE UPDATE OF SEPTEMBER 20, 2022 Concerned Citizen narrated a PowerPoint on safety concerns at San Gorgonio Park. A hard copy of the presentation is on file with the City Clerk.

Motion by Councilmember Ward, second by Mayor Pro Tem Duncan, CARRIED to have the Traffic Engineer review safety concerns at San Gorgonio Park.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
2) SCHEDULE MEETING FOR PUBLIC SAFETY COMMITTEE INTERVIEWS

AND APPOINTMENTS
Council scheduled interviews and appointment of a Public Safety Committee member for October 3, 2022 at 4:00 p.m.

B. City Manager
Interim City Manager Joyce reported that the following professional services contracts were executed under the City Manager signature authority: 1) Underground Solutions, Inc. - Calle Real Pump Station Potholing in the amount of $15,185; AmeriNational - CDBG Home Rehabilitation Loan Program Services in the amount of $12,000; Engineering Solutions Services - On-Call Grant Funding Assistance in the amount of $48,000; Sancon Technologies - NECR Alley Sanitary Sewer Rehabilitiation in the amount of $27,840; Bob Hall and Associates - City Manager Recruitment in the amount of $22,500; Parent2 Parent - American Rescue Plan Grant Agreement in the amount of $3,000; Boys and Girls Club - American Rescue Plan Grant Agreement in the amount of $10,000; Wellness and Prevention - American Rescue Plan Grant Agreement in the amount of $10,000.

Interim City Manager Joyce announced he will be coordinating with staff to evaluate the aquatics center schedule and impacts on classes.

C. City Attorney
City Attorney Smith reported that Council discussed in Closed Session at its September 6, 2022 Meeting, the property at the corner of Avenida La Pata and Avenida Vista Hermosa, and acted with a vote that CARRIED 5-0 to have the exclusive negotiating agreement agendized for the meeting of October 4, 2022. This item will be discussed under New Business.

18 City Council Regular Meeting Minutes September 20, 2022 D. Council Members
Recognition of Chief Brian Fennessey
Councilmember Ward reported that Orange County Fire Authority Chief Brian Fennessey was selected as Fire Chief of the Year by the California Fire Chiefs Association. Mayor James will send a congratulatory letter to Chief Fennessey on behalf of the Council.

City Manager Recruitment Process
Councilmember Knoblock with the support of Mayor James, agendized for October 4, 2022, Closed Session, the process for recruiting a City Manager.

Closed Session Publication
Councilmember Ferguson, with the support of Councilmember Knoblock, agendized for October 4, 2022, noticing practices for Closed Session agenda items.

Recognition of Staff
Mayor Pro Tem Duncan recognized Staff for the efforts on the new Council Chambers.

World Surfing League
Mayor Pro Tem Duncan recognized Felipe Toledo, San Clemente resident, for his World Surfing League win.

Transient Occupancy Tax
Councilmember Knoblock, with the support of Mayor James and Councilmember Ferguson, agendized the possibility of using Transient Occupancy Tax funds to facilitate tourism.

Cars and Coffee
Interim City Manager Joyce reported that Cars & Coffee is currently permitted to be a seasonal event.

Farmers Market
Mayor James, with the support of Councilmember Knoblock and Mayor Pro Tem Duncan, requested that Staff begin discussions with the Farmers Market manager, Rick Heil, to return the Farmers Market to Avenida Del Mar.

19 City Council Regular Meeting Minutes September 20, 2022 Street Side Soliciting
Mayor James, with the support of Councilmember Knoblock, Councilmember Ferguson and Mayor Pro Tem Duncan, assigned the Public Safety Committee to research the possibility of an ordinance to prohibit street side soliciting.

E. Council Subcommittee Updates
None.

CLOSED SESSION (6:00 P.M.)
Brad Malamud commented on how the closed session items were noticed/published and liability of noise nuisance at San Gorgonio Park created by pickleball.

Concerned Citizen narrated a PowerPoint concerning Government Code 8.48.010 and noise nuisance at San Gorgonio Park. A hard copy of the presentation is on file with the City Clerk.

City Attorney Smith announced the City received a threat of litigation in an email from a member of the public concerning pickleball, which will be discussed in Closed Session.

Motion by Mayor Pro Tem Duncan, second by Councilmember Ward, CARRIED to recess to Closed Session at 6:11 p.m. to discuss the following:

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
AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
BUSINESS MEETING PART 2
Council reconvened at 7:00 p.m. with all Councilmembers present.

6. Closed Session Report - City Attorney
No reportable action was taken.

20 City Council Regular Meeting Minutes September 20, 2022

7. Special Presentations
A. HUNGER MONTH PROCLAMATION
Mayor James presented a proclamation to Malia Cary, representing OC Hunger Alliance, proclaiming September as Hunger Month.

B. AUGUST UPDATE ON HOMELESS ISSUE
Deputy Community Development Director Atamian provided the City Outreach and Engagement Report for August 2022 and responded to Council inquiries.

Reorganization of Agenda
New Business Item 10A - Capistrano Shores Mobile Home Park - Letter of Support for Height of Replacement Coaches was heard ahead of the Public Hearings. 10A. 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)
Eric Anderson, San Clemente, thanked Council for considering his request and responded to Council inquiries.

Community Development Director Gallardo Daly responded to Council inquiries.

Motion by Councilmember Knoblock, second by Mayor James, to authorize the Mayor to execute a letter of support to the California Coastal Commission regarding height of replacement coaches at Capistrano Shores Mobile Home Park.

Substitute motion by Councilmember Ward DIED FOR A LACK OF SECOND to amend the letter to specify that the City will support the 16 foot height limit as long as it does not block public views from Marblehead.

The original motion on the floor was voted on and CARRIED as follows:

Motion by Councilmember Knoblock, second by Mayor James, to authorize the Mayor to execute a letter of support to the California Coastal Commission regarding height of replacement coaches at Capistrano Shores Mobile Home Park.

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

21 City Council Regular Meeting Minutes September 20, 2022

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

Mayor James opened the Public Hearing.

There being no one desiring to speak, the Public Hearing was closed.

Motion by Councilmember Ward, second by Councilmember Ferguson, CARRIED to approve an adopt the 2021-22 Consolidated Annual Performance Evaluation Report (CAPER) for submittal to the U.S. Department of Housing and Urban Development.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
B. PUBLIC HEARING TO CONSIDER RESOLUTION TO ADOPT THE REVISED

HOUSING ELEMENT UPDATE
Mayor James opened the Public Hearing.

There being no one desiring to speak, the Public Hearing was closed.

Assistant to the City Manager Savage narrated a PowerPoint presentation entitled Revised Housing Element Update and responded to Council inquiries.

Motion by Councilmember Knoblock, second by Mayor James, CARRIED to:

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.

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

9. Unfinished Business
None.

22 City Council Regular Meeting Minutes September 20, 2022

10. New Business
Item 10A- Capistrano Shores Mobile Home Park - Letter of Support for Height of Replacement Coaches was heard earlier in the meeting. Please reference page 10 of these minutes for action.

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)
Mark Enmeier spoke concerning e-Bike safety in San Clemente and successful measures taken by the City of Carlsbad; opined that enforcement is needed.

Captain Benfield, San Clemente Police Services, reviewed enforcement measures in place related to e-bikes; noted that motorized cycles without pedals are not street legal.

Rick Loeffler, Public Safety Committee Chair, reported on ways to educate e-bike riders and commented on measures the City of Carlsbad has taken that have been successful.

Mayor James, with the support of Councilmember Knoblock and Mayor Pro Tem Duncan, directed that the Public Safety Committee provide a report at the October 18, 2022 City Council Meeting concerning e-Bikes. The report is to incorporate measures the City of Carlsbad has taken.

Motion by Councilmember Knoblock, second by Mayor James, CARRIED to receive and file the administrative report dated September 20, 2022.

AYE: Duncan, Ferguson, Mayor James, Knoblock, and Ward
NOE: None
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
Economic Development Officer Lightfoot reviewed the contents of the Administrative Report.

Motion by Mayor Pro Tem Duncan, second by Mayor James, CARRIED to 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.

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

23 City Council Regular Meeting Minutes September 20, 2022

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

Please refer to page 7 of these minutes for a summary of that discussion.

12. Oral Communications (Part 2)
None.

Street Modification
Councilmember Knoblock, with the support of Mayor James and Councilmember Ferguson, requested that the City Manager confer with the traffic engineer to consider a traffic circle at the offramp near the Valero gas station at 422 Avenida Estrella.

13. Adjournment
Motion by Councilmember Ward, second by Mayor Pro Tem Duncan, CARRIED to adjourn at 8:10 p.m. 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.

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

24 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: 1)
Subject:

DESIGN REVIEW SUBCOMMITTEE MEETING MINUTES FROM AUGUST 10, 2022..body CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/29/2022
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Design Review Subcommittee Regular Meeting Minutes August 10, 2022 Page 1

CITY OF SAN CLEMENTE

MINUTES OF THE REGULAR MEETING OF THE

DESIGN REVIEW SUBCOMMITTEE
AUGUST 10, 2022
Subcommittee Members Present: Bart Crandell, M. Steven Camp, Cameron Cosgrove
Subcommittee Members Absent: none
Staff Present: Senior Planner Sara Toma

1. FIRST ORDER OF BUSINESS
Chair Crandell motioned for Committee Member Camp to take over as Chair, and motioned for Committee Member Cosgrove to take over as Vice-Chair. Both motions were seconded and the motions passed 3-0.

Chair Camp opened the meeting.

2. MINUTES
The Subcommittee approved the minutes from the July 27, 2022 regular meeting with no changes.

3. ARCHITECTURAL REVIEW OF THE FOLLOWING ITEMS:

A. Minor Cultural Heritage Permit 21-111, 238 West Avenida Mariposa, KochWong Residence (Toma) A request to add a new garage and remodel the interior of an existing two- story, two-unit multi-family dwelling for the property located at 238 West Mariposa in the Residential Medium Density (RM) zoning district.

Senior Planner Sara Toma summarized the staff report. Staff recommended the following:

The architectural details demonstrated on the plans comply with the Zoning Ordinance and Design Guidelines, with the exception of the proposed building height.

Staff recommends the parapet and chimney be revised to maintain a building height no taller than the existing building’s current 27’-3” height. Staff seeks the DRSC’s comments and welcomes any additional comments or recommendations.

Chair Camp opened the item for public comments.

The Design Review Subcommittee (DRSC) discussed the project, and made the following comments either individually or as a group:
26 Design Review Subcommittee Regular Meeting Minutes August 10, 2022 Page 2  The Subcommittee discussed the height of the building and moved forward with staff’s recommendation to maintain the existing building current height of 27’3”. The applicant agreed to make to modification and stay within the height.  Commissioner Crandell requested that an aerial map be provided in the future within the staff report to show the project site within the 300 feet of historic site.

The project site is located across the street from the historic site.  The Project site does not change the massing of the house that faces the historic resident.
 Chair Camp requested the applicant (Rob Williams) provide a description of the proposed project.
 The applicant provided a clarification that the exiting garage door will be extended to meet the 18’ deep to meet the garage door rollup requirements.  The setbacks will be consist with exiting 5-foot setbacks, and not encroaching on the site.
 Commissions had concerns with the Garage door materials being wood, as it takes away from the design. It is outside of the DRSC’s scope for review.  For ZA to consider, the height will need to be in compliance with exiting strucutre, no encroachment into setbacks, and does not affect the historic structures.

4. NEW BUSINESS
None

5. OLD BUSINESS
None

6. ORAL AND WRITTEN COMMUNICATION
None

ADJOURNMENT
Adjourned to the August 24, 2022 at 3:00 p.m., San Clemente City Hall, First Floor Community Room, 910 Calle Negocio, San Clemente, CA.

Respectfully submitted,
_______________________________
M. Steve Camp, Chair
Attest:
_______________________________
Sara Toma, Senior Planner
27 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: 2)
Subject:

INVESTMENT ADVISORY COMMITTEE REGULAR MEETING MINUTES OF APRIL 25, 2022 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/29/2022
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CITY OF SAN CLEMENTE
Investment Advisory Committee Minutes
Regular Meeting – April 25, 2022
A Regular Meeting of the City of San Clemente Investment Advisory Committee was called to order by City Treasurer, Mark Taylor, on April 25, 2022 at 5:30 p.m. This meeting was conducted in Community Conference Room at City Hall, 910 Calle Negocio, San Clemente. (1) ROLL CALL
PRESENT: Investment Advisory Committee Members:

Mark Taylor, Steve Knoblock, Thomas Olds*, Ryan Bourque, Art Carter
*Arrived at 5:32
Staff:

Courtney Farrell, Sandee Chiswick
ABSENT:

CHANDLER
REPRESENTATIVE: Jayson Schmitt
PUBLIC: None
(2) APPROVAL OF MINUTES
Minutes from the October 25, 2021 meeting were approved. Motion was made to approve by Ryan Bourque seconded by Steve. Approved 5-0.

Minutes from the January 31, 2022 meeting were approved. With correction to the adjourned meeting date from October 25, 2021 meeting. Motion was made to approve by Steve Knoblock seconded by Ryan Bourque. Approved 5-0. (3) APPROVE 3
rd QUARTER FY 2021-22 INVESTMENT REPORT
The third quarter investment report was introduced by City Treasurer, Mark Taylor. Jayson Schmitt, Chandler Asset Management representative, and Mark Taylor reviewed the third quarter investment report with the committee and answered questions raised by committee members. Art Carter moved to approve the 3
rd Quarter FY 2021-22 Investment Report, seconded by Steve Knoblock Approved 5-0.
29 Investment Advisory Committee Minutes April 25, 2022 Page 2 (4) PUBLIC INPUT
None
(5) ADJOURNMENT
Motion was made by Mark Taylor seconded by Steve Knoblock carried 5-0 to adjourn to the next meeting on July 25, 2022.
_________________________________
Mark Taylor
Chair-Investment Advisory Committee
Future Meeting Dates:

July 25, 2022
August 30, 2022 Joint Council/Commissions/Committees Meeting October 24, 2022
January 30, 2023
30 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: 3)
Subject:

PUBLIC SAFETY COMMITTEE REGULAR MEETING MINUTES OF AUGUST 23, 2022 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/28/2022
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38 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: 4)
Subject:

HUMAN AFFAIRS COMMITTEE SPECIAL MEETING MINUTES OF SEPTEMBER 13, 2022 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/28/2022
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These minutes will be considered for approval at the Regular Meeting of the Human Affairs on 10/11/22.

CITY OF SAN CLEMENTE

MINUTES OF THE SPECIAL MEETING OF THE

HUMAN AFFAIRS COMMITTEE
September 13, 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 September 13, 2022 at 3:46 p.m. The meeting was held at San Clemente City Hall, First Floor Community Room located at 910 Calle Negocio, San Clemente, California.

Committee
Members Present: Chair Lisa Edone, Vice Chair Aaron Washington (arrived at 3:49 p.m.), Stuart Anderson, Michelle Brooks, Angeline
Johnson, Rosemary Salas, and Jill Schachter

Absent: None
Guests: Mayor Gene James (arrived at 3:45 p.m.)
Staff Present: Cecilia Gallardo-Daly, Community Development Director Janet Batchelor, Management Analyst
Meredith Scott, Administrative Assistant

2. PLEDGE OF ALLEGIENCE
The Pledge was led by Committee Member Brooks.

3. APPROVAL OF MINUTES
A. Minutes from the August 16, 2022 Special Meeting of the Human Affairs Committee.

MOTION BY COMMITTEE MEMBER ANDERSON, SECONDED BY
COMMITTEE MEMBER SALAS AND CARRIED UNANIMOUSLY to approve the minutes from the August 16, 2022 Special Meeting of the Human Affairs Committee as submitted.

B. File and receive Minutes from the August 30, 2022 Joint Council/Commission/ Committee Meeting.

MOTION BY COMMITTEE MEMBER ANDERSON, SECONDED BY
COMMITTEE MEMBER SALAS AND CARRIED UNANIMOUSLY to receive and 40

Minutes of the Special Meeting of the Human Affairs Committee of September 13, 2022 file the minutes from the August 30, 2022 Joint Council/Commission/ Committee Meeting as submitted.

4. UNFINISHED BUSINESS
A. Human Affairs Committee Annual Work Plan (FY 2022-23) Chair Edone encouraged the committee members to attend the October 4, 2022 City Council meeting. Chair Edone explained the Work Plan’s process of approval, the strategy for prioritizing the projects and summarized each project on the Work Plan.

At the conclusion of the Project Summary, Chair Edone asked if there were any additional projects to consider for the Work Plan. Committee Member Schachter suggested a Safe Rides Program. The project was added by consensus to be incorporated into Project #5.

Members formed groups and a chair was assigned for each project, as follows:
• Project #1. Homeless Town Hall & Community Resource Fair: Stuart Anderson and Lisa Edone, chaired by Aaron Washington.
• Project #2. Resources Directory: Stuart Anderson and City Staff support, chaired by Lisa Edone.
• Project #3. Overall Homelessness Strategy: Angeline Johnson and Michelle Brooks, chaired by Stuart Anderson.

An additional work group will be formed consisting of Rosemary Salas and chaired by Jill Schachter if project is bifurcated.
• Project #4. Mentorship Program for Young Adults & Grades 6-12 “A Day in the Life”: Rosemary Salas and Aaron Washington, chaired by Jill Schachter.
• Project #5. “Every 15 Minutes” DUI Prevention Program: Jill Schachter and Michelle Brooks, chaired by Rosemary Salas.

South County Safe Rides Program: Angeline Johnson and Jill Schachter, chaired by Michelle Brooks. This program is inclusive of Project #5. • Project #6. SCHS Humanitarian Award: Jill Schachter and Angeline Johnson, chaired by Rosemary Salas.
41

Minutes of the Special Meeting of the Human Affairs Committee of September 13, 2022 Chair Edone requested staff to email the summary of the work group members and chair of each work group to all committee members as soon as possible.

Chair Edone requested all members to use their city email addresses when communicating within their work groups, and to text the work group members to advise them of the communication.

Chair Edone stressed that per the Brown Act, only the chair representing the work group can communicate on the work group’s behalf and not copy other committee or work group members. Chair Edone stated that the Work Plan is the entire compilation of all the projects. Work groups are assigned to each project and they will determine the action items for their project. The work group project chair will submit the action items to Chair Edone and she will discuss with the chair of the work group if she has any questions.

Community Development Director Gallardo-Daly suggested to use the previous Work Plan as a template and update the dates, project descriptions and action items. She also advised that the revised Work Plan is due to city staff by September 23, 2022 in order to be on the October 4, 2022 City Council Agenda.

Chair Edone asked each work group chair to submit to her a bullet point of their action items by September 20, 2022, and asked staff to send a reminder to all committee members on September 19, 2022.

Chair Edone confirmed the chairs of each work group and the timeline leading up to the City Council Meeting on October 4, 2022 where the Work Plan will be submitted to City Council for approval. Chair Edone also asked staff to send a reminder to the committee prior to the City Council meeting encouraging their attendance at the meeting.

5. ORAL AND WRITTEN COMMUNICATION
None.

6. COMMUNICATIONS FROM COMMITTEE MEMBERS AND STAFF
None.
42

Minutes of the Special Meeting of the Human Affairs Committee of September 13, 2022

ADJOURNMENT
CHAIR EDONE ADJOURNED THE MEETING AT 4:35 P.M. TO THE REGULAR HUMAN AFFAIRS COMMITTEE MEETING TO BE HELD ON OCTOBER 11, 2022 AT 3:30 P.M. AT SAN CLEMENTE CITY HALL, FIRST FLOOR COMMUNITY ROOM, LOCATED AT 910 CALLE NEGOCIO, SAN CLEMENTE, CALIFORNIA.

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

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: 1)
Subject:

Approve Wire Transfer Nos.
2718 through 2722 and Warrant Nos.
583590 through 583750, paid on
9-23-22, in the amount of…….……….……..…..…….…… $ 1,867,444.30 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/27/2022
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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: 10/4/2022 Agenda Item: 2)
Subject:

Approve Warrant Nos.
583751 through 583917, paid on
9-30-22, in the amount of…….……….……..…..…….…..… $ 1,319,200.20 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 9/29/2022
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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: 10/4/2022 Agenda Item: D.

Department: Public Works
Prepared By: Kiel Koger, Public Works Director/City Engineer Subject:

APPROVAL OF RESOLUTION DESIGNATING CITY AUTHORIZED REPRESENTATIVES TO

OBTAIN FEMA AND CAL OES PUBLIC DISASTER ASSISTANCE
Fiscal Impact:

None
Summary:

To apply for Public Disaster Assistance from the Federal Emergency Management Agency (FEMA) and the California’s Office of Emergency Services (Cal OES), the City Council is required to designate one or more representatives for the City every three years. The City has previously designated the City Manager, Public Works Director/City Engineer and/or Utilities Director as the City’s authorized representatives.

Background:

Approval of the resolution will allow the City to apply for relief funding whenever the Federal or State government declares a disaster. The City previously applied for disaster relief funding for storm damage to public roads and facilities in 2017. The resolution will be applicable to any future disasters within the next three-year period.

Plan and Policy Consistency:

The action is consistent with the following General Plan Goals and Policies:
· Safety Element Goal: Continue to be a well-prepared community that understands and limits exposure to potential natural and human-made hazards and effectively responds to and recovers from public safety emergencies.
· Policy S-7.04. Interdepartmental and Interagency Collaboration. We collaborate among City departments and with organizations outside of the City for a comprehensive approach to emergency services and disaster preparedness, response and recovery, including continuity of operations. · Policy S-7.05. Partnerships. We partner with other local, State and Federal emergency services agencies to enhance safety resources in the City of San Clemente.

Council Strategy:

The action is consistent with Council Strategy 1 in that it ensures financial stability by pursuing relief funding sources in case of an emergency.

Recommended Actions:

CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/28/2022
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Meeting Date: 10/4/2022 Agenda Item: D.

Staff Recommendation
STAFF RECOMMENDS THAT the City Council adopt Resolution No. _______, entitled A

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA,

DESIGNATING THE CITY MANAGER, PUBLIC WORKS DIRECTOR/CITY ENGINEER AND/OR UTILITIES DIRECTOR AS THE CITY’S AUTHORIZED REPRESENTATIVE(S) TO OBTAIN FEDERAL AND STATE FINANCIAL ASSISTANCE.

Attachment:

1. Resolution No. __________

2. Designation of Applicant’s Agent Resolution for Non-State Agencies (Cal OES 130) Notification:

None
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 9/28/2022
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Attachment 1
RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, DESIGNATING THE CITY

MANAGER, PUBLIC WORKS DIRECTOR/CITY ENGINEER
AND/OR UTILITIES DIRECTOR AS THE CITY’S

AUTHORIZED REPRESENTATIVE(S) TO OBTAIN

FEDERAL AND STATE FINANCIAL ASSISTANCE
WHEREAS, in order to apply for Public Disaster Assistance from both Federal Emergency Management Agency (FEMA) and the California’s Office of Emergency Services (Cal OES), the City Council is required to designate one or more representatives to serve on the City’s behalf.

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

Section 1. The City of San Clemente City Manager, Public Works Director/City Engineer and Utilities Director (the “City Agents”) are hereby authorized to execute for and in behalf of the City of San Clemente, a public entity each established under the laws of the State of California, this application and to file it with the California’s Office of Emergency Services for the purposes of obtaining certain federal financial assistance under P.L. 93-288 as amended by the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, and/or state financial assistance under the California Disaster Assistance Act.

Section 2. That the City of San Clemente, a public entity established under the laws of the State of California, hereby authorized its agent(s) to provide to the California’s Office of Emergency Services for all matters pertaining to such state disaster assistance the assurances and agreements require.

Section 3. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of October, 2022.

ATTEST:
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California
74 Resolution No. Page 2

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, JOANNE BAADE, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. _________ was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of October, 2022, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of October, 2022. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
City Attorney
75 STATE OF CALIFORNIA
GOVERNOR’S OFFICE OF EMERGENCY SERVICES Cal OES ID No: ______________________ Cal OES 130

DESIGNATION OF APPLICANT'S AGENT RESOLUTION

FOR NON-STATE AGENCIES
BE IT RESOLVED BY THE OF THE (Governing Body) (Name of Applicant)

THAT , OR
(Title of Authorized Agent)
, OR
(Title of Authorized Agent)
(Title of Authorized Agent)
is hereby authorized to execute for and on behalf of the , a public entity (Name of Applicant)
established under the laws of the State of California, this application and to file it with the California Governor’s Office of Emergency Services for the purpose of obtaining certain federal financial assistance under Public Law 93-288 as amended by the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, and/or state financial assistance under the California Disaster Assistance Act.

THAT the ________________________________________________, a public entity established under the laws of the State of California, (Name of Applicant)
hereby authorizes its agent(s) to provide to the Governor’s Office of Emergency Services for all matters pertaining to such state disaster assistance the assurances and agreements required.

Please check the appropriate box below:

This is a universal resolution and is effective for all open and future disasters up to three (3) years following the date of approval below.

This is a disaster specific resolution and is effective for only disaster number(s) ________________________ Passed and approved this day of , 20
(Name and Title of Governing Body Representative)
(Name and Title of Governing Body Representative)
(Name and Title of Governing Body Representative)

CERTIFICATION
I, , duly appointed and of (Name) (Title)
, do hereby certify that the above is a true and correct copy of a (Name of Applicant)
Resolution passed and approved by the of the (Governing Body) (Name of Applicant) on the day of , 20 .
(Signature) (Title)
Cal OES 130 (Rev.9/13) Page 1
Attachment 2
76 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: E.

Department: Public Works
Prepared By: Kiel Koger, Public Works Director/City Engineer Samantha Wylie, Beaches, Parks and Recreation Director
Subject:

CONSTRUCTION CONTRACT AWARD TO KOMPAN, INC. FOR PLAYGROUND EQUIPMENT REPLACEMENT AT SAN GORGONIO PARK AND RICHARD T. STEED MEMORIAL PARK, CIP NO. 11148 AND NO. 12107.

Fiscal Impact:

The total cost of the playground equipment structures is $766,783 and is within the allocated budget for the replacement of playground equipment at San Gorgonio and Richard T. Steed Memorial Parks.

The project is funded through the Park Asset Replacement Reserve ($550,000), with a portion being covered by the funds allocated to the City through the Prop 68 Per Capita Funding ($220,000).

Summary:

Staff recommends that Council approve a construction contract with Kompan, Inc. (“Kompan”) in an amount not to exceed $766,783. The purpose of the project is to replace the existing playground equipment at San Gorgonio Park and Richard T. Steed Park with new playground systems. The existing equipment has reached the end of its useful life and needs to be replaced.

Background:

In November 2015, the City Council approved a playground replacement program providing a methodology for the replacement of the City’s aging playgrounds throughout the park system. Based on the replacement schedule, San Gorgonio Park and Steed Park playground equipment was scheduled for replacement in 2020 however, due to limitations in staffing resources and the onset of the COVID-19 pandemic, the replacement schedule was delayed.

In January 2022, staff conducted an online survey open to the public and park users to gain feedback on the typical uses of the existing San Gorgonio Park playground and what features users desired to see in the future.

The online survey yielded responses from 245 people and provided a baseline for staff feedback to the playground company that is specific to San Gorgonio Park. Highlights of the survey are included below:
· Respondents preferred a traditional style play structure unlike recent “challenging play” play structure renovations throughout the City (i.e. Bonito Canyon Park and Rancho San Clemente Park);
· Age of the playground users are primarily under five years old (73% of respondents); · The most important play features are traditional swings and slides; · Additional important/desirable playground amenities include shade, benches, and picnic CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/29/2022
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Meeting Date: 10/4/2022 Agenda Item: E.
tables.

At its June 14, 2022, the Beaches, Parks & Recreation Commission reviewed two design options for each park site. The Commission recommended approval of the playground designs from Kompan presented in Attachment 2.

Discussion:

City staff coordinated with Kompan and received proposals for San Gorgonio and Steed Park for purchasing and installation of the playground equipment, which incorporates safety surfacing per prior City Council direction, and includes natural tones and themes at San Gorgonio per the public survey results.

Pursuant to City Policy and Procedure Section 201-2-1 Section 6.17.2, procurement may be exempt from the bidding process (Informal/Formal) when participating in an established governmental Cooperative Purchasing Agreement.

Staff recommends award of this project to Kompan under a Cooperative Agreement through Omnia Partners. Omnia Partners is a National Purchasing Cooperative that streamlines the buying process for public schools, municipalities and other governmental entities. Contracts and vendors awarded have been competitively procured, to assist members to be compliant with local and state procurement requirements. Utilizing a Cooperative allowed the City to save time and resources from preparing and conducting a formal bid process. Additional savings are realized through competitive pricing.

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. A warranty bond will also be required prior to City Council acceptance of the project. Project plans and specifications are on file in the City Clerk’s office.

Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
· Beaches, Parks and Recreation Element Goal: Park and Recreation Planning, Acquisition, and Development
· Policy BPR-2.02. Evaluation of User Needs. We evaluate user feedback, track facility use, and utilize projections to understand park and recreation facility needs and plan for future acquisition and development.

Council Strategy:

The project is consistent with Council Strategy #3 in that it improves and maintains infrastructure that reflects best available technology and service.

Recommended Actions:

Staff and the Beaches, Parks and Recreation Commission Recommendation STAFF AND THE BEACHES, PARKS & RECREATION COMMISSION RECOMMEND THAT the City Council:

1. Approve the conceptual design plans for the playground equipment replacement at San CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/29/2022
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Meeting Date: 10/4/2022 Agenda Item: E.

1. Approve the conceptual design plans for the playground equipment replacement at San Gorgonio Park (Project No. 11148) and Richard T. Steed Memorial Park (Project No. 12107).

2. Determine that the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Article 19, Sections 15302 [Replacement of existing structures where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity] of California CEQA Guidelines and direct staff to file a Notice of Exemption (NOE) with the State Clearinghouse; and Approve the purchase and installation of playground equipment from Kompan Inc. for $766,783 utilizing the Omnia Partners National Purchasing Cooperative Contract No. 2017001135 Project No. 11148 and No. 12107.

3. Approve, and authorize the Public Works Director to execute, Contract No._______, by and between the City of San Clemente and Kompan Inc., in the amount of $766,783 for the San Gorgonio Park and Richard T. Steed Memorial Park.

4. Accept grant revenues of $220,000 to 014-000-33490 (State Grant) from Prop 68.

5. Approve a supplemental appropriation of $220,000 to Account No. 014-820-45300-000-11148.

Attachment:

1. Location Maps

2. Conceptual plans for playground equipment

3. Construction Contract

4. Omnia Partners National Purchasing Cooperative Contract Notification:

None
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5 AVE. PICO

EL CAMINO REAL

MUNICIPAL GOLF
COURSE

PACIFIC

OCEAN CITY BOUNDARY

CAMP PENDLETON
INTERSTATE 5
AVE. VISTA HERMOSA AVE. LA PATA
CM. DEL RIO
CM. DE LOS MARES
CLE. DEL CERRO
Playground Equipment Replacement at
San Gorgonio and Richard T. Steed
Memorial Park
Attachment 1

NOT TO SCALE
PN 11148 & 12107

PROJECT

LOCATIONS

LOCATION MAP
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55452.01510\32977834.2
1 CITY OF SAN CLEMENTE

CONSTRUCTION CONTRACT

STEED MEMORIAL PARK AND SAN GORGONIA PARK PLAYGROUND EQUIPMENT REPLACEMENT PROJECTS, CIP #11148 AND #12107

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 Kompan California, Inc., with its principal place of business at 22431 Antonio Parkway, Suite B160-426, Rancho Santa Margarita, CA 92688 (“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 the replacement of existing playground equipment structures with new structures. The project will include removal of the existing playground structure and installation of new structures and all site work needed in accordance with the Kompan California sales proposals dated September 2 and 6, 2022, 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: A - General Contractor

2.3 Project. City desires to engage Contractor to render such services for Steed Park and San Gorgonio Park Playground Equipment Replacement Project (“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”)
117
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2  Federal Requirements (Exhibit “G”)
 Insurance Requirements (Exhibit “H)
 Contractor’s Project Cost

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.

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 118
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3 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 15 working days at Steed Park and 25 working days at San Gorgonio Park after arrival of materials (playground equipment). An additional 12 to 14 weeks will be allowed for arrival of materials for Steed Park and 25 to 28 weeks for San Gorgonio Park and delivery to jobsite after 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 Five Hundred Dollars ($500) 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 119
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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 Seven Hundred and Sixty-Six Thousand, Seven Hundred and Eighty-Three Dollars ($766,783.00) (“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 120
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5 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.

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, 121
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6 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.

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 122
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7 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 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. 123
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8 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 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 124
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9 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 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 125
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10 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 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.
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11 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.

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
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12 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.

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 128
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13 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.

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 4 129
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14 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 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 130
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15 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 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 131
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16 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 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.
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17 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 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. 133
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18 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:

CONTRACTOR:

Kompan California, Inc.
22431 Antonio Parkway Suite B160-426
Rancho Santa Margarita, CA 92688
Attn: Gene Hunter, Senior Project Manager
CITY:

City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: Kiel Koger, Public Works Director/City 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. 134
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19 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.

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.
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20 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. 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. 136
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21 [SIGNATURES ON NEXT PAGE]
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22 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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23 EXHIBIT “A”

SERVICES / SCHEDULE

IN ACCORDANCE WITH THE KOMPAN CALIFORNIA SALES PROPOSALS DATED SEPTEMBER 2 AND 6, 2022
Schedule for Steed Park: 16 to 18 weeks total (estimated completion – January, 2023) - 12-14 weeks equipment lead time (equipment delivery December, 2022) - 1 week (demo and site preparation beginning first week in January) - 2 weeks (Installation, surfacing, and inspection)
Schedule for San Gorgonio Park: 28 to 30 weeks total (estimated completion – April, 2023) - 25-28 weeks equipment lead time (equipment delivery March 2023) - 1 week (demo and site preparation beginning end of March 2023) - 3-4 weeks (Installation, surfacing, and inspection)
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EXHIBIT “B”

PLANS AND SPECIFICATIONS

IN ACCORDANCE WITH THE KOMPAN CALIFORNIA SALES PROPOSALS DATED SEPTEMBER 2 AND 6, 2022 AND CONSTRUCTION CONTRACT
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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. 142
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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 150
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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
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EXHIBIT “H”

INSURANCE REQUIREMENTS

3.13 Insurance. [CITY RISK MANAGER TO REVIEW PRIOR TO EACH USE]

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. [**PLEASE NOTE THAT THIS AMOUNT MAY NEED

TO BE ADJUSTED UPWARD DEPENDING ON THE NATURE AND SCOPE OF THE WORK TO BE PERFORMED. INSURANCE COVERAGE SHOULD BE EVALUATED ON A CASE-BYCASE BASIS. ALWAYS DELETE THIS BOX.**] 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. [***NOTE:

If Contractor does not own any company vehicles or may not be able to purchase a Business Automobile Insurance Policy, the requirement may be satisfied by providing either of the following: (1) a Personal Automobile Liability policy for the Contractor's own vehicle stipulating "Automobile Liability Insurance with a limit of not less than $1,000,000 each accident"; and (2) a non-owned auto endorsement to the Commercial General Liability policy if Contractor uses vehicles of others (e.g., vehicles of employees). ALWAYS DELETE THIS SECTION IF NOT USED.***]
(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. [DELETE THIS SECTION IF NOT REQUIRED – ONLY APPLIES TO CONSTRUCTION OR RENOVATION OF BUILDING OR STRUCTURE] 154
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[OPTIONAL: include the following provision if there is a pollution liability exposure; otherwise, always delete.]
(E) Contractors Pollution Liability: Contractors Pollution Liability Insurance covering all of the Contractor's operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, defense costs and cleanup costs with limits not less than $2,000,000 per loss and $4,000,000 total all losses. The policy shall contain no endorsements or provisions limiting contractual liability or coverage for cross liability of claims or suits by one insured against another. If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Contract and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Contract. [ALWAYS DELETE IF 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:
(A) Commercial General Liability [INSERT WHERE APPLICABLE: "and Contractor's Pollution Liability"; OTHERWISE, ALWAYS DELETE]:
(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. [***NOTE: SHOULD BE EVALUATED BY A CASE-BY-CASE BASIS***] (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. 155
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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. [***NOTE: SHOULD BE EVALUATED BY A CASE-BY-CASE BASIS***]

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 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.
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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. 157
Contract No. 2017001135
Vendor No. 303668
1 STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG

CONTRACT TO PROVIDE

PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES,

SURFACING, AND RELATED PRODUCTS AND SERVICES
This Contract (the “Contract”) is entered into as of this 1st day of July 2017 (the “Effective Date”), by and between Kompan, Inc. a corporation doing business in North Carolina (the “Company”), and the City of Charlotte, a North Carolina municipal corporation (the "City").

RECITALS
WHEREAS, the City issued a Request For Proposals (RFP #269-2017-028) for Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services dated January 25, 2017. This Request for Proposals together with all attachments and addenda, is referred to herein as the “RFP”; and
WHEREAS, the Company submitted a Proposal in response to RFP #269-2017-028 on March 16, 2017. This Proposal, together with all attachments and separately sealed confidential trade secrets, is referred to herein as the “Proposal” and incorporated into this contract by reference.

WHEREAS, the City awarded this Contract on May 8, 2017 to Company to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services to the City all in accordance with the terms and conditions set forth herein.

WHEREAS, the City of Charlotte, on behalf of itself and all states, local governments, school districts, and higher education institutions in the United States of America, and other government agencies and nonprofit organizations (herein “Participating Public Agencies”), competitively solicited and awarded the Contract to the Company. The City has designated U.S. Communities as the administrative and marketing conduit for the distribution of the Contract to Participating Public Agencies.

The City is acting as the “Contracting Agent” for the Participating Public Agencies, and shall not be liable or responsible for any costs, damages, liability or other obligations incurred by the Participating Public Agencies. The Company (including its subsidiaries) shall deal directly with each Participating Public Agency concerning the placement of orders, issuance of purchase orders, contractual disputes, invoicing, payment and all other matters relating or referring to such Participating Public Agency’s access to the Contract.

Each Participating Public Agency enters into a Master Intergovernmental Cooperative Purchasing Agreement (MICPA) outlining the terms and conditions that allow access to the Lead Public Agencies’ Master Agreements. Under the terms of the MICPA, the procurement by the Participating Public Agency shall be construed to be in accordance with, and governed by, the laws of the state in which the Participating Public Agency resides.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the covenants and representations contained herein, the parties agree as follows:

CONTRACT

1. EXHIBITS.
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2 The Exhibits below are hereby incorporated into and made a part of this Contract. In interpreting this Contract and resolving any ambiguities, the main body of this Contract will take precedence over the Exhibits, and any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below. Each reference to Kompan in the Exhibits and Appendices shall be deemed to mean the Company.

EXHIBIT A: Discount Schedule and Price Lists
EXHIBIT B: Installation Fees
EXHIBIT C: National Network of Distributors and Installers EXHIBIT D: Freight Rate Schedules
EXHIBIT E: Product Warranties
EXHIBIT F: Scope of Services
EXHIBIT G: U.S. Communities Administrative Agreement
EXHIBIT H: Confidentiality Terms

2. DEFINITIONS.

As used in this Contract, the following terms shall have the meanings set forth below:

Acceptance: Refers to receipt and approval by the City of a Deliverable or Service in accordance with the acceptance process and criteria in this Contract.

Affiliates: Refers to all departments or units of the City and all other governmental units, boards, committees or municipalities for which the City processes data or performs Services.

Biodegradable: Refers to the ability of an item to be decomposed by bacteria or other living organisms.

Charlotte Business Refers to the Charlotte Business Inclusion office of the City Inclusion (CBI): of Charlotte.

Charlotte Combined Refers to the Charlotte-Gastonia-Salisbury Combined Statistical Area (CSA): Statistical Area consisting of; (a) the North Carolina counties of Anson, Cabarrus, Cleveland, Gaston, Iredell, Lincoln,
Mecklenburg, Rowan, Stanly, and Union; and (b) the South Carolina counties of Chester, Lancaster, and York; a criteria used by Charlotte Business INClusion to determine eligibility to participate in the program.

City: Refers to the City of Charlotte, North Carolina.

Company: Refers to a company that has been selected by the City to provide the Products and Services of this Contract.

Company Project Refers to a specified Company employee representing the Manager: best interests of the Company for this Project.

Contract: Refers to a written agreement executed by the City and Company for all or part of the Services.
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3 Deliverables: Refers to all tasks, reports, information, designs, plans, and other items that the Company is required to deliver to the City in connection with the Contract.

Documentation: Refers to all written, electronic, or recorded works that describe the use, functions, features, or purpose of the Deliverables or Services or any component thereof, and which are provided to the City by the Company or its subcontractors, including without limitation all end user manuals, training manuals, guides, program listings, data models, flow charts, and logic diagrams.

Environmentally Refers to Products that have a lesser or reduced effect on Preferable Products: human health and the environment when compared with competing Products that serves the same purpose. This
comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.

Lead Public Agency: Refers to the City of Charlotte, North Carolina.

Master Agreement: Refers to the Agreement that is made available by the Lead Public Agency after the successful completion of the competitive solicitation and selection process, wherein Participating Public Agencies may utilize the agreement to purchase Products and Services.

Minority Business
Enterprise/MBE: Refers to a business enterprise that: (a) is certified by the State of North Carolina as a Historically Underutilized Business (HUB) within the meaning of N.C. Gen. Stat. § 143-128.4; (b) is at least fifty-one percent (51%) owned by one or more persons who are members of one of the following groups: African American or Black, Hispanic, Asian, Native American or American Indian; and (c) is headquartered in the Charlotte Combined Statistical Area.

MWSBE: Refers to SBEs, MBEs and WBEs, collectively.

Participating Public
Agency: Refers to all states, local governments, school districts, and higher education institutions in the United States of American, and other governmental agencies and nonprofit organizations that elect to purchase Products and Services under the Master Agreement.

Products: Refers to all Products that the Company agrees to provide to the City as part this Contract.

Services: Refers to the Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services as requested in this RFP.
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4 Specifications and Refers to all definitions, descriptions, requirements, criteria, Requirements: warranties, and performance standards relating to the Deliverables and Services that are set forth or referenced in: (i) this RFP, including any addenda; (ii) the Documentation; and (iii) any functional and/or technical specifications that are published or provided by the Company or its licensors or suppliers from time to time with respect to all or any part of the Deliverables or Services.

3. TERM. The initial term of this Contract will be for five (5) years from the Effective Date with an option to renew for two (2) additional two-year terms. This Contract may be extended only by a written amendment to the contract signed by both parties.

4. AGREEMENT TO PROVIDE PRODUCTS AND SERVICES.

4.1 The Company shall provide the Products and Services in accordance with the terms and conditions set forth in this Contract and the attached Exhibits when ordered from time to time by the City. Except as set forth in Exhibit A, the prices set forth in Exhibit A constitute all charges payable by the City for the Products and Services, and all labor, materials, equipment, transportation, facilities, storage, information technology, permits, and licenses necessary for the Company to provide the Products and Services. The Company shall perform any Services for the City on site at the City’s facilities in Charlotte, North Carolina, except as otherwise stated in this Contract or agreed in writing by the City.

4.2 Placement of Orders: All orders will be placed by personnel designated by the City on an as needed basis for the quantity required at the time during the term of the Contract.

5. OPTIONAL PRODUCTS AND SERVICES. The City may in its discretion purchase from the Company optional Products and Services beyond what is called for in the Specifications, provided that such purchase does not create unfairness so as to defeat the purpose of the Proposal statutes, and provided the City is authorized by law to make such purchases without a formal Proposal process.

6. DOCUMENTATION. The Company will provide for all Products purchased under this Contract written or electronic documentation that is complete and accurate, and sufficient to enable City employees with ordinary skills and experience to utilize such Products for the purpose for which the City is acquiring them.

7. COMPENSATION. The City shall pay the Company for the Products and Services delivered in compliance with the specifications at the prices set forth in Exhibit A. This amount constitutes the maximum fees and charges payable to the company in the aggregate under this contract and will not be increased except by a written amendment duly executed by both parties in compliance with the price adjustment provisions set forth in Exhibit A. The Company shall not be entitled to charge the City any prices, fees or other amounts that are not listed in Exhibit A.

8. PRICE ADJUSTMENTS.

8.1 The price(s) stated in this Contract shall not increase for the entire five-year term of the Contract. The prices shall also not increase during the two (2), two-year renewal 161
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5 option terms unless the City approves a price adjustment in writing in accordance with the following terms:

8.1.1 Price increases shall only be allowed when justified in the City’s sole discretion based on legitimate, bona fide increases in the cost of materials and in the cost of labor for Installation Services as set forth in Section 8.1.3 of this Contract. No adjustment shall be made to compensate the Company for inefficiency in operation, increase in labor costs associated with the manufacture of the Products, or for additional profit.

8.1.2 To obtain approval for a price increase, the Company shall submit a written request to the Procurement Management Division representative, at the address listed below, together with written documentation sufficient to demonstrate that the increase is necessary based on a legitimate increase in the cost of materials and Installation Services. The request must state and fully justify the proposed price increase per unit or per installation over the price originally proposed.

City of Charlotte
M&FS Finance Office / Procurement Management
600 East Fourth Street
Charlotte, NC 28202

8.1.3 Except as provided below, no proposed price increase shall be valid unless accepted by the City in writing. The City may approve such price increase for the remaining term of the Contract or for a shorter specified period, in the City’s sole discretion. If the City rejects such price increase, the Company shall continue performance of the Contract. Price adjustments, including increases and decreases, shall be made for Installation Services in accordance with the percentage change in the U.S. Department of Labor Producer Price Index (PPI), Industry Group Construction – Item Code 2381-Foundation, Structure, and Building Exterior Contractors if such percentage exceeds two percent (2%). The percentage difference between the PPI issued for October, 2017, and the PPI issued for each October of the year of requested adjustment will determine the maximum allowable adjustment of the original Contract prices for Installation Services.

8.1.4 If the City approves a price increase pursuant to this Section and the market factors justifying the increase shift so that the increase is no longer justified, the City shall have the right to terminate the price increase and revert back to the prices that were in effect immediately prior to the increase. The Company shall notify the City in writing if the market factors on which the City granted the increase change such that the City’s reasons for granting the increase longer apply.

8.2 If the Company's unit prices for any Products and/or Services should decrease, the Company shall provide the affected Products and/or Services at the lower discounted price. The Company will provide the City with prompt written notice of all decreases in unit prices.

8.3 If a Product becomes unavailable, or if a new Product becomes available, the Company promptly will send the City a proposed revised version of Exhibit A.

The City reserves the right to add or delete items to this Contract if particular items should become discontinued or an upgraded item becomes available to the industry 162
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6 market. Any new or replacement items added may be subject to Proposal statute requirements. At no additional cost to the City, the Company may substitute any Product or Service to be provided by the Company, if the substitute meets or exceeds the Specifications, is compatible with the City’s operating environment and is of equivalent or better quality to the City. Any substitution will be reflected in a written signed change order.

9. BILLING. Each invoice sent by the Company shall include all reports, information and data required by this Contract (including the Exhibits) necessary to entitle the Company to the requested payment. The Company shall send one (1) copy only of each invoice using one of the following options:

Option 1 – E-mail one copy of each invoice to [email protected] . Company shall not mail invoices that have been sent via e-mail.

Option 2 – Mail one copy of each invoice to:

City of Charlotte Accounts Payable
PO Box 37979
Charlotte, NC 28237-7979
Attn: (Insert Department)
The City is not tax exempt from sales tax. The Company shall include all applicable State and County sales taxes on the invoice and not combined with the cost of the goods.

Payment of invoices shall be due within thirty (30) days after the City has received all of the following: (a) an accurate, properly submitted invoice, (b) all reports due for the month covered by the invoice; and (c) any other information reasonably requested by the City to verify the charges contained in the invoice. Invoices must include state and local sales tax.

10. CONTRACT MONITORING. The City shall have the right to audit the Company’s compliance with the terms and conditions of the Contract at such times as the City deems appropriate. Unless the City elects to terminate the Contract, the Company shall develop a written action plan to correct any Contract deficiency identified during these compliance audits, and shall submit such plan to the City within thirty (30) days of notification of noncompliance.

11. REPORTING. The Company shall provide such written reports of purchasing and expenditures as may be requested by the City from time to time, including without limitation any reports described in the Specifications.

12. AUDIT. During the term of the Contract and for a period of three (3) years after termination or expiration of this Contract for any reason, the City shall have the right to audit, either itself or through a third party, all books and records (including but not limited to the technical records) and facilities of the Company necessary to evaluate Company’s compliance with the terms and conditions of the Contract or the City’s payment obligations. The City shall pay its own expenses, relating to such audits, but shall not have to pay any expenses or additional costs of the Company. However, if non-compliance is found that would have cost the City in excess of $5,000 but for the audit, then the Company shall be required to reimburse the City for the cost of the audit.

13. GENERAL WARRANTIES. Company represents and warrants that:

13.1 It is a corporation duly incorporated, validly existing and in good standing under the laws of the state of Washington, and is qualified to do business in North Carolina; 163
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7 13.2 It has all the requisite corporate power and authority to execute, deliver and perform its obligations under this Contract;

13.3 The execution, delivery, and performance of this Contract have been duly authorized by Company;

13.4 No approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Contract;

13.5 In connection with its obligations under this Contract, it shall comply with all applicable federal, state and local laws and regulations and shall obtain all applicable permits and licenses; and

13.6 The Company shall not violate any agreement with any third party by entering into or performing this Contract.

14. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Company represents warrants and covenants that:

14.1 The Products and Services shall comply with all requirements set forth in this Contract, including but not limited to the attached Exhibits;

14.2 All work performed by the Company and/or its subcontractors pursuant to this Contract shall meet industry accepted standards, and shall be performed in a professional and workmanlike manner by staff with the necessary skills, experience and knowledge;

14.3 Neither the Services, nor any Products provided by the Company under this Contract will infringe or misappropriate any patent, copyright, trademark or trade secret rights of any third party; and

14.4 The Company and each of its subcontractors have complied and shall comply in all material respects with all applicable federal, state and local laws, regulations and guidelines relating to the performance of this Contract or to the Products and Services delivered hereunder, including but not limited to E-Verify, and shall obtain all applicable verifications, permits, and licenses.

15. COMPLIANCE WITH LAWS. All Products and Services delivered under this Contract shall be in compliance with all applicable federal, state and local laws, regulations and ordinances. In performing the Contract, the Company shall obtain and maintain all licenses and permits, and comply with all federal, state and local laws, regulations and ordinances.

16. DELIVERY TIME. When delivery time is requested in the RFP, (whether in the form of a specific delivery date or maximum number of days for delivery) time is of the essence.

The Company’s Proposal shall be deemed a binding commitment of the Company to meet the delivery time stated herein unless the Proposal specifically takes exception. If such delivery time is not met, the City shall be entitled to terminate the Contract immediately for default and/or exercise any other remedies available at law or in equity.

17. QUALITY. Unless this Contract specifically states otherwise for a particular item, all components used to manufacture or construct any supplies, materials or equipment or Products provided under this Contract shall be: (a) new; (b) the latest model; (c) of the best quality and high-grade workmanship; and (d) in compliance with all applicable federal, state and local laws, regulations and requirements. By “new”, the City means that the item has been recently produced and has not been previously sold or used. 164
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8 Whenever this Contract states that a Product or Service shall be in accordance with laws, ordinances, building codes, underwriter’s codes, applicable A.S.T.M. regulations or similar expressions, the requirements of such laws, ordinances, etc., shall be construed to be minimum requirements that are in addition to any other requirements that may be stated in this Contract.

18. DESIGN AND/OR MANUFACTURER REQUIREMENT. All Products and Services shall meet the Specifications set forth in Section 4 of the RFP.

19. INSPECTION AT COMPANY’S SITE. The City reserves the right to inspect the equipment, plant, store or other facilities of the Company during the Contract term from time to time as the City deems necessary to confirm that such equipment, plant, store or other facilities conform with the Specifications and are adequate and suitable for proper and effective performance of the Contract. Such inspections shall be conducted during normal business hours and upon at least three (3) days’ notice to the Company (except that a store may be inspected at any time during regular store hours without notice).

20. PREPARATION FOR DELIVERY.

20.1 Condition and Packaging. All containers/packaging shall be suitable for handling, storage or shipment, without damage to the contents. The Company shall make shipments using the minimum number of containers consistent with the requirements of safe transit, available mode of transportation routing. The Company will be responsible for confirming that packing is sufficient to assure that all the materials arrive at the correct destination in an undamaged condition ready for their intended use.

20.2 Marking. All cartons shall be clearly identified with the City purchase order number and the name of the department making the purchase. Packing lists must be affixed to each carton identifying all contents included in the carton. If more than one carton is shipped, each carton must be numbered and must state the number of that carton in relation to the total number of cartons shipped (i.e. 1 of 4, 2 of 4, etc).

20.3 Shipping. The Company shall follow all shipping instructions included in the RFP, the City’s purchase order or in the Contract.

21. ACCEPTANCE OF PRODUCTS/SERVICES. The Products delivered under this Contract shall remain the property of the Company until the City physically inspects, actually uses and accepts the Products. In the event Products provided to the City do not comply with the Contract, the City shall be entitled to terminate the Contract upon written notice to the Company and return such Products (and any related goods) to the Company at the Company’s expense. In the event the Services provided under this Contract do not comply with the Contract, the City reserves the right to cancel the Service and rescind any related purchase of Products upon written notice to the Company. The remedies stated in this Section are in addition to and without limitation of any other remedies that the City may have under the Contract, at law or in equity.

22. GUARANTEE. Unless otherwise specified by the City, the Company guarantees the materials and workmanship on all Products and Services for the guarantee period associated with a specific product or services, as specified in Company documentation and quotation. If, within the guarantee period any defects occur due to a faulty Product or Services (including without limitation a failure to comply with the Specifications), the Company at its expense, shall repair or adjust the condition, or replace the Product and/or Services to the complete satisfaction of the City. These repairs, replacements or 165
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9 adjustments shall be made only at such time as will be designated by the City to ensure the least impact to the operation of City business.

23. NO LIENS. All Products shall be delivered and shall remain free and clear of all liens and encumbrances.

24. MANUFACTURER OR DEALER ADVERTISEMENT. No manufacturer or dealer shall advertise on Products delivered to the City without prior approval by the City.

25. RIGHT TO COVER. If the Company fails to comply with any term or condition of the Contract or the Company’s response to the RFP, the City may take any of the following actions with or without terminating the Contract, and in addition to and without limiting any other remedies it may have:
(A) Employ such means as it may deem advisable and appropriate to obtain the applicable Products and/or Services (or reasonable substitutes) from a third party; and
(B) Recover from the Company the difference between what the City paid for such Products and/or Services on the open market and the price of such Products and/or Services under the Contract or the Company’s response to the RFP.

26. RIGHT TO WITHHOLD PAYMENT. If Company breaches any provision of the Contract the City shall have the right to withhold all payments related to the breach due to the Company until such breach has been fully cured.

27. OTHER REMEDIES. Upon breach of the Contract, each party may seek all legal and equitable remedies to which it is entitled. The remedies set forth herein shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, in addition to any other available remedy.

28. TERMINATION.

28.1 TERMINATION WITHOUT CAUSE. The City may terminate this Contract at any time without cause by giving sixty (60) days written notice to the Company. The Company may terminate this Contract at any time without cause by giving one hundred and eighty (180) days written notice to the City.

28.2 TERMINATION FOR DEFAULT BY EITHER PARTY. By giving written notice to the other party, either party may terminate this Contract upon the occurrence of one or more of the following events:

28.2.1 The other party violates or fails to perform any covenant, provision, obligation, term or condition contained in this Contract, provided that, unless otherwise stated in this Contract, such failure or violation shall not be cause for termination if both of the following conditions are satisfied: (i) such default is reasonably susceptible to cure; and (ii) the other party cures such default within thirty (30) days of receipt of written notice of default from the non-defaulting party; or

28.2.2 The other party attempts to assign, terminate or cancel this Contract contrary to the terms hereof; or

28.2.3 The other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in connection with a reorganization under which the business of such party is continued and 166
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10 performance of all its obligations under this Contract shall continue), or if a receiver, trustee or liquidator is appointed for it or any substantial part of other party’s assets or properties.

Any notice of default pursuant to this Section shall identify and state the party’s intent to terminate this Contract if the default is not cured within the specified period.

28.3 ADDITIONAL GROUNDS FOR DEFAULT TERMINATION BY THE CITY. By giving written notice to the Company, the City may also terminate this Contract upon the occurrence of one or more of the following events (which shall each constitute grounds for termination without a cure period and without the occurrence of any of the other events of default previously listed):

28.3.1 The Company makes or allows to be made any material written misrepresentation or provides any materially misleading written information in connection with this Contract, Company’s Proposal, or any covenant, agreement, obligation, term or condition contained in this Contract; or

28.3.2 The Company takes or fails to take any action which constitutes grounds for immediate termination under the terms of this Contract, including but not limited to failure to obtain or maintain the insurance policies and endorsements as required by this Contract, or failure to provide the proof of insurance as required by this Contract.

28.4 NO EFFECT ON TAXES, FEES, CHARGES, OR REPORTS. Any termination of the Contract shall not relieve the Company of the obligation to pay any fees, taxes or other charges then due to the City, nor relieve the Company of the obligation to file any daily, monthly, quarterly or annual reports covering the period to termination nor relieve the Company from any claim for damages previously accrued or then accruing against the Company.

28.5 OBLIGATIONS UPON EXPIRATION OR TERMINATION. Upon expiration or termination of this Contract, the Company shall promptly (a) return to the City all computer programs, files, documentation, data, media, related material and any other recording devices, information, or compact discs that are owned by the City; (b) provide the City with sufficient data necessary to migrate to a new vendor, or allow the City or a new vendor access to the systems, software, infrastructure, or processes of the Company that are necessary to migrate to a new vendor; and (c) refund to the City all pre-paid sums for Products or Services that have been cancelled and will not be delivered.

28.6 NO SUSPENSION. In the event that the City disputes in good faith an allegation of default by the Company, notwithstanding anything to the contrary in this Contract, the Company agrees that it will not terminate this Contract or suspend or limit the delivery of Products or Services or any warranties or repossess, disable or render unusable any Software supplied by the Company, unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction determines otherwise.

28.7 AUTHORITY TO TERMINATE. The City Manager or their designee is authorized to terminate this Contract on behalf of the City.

28.8 TRANSITION SERVICES UPON TERMINATION. Upon termination or expiration of this Contract, the Company shall cooperate with the City to assist with the orderly transfer of the Products, Services, functions and operations provided by the Company 167
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11 hereunder to another provider or to the City as determined by the City in its sole discretion. The transition services that the Company shall perform if requested by the City include but are not limited to:

28.8.1 Working with the City to jointly develop a mutually agreed upon transition services plan to facilitate the termination of the Services; and

28.8.2 Notifying all affected vendors and subcontractors of the Company of transition activities;

28.8.3 Performing the transition service plan activities;

28.8.4 Answering questions regarding the Products and Services on an as-needed basis; and

28.8.5 Providing such other reasonable Services needed to effectuate an orderly transition to a new system.

29. NO DELAY DAMAGES. Under no circumstances shall the City be liable to the Company for any damages arising from delay in performance for reasons other than a Force Majeure Event.

30. MULTIPLE CONTRACT AWARDS. This Contract is not exclusive. The City reserves the right to award multiple contracts for the Products and Services required by this Contract if the City deems multiple Contracts to be in the City’s best interest.

31. RELATIONSHIP OF THE PARTIES. The relationship of the parties established by this Contract is solely that of independent contractors, and nothing contained in this Contract shall be construed to (i) give any party the power to direct or control the day-to-day activities of the other; (ii) constitute such parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking; (iii) make either party an agent of the other for any purpose whatsoever, or (iv) give either party the authority to act for, bind, or otherwise create or assume any obligation on behalf of the other. Nothing herein shall be deemed to eliminate any fiduciary duty on the part of the Company to the City that may arise under law or under the terms of this Contract.

32. INDEMNIFICATION. To the fullest extent permitted by law, the Company shall indemnify, defend and hold harmless each of the “Indemnitees” (as defined below) from and against any and all “Charges” (as defined below) paid or incurred any of them as a result of any claims, demands, lawsuits, actions, or proceedings: (i) alleging violation, misappropriation or infringement of any copyright, trademark, patent, trade secret or other proprietary rights with respect to the Work or any Products or deliverables provided to the City pursuant to this Contract (“Infringement Claims”); (ii) seeking payment for labor or materials purchased or supplied by the Company or its subcontractors in connection with this Contract; or (iii) arising from the Company’s failure to perform its obligations under this Contract, or from any act of negligence or willful misconduct by the Company or any of its agents, employees or subcontractors relating to this Contract, including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal, tangible or intangible; or (iv) arising from a violation of any federal, state or local law, regulation or ordinance by the Company or any its subcontractors (including without limitation E-Verify or other immigration laws); or (v) arising from any claim that the Company or an employee or subcontractor of the Company is an employee of the City, including but not limited to claims relating to worker’s compensation, failure to withhold taxes and the like. For purposes of this Section: (a) the term “Indemnitees” means the City 168
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12 and each of the City’s officers, officials, employees, agents and independent contractors (excluding the Company); and (b) the term “Charges” means any and all losses, damages, costs, expenses (including reasonable attorneys’ fees), obligations, duties, fines, penalties, royalties, interest charges and other liabilities (including settlement amounts) or any other legal theory or principle, in connection with an Infringement Claim.

33. INSURANCE. Throughout the term of the Contract, the Company shall comply with the insurance requirements described in this Section. In the event the Company fails to procure and maintain each type of insurance required by this Section, or in the event the Company fails to provide the City with the required certificates of insurance, the City shall be entitled to terminate the Contract immediately upon written notice to the Company.

The Company agrees to purchase and maintain the following insurance coverage during the life of the Contract with an insurance company acceptable to the City of Charlotte, authorized to do business in the State of North Carolina:
(A) Automobile Liability: Bodily injury and property damage liability covering all owned, non-owned, and hired automobiles for limits of not less than $1,000,000 bodily injury each person, each accident; and, $1,000,000 property damage, or $1,000,000 combined single limit each occurrence/aggregate. (B) Commercial General Liability: Bodily injury and property damage liability as shall protect the Company and any subcontractor performing work under the Contract from claims of bodily injury or property damage which arise from performance of the Contract, whether such work is performed by the Company, any subcontractor or anyone directly or indirectly employed by either. The amounts of such insurance shall not be less than $1,000,000 bodily injury each occurrence/aggregate and $1,000,000 property damage each occurrence/aggregate or $1,000,000 bodily injury and property damage combined single limits each occurrence/aggregate. This insurance shall include coverage for Products, Services, completed operations, personal injury liability and contractual liability assumed under the indemnity provision of the Contract. (C) Workers’ Compensation: Meeting the statutory requirements of the State of North Carolina and Employers Liability - $100,000 per accident limit, $500,000 disease per policy limit, $100,000 disease each employee limit, providing coverage for employees and owners.

The City shall be named as additional insured under the commercial general liability insurance for operations or Services rendered under this Contract. The Company’s insurance shall be primary of any self-funding and/or insurance otherwise carried by the City for all loss or damages arising from the Consultant’s operations under this agreement.

The Company and each of its subcontractors shall and does waive all rights of subrogation against the City and each of the Indemnitees, as defined in Section 32.

The Company shall not commence any work in connection with the Contract until it has obtained all of the types of insurance set forth in this Form, and such insurance has been approved by the City. The Company shall not allow any subcontractor to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and approved.

All insurance policies shall be with insurers qualified and doing business in North Carolina recognized by the Secretary of State and the Insurance Commissioner’s Office. The Company shall furnish the City with proof of insurance coverage by certificates of insurance accompanying the Contract.
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13 All insurance certificates must include the City of Charlotte’s contract number in the description field.

The City shall be exempt from, and in no way liable for any sums of money that may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the Company and/or subcontractor providing such insurance.

34. COMMERCIAL NON-DISCRIMINATION.

As a condition of entering into this Contract, the Company represents and warrants that it will fully comply with the City's Commercial Non-Discrimination Policy, as described in Section 2, Article V of the Charlotte City Code, and consents to be bound by the award of any arbitration conducted thereunder. As part of such compliance, the Company shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, age or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors or suppliers in connection with a City contract or contract solicitation process, nor shall the Company retaliate against any person or entity for reporting instances of such discrimination. The Company shall provide equal opportunity for subcontractors, vendors and suppliers to participate in all of its subcontracting and supply opportunities on City contracts, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has occurred or is occurring in the marketplace. The Company understands and agrees that a violation of this clause shall be considered a material breach of this Contract and may result in termination of this Contract, disqualification of the Company from participating in City contracts or other sanctions.

As a condition of entering into this Contract, the Company agrees to: (a) promptly provide to the City in a format specified by the City all information and documentation that may be requested by the City from time to time regarding the solicitation, selection, treatment and payment of subcontractors in connection with this Contract; and (b) if requested, provide to the City within sixty (60) days after the request a truthful and complete list of the names of all subcontractors, vendors, and suppliers that the Company has used on City contracts in the past five (5) years, including the total dollar amount paid by the Company on each subcontract or supply contract. The Company further agrees to fully cooperate in any investigation conducted by the City pursuant to the City’s Non-Discrimination Policy, to provide any documents relevant to such investigation that are requested by the City, and to be bound by the award of any arbitration conducted under such Policy.

The Company agrees to provide to the City from time to time on the City’s request, payment affidavits detailing the amounts paid by the Company to subcontractors and suppliers in connection with this Contract within a certain period of time. Such affidavits shall be in the format specified by the City from time to time The Company understands and agrees that violation of this Commercial NonDiscrimination provision shall be considered a material breach of this Contract and may result in contract termination, disqualification of the Company from participating in City contracts and other sanctions.

35. COMPANY WILL NOT SELL OR DISCLOSE DATA. The Company will treat as confidential information all data provided by the City in connection with this agreement.

City data processed by the Company shall remain the exclusive property of the City. The Company will not reproduce, copy, duplicate, disclose, or in any way treat the data supplied by the City in any manner except that contemplated by this agreement. 170
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14 36. WORK ON CITY’S PREMISES. The Company will ensure that its employees and agents shall, whenever on the City’s premises, obey all instructions and directions issued by the City’s project manager with respect to work on the City’s premises. The Company agrees that its personnel and the personnel of its subcontractors will comply with all rules, regulations and security procedures of the City when on the City’s premises.

37. BACKGROUND CHECKS. The Company agrees that it has conducted or will conduct background checks on all personnel who will be working at the Charlotte service facility or delivering Products or Services under the Contract. The Company will conduct such background checks prior to the personnel commencing work hereunder, whether as part of the Company’s standard pre-employment screening practices or otherwise. The Company will complete a background check on an annual basis for each person working at the Charlotte facility. Background check will include at a minimum:
a. Criminal records search,
b. Identification verification; and
c. Proof of authorization to work in the United States.

The Company agrees if any personnel does not meet the background qualifications, he/she shall not be assigned to perform Services under this Contract. The Company will notify the City immediately if a background check reveals any conviction(s). If there is any question as to whether any personnel meets the background qualifications, prior to assignment of any Services under this Contract, the Company shall contact the City immediately.

38. DRUG-FREE WORKPLACE. The City is a drug-free workplace employer. The Company hereby certifies that it has or it will within thirty (30) days after execution of this Contract:

38.1 Notify employees that the unlawful manufacture, distribution, dispensation, possession, or use of controlled substance is prohibited in the workplace and specifying actions that will be taken for violations of such prohibition;

38.2 Establish a drug-free awareness program to inform employees about (i) the dangers of drug abuse in the workplace, (ii) the Company’s policy of maintaining a drug-free workplace, (iii) any available drug counseling, rehabilitation, and employee assistance programs, and (iv) the penalties that may be imposed upon employees for drug abuse violations;

38.3 Notify each employee that as a condition of employment, the employee will (i) aProposale by the terms of the prohibition outlined above, and (ii) notify the Company of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction;

38.4 Impose a sanction on, or requiring the satisfactory participation in a drug counseling, rehabilitation or abuse program by an employee convicted of a drug crime;

38.5 Make a good faith effort to continue to maintain a drug-free workplace for employees; and

38.6 Require any party to which it subcontracts any portion of the work under the contract to comply with the provisions of this Section.

A false certification or the failure to comply with the above drug-free workplace requirements during the performance of this Contract shall be ground for suspension, termination or debarment.
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15 39. NOTICES. Any notice, consent or other communication required or contemplated by this Contract shall be in writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic mail or by telefax to the intended recipient at the address set forth below. Notice shall be effective upon the date of receipt by the intended recipient; provided that any notice which is sent by telefax or electronic mail shall also be simultaneously sent by mail deposited with the U.S. Postal Service or by overnight courier.

Each party may change its address for notification purposes by giving the other party written notice of the new address and the date upon which it shall become effective.

Communications that relate to any breach, default, termination, delay in performance, prevention of performance, modification, extension, amendment, or waiver of any provision of this Contract shall be sent to:

For The Company: For The City:

Kerrin Smith Karen Ewing
Kompan, Inc. Procurement Management Division
821 Grand Avenue Parkway 600 East Fourth Street
Pflugerville, TX 78660 Charlotte, NC 28202
Phone: 888.579.8223 Phone: 704.336.2992
Fax: 888.579.8224 Fax: 704.632.8254
E-mail: [email protected] E-mail: [email protected] With Copy To: With Copy To:

Cindy White
Senior Assistant City Attorney
600 East Fourth Street
Charlotte, NC 28202
Phone: 704-336-3012
Fax: 704-336-8854
E-mail: [email protected]
All other notices shall be sent to the other party’s Project Manager at the most recent address provided in writing by the other party.

40. SUBCONTRACTING. The Company shall not subcontract any of its obligations under this Contract without the City’s prior written consent. In the event the City does consent in writing to a subcontracting arrangement, Company shall be the prime contractor and shall remain fully responsible for performance of all obligations which it is required to perform under this Contract. Any subcontract entered into by Company shall name the City as a third party beneficiary.

41. FORCE MAJEURE. Neither party shall be liable for any failure or delay in the performance of its obligations pursuant to the Contract, and such failure or delay shall not be deemed a default of the Contract or grounds for termination hereunder if all of the following conditions are satisfied:

If such failure or delay:

A. Could not have been prevented by reasonable precaution; B. Cannot reasonably be circumvented by the non-performing party through the use of alternate sources, work-around plans, or other means; and C. If, and to the extent, such failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions or court order. 172
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16 An event that satisfies all of the conditions set forth above shall be referred to as a “Force Majeure Event.” Upon the occurrence of a Force Majeure Event, the affected party shall be excused from any further performance of those of its obligations which are affected by the Force Majeure Event for as long as (a) such Force Majeure Event continues and (b) the affected party continues to use reasonable efforts to recommence performance whenever and to whatever extent possible without delay.

Upon the occurrence of a Force Majeure Event, the affected party shall promptly notify the other by telephone (to be confirmed by written notice within five (5) days of the inception of the failure or delay) of the occurrence of a Force Majeure Event and shall describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event prevents the Company from performing its obligations for more than fifteen (15) days, the City shall have the right to terminate the Contract by written notice to the Company.

Notwithstanding anything contained herein to the contrary, strikes, slow-downs, walkouts, lockouts, and industrial disputes of the Company or its subcontractors shall not constitute “Force Majeure Events” and are not excused under this provision. Nothing in the preceding Force Majeure provisions shall relieve the successful Company of any obligation it may have regarding disaster recovery, whether under the Contract or at law.

42. CONFIDENTIALITY. Each party shall adhere to the Confidentiality Terms stated in Exhibit H of this Contract.

43. MISCELLANEOUS.

43.1 ENTIRE AGREEMENT. This Contract, including all Exhibits and Attachments constitute the entire agreement between the parties with respect to the subject matter herein. There are no other representations, understandings, or agreements between the parties with respect to such subject matter. This Contract supersedes all prior agreements, negotiations, representations and proposals, written or oral.

Notwithstanding the forgoing, the parties agree that the RFP and the Proposal are relevant in resolving any ambiguities that may exist with respect to the language of this Contract

43.2 AMENDMENT. No amendment or change to this Contract shall be valid unless in writing and signed by the party against whom enforcement is sought. Amendments that involve or increase in the amounts payable by the City may require execution by a Department Director, the City Manager, or an Assistant City Manager; depending on the amount. Some increases may also require approval by City Council.

43.3 GOVERNING LAW AND JURISDICTION. North Carolina law shall govern the interpretation and enforcement of this Contract, and any other matters relating to this Contract (all without regard to North Carolina conflicts of law principles). All legal actions or other proceedings relating to this Contract shall be brought in a state or federal court sitting in Mecklenburg County, North Carolina. By execution of this Contract, the parties submit to the jurisdiction of such courts and hereby irrevocably waive any and all objections which they may have with respect to venue in any court sitting in Mecklenburg County, North Carolina.

43.4 BINDING NATURE AND ASSIGNMENT. This Contract shall bind the parties and their successors and permitted assigns. Neither party may assign this Contract without the prior written consent of the other. Any assignment attempted without the written consent of the other party shall be void. For purposes of this Section, a Change in Control, as defined in Section 43.8 constitutes an assignment. 173
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17 43.5 SEVERABILITY. The invalidity of one or more of the phrases, sentences, clauses or sections contained in this Contract or the Exhibits shall not affect the validity of the remaining portion of this Contract or Exhibits so long as the material purposes of this Contract can be determined and effectuated. If any provision of this Contract or Exhibit is held to be unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Contract shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent.

43.6 NO PUBLICITY. No advertising, sales promotion or other materials of the Company or its agents or representations may identify or reference this Contract or the City in any manner without the prior written consent of the City.

Notwithstanding the forgoing, the parties agree that the Company may list the City as a reference in responses to requests for proposals, and may identify the City as a customer in presentations to potential customers.

43.7 WAIVER. No delay or omission by either party to exercise any right or power it has under this Contract shall impair or be construed as a waiver of such right or power.

A waiver by either party of any covenant or breach of this Contract shall not constitute or operate as a waiver of any succeeding breach of that covenant or of any other covenant. No waiver of any provision of this Contract shall be effective unless in writing and signed by the party waiving the rights.

43.8 CHANGE IN CONTROL. In the event of a change in “Control” of the Company (as defined below), the City shall have the option of terminating this Contract by written notice to the Company. The Company shall notify the City within ten (10) days of the occurrence of a change in control. As used in this Contract, the term “Control” shall mean the possession, direct or indirect, of either (i) the ownership of or ability to direct the voting of, as the case may be fifty-one percent (51%) or more of the equity interests, value or voting power in the Company or (ii) the power to direct or cause the direction of the management and policies of the Company whether through the ownership of voting securities, by contract or otherwise.

43.9 NO BRIBERY. The Company certifies that neither it, any of its affiliates or subcontractors, nor any employees of any of the forgoing has bribed or attempted to bribe an officer or employee of the City in connection with this Contract.

43.10 FAMILIARITY AND COMPLIANCE WITH LAWS AND ORDINANCES. The Company agrees to make itself aware of and comply with all local, state and federal ordinances, statutes, laws, rules and regulations applicable to the Services. The Company further agrees that it will at all times during the term of this Contract be in compliance with all applicable federal, state and/or local laws regarding employment practices. Such laws will include, but shall not be limited to workers’ compensation, the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and all OSHA regulations applicable to the work.

43.11 TAXES. The Company shall pay all applicable federal, state and local taxes which may be chargeable against the Products and/or Services. 174
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18 43.12 SURVIVAL OF PROVISIONS: Those Sections of the Contract and the Exhibits, which by their nature would reasonably be expected to continue after the termination of the Contract shall survive the termination of the Contract, including but not limited to the following:

Section 3 “Term”
Section 12 “Audit”
Section 13 “General Warranties”
Section 14 “Additional Representations and Warranties”
Section 22 “Guarantee”
Section 27 “Other Remedies”
Section 28 “Termination”
Section 32 “Indemnification”
Section 33 “Insurance”
Section 39 “Notices”
Section 42 “Confidentiality”
Section 43 “Miscellaneous”

43.13 NON-APPROPRIATION OF FUNDS. If City Council does not appropriate the funding needed by the City to make payments under this Contract for a given fiscal year, the City will not be obligated to pay amounts due beyond the end of the last fiscal year for which funds were appropriated. In such event, the City will promptly notify the Company of the non-appropriation and this Contract will be terminated at the end of the last fiscal year for which funds were appropriated. No act or omission by the City, which is attributable to non-appropriation of funds shall constitute a breach of or default under this Contract.

43.14 E-VERIFY. Company shall comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes, and shall require each of its subcontractors to do so as well.

43.15 IRAN DIVESTMENT ACT. Company certifies that: (i) it is not identified on the Final Divestment List or any other list of prohibited investments created by the NC State Treasurer pursuant to N.C.G.S. 147-86.58; (ii) it will not take any action causing it to appear on any such list during the term of this Contract; and (iii) it will not utilize any subcontractor that is identified on any such list to provide goods or Services hereunder.

43.16 PRE-AUDIT. No pre-audit certificate is required under N.C. Gen. Stat. 159-28(a) because this Contract is for an indefinite quantity with no minimum purchase requirement. Notwithstanding anything contained herein to the contrary, this Contract does not require the City to purchase a single Product or service, and a decision by the City to not make any purchase hereunder will violate neither this Contract nor any implied duty of good faith and fair dealing. The City has no 175
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19 financial obligation under this Contract absent the City’s execution of a valid and binding purchase order or contract addendum containing a pre-audit certificate.”

43.17 UNIFORM ADMINISTRATIVE REQUIREMENTS
By entering into this Contract, the Company agrees to comply with all applicable provisions of Title 2, Subtitle A, Chapter II, Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards contained in Title 2 C.F. R. § 200 et seq.

43.18 COUNTERPARTS.

This Contract may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties. [Signature Page Follows]
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177
Shelter Price List #3000-2017
3/8/2017 4 OF 4
Item No. Description Diameter Price
SII-8032D-MR29
Steel Frame, 8000 Series, Double Tier Hexagonal, with
Metal Roof and Tongue & Groove Roof Decking 32' $27,272 SII-8516P Pittsburgh, 8500 Series, Octagonal Shelter, All Steel with 24- Guage Pre-Cut Metal Roof 16'
$9,997
SII-8524P
Pittsburgh, 8500 Series, Octagonal Shelter, All Steel with 24- Guage Pre-Cut Metal Roof 24' $16,363
SII-8516-FS
Steel Frame, 8500 Series, Octagonal Shelter with Fiberglass Shingles & Tongue & Groove Roof Decking 16' $10,139
SII-8524-FS
Steel Frame, 8500 Series, Octagonal Shelter with Fiberglass Shingles & Tongue & Groove Roof Decking 24' $17,191
SII-8516-MR29
Steel Frame, 8500 Series, Octagonal Shelter with Metal
Roof and Tongue & Groove Roof Decking 16' $10,935
SII-8524-MR29
Steel Frame, 8500 Series, Octagonal Shelter with Metal
Roof and Tongue & Groove Roof Decking 24' $18,226
SII-8524DP
Pittsburgh, 8500 Series, Octagonal Shelter, All Steel with 24- Guage Pre-Cut Metal Roof 24' $18,592
SII-8532DP
Pittsburgh, 8500 Series, Octagonal Shelter, All Steel with 24- Guage Pre-Cut Metal Roof 32' $28,164
SII-8524D-FS
Steel Frame, 8500 Series, Double Tier Octagonal w
Fiberglass Shingles & Tongue & Groove Roof Decking 24' $17,168 SII-8532D-FS
Steel Frame, 8500 Series, Double Tier Octagonal w
Fiberglass Shingles & Tongue & Groove Roof Decking 32' $29,285 SII-8524D-MR29
Steel Frame, 8500 Series, Double Tier Octagonal, with
Metal Roof and Tongue & Groove Roof Decking 24' $20,055 SII-8532D-MR29
Steel Frame, 8500 Series, Double Tier Octagonal, with
Metal Roof and Tongue & Groove Roof Decking 32' $32,040 Prices do not include freight, installation or engineered drawings 178
Musical Pieces Price List #4000-2017
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Item No. Description Price
FRN-CADENCE 13 Note Tenor Marimba In Ground $3,790.00
FRN-CONTRABASSCHIMES 7 Aluminum Chimes In Ground $5,678.00

FRN-DUET
18 Note Resonated
Xylophone/Marimba In Ground $3,726.00
FRN-IMBARIMBA 22 Note Resonated Marimba In Ground $4,682.00 FRN-LILYPADCYMBALS 10 Note Aluminum Discs In Ground $2,800.00 FRN-MANTARAY 36 Note Metallophone In Ground or Surface Mount $4,695.00 FRN-PAGODABELLS 8 Stainless Steel Bells In Ground $3,718.00 FRN-PEGASUS 23 Note Resonated Metallophone In Ground $4,549.00 FRN-SWIRL 26 Note Resonated Metallophone In Ground $5,652.00 FRN-TUNEDDRUMS Set of 5 PVC Hand Drums-Normal In Ground $3,218.00 FRN-TODDTUNEDDRUMS Set of 5 PVC Hand Drums-Toddler In Ground $3,609.00 FRN-YANTZEE 10 Bass Note Resonated MetallophoIn Ground $4,308.00 FRN-ARIA 9 Note Non-resonated Xylophone In Ground $1,938.00 FRN-GRIFFIN 11 Note Resonated Metallophone In Ground $3,252.00

FRN-JACK
11 Note Resonated Metallophone
on molded plastic frame In Ground $2,585.00
FRN-JILL 11 Note Resonated Marimba In Ground $2,585.00
FRN-MELODY 9 Note Resonated Xylophone In Ground $1,783.00 FRN-MERRY 11 Note Resonated Metallophone In Ground $2,619.00 FRN-RHYTHM 9 Note Resonated Marimba In Ground $1,783.00

FRN-PIPER
11 Note Resonated Marimba,
fiberglass keys In Ground $2,602.00

ENSEMBLES
FRN-WEENOTES Griffin, Merry & Piper 3 Weenotes $7,702.00 FRN-STARTER Duet, Drums & Yantzee 3 Instruments $10,175.00 FRN-DELUXE Imbarimba, Swirl, Yantzee, Drums 4 Instruments $15,922.00

FRN-PREMIUM
Contrabass Chimes, Imbarimba,
Swirl, Pegasus, Drums 5 Instruments $21,194.00

FRN-SCULPTURAL
Contrabass Chimes, Lilypad
Cymbals, Manta Ray, Swirl, Pagoda
Bells & Aria 6 Instruments $21,896.00
Prices do not include freight or installation
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Park Furniture Installation Price List #5000
3/8/2017 1 OF 1

STATE DESCRIPTION RATE
INSTALLATION Installation of Park Benches $270.00
INSTALLATION Installation of Picnic Tables $310.00
INSTALLATION Installation of Litter Receptacles $230.00 INSTALLATION Installation of Bike Racks $425.00
INSTALLATION Installation of Swing Benches $540.00
INSTALLATION Installation of Planters $310.00
with necessary footing holes
Rates are a maximum allowable percentage rate under the contract. · Assembly of equipment provided by KOMPAN
· Concrete footings (where applicable)
Below is a list of services that are not automatically included in the quote for product installation, but may be available for an extra charge Minimum Installation Fee of $5,000.00
Unless otherwise noted in the quote, the installation charge includes the below:
· Receiving shipment on site and off-loading equipment
· Layout and excavation of footing holes for equipment provided by KOMPAN Installation rates do not include Prevailing Wages. Please ask for a quote with Prevailing Wage Rates, if applicable.
· Off-site disposal of packaging from delivered equipment · Removal of excavated soil from site
· Non-standard working hours (i.e. nights, weekends, holidays) Unless otherwise noted, the quoted installation charge assumes the following · Additional site excavation not involving equipment footings · Permits
· Storage of Equipment
If any of the above site conditions are not met, this may result in an inability to complete the installation and/or may result in additional installation charges. concrete slab, that the slab meets the thickness and strength requirements associated with the equipment.
· Good soil conditions for excavation (i.e. no large rocks, tree roots, underground structures, etc.)
· All underground utilities marked clearly by customer prior to installation crew arriving on site and without those utilities interfering · If products are ordered as “surface mount” and will be anchored to an existing site conditions:
· Adequate access to the site for vehicles and equipment · A flat, level site (less than 1% grade) with no existing surfacing, drain rock, or other landscaping material
· Clear markings of play site borders and finished grade height · Site Fence – Security
· Installation in stages
Please inquire with your local KOMPAN sales associate for details:
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22 EXHIBIT B

INSTALLATION FEES
The following Installation Fees are an Exhibit to and are incorporated into the Contract to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the “Contract”) between the City of Charlotte and Kompan, Inc.
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23 EXHIBIT C

NATIONAL NETWORK OF DISTRIBUTORS AND INSTALLERS
The following National Network of Distributors and Installers is an Exhibit to and are Equipment, Surfacing, Site Accessories and Related Produ incorporated into the Contract to provide Playground Equipment, Outdoor Fitness cts and Services (the “Contract”)
between the City of Charlotte and Kompan, Inc.
182
U.S. Communities Supplier Information Section 7 (continued) x By partnering with best in class suppliers of site amenities, surfacing and other associated playground products, KOMPAN ensures that we always offer the best quality and highest technologically advanced products in their class to the market.

Qualifications, Experience and Project Management Capabilities

1. Identify your company’s authorized distributors and installers by U.S. state:

KOMPAN’s Authorized Distributors by U.S. state
Distributor;ŐĞŶĐLJWĂƌƚŶĞƌͿ Territory by State
ABC Playgrounds Arkansas
All Play+ Pennsylvania
American Athletix Ohio, Michigan
Creative Recreational Design, Inc. New Mexico
Custom Playground Solutions Missouri
Highwire Washington, Hawaii, Alaska
Imagine Nation Illinois, Iowa
K2 Recreation Oregon, Idaho, Washington
Latta's West Virginia
Meaning 2 Play South Carolina
Playspace Design Utah, Idaho, Montana, Nevada
Practice Sports Nebraska
Recreation Insights Kentucky, Indiana
Recreation Republic California
Summit Recreation Colorado, Wyoming
Ultimate Playgrounds Wisconsin, Minnesota, North Dakota, South Dakota Versa Sport Kansas
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Scope of Services Section 4
All equipment must be IPEMA Certified. Certification must be included with your proposal submission.

IPEMA certificates for the sample playgrounds are attached, labeled Exhibit 28

4.7 Installation.

All Products provided under this Contract that require assembly and installation should be performed by the awarded manufacturers’ certified installers. Company must provide the names and addresses of each certified installer/subcontractor by geographical area.

WEST ZONE
Installer Name Installer Address
PSI
1747 Colgate Dr. Thousand Oaks, California
91360
Central Coast Playgrounds
4285 Parkdale Lane, Santa Maria, California
93455
Cicero Engineering
1372 East Valencia Drive, Fullerton, California
92831
Who Built Creative P.O. Box 5207, Petaluma, California 94955 Zasuetta Contracting Inc. Po Box 866, Spring Valley, California 91976 Recreation Science
1310 Sierra Oaks Lane, Colfax, California
95713
T.J Janca Construction Inc.
2328 N. Batavia Street, Orange County,
California 92865-2026
Playgrounds Unlimited
980 Memorex Dr. Santa Clara, California
95050
Perpetual Parks and Playgrounds
43407 Tylman Street, Temecula, California
95292
Creative Contractors
PO Box 80784, Rancho Santa Margarita,
California 92688
(list continued next page…)
446 184
Scope of Services Section 4 (continued)

WEST ZONE
Installer Name Installer Address
Creekmore Recreation Specialists
3203 California Ave, Carmichael, California
95608
K2 Recreation Inc.
7227 N Philadelphia St #403, Portland, Oregon
97203
Takamine Construction 851 Leilani Street, Hilo, Hawaii 96720 Cascade Mini Excavating Inc.
1266 Bay Loop Southwest, Tumwater,
Washington 98512
Cascadian Landscaping
21510 NW Farm Park Dr. Hillsboro, Oregon
97124
Community Playgrounds 200 Commercial, Vallejo, California 94589 G.R. Morgan Construction
10536 S.W. 25th Avenue, Portland, Oregon
97219
Goto Construction Inc.
42-273 Old Kalanianaole Hwy, Kailua, Hawaii
96734
Jayne's Brothers
704 Cayo Grande Court, Newbury Park,
California 91320
R&R Construction Inc.

P.O. Box 8236, Bonney Lake, Washington
98390
Playco Park Builders Inc.
155 South Garrison Street, Lakewood,
Colorado 94954
Progressive Playgrounds 12784 N. 3rd Street, Parker, Colorado 80134 Quality Time Recreation PO Box 471, Clearfield, Utah 84089 (list continued next page…)
447
185
Scope of Services Section 4 (continued)

CENTRAL ZONE
Installer Name Installer Address
Midwest Playground Contractors 500 N. Pine St Suite 104, Chaska, Minnesota 55318 PG Playgrounds 5615 E. Huffman Drive , Kechi, Kansas 67067 Pro Installation Plus 5807 Hibiscus Trail, Crystal Lake, Illinois 60012 Vela Construction 24830 Outer Dr. Lincoln, Michigan 48146 Versasport 2705 N. Pepper Ridge, Wichita, Kansas 67205

EASTERN ZONE
Installer Name Installer Address
Avon Corporation 5621 Vine Street, Alexandria, Virginia 22310 Buzz Burger Inc.
500 S Whitehorse Rd, Phoenixville, Pennsylvania
19428
Custom Park Services 8019 E. Old Jessup Road, Jessup, Maryland 20794 Gassner Contracting 122 Markle Road, Belle Vernon, Pennsylvania 15012 Green Acres Landscape & Construction Co. Inc. 21 Malbone Street, Lakeville, Massachusetts 02347 Level Ground 6251 80th Street, Middle Village, New York 11379 Meaning 2 Play 106 Casco Bay Rd, Irmo, South Carolina 29063 P&J Lawn Landscaping Inc. P.O. Box 104, Harwington, Connecticut 06791 (list continued next page…)
448 186
Scope of Services Section 4 (continued)

EASTERN ZONE
Installer Name Installer Address
P&P Installations
617 Tim Hill Rd (P.O Box 222), Marathon, New York
13803
Pat Corsetti Inc. 610 Fenimore Ave, Mamaroneck, New York 10543 Playtime Installs LLC 501 Maplewood Ave., Mohnton, Pennsylvania 19540 Probuilt P.O. Box 991, Marshfield, Massachusetts 02050
Reale Associates Inc. PO Box 2316, Ocean Bluff, Massachusetts 02065 Reese Construction 3720 Lucky Dr. Apex, North Carolina 27539 Rich Picerno Builders 500 Hoiles Drive, Kenilworth, New Jersey 07033 UA Construction 71 West 23rd Street, New York, New York 10010 Dicarlo Home Improvements 9974 Blackberry Lane, Great Falls, Virginia 22066

MULTIPLE ZONE
Installer Name Installer Address
Evans Recreation P.O. Box 42607, Las Vegas, Nevada 89116 Playgrounds of the Rockies 3295 South Fairplay St, Aurora, Colorado 80014 Green Apex Roofing & Construction LLC 5333 Richmond Ave #15, Houston, Texas 77056 JP and Sons Contracting Inc. 18937 E Vía Del Verde, Queen Creek, Arizona 85142 Michigan Recreational Construction Inc. (MRC) P.O. Box 2127, Brighton, Michigan 48116 Precision Playgrounds Holdings
6440 Southpoint Parkway, Floor 3, Jacksonville,
Florida 32216
The Playground Guys Inc. 5600 SE Lamay Drive, Stuart, Florida 34997 449 187
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EXHIBIT D

FREIGHT RATE SCHEDULES
The following Freight Rate Schedules are an Exhibit to and are incorporated into the Contract to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the “Contract”) between the City of Charlotte and Kompan, Inc.

All freight charges are prepaid to the carrier by KOMPAN and added to the invoice as a separate line item to the customer.
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25 EXHIBIT E

PRODUCT WARRANTIES
The following Product Warranties are an Exhibit to and are incorporated into the Contract to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the “Contract”) between the City of Charlotte and Kompan, Inc.
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Scope of Services Section 4 (continued)

4.12 Warranty.

Proposals should address each of the following:

1. Applicable warranty and/or guarantees of equipment and installations including any conditions and response time for repair and/or replacement of any components during the warranty period.

Warranty documents for all proposed products attached.

Warranty Response Time
Product Response Time
KOMPAN Playground Equipment 4 -8 business days*
KOMPAN Outdoor Fitness Equipment 4 -8 business days*
Engineered Wood Fiber 5 business days
Pour In Place Rubber 5-10 business days
Rubber Mulch 5 business days
Artificial Turf 5-10 business days
Rubber Tiles 5-10 business days
Site Amenities 5-10 business days
Shelters 5-10 business days
Shades 5-10 business days
Installation Services 1- 3 business days
*For customized or discontinued products
additional time may be required.

2. Warranty period start date. The City desires the warranty start at the time of substantial completion.

KOMPAN’s Warranty period start date will be at time of substantial completion.

3. Availability of replacement parts.

Replacement parts will at the minimum, be available for the duration of the warranty period.

4. Life expectancy of equipment under normal use.

KOMPAN has been producing playground equipment since the 1970’s and we still have some equipment in the field from that time period. Local climate conditions, maintenance, and usage can affect the life expectancy of equipment. Equipment is built to last through several generations, and can last over 20 years if properly maintained.

The life expectancy of surfacing products is based on the climate, environment, proper drainage, usage and maintenance. The minimum life expectancy matches the number of years the product is under warranty. Site amenities have varied life expectancy based upon the type of materials and the care and maintenance of the product. The minimum life expectancy matches the number of years the product is under warranty.

5. Detailed information as to proposed return policy on all equipment.

Except as agreed to in writing, all items of Product returned will be subject to inspection and approval by KOMPAN prior to acceptance and will result in a restocking charge for all costs associated with the return, but not less than 50% of the full list price of such returned KOMPAN items or 75% for custom or third party items 450 190
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26 EXHIBIT F

SCOPE OF SERVICES
The following Scope of Work is an Exhibit to and incorporated into the Contract to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the “Contract”) between the City of Charlotte and Kompan, Inc.

4. SCOPE OF SERVICES.

4.1 General Scope.

The Company shall provide various Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services that meets or exceeds the following requirements to the City and Participating Public Agencies nationwide.

Participating Public Agencies may have additional specific requirements that might not be a requirement of the Lead Public Agency. The Company agrees to provide additional information or documentation to Participating Public Agencies as may be required per the Master Intergovernmental Cooperative Purchasing Agreement (between the Lead Public Agency and the Participating Public Agency).

4.2 Product Standards and Guidelines.

It is essential that all Playground Equipment, Outdoor Fitness Equipment, Site Accessories, Surfacing, and Related Products and Services be in compliance with all current and applicable Consumer Product Safety Commission (CPSC), Americans with Disabilities Act (ADA) and ADA Accessibility Guidelines (ADAAG), and ASTM Standards and other applicable laws and regulations in the state of North Carolina or in accordance with the laws and applicable purchasing policies of the State and locality where the Participating Public Agencies exists.

Manufacturers must be a member of the International Play Equipment Manufacturers Association (IPEMA) and ISO 9001 and 14001 certified. All equipment must be IPEMA Certified and meet all current American Society of Testing and Materials (ASTM), Consumer Product Safety Commission (CPSC), and IPEMA standards.

4.2.1 American Society for Testing and Materials (ASTM):

ASTM-F1487- 11 Standard Consumer Safety Performance
Specification for Playground Equipment for
Public use.

ASTM-F1292-13 Standard Specification for Impact Attenuation of Surface Systems within the Use Zone of
Playground Equipment.

ASTM 1951-09 Standard Specifications for Determination of Surface Systems Under and Around Playground
Equipment.
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27 ASTM F2049-11 Fences/Barriers for Public, Commercial, and Multifamily Residential Use Outdoor Play
Areas.

ASTM F2075 Standard Specifications for Engineered Wood
Fiber for Use as a Playground Safety Surface
and Around Playground Equipment.

4.2.2 Printed Handbook for Public Playground Safety (CPSC) Equipment must meet all guidelines stated in the “Handbook for Public Safety” published by the Consumer Product Safety Commission. Copies of publication No. 325 may be obtained from U.S. Consumer Product Safety Commission, Washington, DC 20207.

4.2.3 International Play Equipment Manufacturers Association (IPEMA) IPEMA provides third-party Product Certification services for U.S. and Canadian public play equipment and U.S. public play surfacing materials.

The services provide for the validation of a participant’s certification of conformance to the standards referenced above. Both certifications are administered by Detroit Testing Laboratory, Inc. For more information on certification and membership, visit IPEMA’s website at: www.ipema.org.

All equipment must be IPEMA Certified. Certification must be included with your proposal submission.

4.3 Environmental Purchasing Requirements.

The Company must provide documentation of their environmental sustainability policies, measures, and initiatives with their Proposal response per Section 2.6.15 and Section 7 - U.S. Communities Requirements of this RFP.

4.4 New Products and Services.

New Products and Services may be added to the resulting Contract(s) during the term of the Contract by written amendment, to the extent that those Products and Services are within the scope of this RFP and include, but will not be limited to, new Product added to the Manufacturer’s listing offerings, and services which reflect new technology and improved functionality. All requests are subject to review and approval of the City of Charlotte.

4.5 Replacement Parts.

The Company must stock replacement parts for a minimum of 15 years on all play systems and provide parts within two (2) weeks (14 calendar days) from the time an order is placed by the Participating Public Agency. Some parts may take longer than two weeks, and that will be communicated at the time the order is placed.

4.6 Surfacing Material.

Surfacing Material must meet all guidelines stated in the Handbook for Public Playground Safety, and most current versions of ASTM-F1292-13, F2075-15, F3012- 14, and all other applicable ASTM standards and guidelines as certified by an independent laboratory conforming to IPEMA safety standards as identified for the playground industry.
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28 4.7 Installation.

All Products provided under this Contract that require assembly and installation should be performed by the awarded manufacturers’ certified installers. Company must provide the names and addresses of each certified installer/subcontractor by geographical area.

All work must be performed according to the standards established by the terms, specifications, drawings, and construction notes for each project, and meet manufacturer’s specifications and industry standards. It shall be the obligation of the Installer to obtain clarification from the Project Coordinator concerning questions or conflicts in the specifications, drawings and construction notes in a timely manner as to not delay the progress of the work.

4.8 Design.

The Company must have the capability to recommend and design appropriate play systems/structures to fit the need of the site for age groups to be determined by Participating Public Agency. Company must provide drawings (plan and elevation) of all pertinent aspects of the play equipment and its method of connection to the work. Final playground layout drawings shall be to scale and legible and must show location of play equipment and dimensions of use zones. All designs shall indicate ADA accessible routes, and percentage of ADA accessible components.

4.9 Project Management.

The Company must have the ability to provide project management services to help Participating Agencies complete their projects on-time and within budget.

4.10 Safety.

The Company and installers or subcontractors performing services for CharlotteMecklenburg are required and shall comply with all Occupational Safety and Health Administration (OSHA), State and County Safety and Occupational Health Standards and any other applicable rules and regulations. The Company and subcontractors shall be held responsible for the safety of their employees and any unsafe acts or conditions that may cause injury or damage to any persons or property within and around the work site area under this contract.

4.11 Literature and Catalogs.

The Company will be required to furnish and/or update all price lists, listings, color charts and other literature as requested within fifteen (15) days after notification of award. All catalogs may be electronic versions.

4.12 Warranty.

The Company should address each of the following:

1. Applicable warranty and/or guarantees of equipment and installations including any conditions and response time for repair and/or replacement of any components during the warranty period.

2. Warranty period start date. The City desires the warranty start at the time of substantial completion.

3. Availability of replacement parts.

4. Life expectancy of equipment under normal use.

5. Detailed information as to proposed return policy on all equipment.

4.13 Lead Time and Delivery.
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29 1. Company must provide a four (4) week lead time on limited number of configurations, with no up charge. Participating Public Agencies should consult with their local Sales Representative for Lead times for specific products as times vary based upon type of product.
a. Most of the Company’s bestselling Products are stocked in our Middletown, Pennsylvania storage facility and can be shipped for immediate delivery – one to seven days, dependent upon the delivery location.
b. 64% of the Company’s Products will be shipped for delivery from the east coast within five weeks.
c. 26% of the Company’s Products will be shipped for delivery from the east coast within eight weeks.
d. The remaining 10% of the Company’s Products have delivery times that are dependent on the customizations, color and material selections as these Products are highly specialized and a result of project collaboration with the customer.

2. Deliveries may be made typically between the hours of 8:30 a.m. and 3:30 p.m., local time, on regular business days unless other arrangements have been made.

Delivery location shall be stated on each purchase order issued by Participating Agencies.

3. The Company will ensure that all items are delivered fully assembled or assembled by vendor or its designated subcontractor on site as may be designated by the Participating Public Agency. The Company will assure that all items are packed in accordance with prevailing commercial practices and delivered and assembled and installed in the first class condition.

4. When the purchase order calls for delivery to a specific location (other than door delivery) the vendor will deliver in accordance with the delivery instructions provided by the Participating Public Agency and shall perform inside delivery, assembly, set in place in proper location, make ready for use and remove all debris.

5. The Company shall authorize immediate replacement of any item that has been damaged in transit.

6. If deliveries are required in the evenings or weekends, or designated holidays, special installation charges will be negotiated. It is expected that the pricing will be fair and reasonable based upon specific requirements.

4.14 Optional Work.

Company will be required to provide quotations on a case-by-case basis for optional related work such as, but not limited to, removal and/or reinstallation of Playground & Fitness Equipment, timbers, and fencing as may be required to provide a full turnkey solution to Participating Public Agencies.

4.15 Material Specifications.

Equipment material specifications may vary between cities, counties, schools and states. Each Participating Entity will provide required specifications to include, but not be limited to, acceptable material, finish, diameters, thickness, gage, and angles of all components when placing orders or as necessary.
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30 4.16 Additional Requirements.

The Company may be required and agrees to comply with additional state, or local laws and policies of the individual Participating Public Agencies.

4.17 Performance Bond.

The Company may be required to provide a performance bond as required by Participating Public Agencies for each project as required by local or state laws and policies.

4.18 Reports.

The Company must maintain all records in compliance with federal and state regulations. A statistical report and an annual tabulated report must be submitted electronically to the Lead Public Agency upon request.

4.19 Pricing.

The Company must submit a cost proposal fully supported by data adequate to establish the reasonableness of the proposed fee. One (1) firm fixed percentage discount off of a verifiable list price for each category (defined in Section 1.3): 1) Playground Equipment (including components, replacement parts); 2) Outdoor Fitness Equipment: 3) Site Accessories; 4) Surfacing Materials; 5) all other related Products (Shade Structures, Skate Parks, and other categorized Products); and 6) Services offered by the Company, for the life of the contract is preferred.

Prices must include manufacturer mark up, profit, item cost and storage to allow each customer the ability to calculate and verify discount. All manufacturer price lists must be identified in the Proposal response.

Proposals must include an itemized list of any Products and Services that the Company intends to include in the Master Agreement and assume responsibility for as prime contractor, but are offered by the individual authorized distributors and not included in the Company’s catalog. The list must identify the distributors name and location that offers each product and service included. The Company shall be the prime contractor and remain solely responsible for contractual performance, and reporting, per Section 2.6.7 of this RFP for any Products and Services offered by the authorized distributor.

Proposals shall not include Products and Services the Company does not intend to offer, or take responsibility for, as prime contractor.

4.19.1 Volume Discounts: Please include any volume discounts offered to the Lead Public Agency and Participating Public Agencies.

4.19.2 Rebates: Please include any rebates offered to Lead Public Agency and Participating Public Agencies..

4.19.3 Product, Design and Price Comparison.

For comparison purposes only, the Company must provide the following information for the three (3) sample playground designs included in Section 6, Form 4:

1. Cost breakdown of all components using proposed discounts and list prices;

2. Manufacturer Price List ID
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31 3. Three dimensional drawings

4. Number of kids that can use the playground;

5. Total number of play components:
• Number of ground level components
• Number of accessible ground level components
• Number of elevated components
• Number of accessible elevated components

6. Play Structure Size

7. Deck Sizes

8. Diameter of Uprights

9. Color options

10. Minimum time needed from date of design to delivery of equipment.

4.20 Installation.

Company response must include a defined installation fee program. If a percentage of total dollar amounts of each order are proposed, the Company must submit one (1) fixed percentage for all installation services for all Participating Public Agencies, regardless of location, for the life of the contract.

4.21 Shipping and Delivery.

Company must include a defined shipping program with their Proposal responses. If shipping is charged separately, only the actual cost of the freight may be added to an invoice. Shipping charges calculated as a percentage of the product price cannot be used.

1. Unless specifically stated otherwise in the “Shipping Program” included in the Company’s Proposal response, all prices quoted must be F.O.B. destination with freight prepaid by the Company.

2. Additional costs for expedited deliveries may be added.

3. Selection of a carrier for shipment will be the option of the Participating Public Agency paying for said shipping.

4.22 Price Adjustments.

All proposed pricing shall remain firm for the first year of the subsequent Contract (through June 30, 2018). Company may request price increases for consideration at least sixty (60) days prior to each anniversary of the Contract effective date. All requests must be submitted in writing to City of Charlotte Procurement Management along with documentation of bona fide materials and labor increases for the cost of Products. No adjustments shall be made to compensate a Company for inefficiency in operation or for additional profit. Price decreases shall be accepted at any time during the term of the contract.

4.23 References.

Proposals must include a minimum of five (5) customer references (see Section 6, Form 7) that Company has provided products and services similar to those outlined in this RFP.

4.24 Prevailing Wages.

Company must comply with the prevailing wage requirements of each state. Please include any exceptions to this requirement in your proposal response, per Section

2.6.12 of the RFP.
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33 EXHIBIT H

CONFIDENTIALITY TERMS
This Exhibit H is an exhibit to the Contract to Provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the “Contract”) between the City of Charlotte, a North Carolina municipal corporation (the “City”), and Kompan.Inc., a corporation doing business in North Carolina (the “Company”). Unless otherwise stated in this Exhibit, the defined terms stated herein shall have the same meanings ascribed to them in the main body of the Contract.

1. CONFIDENTIAL INFORMATION. "Confidential Information" means any information, in any medium (whether written, oral or electronic), obtained from the City or the Company or any of their respective suppliers, contractors or licensors which falls within any of the following general categories:

1.1. Trade secrets. For purposes of this Contract, trade secrets consist of information of the City or the Company or any of their respective suppliers, contractors or licensors: (a) that derives value from being secret; and (b) that the owner has taken reasonable steps to keep confidential. Examples of trade secrets include information relating to proprietary software, new technology, new products or services, flow charts or diagrams that show how things work, manuals that tell how things work and business processes and procedures.

1.2. Information marked "Confidential" or “Proprietary.”

1.3. Information relating to criminal investigations conducted by the City, and records of criminal intelligence information compiled by the City.

1.4. Any attorney / client privileged information disclosed by either party.

1.5. Information contained in the City's personnel files, as defined by N.C. Gen. Stat. 160A168. This consists of all information gathered by the City about employees, except for that information which is a matter of public record under North Carolina law.

1.6. Personal identifying information about individuals that the City is prohibited from disclosing by law, including:
(a) Social security or employer taxpayer identification numbers. (b) Drivers license (drivers license numbers are not included if the number appears on law enforcement records), State identification card, or passport numbers. (c) Checking account numbers.
(d) Savings account numbers.
(e) Credit card numbers.
(f) Debit card numbers.
(g) Personal Identification (PIN) Code as defined in G.S. 14-113.8(6). (h) Digital signatures.
(i) Any other numbers or information that can be used to access a person's financial resources.
(j) Biometric data.
(k) Fingerprints.
(l) Passwords.

1.7. The security features of the City’s electronic data processing systems, information technology systems, telecommunications networks, and electronic security systems, 197
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1.8. Local tax records of the City that contain information about a taxpayer's income or receipts.

1.9. Any data collected from a person applying for financial or other types of assistance, including but not limited to their income, bank accounts, savings accounts, etc.

1.10. Building plans of City-owned buildings or structures, as well as specific details of public security plans.

1.11. Billing information of customers compiled and maintained in connection with the City providing utility services.

1.12. Plans to prevent or respond to terrorist activity, including vulnerability and risk assessments, potential targets, specific tactics or specific security or emergency procedures, the disclosure of which would jeopardize the safety of government personnel or the general public or the security of any governmental facility, structure or information storage system(s).

1.13. Other information that is exempt from disclosure under the North Carolina public records laws.

The information described in Sections 1.1 through 1.13 is a subcategory of Confidential Information called "Highly Restricted Information.” Highly Restricted Information is subject to all requirements applicable to Confidential Information, but is also subject to additional restrictions as set forth in this Exhibit H.

The parties acknowledge that Confidential Information includes information disclosed prior to execution of this Contract as well as information disclosed after execution.

Notwithstanding the above, contracts between the Company and the City are not Confidential Information and will be considered public records, except for attached exhibits that: (a) meet the legal requirements for trade secrets; and (b) are clearly identified as such.

2. RESTRICTIONS AND REQUIREMENTS. Each party shall comply with the following restrictions and requirements regarding Confidential Information:

2.1. Neither party shall copy, modify, enhance, compile or assemble (or reverse compile or disassemble), or reverse engineer Confidential Information, except as authorized by written agreement of the parties or by the written consent of the other party.

2.2. Neither party shall, directly or indirectly, disclose, divulge, reveal, report or transfer Confidential Information of the other to any third party, other than an agent, subcontractor or vendor of the City or the Company who: (a) has a need to know such Confidential Information for purposes contemplated by this Contract, and (b) has executed a confidentiality agreement incorporating substantially the form of this Exhibit H. Notwithstanding the foregoing, Company shall not directly or indirectly, disclose, divulge, reveal, report or transfer Highly Restricted of the other to any third party without the City's prior written consent.
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35 2.3. Neither party shall use any Confidential Information of the other for its own benefit or for the benefit of a third party, except to the extent such use is authorized by this Contract or other written agreements between the parties hereto, or is for the purpose for which such Confidential Information is being disclosed.

2.4. Neither party shall remove any proprietary legends or notices, including copyright notices, appearing on or in the Confidential Information of the other.

2.5. Each party shall use reasonable efforts to prohibit its employees, vendors, agents and subcontractors from using or disclosing the Confidential Information in a manner not permitted by this Contract.

2.6. In the event that any demand is made in litigation, arbitration or any other proceeding for disclosure of Confidential Information, the party upon which the demand is made shall notify the other party of the demand, and shall cooperate with and reasonably assist the other party in seeking a protective order or other appropriate relief to prevent or restrict and protect any disclosure of Confidential Information.

2.7. All materials which constitute, reveal or derive from Confidential Information shall be kept confidential to the extent disclosure of such materials would reveal Confidential Information.

2.8. Each party shall restrict employee access to the Confidential Information of the other party to those employees having a need to know for purposes of carrying out the business relationships contemplated by this Contract.

2.9. The Company shall comply with the City's Restricted Data Policy, a copy of which is posted on the City's website, and with any instructions or procedures issued by City key business units from time to time with respect to protecting specific types of Confidential Information.

2.10. Each party shall take reasonable measures to prevent the use or disclosure of Confidential Information by its employees in a manner not permitted by this Exhibit H.

The Company shall have each of its employees who will have access to the Confidential Information sign a confidentiality agreement which provides the City and its vendors, licensors, subcontractors, employees and taxpayers the same level of protection as provided by this Exhibit H, including compliance with the City's Restricted Data Policy.

2.11. The Company shall further ensure that each person who obtains access to Confidential Information through the Company (including but not limited to Company's employees and subcontractors) has undergone training sufficient to understand his or her responsibilities with respect to this Exhibit H and the City's Restricted Data Policy.

3. EXCEPTIONS. The disclosing party to this Contract agrees that the receiving party ("Recipient”) shall have no obligation with respect to any Confidential Information that the Recipient can establish:

3.1. was already known to Recipient prior to being disclosed by the disclosing party;

3.2. was or becomes publicly known through no wrongful act of Recipient; 199
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36 3.3. was rightfully obtained by Recipient from a third party without similar restriction and without breach hereof;

3.4. was used or disclosed by Recipient with the prior written authorization of the other party;

3.5. was disclosed pursuant to the requirement or request of a governmental agency, which disclosure cannot be made in confidence, provided that, in such instance, Recipient shall first give to the other party notice of such requirement or request;

3.6. was disclosed pursuant to the order of a court of competent jurisdiction or a lawfully issued subpoena, provided that the Recipient shall take reasonable steps to obtain an agreement or protective order providing that this Contract will be applicable to all disclosures under the court order or subpoena.

4. DATA. The Company will treat as Confidential Information all data provided by the City or processed for the City or for citizens under this Contract (including metadata). Such data shall remain the exclusive property of the City. The Company will not reproduce, copy, duplicate, disclose, or in any way treat the data supplied by the City in any manner except that contemplated by this Contract.

5. PUBLIC RECORDS. Notwithstanding anything contained herein to the contrary, the parties recognize and acknowledge that the City is a subdivision of the State of North Carolina and is, therefore, subject to the North Carolina Public Records Act (the "Act") at N.C. Gen. Stat. 132-1 et seq. The parties further acknowledge that any Confidential Information that is a public record under North Carolina law may be released and disclosed by the City pursuant to the Act, and that any such release or disclosure shall not in any way constitute a breach of this Contract, nor shall the City be liable to the Company for such release or disclosure.

In the event the City receives a request for disclosure of Confidential Information which the Company has specifically marked "Confidential" or "Proprietary" the City shall give the Company written notice of such request (the "Notice of Request for Disclosure"). In the event the Company has a reasonable basis for contending that the disclosure of such Confidential Information is not required by the Act, the Company shall within ten (10) days after receipt of the Notice of Request for Disclosure notify the City in writing of its objection to disclosure and the basis therefor. The Company shall indemnify, defend and hold harmless the City from and against all losses, damages, liabilities, costs, obligations and expenses (including reasonable attorneys' fees) incurred by the City in connection with any refusal by the City to disclose Confidential Information after receiving an objection to disclosure from the Company. If the City receives no written objection from the Company within ten (10) days after the Company's receipt of a Notice of Request for Disclosure, the City shall disclose the Confidential Information referenced in the Notice of Request for Disclosure.

Notwithstanding the foregoing, the parties agree that the computer database information that the City is required to disclose under N.C. Gen. Stat. §132-6.1 shall not be deemed Confidential Information, and that the City shall be entitled to disclose such information without notice to the Company.

6. REMEDIES. Each party acknowledges that the unauthorized disclosure of the Confidential Information of the other will diminish the value of the proprietary interests therein.

Accordingly, it is agreed that if a party breaches its obligations hereunder, the other party 200
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Nothing in this Contract shall be deemed to eliminate or lessen any obligation either party may have at law with respect to protecting the confidentiality of Confidential Information, except as the provisions of this Contract expressly authorize the release of Confidential Information. 201

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: F.

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

CONSTRUCTION CONTRACT AWARD TO SANCON TECHNOLOGY, INC. FOR THE BEACH TRUNK SANITARY SEWER LINE REHABILITATION, PROJECT NO. 28206 Fiscal Impact:

Yes. The estimated total construction cost of $76,113 is within the available approved project budget of $222,706 from the Sewer Depreciation Reserve, CIP Project No. 28206.

Summary:

Staff recommends approval of a construction contract with Sancon Technology, Inc., in the amount of $63,613, for the Beach Trunk Sanitary Sewer Line Rehabilitation.

Background:

During a closed camera TV (CCTV) inspection by our Utilities staff, it was determined that the Beach Trunk Sewer Line needs immediate repair and rehabilitation to prevent a potential risk to public health and safety. Repairs will consist of sewer pipe lining via trenchless Cured in Place Pipe (CIPP) and the re-establishment of sewer service laterals.

Due to the urgency of the repairs, staff contacted three contractors (i.e. Sancon Technologies, Inc., Southwest Pipeline & Trenchless Corp., and Nuline Technologies, LLC.) that have completed previous City lining projects, to receive proposals. The City received one proposal from Sancon Technologies, Inc. in the amount of $63,613. Staff reviewed the proposal from Sancon and recommends approval of a contract with Sancon Technologies, Inc.

Based on Sancon’s bid, the construction cost is estimated as follows:

Construction Management, Administration $ 3,000
Construction Contract 63,613
Contingency (15%) 9,500
Total Estimated Construction Costs $76,113
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 2). Project plans and specifications are on file in the City Clerk's Office.

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 CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/28/2022
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Meeting Date: 10/4/2022 Agenda Item: F.
· 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

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

2. Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. ______, by and between the City of San Clemente and Sancon Technology, providing for the Beach Trunk Sanitary Sewer Line Rehabilitation, Inc., in the amount of $63,613, CIP Project No. 28206.

Attachment:

1. Location Map

2. Contract
Notification:

None
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 9/28/2022
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VIA MECHA

VISTA MARINA

ARENOSO LN LINDA LN
S. ALAMEDA LN CORONADO LN

CORTO LN
N. ALAMEDA

STA ANA LN

ENCINO LN

ELENA LN

PASEO DE CRISTOBAL

PASADENA CT

ESPLANADE

CORONA LN

ACEBO LN

CAZADOR LN

AVE MADRID

CLE CONCHITA

PACIFIC OCEAN

MUNICIPAL PIER

AVE CABRILLO AVE GRANADA

AVE SEVILLE
A. T. & S. F. R. R.

PACIFIC OCEAN
COMM. CENTER

AVE VICTORIA

SANTA AVE BAR

AVE DEL MAR
LN.

LA PALOMA

AVE CABRILLO

PACIFIC OCEAN

TRAFALGAR CANYON
BARA
AVE. VICTORIA
Beach Trunk Sanitary
Sewer Line Rehabilitation
Attachment 1

NOT TO SCALE
PN 28206

PROJECT

LOCATION

LOCATION MAP
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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: 10/4/2022 Agenda Item: G.

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

ACCEPTANCE AND NOTICE OF COMPLETION FOR THE AVENIDA PICO RECYCLED WATER PIPELINE RELOCATION, PROJECT NO. 21402.

Fiscal Impact:

Yes. The final cost for Phase II is $189,220 and within the budget of $196,510 for this phase. The total cost for Phase I and II is $394,220 and is within the budget of $401,510 from the Water Fund Depreciation Reserve.

Summary:

Mike Prlich and Sons, Inc. has completed the contract for the Avenida Pico Recycled Water Pipeline Relocation, Project No. 21402, in accordance with the contract documents, and staff recommends the City Council accept the project.

Background:

The Avenida Pico 12-inch Recycled Water Mainline is a critical or backbone pipeline in the City’s recycled water distribution system. The pipeline provides service to Bella Collina Golf Course, Rancho San Clemente, and the Avenida Pico Corridor. A segment of the pipeline runs within the Caltrans easement along the northerly slope of the Segunda Deshecha Canada Channel from Interstate 5 to Avenida Pico adjacent to the McDonald’s Restaurant. Due to a Caltrans construction project to replace the concrete channel and grading of the slope, the City was required to relocate its pipeline. To maintain recycled water service during the Caltrans channel improvement project, the construction of pipe replacement was completed in two separate phases. Construction of the temporary bypass pipeline (Phase 1) was completed in 2021. Construction of the permanent pipeline (Phase 2) is now complete. This phase consisted of a permanent 12-inch polyvinylchloride pipe, constructed below ground along the edge of the Caltrans newly constructed channel maintenance access road, and removal of the temporary bypass pipeline.

Final project costs for Phase 2 are as follows:

Administration, Permitting and Engineering Design $28,620 Construction 143,100
Construction Management & Inspection 17,500
Total Project Cost $ 189,220
Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
• Goal: Maintain and improve a comprehensive system of potable water supply, storage and CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/27/2022
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Meeting Date: 10/4/2022 Agenda Item: G.
• 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-5.05 Water Supplies. We provide and maintain adequate water supplies and distribution facilities capable of meeting existing and future daily and peak demands, including fire flow requirements.

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects best available technology and service - in that the City provided uninterrupted recycled water service to its customers during the project.

Recommended Actions:

Staff Recommendation
STAFF RECOMMENDS THAT the City Council:

1. Accept the Avenida Pico Recycled Water Pipeline Relocation, Project No. 21402 from the contractor, Mike Prlich and Sons, Inc.

2. Authorize the Utilities Director to execute, and the City Clerk to record, the Notice of Completion for the Avenida Pico Recycled Water Pipeline Relocation.

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation of the Notice of Completion upon verification with the Utilities Department that no liens have been levied against Mike Prlich and Sons, 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.

Attachments:

1. Location Map

2. Notice of Completion

3. Contract Award Agenda Report dated February 15, 2022 (without attachments) Notification:

None.

CITY OF SAN CLEMENTE Page 2 of 2 Printed on 9/27/2022
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348 Attachment 1
Recording Requested By:

City of San Clemente
When Recorded, Mail To:

City Clerk
City of San Clemente
910 Calle Negocio, Suite #100
San Clemente, CA 92672
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: Avenida Pico Recycled Water Pipeline Relocation, Project No. 21402.

2. Street address or legal description of the project site: Within the Caltrans easement along the northerly slope of Segunda Deshecha Canada Channel from Interstate 5 to Avenida Pico, San Clemente, CA.

3. Date of Completion: May 18, 2022.

4. Name of owner: City of San Clemente.

5. Interest or estate of owner: Fee.

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

7. Name and address of contractor: Mike Prlich & Sons, Inc., 5103 Elton St., Baldwin Park, CA 91706
I am the Utilities Director 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. _________________________________
David Rebensdorf, Utilities Director
City of San Clemente
Attachment 2
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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: 10/4/2022 Agenda Item: H.

Department: Beaches, Parks and Recreation
Prepared By: Samantha Wylie, Beaches, Parks & Recreation Director Subject:

INSTALLATION OF A PLAQUE AT COURTNEY’S SANDCASTLE PLAYGROUND HONORING

NAMESAKE COURTNEY FAYE SMITH
Fiscal Impact:

None. The Foundation has committed to purchasing the plaque and covering all costs associated with the installation of the monument.

Summary:

Staff recommends that the Council approve the installation of a monument plaque at Courtney’s SandCastle Playground honoring Courtney Faye Smith. The purpose of the plaque is to memorialize Courtney’s commitment and service to the City of San Clemente and her inspiration behind the development of Courtney’s SandCastle.

Background:

Courtney Faye Smith, the namesake of Courtney’s SandCastle Playground (“CSC”), passed away on August 26, 2022. Several founding members of the former Courtney’s SandCastle Playground Foundation (“Foundation”), in coordination with Courtney’s family, have requested a plaque be installed remembering Courtney. This was Courtney’s desire and one of her last wishes.

Discussion:

Staff has worked with members of the Foundation to establish an area for the monument plaque to be installed near the entryway to the Sensory Garden. The monument will incorporate elements of the existing stonework on the picnic pavilion columns and feature a plaque with a photograph of Courtney. Details of the plaque, monument structure, and location are outlined in Attachment 1.

Plan and Policy Consistency:

The project is consistent with the goal and design of the Vista Hermosa Sports Parks Master Plan in that it provides recognition to the inspiration behind CSC Playground.

Council Strategy:

Not applicable.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council accept a plaque donation recognizing the life of Courtney Faye Smith and approve the installation of the plaque and monument at Courtney’s SandCastle CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/28/2022
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Meeting Date: 10/4/2022 Agenda Item: H.

Playground.

Attachment:

Courtney Faye Smith Plaque Memorial Monument
Notification:

Courtney’s SandCastle Playground Foundation
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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: 10/4/2022 Agenda Item: I.

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

APPROVAL OF PROFESSIONAL CONSULTANT SERVICES AGREEMENT FOR THE RECYCLED WATER QUALITY IMPROVEMENTS PROJECT WITH LEE + RO, INC., CIP PROJECT NO. 13203 Fiscal Impact:

Yes. A supplemental appropriation in the amount of $495,207 will be needed for this project. There is adequate funding available in the Sewer Connection Fee Reserve Fund.

Summary:

Staff recommends that the City Council approve a Professional Consultant Services Agreement with LEE + RO, INC. (Attachment 2) for the design and preparation of a bid package for a new microfiltration (MF) and reverse osmosis (RO) facility at the City of San Clemente Water Reclamation Plant (WRP).

Background:

The City owns and operates a wastewater collection and treatment system that includes a WRP (Attachment 1) producing recycled water in compliance with Title 22 State Ordinance. Recycled water use has steadily increased in recent years. Various factors, such as diminishing water supplies, drought, seawater intrusion, and population increase have created an urgency for municipalities and industries to explore alternate water supply options. Microfiltration and reverse osmosis play a vital role in developing water reuse and conserving this scarce resource as their efficiency and ease of use make them a top choice. RO is used in advanced water reuse applications where high quality permeate is required with low levels of dissolved solids and hardness. An RO system uses multiple filtration stages and a semi-permeable membrane to filter more than 99.9% of the total dissolved solids (TDS). This type of treatment system is common for water and wastewater treatment plants.

MF is a separation process that uses filtration membranes to remove suspended solids, turbidity, and bacteria from secondary wastewater. MF is needed prior to RO to clean the water to keep the membranes from fouling.

The City’s current tertiary recycled water contains approximately 1,350 mg/L of TDS, which is above the permitted limit of 1,100 mg/L. The new MF/RO system will treat a portion of the WRP’s secondary effluent to improve the quality of the blended reclaimed water by lowering the TDS to an acceptable level (less than 800 mg/L) to meet both the City’s and Santa Margarita Water District’s (SMWD) permit limits. This project will allow the City to continue to produce and sell approximately 1,200 acre feet per year (AFY) to its existing customers. It will also allow the distribution of approximately 2,200 AFY of recycled water to the Santa Margarita Water District to reduce both agencies’ demands for imported potable water used for irrigation and recreational use at golf courses or community parks.

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A preliminary design, cost estimate and layout for a MF/RO facility at the WRP was developed by Trussell Technologies as contained in a technical report, dated March 14, 2022 (Attachment 3). Per this report, the total estimated project cost is $13 million, including a 25% construction contingency.

The construction funding for this project will be secured by $1.5M from the City Sewer Connection Fee Reserve, with the remaining amount from a State Revolving Federal (SRF) loan and/or from a SMWD interagency loan. These construction loans are anticipated to be secured prior to construction in January 2024.

Staff prepared a Request for Proposals (RFP, Attachment 4) for the final design and preparation of a bid package for the new MF/RO facility and advertised on the PlanetBids website. Proposals were received from four firms, Tetra Tech, Atkins, Lee + Ro, Inc. and PACE. The fee proposals ranged from $772,600 to $1,040,980. Upon reviewing the written proposals and after interviews from a panel of City and Santa Margarita Water District staff, it was concluded that Lee + Ro, Inc. submitted the best proposal, project team, and demonstrated the most relevant experience.

The original Lee + Ro’s fee proposal was for $929,036; however, staff reduced the scope of work by eliminating the construction support services at this time. A future amendment to Lee + Ro’s contract will include the needed construction support services based on the actual final design. The fee proposal for the reduced scope of work is $905,207. The reduced scope of work includes final engineering design, preparation of construction drawings, specifications and cost estimates (PS&E) for public bidding, and providing bid support services during the bidding process.

The contract amount of $905,207 is funded from the existing CIP FY 2023 project budget of $500,000 and a supplemental appropriation from the Sewer Connection Fee Reserve Fund. Staff recommends an additional 5% contingency and 5% for administration for the design phase; therefore, the net supplemental appropriation is as follows:

Lee + Ro Design Fee $905,207
Contingency (5%) 45,000
Admin (5%) 45,000
Less Existing Budget (500,000)
Net Supplemental Appropriation $495,207
The anticipated completion of the final design and preparation of the construction documents for public bidding is October 2023. Construction of the MF/RO facility could commence in January 2024, with completion in January 2025.

Discussion:

None
Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
· 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-5.08. Recycled Water. We encourage, and in some cases require, the use of CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/28/2022
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Meeting Date: 10/4/2022 Agenda Item: I.
recycled water when available through a Mandatory Use Ordinance. · 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.

This project is consistent with the 2007 Recycled Water Master Plan and 2006 Water Master Plan in regards to meeting water quality interconnection with Santa Marquita Water District and maximizing the use of recycled water.

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

1. Approve a supplemental appropriation in the amount of $495,207 from the Sewer Connection Fee Reserve Fund to Account No. 054-477-45300-000-13203; and

2. Approve and authorize the Public Works Director to execute, Contract No. ______, by and between the City of San Clemente and Lee + Ro, Inc., providing for Recycled Water Quality Improvements in the amount of $905,207.

Attachment:

1. Location Map

2. Draft Professional Consultant Services Agreement with Lee + Ro, Inc.

3. Preliminary Design

4. Request for Proposals
Notification:

None
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LOCATION MAP
WRP
Recycled Water Quality
Improvement Project
P.N. 13203
ATTACHMENT 1
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REQUEST FOR PROPOSAL

RECYCLED WATER QUALITY IMPROVEMENT PROJECT
PROJECT NO. 17407
JULY 2022

PUBLIC WORKS DIVISION
910 CALLE NEGOCIO, SUITE 100
SAN CLEMENTE, CA 92673
PHONE: (949) 361-6140
ATTACHMENT 4
454

OBJECTIVES AND SCOPE
1 CITY OF SAN CLEMENTE

REQUEST FOR PROPOSAL
JULY 2022
Prospective Contractors:

The City of San Clemente (City) is soliciting proposals from Professional Services Contractors (Consultants) for the design of a new Membrane Filtration (MF) and Reverse Osmosis (RO) treatment system at the City’s Water Reclamation Plant (WRP) as described in detail in the attached Request for Proposal (RFP).

City Point of Contact:

The sole source of contact regarding this RFP is Amir K. Ilkhanipour at (949) 361-6140.

Individuals or firms interested in submitting a proposal are asked not to contact other members of the City of San Clemente staff or Councilmembers in connection with the RFP prior to the announcement of the consultant selected. A NON-MANDATORY preproposal meeting will be held at the San Clemente Water Reclamation Plant, 280 Avenida Pico, Building N, San Clemente, CA 92672 to be followed with a site visit, on July 27, 2022, at 9:00 a.m.

Proposals and all written inquiries related to this RFP are to be submitted confidentially to:

Amir K. Ilkhanipour, P.E.

City of San Clemente
Engineering Division
910 Calle Negocio, Suite 100
San Clemente, CA 92673
Confidential
Proposal Closing Date: 4:00 p.m. on August 15, 2022
Three (3) of each Contractor’s proposal must be received by the City no later than 4:00 p.m. on August 15, 2022. All proposals must be delivered to the above address.

Proposals will not be accepted if received after the closing date. Interviews of the top candidates will be arranged within a few weeks from the proposal due date.

Proposals will become part of the official files of the City of San Clemente and cannot be returned.
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OBJECTIVES AND SCOPE
2 REQUEST FOR PROPOSAL

RECYCLED WATER QUALITY IMPROVEMENT PROJECT
PROJECT NO. 17407
A. INTRODUCTION
The City of San Clemente (City) is seeking proposals from qualified Engineering firms for preliminary/concept design, final design and preparation of a bid package for a new Membrane Filtration (MF) and Reverse Osmosis (RO) treatment system to improve Recycled Water Quality at the City’s Water Reclamation Plant (WRP) located at 380 Avenida Pico, San Clemente, as shown on the enclosed Location Map. Scope of engineering services includes preparation of a Preliminary Design Report (PDR), final design and preparation of construction documents (PS&E), bid and construction support services.

B. BACKGROUND
The City owns and operates a wastewater collection and treatment system within its service area (“City System”), which includes a wastewater reclamation plant that provides wastewater treatment and produces recycled water that is compliant with Title 22 (“Plant”). The Plant currently has excess capacity available for the treatment of wastewater.

The City’s Reclamation Plant processes consist of preliminary treatment, primary treatment, activated sludge secondary treatment, and tertiary treatment for recycled water. A portion of the existing secondary-treated wastewater is sent to the tertiary treatment for production of unrestricted Title 22 recycled water. The tertiary recycled water contains excessive dissolved solids (1500 mg/L), which are resulting in challenges for end-uses such as irrigation. The average capacity of the tertiary system is 4.4 MGD, with a peak capacity of 5 MGD.

The City is proposing Membrane Filtration (MF) and Reverse Osmosis (RO) treatment system to improve the quality of the blended reclaimed water by lowering the total dissolved solids (TDS) to an acceptable level (less than 800mg/L) to meet both City’s and SOCWA’s permit limits. Costs and Layout for MF & RO Facility at the San Clemente Water Reclamation Plant was developed by Trussell Technologies dated March 14, 2022 describing a two-phase MF/RO implementation approach (Refer to the enclosed Exhibit “A”) to maximize recycled water production. The project will blend 1.2 MGD of MF/RO product 456

OBJECTIVES AND SCOPE
3 water with 2.2 MGD of recycled water for total product water of 3.0 MGD. This total blend flow accounts for 3.4 MGD of available flow at the WRP and also approximately 0.4 MGD of brine that would be generated from producing 1.2 MGD of MF and RO permeate. The 3.0 MGD blend would result in a TDS of less than 800 mg/L.

C. REQUESTED DESIGN OBJECTIVES
Below is a listing of tasks for the anticipated scope of work for the project. These general guidelines should be used as a basis to prepare the proposal; however, the scope of work may be altered to suit the design approach and methodology proposed by the consulting firm.

1. Consultant (Contractor) shall perform a feasibility study and analysis for construction of a MF and RO Facility at WRP to maximize recycled water production. Refer to the enclosed letter report, Exhibit “A” for Costs and Layout for MF &RO Facility at the San Clemente Water Reclamation Plant developed by Trussell Technologies dated March 14, 2022. As part of the Feasibility Study and final design, a separate electric meter, a sub-meter of the WRP main electric line or a total new meter of the street, should be considered in order to isolate the electric cost of the MF/RO system.

2. Prepare a 30%, 60% and 90% complete design plans.

3. Prepare final construction drawings, specifications and cost estimates (i.e.

Bid Package) for public advertising.

4. Prepare a CEQA document as appropriate for the project.

5. Secure the needed environmental permits including any operation permits (e.g. Title 22).

6. Provide bid and construction support services.

7. Consider 8 hours of coordination with City’s consultant regarding securing grants for this project.

8. Meet with City staff as required, for questions and general communication including evidencing progress on the design and provide written meeting minutes to City staff (hours included in item 12 below) 457

OBJECTIVES AND SCOPE
4 9. Milestone submittals of plans for review will be at:
60% complete
90% complete
Final Draft
City staff will require 10 working days for review with markup and comments for each of the submittals.

10. Prepare a recommended construction schedule using the critical path method and cost estimates with final submittal of plans and contract documents.

11. Prepare and submit as part of this proposal provisions for bid support and construction support services. Offer a not-to-exceed maximum fee, which includes: 1) 15 hours for bid support responding to bidders’ questions and preparing addendums as needed, 2) 40 hours shop drawing review, 3) 55 hours of meeting time by the team project manager or engineer, project inspections, progress construction meetings, consultation time, and 4) 20 hours of record drawing preparations.

D. PROJECT ORGANIZATION AND SCOPE OF WORK
Proposal is to contain the following information:

1. Describe your firm’s understanding of the project.

2. Describe the effort that defines what you propose to do, how you propose to do it, and your proposed schedule.

3. Identify project manager and team members, including all subconsultants proposed for the project. Provide resumes of all team members.

4. Provide information on your firm’s and subconsultant’s experience on related projects. Provide three references with phone numbers where a similar service was performed by your firm within the last five years.

5. Itemize tasks, man-hours, staff, hourly cost and estimated costs for each milestone submitted of the project design. Define clearly the rate at which individual members of the team will be billed. Define clearly how unnamed staff members and expenses will be billed.
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OBJECTIVES AND SCOPE
5 6. Include any services that your firm considers important to the project that are not included in this request.

7. Identify information needed from the City to accomplish the work described.

E. DELIVERABLES
The engineering firm will be responsible for the following deliverables:

1. Progress submittal of plans and contract documents at the milestones stipulated.

2. Prepare Preliminary Design Report including objectives as stipulated.

3. Final design documents for construction with appropriate seal of California registered civil, structural and electrical engineers as applicable. Final plans and contract documents (including specs) require City Project Manager, Utilities Manager and City Engineer signatures of approval.

Selected firm will be provided with the City’s “front end” documents and general provisions (copy attached). The Consultant will be responsible for developing all technical specifications and customizing the City’s front-end documents as needed. WRP Geotechnical report will be provided by the City of San Clemente.

F. AVAILABLE INFORMATION
The following documents are included in Planetbids.

1. Sample CITY OF SAN CLEMENTE Specification

2. RWP Survey (2011-01-26)

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INSTRUCTIONS AND CONDITIONS
6 INSTRUCTIONS AND CONDITIONS
The following instructions and conditions apply to this RFP:

A. GENERAL CONDITIONS

1. Pre-Contractual Expenses
Pre-contractual expenses are defined as expenses incurred by firms in:
• Preparing a proposal in response to this RFP
• Submitting that proposal to the City of San Clemente
• Negotiating with the City of San Clemente any matter related to this RFP, proposal and/or contractual agreement
• Any other expenses incurred by the firm prior to the date of an executed contract
The City of San Clemente shall not, in any event, be liable for any precontractual expenses incurred by any firm. In addition, no firm shall include any such expenses as part of the price proposed to conduct the services.

2. Authority to Withdraw RFP and/or Not Award Contract
The City of San Clemente reserves the right to withdraw this RFP at any time without prior notice. Further, the City makes no representations that any agreement will be awarded to any firm responding to this RFP. The City expressly reserves the right to postpone the opening of proposals for its own convenience and to reject any and all proposals in response to this RFP without indicating any reasons for such rejection(s).

3. Pricing Approach
The City of San Clemente intends to award a fixed price contract for the conduct of this project. In no event shall the City pay an amount in excess of the dollar value negotiated in the contractual agreement with the successful firm. Please note, the City will not pay for any travel time for the contractor’s staff arriving to the project site.
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INSTRUCTIONS AND CONDITIONS
7 4. Right to Reject Proposals
The City of San Clemente reserves the right to reject any or all proposals submitted. Any award made for this engagement will be made to the firm which, in the opinion of the City, is best qualified to conduct the project.

5. Proposal Evaluation Criteria
Proposals will be evaluated on the basis of their response to all provisions of this RFP. The City of San Clemente may use some or all of the following criteria in its evaluation and comparison of proposals submitted.

The following list is not necessarily all-inclusive and the order in which they appear is not intended to indicate their relative importance:
a. Consultant's responsiveness to the requirements of the project as set forth in the RFP.
b. A demonstrated understanding of the consultant's work plan and other proposal documents.
c. A logical, proven methodology for carrying out the work tasks described in the consultant's proposal and developing project deliverables. d. The firm’s recent experience in conducting projects of similar scope, complexity and magnitude.
e. The quality and quantity of personnel assigned to the project, including educational background, work experience and directly related recent consulting experience.
f. The organization structure of the proposed project team. g. The financial stability of the consultant.
h. Recent references from other clients.
i. The proposed project schedule including the design period required.

The length of the design period will not be a selection criterion unless deemed excessively long or unrealistically short.
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INSTRUCTIONS AND CONDITIONS
8 B. STATEMENT OF COMPLIANCE
Firms must submit a Statement of Compliance with all parts of the Request for Proposal and Draft Agreement (attached) terms and conditions, or a listing of exceptions and suggested changes, along with a description of any cost implications or schedule changes the exceptions and/or changes cause. The Statement of Compliance must declare either:

1. This proposal is in strict compliance with the Request for Proposal and Draft Agreement and no exceptions to either are proposed; or

2. This proposal is in strict compliance with the Request for Proposal and Draft Agreement except for the items listed.

For each exception and/or suggested change, the bidder must include:
a. The suggested change in the RFP or rewording of the contractual obligations.
b. Reasons for submitting the proposed exception or change. c. Any impact the change or exception may have on project costs, scheduling or other considerations.

C. OTHER INFORMATION
Consultant agrees that in carrying out its responsibilities under this agreement, and in particular with regard to the employment of persons and sub-contractors working on the project, it will not discriminate on the basis of race, color, creed, national origin, religion, sex, age, or handicap. In the event any of the work performed by consultant hereunder is sub-contracted to another person or firm (with approval of the City as required herein), sub-contract shall contain a similar provision.

D. INSURANCE COVERAGE
Prior to commencement of any project activities, consultant is to secure worker's compensation insurance, so as to be in compliance with State statutes and comprehensive general liability insurance, including auto and contractual liability coverage, in an amount not less than $1 million.
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INSTRUCTIONS AND CONDITIONS
9 E. ENCLOSURES

1. MF/RO Facility Location Map

2. Exhibit “A”, Costs and Layout for MF & RO Facility at the San Clemente Water Reclamation Plant (CSCWRP)

3. Standard “City of San Clemente Professional Consultant Service” Agreement 463

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P.N. 17407 464
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CITY OF SAN CLEMENTE

PROFESSIONAL CONSULTANT SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this _____ day of ________, 20___, by and between the City of San Clemente, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 910 Calle Negocio , San Clemente, California, 92673 ("City") and [INSERT NAME OF COMPANY], a [INSERT TYPE OF BUSINESS; I.E.,

CORPORATION (INCLUDE STATE OF INCORPORATION), LIMITED LIABILITY COMPANY, SOLE PROPRIETORSHIP, ETC.], with its principal place of business at [INSERT ADDRESS] ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional [INSERT TYPE] consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional [INSERT TYPE] consulting services to public clients, is licensed in the State of California, if applicable, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such professional [INSERT TYPE] consulting services for the [INSERT NAME OF PROJECT, AND CONTRACT NUMBER, IF APPLICABLE] project ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional [INSERT TYPE] consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. [INSERT IF FEDERAL FUNDS WILL BE USED; OTHERWISE ALWAYS DELETE: Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “A-I.”]

3.1.2 Term. The term of this Agreement shall be from [INSERT DATE] to [INSERT DATE], unless earlier terminated as provided herein. [***INSERT THE FOLLOWING

SENTENCE FOR MULTI-YEAR, AUTOMATIC RENEWAL NOT TO EXCEED THREE CONSECUTIVE YEARS; OTHERWISE, ALWAYS DELETE: The City shall have the unilateral 469
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option, at its sole discretion, to renew this Agreement automatically for no more than [INSERT NUMBER] additional one-year terms.***] Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Responsibilities of Consultant.

3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

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

3.2.3 Endorsement on PS&E/ Other Data. Consultant shall sign all plans, specifications, estimates (PS&E) and engineering data furnished by Consultant, and where appropriate will indicate Consultant’s authorized signature and professional registration number.

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

3.2.5 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: [INSERT NAME AND TITLE].

3.2.6 City's Representative. The City hereby designates [INSERT NAME AND TITLE], or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's 470
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Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.7 Consultant's Representative. Consultant hereby designates [INSERT NAME AND TITLE], or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

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

3.2.9 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement.

As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.10 Laws and Regulations. Consultant 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 Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury 471
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or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

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

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The total compensation shall not exceed [INSERT AMOUNT WRITTEN OUT] ($[INSERT NUMBER]) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "D" of this Agreement.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

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

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

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

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement.

3.5 General Provisions.

3.5.1 Termination of Agreement.

3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time, with or without cause, by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance 473
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of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

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

3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: [INSERT BUSINESS NAME]
[INSERT STREET ADDRESS]
[INSERT CITY STATE ZIP]
ATTN: [INSERT NAME AND TITLE]
City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: [INSERT NAME AND TITLE]
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownership of Materials and Confidentiality.

3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data.

Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.

3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use 474
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City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

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

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

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

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

3.5.6 Indemnification.

3.5.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.5.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the 475
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parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

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

3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.

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

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

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

3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

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

3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

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

3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working 476
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solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

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

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

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

3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6 Subcontracting.

3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
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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

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

SCOPE OF SERVICES
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EXHIBIT "A-I"

FEDERALLY REQUIRED PROVISIONS FOR SERVICES
[INSERT FEDERALLY REQUIRED PROVISIONS TRIGGERED BY RECEIPT OF FEDERAL FUNDS FOR THE SERVICES; OTHERWISE
ALWAYS DELETE ENTIRE EXHIBIT “A-I”]
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EXHIBIT "B"

SCHEDULE OF SERVICES
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EXHIBIT “C”

INSURANCE REQUIREMENTS

3.2.12 Insurance. [CITY RISK MANAGER TO REVIEW PRIOR TO EACH USE]

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

3.2.12.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant 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, with limits of not 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 (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (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 with limits of not less than $1,000,000 combined limit for each occurrence. [***NOTE:

If Consultant does not own any company vehicles or may not be able to purchase a Business Automobile Insurance Policy, the requirement may be satisfied by providing either of the following: (1) a Personal Automobile Liability policy for the Consultant's own vehicle stipulating "Automobile Liability Insurance with a limit of not less than $1,000,000 each accident"; and (2) a non-owned auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (e.g., vehicles of employees). ALWAYS DELETE THIS SECTION IF NOT USED***]
(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) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000 per claim. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial 482
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Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.

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

Additional Insured Endorsements shall not (1) be
restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement.
(2) Cancellation: Required insurance policies 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.

3.2.12.4 Professional Liability (Errors & Omissions):
(A) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.

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

3.2.12.6 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
483
55452.01100\31193624.5

3.2.12.7 Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

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

3.2.12.9 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended 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, Consultant 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.

3.2.12.10 Failure to Maintain Coverage. In the event any policy of insurance required under this Agreement 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 Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement effective upon notice.

3.2.12.11 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.

3.2.12.12 Enforcement of Agreement Provisions (non estoppel).

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

3.2.12.13 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Appendix are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. 484
55452.01100\31193624.5

3.2.12.14 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
485
55452.01100\31193624.5
EXHIBIT “D”

COMPENSATION
[INSERT THE FOLLOWING PROVISION IF THE AGREEMENT WILL AUTOMATICALLY RENEW: In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Los Angeles-Long Beach-Anaheim, CA.]
486
55452.01100\31193624.5
WORKER’S COMPENSATION INSURANCE CERTIFICATION

WORKERS' COMPENSATION DECLARATION

I hereby affirm under penalty of perjury one of the following declarations:

(ONE OF THE BOXES BELOW MUST BE CHECKED)
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.
487
55452.01100\31193624.5
Dated: ________________________, 20____
________________________________
Consultant
By: ________________________________
________________________________
Title
________________________________
Address
________________________________
488

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 10/4/2022 Agenda Item: A.

Department: San Clemente Police Services
Prepared By: Captain Tony Benfield
Subject:

CONSIDERATION OF INCREASING RESOURCES FOR SAN CLEMENTE POLICE SERVICES Fiscal Impact:

Potential cost of $295,858 per patrol position added (Deputy II FY22-23 contract cost).

Summary:

The police services recommendation is to proceed with the current level of service as agreed upon in the FY 2022-2023 contract. We base this recommendation on the anticipated effectiveness of current improvements at Max Berg Plaza Park, coupled with law enforcement efforts and community collaboration.

Background:

A sudden increase in gang-related activity at Max Berg Plaza Park led to a discussion about police service’s ability to address the issue with current staffing and resource levels. Recent significant incidents include a shooting on July 25, 2022 and a stabbing on August 7, 2022.

After discussion with residents of the community and local law enforcement, questions arose about how to mitigate the threat that gang activity posed to the neighborhood. The proposed solution consisted of a three-pronged effort involving collaboration between the City of San Clemente, law enforcement and the community.

City maintenance staff recently completed park improvement measures designed to increase visibility and deter criminal activity. These measures included replacing 24 light poles, bases and fixtures to LED technology, removing pavilion walls and pilasters, installing concrete stem walls and stairs to transition from the pavilion to the turf areas, landscaping the area around the entire pavilion and installing 3 security cameras in the park. In addition, six flock cameras for license plate recognition will be installed in the neighborhood near the park.

San Clemente Police Services implemented additional patrol checks of the park and neighborhood.

The Targeting, Reduction, Investigation and Prevention (TRIP) team augmented patrol staff and conducted checks of the area, both in vehicles and on foot patrols. This resulted in numerous contacts by deputies and provided an increased level of police presence in an effort to deter criminal activity. The Gang Enforcement Team remains engaged in this area and is actively investigating both of the recent incidents.

Additionally, police services held a meeting with residents of the neighborhood and encouraged them to assist law enforcement by calling dispatch to report suspicious activity. Residents expressed CITY OF SAN CLEMENTE Page 1 of 2 Printed on 9/27/2022
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Meeting Date: 10/4/2022 Agenda Item: A.
interest in renewing their neighborhood watch program to assist with community awareness and reporting.

Discussion:

This agenda report examines the possibility of increasing the law enforcement contract to address the issues at Max Berg Plaza Park.

The patrol area in question ranges from The Outlets to Palizada, west of the Interstate 5 Freeway.

Providing 24/7 coverage would require four new patrol deputy positions at an annual cost of $1,183,432 dollars (FY22-23 rate).

Recommended Actions:

STAFF RECOMMENDS THAT the City Council take no action at this time as it pertains to increasing police service resources specific to Max Berg Plaza Park and allow time to gauge the effectiveness of park improvements and crime mitigation efforts.

Attachment:

None
Notification:

None
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 9/27/2022
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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: 10/4/2022 Agenda Item: B.

Department: Community Development
Prepared By: Adam Atamian, Deputy Community Development Director/City Planner Subject:

VIEW PROTECTION ORDINANCE REVIEW
Fiscal Impact:

None to receive and file this report.

Summary:

At its meeting of September 6, 2022, the City Council directed staff to review, and provide information on the view protection ordinances of the California municipalities of Del Mar, Laguna Beach, Rancho Palos Verdes, and Tiburon.

Background:

The City of San Clemente has considered view protection ordinances in the past due to concerns about the large massing of new development, such as residential additions, incompatible with existing development. On July 25, 2006, the City Council adopted Ordinance No. 1319 (“Shorecliffs Height & View Preservation Ordinance”). This ordinance was challenged through a referendum, which placed Measure I (Attachment 1) on the June 3, 2008 Special Municipal Election. Measure I passed, with 68.6% of votes cast in favor of adopting the ordinance to limit building heights to protect views.

In 2013, during the Centennial General Plan Update, the General Plan Advisory Committee (GPAC) considered the issue of private view preservation. As adopted in 2014, the Centennial General Plan only includes policies promoting the protection of scenic view corridors and public views. Attachment 2 provides information considered by the GPAC related to view preservation, which summarized the City's existing policy at that time, view protection policies of other jurisdictions, and challenges of enforcing and implementing these types of provisions.

Discussion:

City staff reviewed the ordinances of the California municipalities of Del Mar, Laguna Beach, Rancho Palos Verdes, and Tiburon. Additionally, staff communicated with the staff from the Community Development Departments of these municipalities to discuss the implementation and impacts of these ordinances.

Attachment 3 provides a matrix comparing the scope and impacts of these ordinances. It should be noted that while all of these ordinances address vegetation-related view blockages, only the City of Rancho Palos Verdes’ View Preservation and Restoration Ordinance directly addresses private views affected by buildings. Del Mar and Laguna Beach have a process to evaluate view obstructions of new development (buildings and accessory structures). However, it is a result of their respective design review processes, which requires most new development proposals and additions to existing CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/29/2022
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Meeting Date: 10/4/2022 Agenda Item: B.
design review processes, which requires most new development proposals and additions to existing development to be reviewed through a discretionary design review process. The ordinances regulating the design review process of those cities establish design review criteria that include impacts to views. In the case of Laguna Beach, its Design Review Board is charged with evaluating projects to ensure they are “designed to protect existing views from neighboring properties without denying the subject property the reasonable opportunity to develop…” (Laguna Beach Municipal Code Section 25.05.04.H.16).

Attachments 4 through 10 provide copies of the municipalities’ codes related to view protection and, where available, accompanying documents further explaining their view protection and restoration processes established, such as informational guides and an application checklist.

After reviewing the ordinances requested, and discussing the implementation of the ordinances with staff in these jurisdictions, the following is a summary of issues for City Council consideration. It is important to note that the view regulations in these jurisdictions mostly affect the development review process and the timely processing of applications:

A. View protection ordinances significantly increase the timeframe of the development review process, adding new layers of review and discretionary actions required to process applications that currently only require a ministerial building permit.

B. Enforcement of view "rights" has the potential to become a large enforcement issue, with these types of code enforcement cases often appealed or becoming litigious.

C. With the exception of Del Mar and Laguna Beach, the ordinances reviewed do not protect private views from new non-residential development. The ordinances only regulate vegetation and development on private, residential properties and not commercial or mixed -use developments.

D. These ordinances modify zoning regulations related to height limits by placing importance on protecting existing views over new, and otherwise, code-compliant construction. These ordinances typically apply to zones with generally-applicable two-story height limitations.

Recommended Actions:

Staff Recommendation:

That the City Council receive and file the administrative report, dated October 4, 2022, and on file with the City Clerk...recommendation
Attachment:

1. Measure I - Shorecliffs Building Height and View Referendum

2. General Plan Advisory Committee - View Preservation Information

3. Matrix - View Protection Ordinance Comparison

4. City of Del Mar Municipal Code Chapter 23.51 - Trees, Scenic Views and Sunlight CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/29/2022
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Meeting Date: 10/4/2022 Agenda Item: B.

5. City of Laguna Beach Municipal Code Chapter 12.16 - View Preservation and Restoration

6. City of Laguna Beach Informational Guides on View Preservation Process and Flowchart, and View Restoration Process

7. City of Rancho Palos Verdes Municipal Code Section 17.02.040 - View Preservation and Restoration

8. City of Rancho Palos Verdes View Restoration Guidelines Packet

9. City of Rancho Palos Verdes Height Variation Permit Application Guide

10.Town of Tiburon Municipal Code Chapter 15 - View and Sunlight Obstruction from Trees Notification:

None.

CITY OF SAN CLEMENTE Page 3 of 3 Printed on 9/29/2022
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FULL TEXT OF MEASURE I

CITY OF SAN CLEMENTE
AN ORDINANCE OF THE PEOPLE OF THE CITY OF SAN CLEMENTE, CALIFORNIA AMENDING APPENDIX “A” OF TITLE 17 OF THE SAN

CLEMENTE MUNICIPAL CODE, ZONING, FOR PURPOSES OF ADDING SPECIAL RESIDENTIAL DEVELOPMENT STANDARDS TO THE SHORECLIFFS RL-11 AND RL-12 OVERLAY ZONES REGULATING RESIDENTIAL DEVELOPMENT WITHIN THE OVERLAY AREAS FOR THE PURPOSES OF NEIGHBORHOOD PRESERVATION AND VIEW; AND AMENDING SECTION 17.16.090 OF TITLE 17 OF THE

MUNICIPAL CODE, ZONING, FOR PURPOSES OF A MINOR EXCEPTION PERMIT PROCESS TO ALLOW A REDUCTION OF THE REQUIRED MINIMUM REAR YARD; AND AMENDING SECTION 17.16.060 OF TITLE 17 OF THE MUNICIPAL CODE, ZONING, FOR

PURPOSES OF A CONDITIONAL USE PERMIT PROCESS TO ALLOW AN INCREASE OF THE ALLOWED MAXIMUM HEIGHT WHEREAS, on January 6, 2004, the City Council initiated the Shorecliffs Residential Bulk and Massing Study, for the purpose of determining whether new homes and additions to existing homes were occurring that were not consistent with the overall community character; and WHEREAS, on June 21, 2005, the City Council established the Shorecliffs Residential Bulk and Massing Study Task Force, for the purpose of discussing issues in Shorecliffs related to new construction and to develop a survey to be conducted amongst Shorecliffs property owners; and WHEREAS, on September 10, 2005, the City Manager approved a Professional Service Agreement with Pamela Wooldridge, of Research Network Ltd, at 27001 La Paz Road, Suite 446, Mission Viejo, CA 92691, for the purpose of preparing and conducting the Shorecliffs neighborhood survey; and WHEREAS, on March 7, 2006, the City Council directed staff to prepare a draft overlay ordinance that reflects the findings of the Shorecliffs Neighborhood survey; and
WHEREAS, on April 4, 2006, the City Council directed staff to commence a zoning amendment process to consider the proposed Shorecliffs ordinance as well as conduct an advisory ballot vote of all Shorecliffs’ property owners to ascertain whether the majority of the Shorecliffs’ property owners support the adoption of the draft amendments to the Shorecliffs’ RL-11 and RL-12 overlay districts, as well; and WHEREAS, the City's Development Management Team (DMT) reviewed the subject Zoning Amendment application and determined its compliance with the General Plan and other applicable City ordinances and codes; and WHEREAS, the Planning Division completed an environmental assessment of the amendment in accordance with the California Environmental Quality Act (CEQA), having determined that the amendments will not have any potential significant environmental impacts, and that, therefore, a Negative Declaration is warranted; and
WHEREAS, a Negative Declaration reflecting the independent judgment of the City of San Clemente was prepared on May 8, 2006 and was advertised for the required 20-day public review period from May 12, 2006 through May 31, 2006; and WHEREAS, on June 7, 2006, the Planning Commission held a duly noticed public hearing on the subject application, considered evidence presented by the City staff and other interested parties, and recommended that the City Council approve the amendment; and WHEREAS, on July 11, 2006, the City Council held a duly noticed public hearing on the subject application and considered evidence presented by the City staff, the applicant and other interested parties; and WHEREAS, on July 25, 2006, the City Council adopted its Ordinance No. 1319 which (1) restricted residential building heights within a portion of the Shorecliffs neighborhood to sixteen (16) feet, subject to possible exceptions for certain residential lots through a conditional use permit process if it could be established that a building height in excess of 16 feet would not have a significant adverse impact on an ocean or shoreline view, and (2) reduced the front and rear setbacks and increased the maximum lot coverage requirements for certain of the lots affected by the reduced building height limits; and WHEREAS, on August 23, 2006, a referendum petition was filed with the City Clerk’s office with sufficient valid signatures to require that the City Council either rescind Ordinance No. 1319 or submit said ordinance to the City’s voters for consideration no later than the next regular general municipal election taking place on November 4, 2008; and
WHEREAS, a lawsuit was filed challenging the legal sufficiency of the referendum petition, but the validity of the referendum petition was upheld by the Orange County Superior Court and the California Court of Appeal, Fourth Appellate District, Division 3; and WHEREAS, on January 22, 2008, the City Council determined to submit Ordinance No. 1319 to the City of San Clemente’s voters for consideration at the June 3, 2008 Special Municipal Election;
NOW, THEREFORE, THE PEOPLE OF THE CITY OF SAN CLEMENTE ORDAIN AS FOLLOWS:

SECTION 1. The People find and determine as follows with regard to ZA 06-237, including all proposed changes described in Section 4 through Section 9 hereto:

A. The proposed amendment will be consistent with the City of San Clemente General Plan (GP) for reasons that include, but are not limited to:

1.The proposed ordinance preserves the fabric of an existing residential neighborhood in the City. (GP Vision Statement, Section B, and GP Residential Land Use Policies, Intent Section).

2.The proposed ordinance preserves the scale of an older coastal neighborhood. (GP Constraint II.C.7 and GP Objective 2.9).

B. The proposed amendments will not adversely impact the public health, safety, and welfare in that the amendments implement General Plan policies and objectives related to orderly residential development and preservation of established neighborhood character.

SECTION 2. The People find that an additional reason supporting the adoption of this overlay zoning ordinance is that the ordinance will end neighbor disputes regarding the ability to develop structures over 16 feet in height under existing conditions.

SECTION 3. Appendix A of Title 17 subsection (K) of the City of San Clemente Municipal Code is hereby amended to read in its entirety as follows:

K. RL-11 (Tracts 4199, 4200, 4201, 4628, 4804, 4822, 4937, 4938, 5655).

1. Refer to the standards of the underlying RL zone, except for the following:

Minimum lot area: 7,200 sq. ft
Minimum lot width: 70 ft.

Interior-side yard setback: 6 ft.

2. The standards for fences, hedges, and walls, shall be as required in Section 17.24.090, Fences, Walls and Hedges, of this title, with the following exceptions:
a. Front Yard Setback Area.
i.. From the front property line, to a point 10 ft. parallel to the front property line, no fence shall exceed the present height requirement of 42 in.

ATTACHMENT 1
494
ii.. No fence shall exceed the stipulated 5 ft. height requirements from the 10 ft. front setback line to the front building line.

3. In addition to the above requirements, the following requirements shall apply to Lots 46 through 64 and Lots 107 through 114 of Tract 4938; Lots 5 through 19 of Tract 4937; Lots 1 through 57 of Tract 4804; and Lots 2 through 91of Tract 4628.

Height
16 foot maximum, measured from the highest existing grade elevation at the perimeter of the development envelope. For purposes of this section, the development envelope is defined as the net lot area inside the required yard setback areas.

Rear Yard Setback for Through Lots: 20 foot minimum (see exception provision as provided in this section) Front Yard Setback 10 foot minimum
Front Yard Setback to Street-Facing Garage 20 foot minimum or 18 foot minimum with roll-up garage door Lot Coverage: 60% maximum

4. Exceptions.

A. Reduction of Rear Yard Setback. Properties subject to the maximum 16-foot height limit, as described in this Section, may be granted an exception to the minimum rear setback for through lots, allowing a reduction of as much as 25 percent of the required rear setback. In addition to the general findings required for a Minor Exception Permit, as provided in Section 17.16.090 of this Title, the following finding shall be made prior to approval of a Minor Exception Permit to reduce the minimum rear yard setback for through lots:
“The reduced rear yard setback will not have a substantial adverse impact upon a significant ocean view from other properties in the vicinity.”
B. Height Exception. Lots 46 through 64 of Tract 4938 may be granted an exception to the maximum 16-foot height limit upon the approval of a Conditional Use Permit.

1.The CUP application for a height exception shall be heard by the Planning Commission, who shall not refer the application to the design review subcommittee.

2.In addition to the general findings required for a Conditional Use Permit, as provided in Section 17.16.060(F) of this Title, the Planning Commission shall find that the development of the subject property in excess of 16 feet in height will not have a significant adverse impact on an ocean or shoreline view.

SECTION 4. Appendix A of Title 17 subsection (L) of the City of San Clemente Municipal Code is hereby amended to read in its entirety as follows:

L. RL-12 (Tract 4940, 5691).

1. Refer to the standards of the underlying RL zone, except for the following:

Minimum lot area: 7,200 sq. ft.

Minimum lot width: 70 ft.

Interior-side yard setback: 6 ft.

2. In Tract 4940, Lots 63-70, 72-79, 80-85, 133-140 and Tract 5691, Lots 2-17, 50-51, the following standards shall apply:
a. The standards for fences, hedges, and walls shall be as required in Section 17.24.090, Fences, Walls and Hedges, of this title, with the following exceptions:
i. From the front property line, to a point 10 ft. parallel to the front property line, no fence shall exceed the present height requirement of 42 in.
ii. No fence shall exceed the stipulated 5 ft. height requirements from the 10 ft. front setback line to the front building line.

3. In Tract 4940, Lots 19-68, 72-74, and 80-109, the following standards shall apply:

Height
16 foot maximum, measured from the highest existing grade elevation at the perimeter of the development envelope. For purposes of this section, the development envelope is defined as the net lot area inside the required yard setback areas.

Rear Yard Setback for Through Lots: 20 foot minimum (see exception provision as provided in this section) Front Yard Setback 10 foot minimum
Front Yard Setback to Street-Facing Garage 20 foot minimum or 18 foot minimum with roll-up garage door Lot Coverage: 60% maximum

4. Exception.

A. Reduction of Rear Yard Setback. Properties subject to the maximum 16-foot height limit, as described in this Section, may be granted an exception to the minimum rear setback for through lots, allowing a reduction of as much as 25 percent of the required rear setback. In addition to the general findings required for a Minor Exception Permit, as provided in Section 17.16.090 of this Title, the following finding shall be made prior to approval of a Minor Exception Permit to reduce the minimum rear yard setback for through lots:
“The reduced rear yard setback will not have a significant adverse impact upon substantial ocean views from other properties in the vicinity.” 495
SECTION 5. Section 17.16.090.C(17) of the City of San Clemente Municipal Code is hereby amended by adding a new subsection (d) to read as follows:
d. For lots subject to a 16-foot height limit in Accordance with Appendix A of this Title, subsections (L) and (K), a decrease of not more than twenty five (25) percent of the required rear yard.

SECTION 6. Section 17.16.090.F(2) of the City of San Clemente Municipal Code is hereby amended by adding a new subsection (k) to read as follows:
k. Reduced rear yard setback, specific findings in accordance with Appendix A, subsections (L) and (K), of this Title.

SECTION 7. Section 17.16.060.C of the City of San Clemente Municipal Code is hereby amended by adding the following language at the bottom of the table that comprises that section:

Height exceptions for residential development on Lots 46 through 64 of Tract 4938 Appendix A, subsection (K,4,B) of this Title SECTION 8. Section 17.16.060.F(2) of the City of San Clemente Municipal Code is hereby amended by adding the following language at the bottom of the table that comprises that section:

Height exceptions for residential development on Lots 46 through 64 of Tract 4938 Appendix A, subsection (K.4.B.2) of this Title SECTION 9. A map depicting the lots affected by this Ordinance is attached hereto as Exhibit “A.” SECTION 10. The People hereby declare their intention that the revisions to the maximum building heights effectuated by this Ordinance are not severable from the revisions to the minimum front and rear yard setbacks and maximum lot coverage standards set forth herein, such that if for any reason a court of competent jurisdiction issues a final, non-appealable judgment or order invalidating or enjoining the enforcement of the revised maximum building height standards for all or any lots, the People’s intention is that the revised minimum front and rear yard setback and maximum lot coverage standards for those same lots shall also be null and void and of no further force or effect. The People further declare their intention that Sections 3.B, 7, and 8 of this Ordinance, which provide for the possibility of the issuance of height exception permits for Lots 46 through 64 of Tract 4938, are severable from the remaining provisions of this Ordinance, such that, if a court of competent jurisdiction determines that this Ordinance is invalid or unenforceable on the basis that this Ordinance does not provide for a similar height exception permit process for some or all of the remaining lots subject to this Ordinance, or on the basis that the disparate treatment of Lots 46 through 64 of Tract 4938 from some or all of the remaining lots subject to this Ordinance is arbitrary, capricious, discriminatory, or in any other respect unlawful, the People’s intention is that Sections 3.B, 7, and 8 of this Ordinance shall be severed from the remaining provisions of this Ordinance and shall be null and void and of no further force or effect, such that the revised maximum building height provisions effectuated by this Ordinance shall apply equally to each and every lot subject to this Ordinance.

SECTION 11. The People hereby approve Zoning Amendment 06-237 subject to the above Findings.

SECTION 12. The City Clerk shall certify to the passage and adoption of this Ordinance and the same shall be noticed as required by law and shall take effect as provided by law.
496
Exhibit “A”
Properties subject to ordinance includes all single-family properties addressed, fronting or accessed from the following list of streets (includes all single-family properties on the street unless otherwise indicated) :

Calle Tinaja (201 to 217, inclusive)
Via Alegre (200 to 410, inclusive)
Via Arboleda (2701 to 2729, inclusive)
Via Ballena (201 to 267, inclusive)
Via Bandita (2701 to 2719, inclusive)
Via Casa Loma (2701 to 2731, inclusive)
Via Cascadita (2620, 2622, 2624, 2626)
Via Corbina (2901 to 2917, inclusive)
Via Lado (2701 to 2711, inclusive)
Via Montecito (2701 to 2731, inclusive and 2807 to 2820, inclusive) Via Montego (201, 203, 205, 207, and 209 to 317, inclusive) Via San Andreas (201 to 259, inclusive)
Via San Jacinto (2901 to 2921, inclusive)
Via Santo Tomas (2701 to 2731, inclusive)
Via Senda (201 to 211, inclusive)
Via Verbena (2701 to 2731, inclusive)
Via Vistosa (2701 to 2727, inclusive)
497
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IMPARTIAL ANALYSIS BY CITY ATTORNEY

MEASURE I
Shorecliffs is an established single-family residential neighborhood on the ocean side of Interstate 5, in the northern portion of San Clemente. The homes in Shorecliffs are predominantly single-story construction, although the maximum building height currently permitted under the City’s Zoning Code is 25 feet, which will accommodate a typical 2-story home. The topography in the neighborhood slopes toward the ocean and many of the homes have significant ocean views over the homes below.

In July 2006, the San Clemente City Council adopted an ordinance reducing the maximum permitted building height in the majority of the Shorecliffs neighborhood from 25 feet to 16 feet--essentially a 1-story building height restriction. The lots affected by this restriction were selected based on the City Council’s assessment of their potential to impair ocean views if 2-story construction were allowed to occur. The purpose of the ordinance is to prohibit 2-story above-grade construction on the affected lots and thereby preserve the existing ocean views from other homes, predominantly single-story homes, in the neighborhood.

After the City Council’s action, a referendum petition was circulated and qualified for the ballot. A “yes” vote on this measure will affirm and approve the City Council’s action. A “no” vote will have the effect of rescinding the City Council’s action, keeping the existing 25-foot maximum building height limit in effect throughout the entire Shorecliffs neighborhood.

The Council-adopted ordinance also contains an exception procedure allowing 19 of the lots affected by the ordinance to build higher than 16 feet if it can be shown that there will not be a substantial adverse impact on ocean views. The ordinance also relaxes some development standards for the affected lots to permit a slightly larger single-story building “footprint” than would otherwise be permitted. 498
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ARGUMENT IN FAVOR OF MEASURE I
VOTE ‘YES’ -- SAVE SHORECLIFFS
Built in the 1960’s, Shorecliffs was one of San Clemente’s oldest planned single-story neighborhoods with carefully-terraced hillside streets and expansive ocean views. Two-story homes were only built along the perimeter streets to keep the ocean views unobstructed.

Recently, a few large view-blocking expansions have arisen changing the design of the community. The Shorecliffs Height & View Preservation Ordinance is a fair and balanced compromise that restores Shorecliffs’ intended protection against these structures, ensures responsible growth, and preserves this unique and special neighborhood.

A YES vote:
• PRESERVES PROPERTY RIGHTS that were intended for all
Shorecliffs homeowners.
• SAVES EXISTING OCEAN VIEWS, NEIGHBORHOOD
CHARACTER, compatibility, privacy, quality of life and property values.
• GIVES HOMEOWNERS THE RIGHT TO EXPAND by allowing an
increase in square footage on a single-story level for every home affected by a height limit.
• PROVIDES A BALANCED SOLUTION approved by the vast majority of Shorecliffs homeowners.
• OFFERS A WIN-WIN SCENARIO with NO administrative costs to the city and NO effect outside of Shorecliffs. It does NOT affect your neighborhood.
• SAVES ONE OF SAN CLEMENTE’S oldest, most unique single-story terraced neighborhoods from mansionization.

Your city council, planning commission and community leaders support this much-needed ordinance. The majority of Shorecliffs homeowners voted in favor of this ordinance in the Shorecliffs Advisory Vote as documented by the city clerk. Please join them and vote YES.

PLEASE VOTE YES SAVE SHORECLIFFS!
s/ Donald K. Hansen
San Clemente Lifetime Achievement Award,
San Clemente Citizen of the Year,
Former President, San Clemente Exchange Club & Dons
s/ M. Dwight Hamro
Original Shorecliffs Homeowner,
Aerospace Engineer (Ret.)
s/ Charles Mann
Community Leader, Save San Clemente Open Space
s/ Kayne Schroeder
San Clemente Aquatics Specialist, Teacher & Coach
s/ Paige Foreman
San Clemente Youth Sports & PTA Mom

499
30-00

REBUTTAL TO ARGUMENT IN FAVOR OF MEASURE I

VOTE NO TO RESTORE FAIRNESS
Shorecliffs is a 40 year old community where 2-story homes have always existed. It has terraced hillsides and ocean views like many communities in San Clemente and all along our coastline.

These homes were built in the 1960’s, they are generally less than 1700 square feet, and have well documented construction flaws.

The TRUTH is Shorecliffs CC&R’s:

DO NOT restrict or prohibit 2-story homes or 2nd story home additions; DO NOT provide view protection;
DO NOT describe any unique neighborhood character;
www.voteNosc.com
In 1991, proponents of restrictions similar to this ordinance sought modification of the CC&Rs in Superior Court. Their claim was not only denied, the entirety of the CC&R’s was ruled “unenforceable.” Restrictions on property rights do not “save” property values, restrictions hurt property values.

A yes vote takes property rights from one and gives them to another, a NO vote preserves the property rights that all Shorecliffs homes were purchased under.

This ordinance will create unequal property rights for THREE different areas within ONE neighborhood if passed.

Even Charles Mann’s Save San Clemente Open Space Committee says, “The zoning code is designed to prevent any one owner from abusing a system created for the benefit of all San Clemente residents”
Should a small number of San Clemente homeowners be granted special rights through zoning codes that are not for the benefit of all San Clemente residents?
Shorecliffs families simply want to retain the same rights you have to remodel their homes.

PLEASE VOTE NO ON I
Heather Sterner
Shorecliffs Homeowner And Mother Of Young Family
James W. Nielsen
Chairman California Alliance To Protect Private Property Rights, Sponsor Prop 98
Mat Deveze
SC Resident And Business Owner, Save Trestles Activist, Surfer, SC Little League Coach And Father
Harcourt "Court" Morgan
SC Resident, Environmental Planner And Activist, Past Member National Scholastic Surfing Association And Father
Michael S. Winsten
Chairman CUSD Recall Committee, Director South Coast Children's Society, SC Little League Sponsor/Umpire And Father
500
30-00

ARGUMENT AGAINST MEASURE I

VOTE NO ON MEASURE I
San Clemente families urge you to vote NO to restore property rights in San Clemente. A ‘NO’ vote will restore private property protection.

Voting NO will send the right message that property rights are a constitutional right that should be protected not taken from citizens.

Taxpayers and homeowners have wasted hundreds of thousands dollars on this ordinance. Vote NO and put an end to the waste of precious city funds to support special interests.

Nearly 6,000 San Clemente residents signed the petition to bring this UNFAIR ordinance to an end by demanding the repeal of the ordinance or bringing it to a city-wide vote.

Since then supporters of this UNFAIR ordinance filed a lawsuit against the City to stop this vote. They lost the lawsuit and their appeal. Your constitutional rights to have this vote were upheld by the courts.

This UNFAIR ordinance prevents families from adding on to their homes without significant expense and additional risk because it restricts homes to 16 feet high and forces expansion onto open space hillsides prone to landslides, or expansion by digging down.

This ordinance will take property rights from 269 homeowners by imposing 16-foot height restrictions on homes and GIFT those rights to select other homeowners, providing them with PRIVILEGED view protection not found anywhere else in San Clemente. A ‘NO’ vote will restore these property rights to the rightful owners.

Attempts have already been made to impose similar restrictions on homes in other parts of San Clemente. Stop them here or your neighborhood could be next.

Please join our coalition of San Clemente families and homeowners, the California Republican Party, Democratic leaders and thousands of San Clemente voters all of whom oppose this ordinance and urge you to VOTE ‘NO’.

Save property rights and stop UNFAIR discriminatory takings for special interests.
s/ Ryan Wilkinson
Shorecliffs Resident
s/ Jim Dahl
City Councilman, Former Mayor
s/ Truman Benedict
Former Educator & San Clemente Citizen of the Year
s/ Pete Carty
Commander U.S.N., SC Little League Coach, Shorecliffs Resident s/ Mimi Walters
Assemblywoman 73RD District
501
30-00

REBUTTAL TO ARGUMENT AGAINST MEASURE I
VOTE ‘YES’ -- THE ORDINANCE IS FAIR:
• RESTORES PROPERTY RIGHTS INTENDED FOR ALL
SHORECLIFFS FAMILIES. Do property rights belong only to those who want to build up? What about the rights of surrounding neighbors? Aren’t ocean views, privacy, and neighborhood compatibility important property rights?
• WILL NOT AFFECT YOUR NEIGHBORHOOD. Do NOT be misled. This ordinance ONLY affects Shorecliffs.
• SAVES OCEAN VIEWS, PRIVACY, NEIGHBORHOOD CHARACTER
AND QUALITY OF LIFE. What they call a “gift” is actually a legal means of reinstating enforceable protections against view-blocking expansions in Shorecliffs – protections found in other San Clemente planned developments.
• ALLOWS RESPONSIBLE EXPANSIONS. The claim about landslides resulting from single-story expansions is ludicrous. Why would a one-story expansion pose a greater threat than a two-story? VOTE ‘YES’ – THEIR CLAIMS ARE MISLEADING:
• The City Clerk invalidated more than 2,000 of those “nearly 6,000” petitions. Those who signed wanted to VOTE on the ordinance, not “repeal” it.
• The city spent a fraction of the “hundreds of thousands” claim. Shorecliffs homeowners incurred most of the costs, NOT THE CITY. No further expense is needed.

The ordinance represents the will of the vast majority of Shorecliffs homeowners. In fact, 72% of the homeowners who voted in the official Shorecliffs Advisory Vote were IN FAVOR of the ordinance, as documented by the City Clerk. Please join the City Council, the Planning Commission and Shorecliffs families to ENSURE RESPONSIBLE GROWTH FOR FUTURE GENERATIONS.

VOTE ‘YES’ -- SAVE OUR SHORECLIFFS!
www.SaveOurShorecliffs.com
s/ Donald K. Hansen
San Clemente Lifetime Achievement Award,
San Clemente Citizen of the Year,
Former President, San Clemente Exchange Club & Dons
s/ Nora Kanoy
Alternate, Orange County Republican Party Central Committee, Shorecliffs Homeowner
s/ Charles Mann
Community Leader, Save San Clemente Open Space
s/ Chris Wade
Chief Operating Officer, Herron Co., National Real Estate Appraisal Firm, Shorecliffs Homeowner
s/ Norman R. Dickinson
Member, Orange County Republican Party Central Committee, San Clemente Resident
502
son demente
centennial
GUH!!l'd HJoH
View Preservation
In the course of exploring ideas for the new General Plan, it was suggested we revisit the protections the City places on views. San Clemente has long held to a policy that Public views from public places are protected. The City's existing General Plan establishes certain view corridors and contains public view preservation policies. City policy specifically does not attempt to protect private views. Trees and private views both add value to private property but the city has historically made the policy choice to, as much as possible, not interfere with private property owner's rights. If it is determined th�t this policy should change, it would be appropriate for the General Plan to establish the new policy direction of view preservation which would result in the development of a view protection ordinance.

As a coastal city, the City of San Clemente is obligated by the California Coastal Act to protect designated scenic public views when considering new development. This policy could be expanded to include views from private properties, as well as views impacted by trees. The General Plan would include policies related to view protection, but the specific regulations would be detailed in the Zoning Ordinance.

The following summarizes the City's existing policy, view protection policies of other jurisdictions, and challenges of enforcing and implementing these types of provisions.

EXISTING VIEW PROTECTION POLICY
The City of San Clemente, in accordance with the Coastal Act, protects scenic public views.

Public views are considered from public locations such as designated view corridors and parks.

The General Plan Policy 10.2.7 states, "promote the preservation of significant public view corridors to the ocean." Enforcement of this policy is conducted by requiring submittal of viewshed analysis of potential impacts to public views to the ocean and natural canyon areas resulting from new development. The Urban Design Element states that the preservation of important public view corridors toward both the ocean and distinct features in the inland landscape is desirable. Designated public view corridors are located in the Pier Bowl (see the Pier Bowl Specific Plan) and North Beach (see the Urban Design Element Figure 2-2). Although not formally adopted, the Coastal Act also protects views from public viewing points, such as a public park, street or other public location.

The City does not currently address impacts from new development, or landscaping, upon private views, or views from private residences.
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Views and Sunlight application, which is subject to a fee of $3,790, requires a public hearing before the City's Planning Commission.
http ://www. d elm ar.ca. us/Government/Mun icipal%20Code/Cha pter 2351. pdf Structures
The cities of Laguna Beach and Del Mar consider impacts to private views in the course of their design review process. The onerous requirements of the City of Laguna Beach for regulating the impacts of new development on private views are probably the most well known within the planning and development community. The affects of the discretionary process are evident by viewing the properties covered with story poles along the coast.

In reviewing the regulations and criteria that each jurisdiction utilizes in considering private view impacts from new development, the subjectivity of the process became evident. The process and criteria for evaluating view impacts are vague. Various interpretations can be made for defining a view and how to apply a view equity standard. This uncertainty of the review process is also echoed in speaking with planners and applicants who have participated in the process.
http://www.lagunabeachcity.net/civica/fi1ebank/blobdload.asp?Blob1D=6188 http ://www.d el mar .ca.us/Government/Mu nicipal%20Code/Chapter 2308. pdf Challenges
There are many pros and cons to the issue of view protection. The obvious benefit would be to those that currently have a view. Enforcement of private view protection would provide them the comfort of knowing their view would not be impacted by future development.

The City's review process was evaluated by an outside consultant in 2009 to improve upon the system. The result provided a comprehensive customer improvement program that has been approved by the City Council and endorsed by the community. Specific recommendations were presented to provide a greater level of certainty to applicants during the entitlement process.

Emphasis was placed on the need for clear policies and regulations to limit frustration among the development community, as well as residents. Ensuring our goals and policies clearly define the desire of the community is also one of the reasons for updating the General Plan. As directed by the City Council, many programs and resources have been dedicated to implementing the customer service recommendations. As a result, the City's permit processing system has received several posi�ive comments from the community recognizing the improvements.

As demonstrated in the cases of Laguna Beach and Del Mar, two cities which have considered private view protection for many years in the course of design review, the bi-product is a highly contentious process with outcomes that vary depending on the level of opposition as well as the decision-makers. Obviously a more lengthy process with greater uncertainty would be inconsistent with the efforts resulting from the customer service program. 505
Potential GPAC Recommendations

1. Maintain Current Policy Direction for protecting public views; or

2. Expand Policy to recognizing value of protecting private views a. Include implementation measure to develop Tree and Vegetation Ordinance to address private views, as well as tree preservation; and/or b. Include implementation measure to incorporate into the design review process consideration of impacts of new development on private views design review.

The development of a view protection ordinance from private property would require creating criteria to establish and evaluate "right to a view", view equity and sunlight issues, and a view preservation and restoration process and include provisions for landscaping, trees, natural vegetation, hedges, encroachments, design review, and enforcement issues. 506
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Chapter 23.51 - TREES, SCENIC VIEWS AND SUNLIGHT

23.51.010 - Purpose.

The City recognizes that Trees, Scenic Views and plentiful Sunlight contribute to the special character of Del Mar and to the overall quality of life enjoyed by residents, property owners, and visitors in Del Mar.

Trees, Vegetation, and other landscaping produce a wide variety of significant psychological and tangible benefits for residents, property owners, and visitors in Del Mar. Trees contribute to the economic value and comfortable enjoyment of the community, neighborhoods and individual properties. Trees provide aesthetic value as part of an urban forest, visual and auditory privacy, climate control, wind screening, soil stability, and wildlife habitat.

Scenic views, whether of the Pacific Ocean, nearby lagoons, canyons, the community and its landscapes and urban forest character, or other scenic vistas, produce a variety of significant and tangible benefits for residents, property owners and visitors. Scenic views provide inspiring vistas, encourage distinct and creative architecture, and contribute to the economic value and comfortable enjoyment of real property within the City of Del Mar.

Plentiful Sunlight provides an opportunity to utilize solar energy and contributes to the economic value and comfortable enjoyment of real property within the City of Del Mar.

The purpose of this Chapter is to acknowledge the benefits derived from Trees, Scenic Views and plentiful Sunlight and to balance the goal of maintaining each of them when possible. This Chapter also provides a process by which persons may seek to restore Scenic Views and/or Sunlight that has been unreasonably obstructed by the growth and/or installation of Trees and Vegetation. (Ord. No. 747; Ord. No. 780)

23.51.020 - Definitions.

For the purposes of this Chapter, the following words and phrases shall have the meanings respectively ascribed to them by this Section:

Applicant shall mean any property owner (or legal occupant with written permission of the property owner) who alleges that Trees or Vegetation located on the property of another person unreasonably obstructs a pre-existing Scenic View or Sunlight and who has filed a (Trees, Scenic Views and Sunlight) Application with the City to restore said view or sunlight.

Certified Arborist shall mean Certified Arborist as that term is defined by the International Society of Arboriculture.

Crown Reduction/Shaping shall mean a method of comprehensive trimming that reduces a Tree's height and/or spread. Crown reduction entails the reduction of the top, sides or individual limbs of a Tree by removal of leaders or the longest portion of limbs to a lateral large enough to assume to terminal.

Heading back shall mean a pruning process where overall reduction of the mass of a Tree is achieved by modification to major limbs.

Imminent Danger shall mean the immediate risk to the health, safety or welfare of any person or real ATTACHMENT 4
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property, whether private or publicly owned.

Lacing shall mean a comprehensive method of trimming that systematically and sensitively removes excess portions of a Tree and improves the structure of the Tree.

Mediation shall mean a private, voluntary process in which an impartial and qualified third party facilitates communication between parties to a dispute to promote settlement.

Obstruction shall mean any substantial blocking or diminishment of Scenic Views and/or Sunlight that is attributable to the growth, improper maintenance or location of a Tree or Vegetation.

Person shall mean any individual, corporation, partnership, firm, or other legal entity (including the City of Del Mar), owning property or residing within the Del Mar City limits.

Primary Living Area shall mean that (single) portion of a residence from which a Scenic View is observed most often by the occupants and guests at the residence. The determination of Primary Living Area is to be made on a case-by case basis and shall be consistent with any prior determinations made by the City.

Protected Tree shall mean any of the following:

A Tree of the species Cupressus macrocarpa (Monterey Cypress); A Tree of the species Pinus torreyana (Torrey Pine);
A Tree of any species and located on property within the Central Commercial, Open Space Overlay zones of the City, within a public right-of-way, or on public or City-owned property; or Any Tree planted as a result of required mitigation for the removal of another Protected Tree.

Restorative Action shall mean any specific action required to resolve a dispute relating to the unreasonable obstruction of a pre-existing Scenic View or Sunlight.

Scenic View shall mean a view of the ocean, lagoons, canyons, the community and its landscapes and urban forest character, or other scenic vistas, from the Primary Living Area of a residence.

Severe Pruning shall mean the cutting of branches and/or trunk of a Tree in a manner which substantially reduces the overall size of the Tree or destroys the existing symmetrical appearance, natural shape or health of the Tree and which results in the removal of main lateral branches leaving the trunk and branches of the Tree in a stub appearance. "Topping" and "Heading back" as defined herein are considered to be severe pruning.

Site of Subject Tree shall mean the property on which a Subject Tree is located.

Subject Tree shall mean a Tree for which a claim has been made by an Applicant regarding the unreasonable obstruction of a Scenic View or Sunlight.

Sunlight shall mean the availability of direct or indirect Sunlight to the Primary Living Area or to the existing solar energy system of a residence.

Thinning shall mean the selective removal of entire branches from a Tree so as to improve visibility through the Tree and/or improve the Tree's structural condition.

Tree shall mean any perennial plant growing on public or private property, having a self-supporting woody main stem or trunk with the potential to obstruct Scenic Views or Sunlight, including but not limited to Trees, shrubs, hedges, and bushes or any plant material planted or growing in a dense 509
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Tree Removal shall mean the elimination of any Tree or plant from its present location.

Topping shall mean eliminating the upper portion of the trunk or main leader of a Tree. Topping is not recommended in almost all cases.

Trimming shall mean the selective removal of portions of branches from a Tree so as to modify the Tree shape or profile or otherwise alter the Tree's appearance.

Vegetation shall mean all plant material, including but not limited to, those referenced in this Section for the term "Tree".

Windowing shall mean a form of thinning by which openings or "windows" are created to restore Scenic Views and/or Sunlight.
(Ord. No. 729; Ord. No. 780)

23.51.030 - Rights Established.

A person shall have the right to seek restoration and preservation of Scenic Views or Sunlight that existed at the time they purchased or occupied a property or in the last ten years, whichever is shorter, when such Scenic Views from the Primary Living Area, or Sunlight available to the Primary Living Area or solar energy system of a residence, have subsequently been unreasonably obstructed by the growth of Trees or Vegetation located within the Del Mar City limits and 300 feet of the Applicant's property boundary.

In order to establish such rights pursuant to this Chapter, the Applicant shall follow the process established in this Chapter.

Any person whose Tree(s) is the subject of a Trees, Scenic Views and Sunlight application shall be granted the right to, under Applicant supervision, access the Applicant's Primary Living Area and personally view and/or document the alleged blockage and Scenic Views and/or Sunlight. By signing the Trees, Scenic Views and Sunlight application, the Applicant shall acknowledge and accept this right given to the Tree owner.

All persons are advised that the alteration and removal of certain Trees requires a permit under DMMC Chapter 23.50 (Trees). The applicability of DMMC Chapter 23.50 should be determined by the City prior to any action on Trees.

23.51.040 - Procedure.

Any person who desires to resolve a conflict between Trees, Scenic Views and Sunlight may submit an application to the Department of Planning and Community Development on a form approved by the Director.

The application shall be deemed to have been filed when:

The Director has determined that the application is complete, has been submitted in proper form and meets the criteria established in Subsection 23.51.030.A. of this Chapter; The Applicant has submitted to the City the required fee, in an amount to be established by resolution of the City Council, to cover the administrative costs of processing the application; and The Director has determined that the Applicant has contacted the Subject Tree owner and has made reasonable efforts, including documented efforts to engage in mediation, to resolve the dispute and that 510
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these efforts have not been successful.

The Director shall cause the application to be presented at a noticed public hearing conducted by the City of Del Mar Planning Commission.

Within ten working days after the application has been deemed filed, City staff shall notify the Subject Tree owner, in writing, and provide the following:

A copy of the Trees, Scenic Views and Sunlight application; A copy of DMMC Chapter 23.51;
A statement explaining that there is still time and an opportunity to resolve the matter by discussions between the Applicant and the Subject Tree owner prior to the scheduled public hearing; Information about the mediation process, including a handout from the Del Mar Community Mediation Advisory Committee, and encouragement to use mediation. Additional informational materials associated with dispute resolution shall be distributed as they are made available; and Notice that a written response to the application may be submitted for review by the Planning Commission prior to the hearing, the deadline for any such response, and the date and time of the hearing.

At least ten days prior to the public hearing, notice shall be published and mailed to property owners of record of real property within 300 feet of both the Applicant's property boundaries and of the site of the Subject Tree.

At the hearing, each party shall be allowed time to present evidence pertinent to the application/claim. The public shall also be given an opportunity to comment on the application. The Applicant shall not thereafter raise arguments that were not presented during the public hearing or in the written record.

The Planning Commission shall make a decision on the Application based on the criteria listed in Section

23.51.050 of this Chapter. An action approving an Application shall be set forth in a Resolution and accompanied by Conditions of Restorative Action that identify the specific manner in which the Subject Tree is to be trimmed, pruned, removed or otherwise altered in accordance with Section 23.51.070 of this Chapter.

The Planning Commission's decision shall become final on the 11th working day following such determination, unless the decision is appealed to the City Council in accordance with the provisions of this Code (Section 23.51.100).

The Conditions of Restorative Action and required term of maintenance (if deemed appropriate) imposed by the Planning Commission may be recorded in a covenant against the deed for the property on which the Subject Tree is located. If required, the covenant shall run with the land to help guarantee permanent preservation of pre-existing Scenic Views and/or Sunlight. (Ord. No. 780)

23.51.050 - Standards for Determining Unreasonable Obstruction.

Prior to rendering a decision in favor of the Applicant, the Planning Commission shall make the following findings of fact:

That the Applicant has contacted the Subject Tree owner and has made reasonable efforts to resolve the dispute as set forth in DMMC Subsection 23.51.040.B. Proof of the Applicant's efforts shall include 511
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17. documented attempts (registered mail, etc.) to reach and confer with the Subject Tree owner, and documentation supporting efforts to mediate the dispute; and That the Scenic View from or the Sunlight reaching the real property of the Applicant is unreasonably obstructed and the manner in which the Scenic View and/or Sunlight is obstructed. In determining whether the Scenic View from and/or Sunlight reaching the real property of the Applicant is unreasonably obstructed, the Planning Commission shall consider several factors, which include but are not limited to, the following:

The extent of alleged Scenic View obstruction, expressed as a percentage of the total Scenic View, and calculated by means of a surveyor's transit or by photographs or both; Documentable evidence that demonstrates the Scenic Views and/or Sunlight that existed at the time the Applicant purchased or began occupying a property, or in the last ten years, whichever is shorter; The quality of the pre-existing Scenic View(s) and/or Sunlight being obstructed; That the implementation of a Restorative Action will not create an unreasonable infringement of the Subject Tree owner's privacy that could not be mitigated; The extent to which the Subject Tree interferes with efficient operation of an Applicant's pre-existing solar energy systems;
The extent to which the Subject Tree causes shadows or reduces air circulation and/or light; The extent to which the Applicant's Scenic Views and/or Sunlight has been diminished over time by factors other than Subject Tree growth;
The variety of Subject Tree, its projected rate of growth and maintenance requirements; The aesthetic quality of the Subject Tree, including but not limited to species characteristics, size, growth, form and vigor;
The extent to which the location of the Subject Tree with respect to overall appearance, design, or use benefits the Subject Tree owner's property;
The extent to which soil stability is provided by the Subject Tree, considering soil structure, degree of slope and extent of the Subject Tree's root system per a report from a licensed soils engineer (if applicable);
The extent to which privacy (visual and auditory) and wind screening is provided by the Subject Tree to the owner and to neighbors;
The extent to which energy conservation and/or climate control is provided by the Subject Tree; The extent to which wildlife habitat is provided by the Subject Tree; Whether the Subject Tree is a "Protected Tree", as defined herein and in Chapter 23.50 (Trees); The value of the Subject Tree to the community/neighborhood; and Whether the Subject Tree is located on public right-of-way or City-owned property. (Ord. No. 780)

23.51.060 - Criteria for Determining Appropriate Restorative Action. 512
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3. After it has been determined, through the hearing process, that unreasonable obstruction has occurred, then the following unweighted factors shall be considered in determining appropriate Restorative Action:

Any hazards posed by the Subject Tree to persons or structures on the property of the Applicant including, but not limited to, fire danger, as determined by a City Fire Official, and the danger of falling limbs or Trees, as determined by a Certified Arborist;
The variety of Subject Tree, its projected rate of growth and maintenance requirements; The aesthetic quality of the Subject Tree, including but not limited to species characteristics, size, growth, form and vigor;
The location of the Subject Tree with respect to overall appearance, design, or use of the Subject Tree owner's property;
Soil stability provided by the Subject Tree considering soil structure, degree of slope and extent of the Subject Tree's root system per a report from a licensed soils engineer; Privacy (visual and auditory) and wind screening provided by the Subject Tree to the owner and to neighbors;
Energy conservation and or climate control provided by the Subject Tree; Wildlife habitat provided by the Subject Tree;
Whether the Subject Tree is a "Protected Tree", as defined herein and in Chapter 23.50 (Trees); The value of the Subject Tree to the community/neighborhood; and Whether the Subject Tree is located on public right-of-way or City-owned property.

23.51.070 - Hierarchy of Restorative Actions.

Restorative Action may include additional written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest. Where removal is required, replacement by appropriate species should be considered, but may not always be required.

View and/or Sunlight Restorative Actions must be consistent with all other provisions of this Chapter. In cases where Trimming, Windowing, or other Restorative Action may affect the health of a Tree which is to be preserved, such actions should be carried out in accordance with standards established by the International Society of Arboriculture for use in the State of California. Severe pruning should be avoided due to the damage such practice causes a Tree's form and health. Restorative Actions may include, but are not limited to the following, in order of preference:

Lacing. Lacing is the most preferred pruning technique that removes excess foliage and can improve the structure of the Tree.

Windowing. Windowing may be utilized where possible, if it does not adversely affect the Tree's growth pattern or health. Topping should not be done to accomplish windowing.

Crown reduction/shaping. Crown reduction/shaping is preferable to topping or Tree removal, if it is determined that the impact of crown reduction does not destroy the visual proportions of the Tree, adversely affect the Tree's growth pattern or health, or otherwise constitute a detriment to the Tree in 513

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Heading back. Heading back is only to be permitted for Trees specifically planted and maintained as a hedge, espalier, bonsai or in pollard form and if Restorative Actions 1 through 3 of this Section will not accomplish the determined restoration and the subsequent growth characteristics will not create a future obstruction of greater proportions.

Tree Removal. Tree removal may be considered when the above-mentioned Restorative Actions are judged to be ineffective and may be accompanied by replacement plantings of appropriate plant materials to restore the maximum level of benefits lost due to Tree removal. The City of Del Mar has designated certain Trees as "Protected Trees". Any alteration or removal of Protected Trees will require a permit from the City's Planning Director pursuant to DMMC Chapter 23.50.

Stand Thinning. The removal of a portion of the total number of Trees from a grove of Trees, without any replacement plantings.

23.51.080 - Restorative Work and Allocation of Costs.

When the Planning Commission has rendered a decision in favor of the Applicant, the following procedures shall be enacted:

The Subject Tree owner shall submit to the Applicant and the City two itemized estimates for carrying out the Restorative Work required by the Resolution. The estimates shall be supplied by licensed landscape or licensed Tree service contractors, under the supervision of a Certified Arborist, acceptable to the City, within 30 days after the adoption of the Resolution.

Within 15 days of receiving the cost estimates, the Applicant shall deposit with the City an amount equal to the lower cost estimate. Failure of the Applicant to make the required deposit within 15 days will render the resolution of approval null and void. After the required deposit is received by the City, the Subject Tree owner will then, at her/his sole discretion, choose the company by which she/he wishes the work done, as found acceptable to the City, and shall order the work done within 30 days after receiving the Applicant's deposit or such other period of time as the Planning Commission may determine to be reasonable and appropriate. If the Subject Tree owner does not have the work completed within the time period indicated by the Planning Commission or within 30 days, the City will order the work completed and charge the Subject Tree owner with any costs incurred above the estimate selected.

Upon completion of the work, the Subject Tree owner shall notify the City and shall submit a copy of an invoice showing that the work was performed. Upon submittal of the invoice and verification by City staff of the compliance, the City shall transmit the funds from the City deposit account to the Subject Tree owner. If the paid invoice submitted by the Subject Tree owner is for an amount less than the funds in the City's trust account, the Subject Tree owner shall only be transmitted an amount equal to the actual cost of the trimming. In such situations, the balance of the trust account shall be refunded back to the Applicant or applied to the Applicant's permit processing account, if that account contains a negative balance. If the paid invoice submitted by the Subject Tree owner is for an amount that exceeds the funds in the City's trust account, the Subject Tree owner shall only receive the funds from the City trust account, and the Subject Tree owner shall be responsible for paying the 514
B.

1. 2.

3. A.
difference. If a Subject Tree owner chooses to do the required work himself/herself, then the Subject Tree owner shall not be compensated from the City trust account and the amount in the trust account shall be refunded to the Applicant(s).

In the event that the Planning Commission or Council makes the determination that the Subject Tree constitutes a hazard to the safety of the Applicant or his/her property, and is being maintained by the Subject Tree owner in disregard for the safety of others, the Subject Tree owner shall:

Cause appropriate corrective work to be performed within 30 days; Pay all costs for work performed; and
Deposit with the City an amount equal to that expended by the Applicant as required by Subsection

23.51.040.B.2. of this Chapter and the fees shall be refunded to the Applicant. (Ord. No. 780)

23.51.090 - Ongoing Maintenance.

If ongoing maintenance is required as a condition of the Planning Commission's approval in favor of the Applicant, said maintenance work shall be performed according to the time schedule (annually, bi-annually, etc.) established by the Planning Commission. On each occasion that scheduled maintenance is to occur, the procedures indicated in Section 23.51.080 shall apply.
(Ord. No. 780)

23.51.100 - Appeal.

The decision of the Planning Commission may be appealed to the City Council pursuant to this Code. The provisions of Section 1094.6 of the California Code of Civil Procedure are applicable to judicial review of the City of Del Mar's decisions pursuant to this Chapter.
(Ord. No. 780)

23.51.110 - Enforcement.

The Subject Tree owner shall comply with any work prescribed by the Planning Commission or Council no later than 90 days after final action on the Application, unless, it is determined that it is less harmful to the Subject Tree for the work to occur at a specific time of the year, in which case, the work shall be performed no later than 90 days from a date set by the Planning Commission or Council. Thereafter, the continued maintenance (if required by Resolution) of the Subject Tree that is not in compliance with the final order prescribed by the Planning Commission or Council shall constitute a misdemeanor or infraction, punishable in accordance with the provisions of DMMC Chapter 1.08 and is declared a public nuisance which may be enjoined or abated as provided by law. (Ord. No. 780)

23.51.120 - Limitations.

It is not the intent of the City in adopting this Chapter to affect obligations imposed by an existing easement 515
B.
or a valid pre-existing covenant or agreement.

Nothing in the Chapter shall deny private parties the right to seek remedial action for imminent danger caused by Trees.
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Laguna Beach, California Municipal Code
Title 12 TREES AND VEGETATION
Chapter 12.16 VIEW PRESERVATION AND RESTORATION
Note

12.16.010 Intent and purpose.

12.16.020 Definitions.

12.16.030 Criteria for determining significant view impairment.

12.16.040 View preservation.

12.16.050 View restoration.

12.16.060 Cost apportionment.

12.16.070 City immunity—No mandatory duty.

12.16.080 Exemptions.

12.16.090 Legal access requirement.

12.16.100 View decisions binding on future owners—Disclosure obligations.

12.16.110 Violations—Penalties.

12.16.112 Fees.

Note
* Prior ordinance history: Ords. 1335, 1344 and 1430.

12.16.010 Intent and purpose.

ATTACHMENT 5
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(a) The city council declares that the peace, health, safety and welfare of the community will be served by the adoption of this chapter. The city council recognizes that residents, property owners and businesses cherish their outward views, and that they also cherish the benefits of plentiful sunlight reaching their buildings and yards. The city council further recognizes that both outward views and plentiful sunlight reaching property contribute greatly to the quality of life in Laguna Beach, and promote the general welfare of the entire community. The city council also recognizes the desire of many of its residents, property owners and businesses for beautiful and plentiful landscaping, including trees. The city council realizes that this desire may sometimes conflict with the preservation of views and sunlight, and that disputes related to view or sunlight obstruction are inevitable. Owners and residents should maintain trees on their property in a healthy condition for both safety reasons and for preservation of outward views and sunlight.
(b) It is a purpose of this chapter to establish a right for property owners to determine and to preserve those selected viewing locations or areas from significant or egregious view impairment by the growth of trees or other vegetation.
(c) It is a further purpose of this chapter to establish a right for property owners to restore preexisting views that have been significantly or egregiously impaired by trees or other vegetation.
(d) The determination of a significant or egregious view impairment is intended to attain an equitable balance between the right to reasonable use and enjoyment of one’s property (landscape vegetation), including the maintenance of privacy, and the right to protection against unreasonable loss of views. Equitable balance involves evaluation of the significant views in relation to the benefits of the existing vegetation when compared to any considered trimming or any suitable replacement vegetation. (e) In order to establish rights pursuant to this chapter, persons must follow the processes set forth in this chapter.
(f) This chapter is not intended to encourage or result in the clear-cutting or substantial denuding of any property of its trees or other vegetation by overzealous application of provisions of this chapter. It is not the intent or purpose of this chapter for the city to supersede, limit, supplant or otherwise affect any obligations imposed by private covenants, conditions and restrictions, any deed restrictions, any easements or other similar enforceable private agreements that place more restrictive controls on the growth or placement of trees or other vegetation. It is also not the intent or purpose of this chapter to rescind, modify or otherwise alter any prior city-issued tree or vegetation height entitlement, including without limitation a landscape plan in which vegetation height limits were approved through the design review process specified in Section 25.05.040, or a completed hedge claim pursuant to Chapter 12.14, or a completed view claim pursuant to Chapter 12.16 that was processed prior to December 17, 2014 (the effective date of the ordinance codified in this chapter). (g) This chapter applies to all properties within the boundaries of the city and the city’s permitting jurisdiction, excluding property owned by other governmental entities not subject to the city’s regulatory jurisdiction. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.020 Definitions.
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The following definitions shall apply for purposes of this chapter:
“Alter” means to take action that changes the vegetation, including, but not limited to, pruning of the canopy area, cutting, girdling, changing the water supply, applying chemicals or re-grading around the feeder root zone of the vegetation.
“Authorized agent” means a person who has been designated and approved in writing by the property owner of record to act on his, her or its behalf in matters pertaining to view preservation or view restoration pursuant to this chapter.
“Burden of proof” means the obligation of a claimant to produce substantial evidence supporting a description of the nature and extent of the alleged view impairment of pre-existing views.

Substantial evidence means enough relevant information and reasonable inferences from such information that a fair argument can be made on the basis of the entire record to support a conclusion, even though other conclusions might also be reached. Substantial evidence may include, but is not limited to, documented and date stamped photographic prints, slides, negatives or movies. In addition, written testimony from persons with actual knowledge about pre-existing views may be provided regarding the extent to which pre-existing views have been significantly impaired by vegetation.

Argument, speculation, unsubstantiated opinion or narrative, or evidence that is erroneous or inaccurate shall not constitute substantial evidence.
“Certified arborist” means a person with an education and experience in arboriculture or horticulture and is a Registered Consulting Arborist (RCA) of the American Society of Consulting Arborists (ASCA) and/or International Society of Arboriculture (ISA) certified arborist. The certified arborist shall be chosen by staff from a list of qualified and professionally trained persons with whom the city has a contract to provide arborist services.
“Canopy” means the umbrella-like structure created by the overhead leaves and branches of a tree or shrub.
“City” means the city of Laguna Beach and its city council, employees and staff and those designated by the city council or city staff to act on behalf of the city. “City-maintained vegetation” means vegetation designated for maintenance by the city. Such vegetation includes vegetation in city parks, on city properties, and city maintained street trees within rights-of-way. City-maintained vegetation is exempt from the provisions of this chapter. “City property” means any real property of which the city is the fee simple owner of record. “Claimant” means any residential property owner or authorized agent who alleges that applicable vegetation located within five hundred feet of their property is causing a significant view impairment.
“Clear cutting” means the removal of all the trees on a parcel at one time. 519
“Complete removal” means the removal and disposal of vegetation by sawing or grinding the limbs, leaves, trunk and stump to the existing grade as determined by the view restoration committee on a case-by-case basis. Complete removal shall not include or require the removal and disposal of a plant’s root system.
“Denuding” means the removal of all the trees from an area or all the leaves from a tree. “Egregious view impairment” means clear and convincing evidence of a significant view impairment where the view has been diminished over time by the growth of vegetation and/or poor maintenance practices and/or lack of consistent maintenance of vegetation and/or placement of vegetation in a view corridor and/or vegetation out of character with the landscaping in the neighborhood and, that upon evidence of proof of prior notification by a claimant, that a significant view impairment exists and there is an objectively unreasonable failure by the vegetation owner to cooperate to resolve the view impairment.
“Hedge” means generally dense vegetation so aligned as to form a physical barrier or fence. “Heritage tree” means any tree or stand of vegetation that have been placed on the heritage tree list by the city council pursuant to Chapter 12.08. Any designated heritage tree is exempt from the provisions of this chapter.
“Mediator” means a neutral, objective third party professional negotiator or facilitator to help disputing parties reach a mutually satisfactory solution regarding a view claim. The mediator shall be chosen by staff from a list of qualified and professionally trained mediators with whom the city has a contract to provide mediation services.
“Panoramic view” means an unobstructed and wide view of an extensive area in all directions related to the view in question.
“Partial removal” means the removal of vegetation utilizing one of the methods set forth in Section 12.16.050(c)(3)(E)(i) through (v).
“Person” means any individual, individuals, corporation, partnership, firm or other legal entity. “Pre-existing views” means one or more visual scenes from selected viewing locations or areas that are not significantly impaired by vegetation and that existed on or after either the date of acquisition of the claimant’s property or November 4, 2003 (the effective date of Ordinance No. 1430 relating to view preservation), whichever is earlier. It shall be the claimant’s responsibility to sustain the burden of proof for establishing and substantiating pre-existing views. In the event that staff and/or the view restoration committee find, based upon a preponderance of the evidence, that the pre-existing view was obtained in an illegal manner and/or the documented pre-existing view supplied by the claimant was enhanced or altered in any manner, the burden of proof shall not be sustained. 520
“Principal residence” and “principal residential structure” means the primary residential structure located on a lot. A principal residence and principal residential structure shall include guest houses, granny flats and secondary residential units provided that proof of the pre-existing view and a certificate of occupancy is submitted with the application. Proof of the pre-existing view from guest houses, granny flats and secondary residential units shall not pre-date the date of the certificate of occupancy of the structure/unit. Vacant lots or parcels shall not be considered principal residences or principal residential structures.
“Privacy” means reasonable protection from intrusive visual observation. “Privately maintained vegetation in right-of-way” means private property owners adjacent to vegetation in the public or private right-of-way areas along developed or undeveloped “paper street” roadways, which are responsible for vegetation maintenance not specifically designated by the city for city maintenance. Privately maintained vegetation in right-of-way is subject to the provisions of this chapter.
“Record of views” means the photographic documentation of the selected views from a particular site, established pursuant to this chapter and kept on file by the city. “Restoration action” means steps undertaken to eliminate a significant or egregious impairment of views, and may include, but is not limited to, partial removal, complete removal or alteration and maintenance of vegetation at a designated maximum height by trimming, thinning or reducing the height or width of vegetation on a vegetation owner’s property or privately maintained vegetation in right-of-way.
“Selected viewing locations or areas” means one or more locations or areas chosen by the property owner(s) from an owner’s principal residential structure which are used to observe one or more views. Hallways, closets, mechanical rooms, bathrooms and garages shall not be considered or used as selected viewing locations or areas.
“Shall” and “May.” “Shall” is mandatory and “may” is permissive. “Significant view impairment” means the obstruction or diminishment of a view to such a substantial extent that the desirable features of the view are blocked from viewing, and such obstruction is attributable to vegetation growth, lack of appropriate vegetation maintenance and/or inappropriate vegetation location. Section 12.16.030 establishes criteria for determining significant view impairment. “Street” means the entire dimension of ownership (right-of-way) along developed roadways, including vehicular paving, sidewalks and planted or natural areas. “Vegetation” means woody type plants or grasses taller than six feet in height with the potential to obstruct views. “Vegetation” includes without limitation trees, shrubs, grasses, hedges and bushes.

However, “vegetation” shall not include any type of vegetation affected by a prior city tree or vegetation height entitlement, such as a landscape plan in which vegetation height limits were approved through the design review process specified in Section 25.05.040 or finalized hedge or view claim. In addition, “vegetation” shall not include heritage trees or city-maintained vegetation. 521
“Vegetation owner” means a person owning property, including underlying fee-ownership of privately maintained vegetation in right-of-way, containing vegetation that a claimant alleges is causing a significant view impairment.
“View” means a sight of a visual scene from a fixed vantage point or location from a property owner’s principal residential structure. The term “view” does not mean an unobstructed panorama of the features in a visual scene.
“View dispute” means a disagreement between neighbors regarding vegetation that may be significantly impairing views.
“View preservation” means the establishment and maintenance of views as they exist when a record of views has been established pursuant to the provisions of Section 12.16.040. “View preservation claim” or “view restoration claim” means an application submitted to the city by a claimant who alleges that a view has been significantly impaired by vegetation. “View restoration” means the re-establishment of pre-existing views as they existed on or after either the claimant’s property acquisition date or November 4, 2003 (the effective date of Ordinance No. 1430 relating to view preservation), whichever is earlier, pursuant to the provisions of Chapter 12.16. “View restoration committee” means the five-member committee appointed by the city council to determine view restoration claims brought by a claimant under the provisions of this chapter. “View restoration order” means a directive issued by the city, requiring restorative action to be performed regarding vegetation located on a vegetation owner’s property in order to restore a claimant’s view.
“Visual scene” means the arrangement of features that form the scenic environment and may include, but is not limited to, bodies of water, beaches, white water, coastlines, skylines, islands, ridges, hillside terrains, canyons, geologic features or landmarks. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.030 Criteria for determining significant view impairment.

The determination of a significant or egregious view impairment shall be made by evaluating and balancing the types and benefits of the view to be protected and the nature and significance of the vegetation benefits. The following criteria shall be considered in determining whether a significant view impairment has occurred:
(a) The quality and veracity of the evidence provided in support of establishing the extent of the view.
(b) The nature and extent to which the vegetation obstructs a view. (c) The location of the obstruction within a view frame. Vegetation located within the center of a view is more likely to be found to create significant impairment than vegetation located on the outer edge of a view.
522
(d) Some view frames contain a combination of different view components, such as a view of the ocean and downtown area (multi-component view); while some view frames consist entirely of one component, such as only a view of the ocean (single-component view). Vegetation that entirely obscures one of the components of a multi-component view is more likely to be found to create a significant view impairment than vegetation that impairs a portion of view of a single-component view. (e) The nature and quality of the view being obstructed, including obstruction of landmarks, vistas or other unique features.
(f) The nature and extent to which the view has been diminished over time by factors other than vegetation growth, such as new neighboring structural additions or residences. (g) The nature and extent to which the view contributes to the enjoyment of the claimant’s property.
(h) The selected viewing areas or locations may make a vantage point difference in determining the significance of the view impairment.
(i) The nature and extent of the vegetation obstructing a view and whether that vegetation has been properly maintained or has transitioned into a state of overgrowth. (j) The nature and significance of the vegetation benefits, including without limitation privacy, shade, erosion control, enhancement of outdoor spaces and community aesthetics. (k) The nature and extent to which the vegetation blocking a view is out of character with landscaping practices in the neighborhood. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.040 View preservation.
(a) Establishment of a Protected or Preserved View. A property owner may establish a protected or preserved view by filing for a record of views with the city. Once a record of views is established by the city pursuant to subsection B, the protected or preserved views shall not become subject to significant view impairment. The record of views does not establish maximum height limits on vegetation in the visual scene; rather it shall serve as a benchmark for determining significant view impairment in the future. Established record of views may not be changed unilaterally by the property owner; provided, however, that upon application by the property owner to do so, the city may change an established record of views in the event there is a subsequent remodel or physical change to the selected viewing locations or areas.
(b) Record of Views. Upon the filing for a record of views, city staff shall conduct a site visit and photographically document the significantly unimpaired view of the property owner from the property owner’s selected viewing locations or areas. A record of views shall be prepared, maintained in the applicable property address files, and noted in any real property report required by Chapter 14.76.

Staff shall send written notice to affected vegetation property owners within five hundred feet informing them of the record of views and their associated maintenance responsibilities. 523
(c) Record of Views Enforcement Procedure. If a significant view impairment of an established record of views occurs, the property owner shall notify the city. If a significant view impairment is confirmed, city staff shall inform the affected vegetation owner(s) of a potential view restoration order and allow the vegetation owner thirty days to perform the necessary restoration action.

If the vegetation owner(s) does not perform the necessary restoration action, then the city may issue a view restoration order and require the restoration action to be completed within ninety days. If compliance is not obtained within ninety days, then the noncomplying vegetation may be declared to be a public nuisance, and the procedures of Chapter 7.24 shall be followed, including the issuance of a formal notice and order to abate.

Any determination of a significant view impairment decision made by city staff may be appealed to the city council. Appeals shall be addressed to the city council on a form prescribed by the city and shall state all grounds for the appeal. Any appeal must be filed with the city clerk within fourteen calendar days of the notice to the vegetation owner regarding the required restoration action. Appeals shall be accompanied by the filing fee as adopted by resolution of the city council. The city manager shall set the date for an appeal public hearing before the city council and shall not be limited by the time period specified in Section 25.05.070(B)(6). Notice shall be provided to the claimant and the record owners and occupants of all properties on which the vegetation at issue in the significant view impairment decision fourteen calendar days prior to the date of the city council hearing of the appeal. If an appeal to the city council is filed and is heard and decided by the city council, then the nuisance abatement appeal provisions (Sections 7.24.090 through 7.24.110) shall not be applicable. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.050 View restoration.
(a) Re-Establishment of Pre-Existing Views. A property owner or authorized agent may make an application to re-establish pre-existing views. Once pre-existing views are re-established, the applicable vegetation owners shall maintain the vegetation to preserve the pre-existing views. (b) View Restoration Claim Limitations. Subject to the other provisions of this chapter, a real property owner in the city may initiate a view restoration claim process to re-establish pre-existing views as outlined below. However, a claim to remedy obstruction of views from neighboring properties may only be made regarding vegetation that: (1) is six feet or higher; (2) is located on real property that is within five hundred feet of the claimant’s real property boundary; (3) is not a claim pertaining to the same vegetation that has been acted upon by the city against that real property by the same complainant(s) or subsequent owner(s) of the complainant’s property unless there are materially different circumstances; and (4) is not one of the types of vegetation exempt from the provisions of this chapter pursuant to Section 12.16.080.
(c) Process to Re-Establish Pre-Existing Views.
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(1) Initial Communication. A claimant shall first attempt to make a cooperative attempt to informally contact and have a discussion with the vegetation owner to resolve the claimant’s view dispute issue. If this initial discussion does not occur or is not successful in resolving the view dispute issue, then the claimant shall prepare and apply for a notice of intent to file a view restoration claim. The application shall recite the claimant’s intent to pursue a view restoration claim with regard to the affected vegetation owner(s) in accordance with this chapter. The application shall include photographs of the obstructing vegetation and shall apprise the affected vegetation owner(s) of the particular view or views the claimant wishes to restore. The application shall include a signed statement from the claimant agreeing to meet with a mediator, city staff and each vegetation owner that is to be named in the pending view restoration claim to attempt to resolve the view dispute issue between the parties. (2) Mediation.
(A) Upon the filing of the application for a notice of intent to file a view restoration claim set forth in subsection (B)(1), staff will review the application for completeness and verify the lot or lots on which the allegedly obstructing vegetation is located is within five hundred feet of the property boundary line of the claimant. When the application is deemed complete, the city shall send by registered or certified mail with return receipt requested the notice of intent to file a view restoration claim to the affected vegetation owner(s). The city’s transmittal of the notice of intent to file a view restoration claim shall request that the vegetation owner(s) attend a pre-application mediation meeting to discuss the city’s view restoration process with city staff and the claimant. The transmittal shall contain multiple possible meeting times from which the vegetation owner(s) may select. The transmittal shall request that the vegetation owner(s) respond back to the city in writing within fourteen calendar days of the mailing of the transmittal with a selected date. The transmittal shall explain the consequences of a failure to respond or to not attend a pre-application mediation meeting. (B) If the vegetation owner(s) responds, the city shall arrange a meeting between the claimant and the vegetation owner(s), city staff and a city mediator. Written notice of the meeting shall be provided by the city to all parties at least seven calendar days prior to the meeting date. The mediator shall be guided by the provisions of this chapter. The mediator shall strive to enable the parties to resolve the view dispute by written agreement in order to eliminate the need for an application for a view restoration claim, but the mediator shall not have the power to issue binding orders for restoration action.

The mediator and city staff shall make a site visit prior to the meeting to view the claimant’s obstructed view from the selected view locations or areas and the vegetation at issue. If desired by all parties, additional mediation meetings may be held.
(C) Any agreement reached between the parties as a result of the pre-application mediation meeting shall be reduced to writing and signed by the claimant and the vegetation owner(s).

Mediation agreements shall be private agreements, which may have private enforcement provisions, and shall not be made part of the city-maintained property address files. 525
(D) Failure of the vegetation owner(s) to respond to the city’s transmittal or failure to attend an agreed-upon mediation pre-application meeting shall be deemed to be a refusal of the mediation process. If there is a refusal of the mediation process by the vegetation owner(s) or the mediation was unsuccessful in resolving the view dispute, the claimant may then file an application for a view restoration claim. If there is a refusal of the mediation process by the claimant, the claimant may not file and the city shall not process an application for a view restoration claim. (3) View Restoration Claim. If the provisions of subsections (C)(1) and (C)(2) are exhausted and do not produce a satisfactory result to the claimant, the claimant may submit an application for view restoration claim to the city requesting restoration of pre-existing views. (A) Application and Notice. Upon the filing of an application for a view restoration claim, staff will review the application for completeness and the application shall include the information determined to be required by the community development director. This information shall include evidence of the pre-existing views, and it shall be the claimant’s responsibility to sustain the burden of proof for establishing and substantiating the pre-existing views. In the event that staff, by a preponderance of the evidence supplied by either party to the claim, conclude and agree that the preexisting view was obtained in an illegal manner or conclude that the photographic evidence submitted with the claim had been altered in any manner, staff may find that the burden of proof has not been met and deny the claim. When the application is deemed complete, the city shall mail a public notice to the claimant and the record owners and occupants of all properties on which the vegetation at issue in the view restoration claim is located not less than fourteen calendar days before the public hearing. (B) Public Hearing. The view restoration claim shall be heard by the view restoration committee at a noticed public hearing.
(C) Site Visit and View Restoration Hearing. Prior to the view restoration claim hearing, each member of the view restoration committee shall make a site visit to view the claimant’s obstructed view from the selected view locations or areas and the vegetation at issue. While not required for the view restoration committee to make a site visit to the vegetation owner’s property, it is encouraged. At the view restoration committee hearing, the committee shall allow the presentation of both verbal and written evidence and arguments from all parties. The view restoration committee shall then consider and determine whether or not there is significant view impairment of pre-existing views in accordance with the criteria specified in Section 12.16.030. If the view restoration committee determines there is not significant view impairment of pre-existing views, then the view restoration claim shall be deemed denied, and a written notice of that decision shall be prepared and sent to the claimant. If the view restoration committee determines the existence of a significant view impairment, then the committee shall issue a view restoration order for restoration action. (D) Findings Required for a View Restoration Order. The view restoration committee shall issue a view restoration order to require restoration action regarding vegetation that obstructs preexisting views, if the committee makes all of the following findings:
(i) The claimant has provided evidence of a cooperative attempt at initial communication and mediation.
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(ii) The vegetation at issue is not exempt from the provisions of this chapter pursuant to Section 12.16.080.
(iii) There is substantial evidence to support the decision that there is a pre-existing view with significant view impairment according to the criteria specified in Section 12.16.030. In the event that the view restoration committee, by a preponderance of the evidence supplied by either party to the claim, conclude and agree that the pre-existing view was obtained in an illegal manner or conclude and agree that the photographic evidence submitted with the claim had been altered in any manner, the committee may find that the burden of proof has not been met and deny the claim. (iv) Alteration, partial removal or complete removal of the vegetation will not cause an unreasonable infringement of the privacy or other vegetation benefits of the occupants of the property upon which the vegetation is located, including without limitation privacy, shade, erosion control, enhancement of outdoor spaces and community aesthetics. (v) Alteration, partial removal or complete removal of the vegetation will not have a substantial adverse impact on a hillside, drainage or erosion control. (vi) If the recommended restoration action includes complete removal, all other restoration actions set forth in subsection (c)(3)(E)(i) through (v) are ineffective in eliminating the significant view impairment.
(vii) If the recommended restoration action for complete removal is based on egregious view impairment for which the consent of the vegetation owner is not required, the committee shall find by clear and convincing evidence that the view has been diminished over time by the growth of vegetation and/or by poor maintenance practices and/or by the lack of consistent maintenance of vegetation and/or by the placement of vegetation in a view corridor and/or by vegetation out of character with the landscaping in the neighborhood and, that upon evidence of proof of prior notification by the claimant to the vegetation owner and that a significant view impairment exists, there is an objectively unreasonable failure by the vegetation owner to cooperate to resolve the view impairment with at least five written notifications from the claimant to the vegetation owner over at least a three-year period prior to filing a view claim. It shall be the burden of the claimant to submit substantial evidence showing that written notification to the vegetation owner occurred minimally over a three-year period. (viii) The recommended restoration action is the minimum action required to eliminate the significant view impairment.
(E) Restoration Action Limitations. If the view restoration committee is able to make all of the mandatory findings set forth in subsection (c)(3)(D), then the committee shall determine the restoration action that must be taken to restore the pre-existing views. Such actions may include partial removal or complete removal of the vegetation that is significantly impairing the view from the selected viewing locations or areas. Partial removal shall mean the use of one or more of the following methods of reducing vegetation to restore a pre-existing view:
(i) “Culling” shall mean the removal of dead, decayed or weak limbs or vegetation. 527
(ii) “Lacing” shall mean a comprehensive method of pruning that systematically removes excess vegetation, but maintains its shape.
(iii) “Trimming” shall mean the removal of limbs or vegetation. Trimming includes, but is not limited to, crown reducing and crown raising.
(iv) “Crown reducing” means a comprehensive method of pruning that reduces the height and/or spread of vegetation. Crown reduction entails the reduction of the top, sides or individual limbs by means of removal of the leaders or the longest portion of limbs to a lateral branch large enough to assume the terminal.
(v) “Crown raising” means a comprehensive method of pruning that removes limbs and vegetation from the lower part in order to raise the canopy over a view.

If any tree or shrub that is ordered to be culled, laced or trimmed dies within two years of the initial work being performed and there was no negligence in appropriate vegetation maintenance, the claimant or any subsequent owner of the claimant’s property shall be responsible for providing a replacement tree or shrub to the vegetation owner. This time period may be extended by the view restoration committee, if evidence is provided by a certified arborist that a longer monitoring period is necessary for a specific type of tree or shrub. However, if the city arborist determines that culling, lacing or trimming the vegetation will in all probability cause the vegetation to die, and the vegetation owner chooses not to accept Complete removal and replacement as an option, either in writing or in public testimony at the public hearing, then the claimant shall not be responsible for providing a replacement vegetation to the vegetation owner. If the work is performed by the vegetation owner, the vegetation owner shall forfeit the right to replacement vegetation, if the trimmed vegetation dies. If the vegetation dies, it may be subject to the nuisance abatement provisions of Chapter 7.24.

Except as set forth in the following paragraph, complete removal of any vegetation shall only be ordered if the owner of the property on which the vegetation is located consents to such removal of the vegetation, and the view restoration committee finds:
(i) That upon the advice of the city’s arborist, culling, lacing or trimming the vegetation to an unobstructing view height (six feet or higher as determined by the view restoration committee) is likely to kill the vegetation or threaten the health, safety and welfare; or (ii) That upon the advice of the city’s arborist, culling, lacing or trimming the vegetation to an unobstructing view height (six feet or higher as determined by the view restoration committee) will destroy the aesthetic value of the vegetation that is to be trimmed, laced or reduce in height.

Complete removal of any vegetation may be ordered with or without the consent of the owner of the property on which the vegetation is located should the view restoration committee find on the basis of clear and convincing evidence that the view impairment is objectively egregious. (F) Replacement Vegetation. The view restoration committee may also order the claimant to replace vegetation that has been removed, if the owner of the property where the vegetation is located consents to the replacement of the vegetation and the view restoration committee finds that complete removal without replacement vegetation will cause significant adverse impact on:
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(i) The public health, safety and welfare;
(ii) The privacy of the owner of the property on which the vegetation is located; (iii) Shade provided to the dwelling or the property on which the vegetation is located; (iv) The energy-efficiency of the dwelling on the property on which the vegetation is located;
(v) The health or viability of the remaining landscaping on the property on which the vegetation is located;
(vi) The integrity of the landscaping of the property on which the vegetation is located; or (vii) The function of the landscaping as screening of an unfinished wall or structural elements of a deck or other similar structure on an adjacent property.

The view restoration committee shall ensure that replacement vegetation is reasonably comparable to the vegetation removed in terms of function and/or aesthetics while understanding the replacement vegetation will not be the same height, size and breadth as the pre-existing mature vegetation. Replacement trees or shrubs should be of a fifteen-gallon size and shall not be larger than a twenty-four-inch box size, unless warranted by the need to reasonably protect privacy or exceptional circumstances, and the tree or shrub that is being replaced is substantially larger than a twenty-four-inch box size. The view restoration committee shall not be obligated to order replacement of every tree or shrub ordered to be removed with a new tree or shrub. The selection of the type of replacement vegetation may be made by the vegetation owner, subject to the approval of the view restoration committee.

In the event that at any time during the view restoration process, the view restoration committee or staff requires an arborist opinion in consideration of a view claim and/or adoption of a view restoration order, a deposit trust account shall be established by the claimant and held by the city in a deposit trust account to cover the cost of arborist services.

In the event that the view restoration committee orders replacement vegetation for a property with a landscape plan approved through the design review process, the view restoration committee shall condition maximum height limits for the replacement vegetation in the view restoration order and the modifications to the approved landscape plan shall not require re-submittal to and approval by the design review board.
(G) Conditions. In approving a view restoration order for restoration action, the view restoration committee may impose such restrictions or conditions as deemed necessary or proper to restore a pre-existing view, to protect the vegetation owner’s privacy and/or to protect the public health, safety or welfare.
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Unless complete removal is ordered, the view restoration committee shall require that a longterm vegetation maintenance schedule be incorporated into the conditions of approval of an approved view restoration order. The purpose of the maintenance schedule is to mandate the minimum frequency of future trimming (i.e., semi-annual, annual or biennial) based on the growth rate of the subject vegetation so as to not to significantly impair the pre-existing view in the future. Alternatively, the view restoration committee may specify the amount of allowable growth as measured with respect to a fixed point of reference that will not significantly impair the pre-existing view and require that when this point is reached, the vegetation owner shall be required to trim the vegetation back to the height established by the committee. Periodic inspections by the city may occur to ascertain long-term compliance with the view restoration order conditions of approval for restoration action.

Claimant shall select an ISA certified tree trimmer or accredited arborist to perform the restoration action and subsequent maintenance unless the vegetation owner prefers to select the ISA certified tree trimmer or accredited arborist. If the vegetation owner selects the arborist, the vegetation owner shall pay the claimant the difference between the fee charged by the claimant’s arborist and the vegetation owner’s arborist unless a different allocation of cost is required by this chapter or by mutual agreement of the parties. The view restoration committee shall also require that the claimant submit one to three itemized estimates to the city for carrying out work required by an approved view restoration order. The work estimate shall include tree or shrub trimming/removal and replacement costs. Said estimate shall be submitted within thirty days after the adoption of the view restoration order and shall include the cost to have an ISA certified tree trimmer or accredited arborist on site to perform or supervise the work being done. Said estimates are to be supplied by licensed landscape or licensed tree contractors, acceptable to the city, which provide insurance in an amount and form acceptable to the city, and shall include all costs of cleanup and removal of debris. Said insurance shall identify the vegetation owner and the city (and its officers, agents and employees) as additionally named insured. The claimant shall pay to the city an amount equal to the lowest of the estimates, and such funds shall be maintained by the city, in a city deposit trust account until completion of the work as verified by city staff. (H) Compliance Time Limit. The city shall require that the vegetation owner trim or remove vegetation within ninety days from a date specified in the view restoration order. The view restoration order shall be sent to the vegetation owner by the city once a deposit trust account has been established by the claimant for the cost of the trimming/removal and vegetation replacement. Once the vegetation trimming/removal and any required replacement work is performed to the satisfaction of city staff site inspection, so that compliance with the view restoration order has been achieved, including any conditions of approval, then the city shall pay the vegetation owner the cost of said work.

If evidence is provided to the city or the view restoration committee that it is less harmful to trim certain vegetation during the vegetation’s dormant period, then the city or the view restoration committee may require that the subject vegetation be trimmed within ninety days from a specified future date.

If evidence is provided to the city or the view restoration committee that the vegetation, subject to trimming or removal, contains nests (or eggs) of birds that are designated under the Migratory Bird Treaty Act and California Department of Fish and Game Code, the city staff or the view restoration committee may require that the subject vegetation be trimmed within ninety days following a determination by a qualified biologist or ornithologist that the nest is inactive. 530
(I) Enforcement. If the restoration action required by a view restoration order is not satisfactorily completed, as verified by city staff, within the specified time period, then the city may utilize its code enforcement and/or nuisance abatement process to authorize a bonded tree service to perform the work at the subject property at the vegetation owner’s expense, and the claimant’s deposit shall be refunded. In the event that the city is required to perform the work, the vegetation owner will be billed for all city expenses incurred in enforcing the view restoration order. If the vegetation owner fails to pay the invoice, a lien or assessment may be recorded against the vegetation owner’s property pursuant to Section 7.24.130.
(4) Effective Date. Any decision of the view restoration committee made pursuant to this section takes effect fourteen calendar days following the adoption of a resolution unless an appeal is filed pursuant to subsection (B)(5).
(5) Appeal. Any decision of the view restoration committee may be appealed by the claimant or the vegetation owner to the city council. Appeals shall be addressed to the city council on a form prescribed by the city and shall state all grounds for the appeal. Any appeal must be filed with the city clerk within fourteen calendar days of the view restoration committee’s decision regarding a view restoration claim. Appeals shall be accompanied by the filing fee as adopted by resolution of the city council, and shall be processed and noticed in the same manner as the original view restoration claim.

The city manager shall set the date for an appeal public hearing before the city council and shall not be limited by the time period specified in Section 25.05.070(B)(6). (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.060 Cost apportionment.
(a) The cost of the mediator shall be borne by the claimant, unless the parties involved expressly agree otherwise in writing.
(b) The claimant shall generally be responsible for paying the cost of any required initial restoration action, unless the parties involved expressly agree otherwise in writing; provided, however, the view restoration committee is authorized to apportion such cost between the claimant and the vegetation owner in the interest of fairness and equity, taking into account the totality of the circumstances, including without limitation the nature and extent of the initial restoration action, the conduct of the parties, and the economic resources of the parties. (c) The vegetation owner shall be responsible for paying the cost of any required subsequent maintenance on the subject vegetation, unless the parties involved expressly agree otherwise in writing. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.070 City immunity—No mandatory duty.
(a) The city shall not be liable for any damages, injuries, costs or expenses that are the result of any action, determination or decision of a city body, employee or official or any agreements or determinations resulting from mediation or litigation concerning a view preservation claim or a view restoration claim or a claimant’s or vegetation owner’s assertions pursuant to this chapter. 531
(b) This chapter is not intended to and shall not be construed as creating a mandatory duty of the city to enforce or seek any legal redress, civil, criminal or otherwise, with regard to any action, determination or decision pursuant to this chapter concerning a view preservation claim or a view restoration claim. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.080 Exemptions.

The following types of vegetation are exempt from the provision of this chapter:
(a) Vegetation that does not significantly impair a view. (b) Vegetation that is less than six feet in height or situated more than five hundred feet from the boundary of a claimant’s property.
(c) City-maintained vegetation that is designated for maintenance by the city. Such vegetation includes vegetation in city parks, on city properties and designated city maintained street trees within rights-of-way.
(d) Heritage trees that are on the official heritage tree list established by the city council pursuant to Chapter 12.08.
(e) Vegetation that was approved through the design review process and in which vegetation height limits were established pursuant to Section 25.05.040. (f) Vegetation that was approved by a hedge claim processed pursuant to Chapter

12.14. (g) Vegetation that was approved by a view claim processed pursuant to Chapter 12.16 prior to December 17, 2014 (the effective date of the ordinance codified in this chapter). (h) Vegetation subject to a private agreement as part of a settlement agreement in resolution of a legal action commenced in a court of competent jurisdiction. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.090 Legal access requirement.

If at any point in the implementation or enforcement of the provisions of this chapter, the vegetation property owner either verbally or in writing prohibits or restricts property access, the city attorney is authorized to seek the necessary appropriate inspection or abatement warrant, injunction or other judicially granted authority that is necessary to enter onto private property for inspection or abatement. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.100 View decisions binding on future owners—Disclosure obligations.
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Decisions made by city staff and the view restoration committee regarding view restoration and view preservation run with the land and shall be binding on the claimant and the vegetation owner and their heirs, successors and assigns. Such decisions, to the extent permitted, shall be recorded in the official records of the county of Orange. In addition, such decisions shall be set forth in any real property report required by Chapter 14.76 and should be disclosed by each owner to prospective purchasers of their properties. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.110 Violations—Penalties.
(a) Failure to comply with the terms and conditions of a view restoration order or view preservation requirements shall constitute a violation punishable in accordance with Chapter 1.15, and is subject to the administrative penalty provisions of that chapter. Each day that a violation continues shall constitute a separate offense.
(b) To the extent any vegetation violates the terms and conditions of a view restoration order or view preservation requirements, the violation shall constitute a public nuisance and shall be subject to the provisions of Chapter 7.24.
(c) Nothing in this chapter shall be construed as preventing an interested party from commencing a civil action against a vegetation owner to enforce the terms of a view restoration order or view preservation requirements. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

12.16.112 Fees.

Before accepting for filing any request or application submitted relative to Chapter 12.16 of this code, the department of community development shall charge and collect a filing fee for each such request or application as determined by resolution of the city council. (Ord. 1618 § 1, 2016; Ord. 1592 § 1, 2014).

Contact:

City Clerk: 949-497-0309
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use. 533
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INFORMATION GUIDE
City of
Laguna Beach

VIEW RESTORATION

PROCESS
Community Development
Department
Background
The View Preservation and Restoration Ordinance, LBMC Chapter 12.16 was adopted on June 17, 2014 and later enacted on December 17, 2014. The process is intended to attain an equitable balance between a property owner's loss of views and a vegetation owner's right to the enjoyment of vegetation on their property. It is the city's goal that property owners can resolve issues related to views through neighborly communication, however, should neighborly discussions result in an impasse, a property owner may file a view restoration claim to restore established pre-existing views. The ordinance is not intended to encourage or result in denuding a property of trees, but instead, restore established views that have become significantly impaired by vegetation. The view restoration claim process encompasses three-phases that are listed below.

Phase 1
The initial application, the Notice of Intent to File Phase 1 submittal, is an agreement by the applicant to attend a mediation meeting with the vegetation owner facilitated by the city's contracted mediator. The mediation meeting is an opportunity to discuss the view concerns of the applicant and the trimming concerns of the vegetation owner. Site visits are conducted at both properties by the mediator and city staff prior to the mediation meeting held at City Hall. The mediator is guided by the provisions of the ordinance to reach a private agreement between the parties; however, the mediator shall not have the power to issue binding orders for restoration actions. The filing fee for Phase 1 is $748 which is paid by the applicant. The Phase 1 filing fee serves as a retainer for the services of the contracted mediator who is paid directly from the filing fee.

Phase 2
Should the parties fail to reach a private agreement in the mediation process, the applicant has the option to file a Formal View Restoration application to request restoration of pre-existing views at a noticed public hearing before the View Restoration Committee. This is Phase 2 of the process. The filing fee for Formal View Restoration, Phase 2, is $1,048.

In Phase 2, the committee must find that the applicant has; • completed Phase 1, mediation of the claim,
• established proof of prior communication,
• provided proof of a pre-exiting view from the primary residential structure or secondary dwelling unit and • demonstrated that the impaired view meets the criteria for significant view impairment, LBMC Section

12.16.030.

The Committee, after a site visit to the claimant's property, shall hear public testimony and deliberate the required findings detailed in LBMC Section 12.16.050(3)(0). The Committee will consider adoption of a Resolution to establish a level of trimming to restore the pre-existing view and a maintenance schedule to establish the frequency of future trimmings. The Resolution shall be recorded with the County of Orange and shall be binding on the claimant and the vegetation owner and their heirs and successors. The decision shall be disclosed in any Real Property Report required by LBMC Chapter 14.76. Appeal Process: Any decision of the View Restoration Committee may be appealed to the City Council by either party within 14 calendar days of the date of the decision.
07/2022
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ATTACHMENT 6
534
Phase 3
The remedial actions adopted by Resolution of the View Restoration Committee shall be completed in Phase 3 of the process. The claimant and/or the vegetation owner shall submit estimates to the City for the initial trimming within 30 days of the committee's decision following the 14-calendar day appeal period. The initial trimming shall be performed and/or supervised by an ISA certified arborist. The selected vendor is vetted by city staff to confirm licensing requirements and insurance coverage levels meet city requirements. The claimant shall submit funds to the city in the amount of the lowest estimate to establish a deposit trust account for the cost of the initial trimming.

The vegetation owner is notified to schedule the initial trimming which must be completed within 90 days of notification from the city. The city may utilize its code enforcement and/or nuisance abatement process to authorize a bonded tree service to perform the work at the vegetation owner's expense should the vegetation owner fail to comply with the Resolution within the specified time frame.

Upon completion of the initial trimming, staff confirms that the level of trimming is in compliance with the adopted Resolution and compliance photographs are taken to mirror the view corridor from the claimant's property. The compliance photographs, in conjunction with the Resolution and any attached Exhibits, shall be used for determining compliance to the maintenance schedule for all future trimmings.

Exemptions
The following types of vegetation are exempt from the provisions of the view restoration process. • Vegetation that does not significantly impair a view as defined in LBMC 12.16.030. • Vegetation that is less than six feet in height or situated more than five hundred feet from the boundary of the claimant's property.
• City-maintained vegetation which includes vegetation in city parks, on city properties and designated citymaintained street trees. • Heritage trees listed on the city's official heritage tree list established by the City Council pursuant to Chapter 12. 08.
• Vegetation approved through the design review process in which height limits were established. • Vegetation approved by a hedge height claim processed pursuant to Chapter 12.14. • Vegetation approved by a view claim processed prior to 12/17/2014 pursuant to Chapter 12.16. • Vegetation subject to a settlement agreement commenced in a court of competent jurisdiction. 07/2022
535
Laguna Beach
View Restoration Process
Initial Communication and Mediation
1 st Phase
Initial Communication
Claimant makes a cooperative attempt to resolve
the view conflict with vegetation owner
without City involvement.

Claimant submits for a
Notice of Intent to File a View Restoration Claim.

Mediation
Staff sends a
Notice of Intent to File a View Restoration Claim
to affected vegetation owners requesting
a mediation meeting response within 14 days.

Staff schedules for a mediation meeting.

Vegetation owner agrees
to a mediation meeting.

A mediation meeting is held with affected persons,
staff and mediator to discuss the
view restoration process, and an effort is made
to achieve a mutually acceptable resolution
of the view issue.

Mediator prepares a written agreement outlining the
agreed upon view restoration and maintenance
provisions that is signed by the affected persons.

View restoration agreements are privately
maintained and implemented
without City involvement.

Resolution agreement.

View is restored.

No agreement is reached.

Agreement is reached.

Claimant applies for a View Restoration
Claim.

Vegetation owner
fails to respond.

Vegetation owner
does not attend
mediation meeting
or a resolution agreement
is not reached.
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Laguna Beach
View Restoration Process
View Restoration Claim
2 nd Phase
View Restoration Claim
Claimant applies for a View Restoration Claim. (Application is allowed only after completion of required initial communication and mediation phase).

Claimant must provide adequate proof of a pre-existing view.

After application is deemed complete, staff prepares a staff report, which may include an arborist report. Staff prepares and sends out a View Restoration Claim public hearing notice to the claimant and affected vegetation owners 14 days prior to the View Restoration Claim public hearing.

Staff sends the claimant a written notice that the View Restoration Claim is denied and the explanation of the process for an appeal to City Council.

The decision of the VRC is final unless an appeal is filed within 14 calendar days.

Appeal
If an appeal is filed within 14 calendar days after the decision by the VRC, the City Manager sets a date for the City Council appeal public hearing. Staff sends the affected property owners a public hearing notice 14 calendar days prior to the hearing.

View Restoration Hearing
After the View Restoration Committee (VRC) members visit the site to view the claimant’s view and vegetation at issue, a public hearing is held. At the hearing, the VRC considers all testimony and information, and then determines whether or not there is significant view impairment of a pre-existing view per the definitions and criteria set forth in the View Preservation and Restoration Ordinance. No determination of significant view
impairment of a
pre-existing view.

Staff sends all parties a follow-up transmittal letter with a View Restoration Order containing the required findings, required specific view restorative actions and future vegetation maintenance conditions and responsibilities. An explanation of the appeal process to City Council by any party is also sent. The decision of the VRC is final unless an appeal is filed within 14 calendar days.

Significant view impairment
of a pre-existing view
is determined.

City Council Decision
At the appeal hearing, the City Council makes a final determination regarding the View Restoration Claim. Staff sends all parties the appropriate follow-up transmittal letters with required attachments.

Appeal is filed.

Claimant files an appeal.
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Laguna Beach
View Restoration Process
View Restoration Order
3 rd Phase
View Restoration Order
Staff sends the view claimant and vegetation owners the View Restoration Order (VRO), which outlines the required specific view restorative actions and future vegetation maintenance
conditions and responsibilities.

Bid and Deposit
The VRO contains the notification of and condition that the view claimant is required to obtain bids for the required restorative action, from a licensed, bonded and insured tree service contractor and post a deposit for that cost with the City within 30 days.

View is Restored
Vegetation Trimming
After the view claimant establishes a deposit trust account with the City and deposits the funds to pay for the required restorative action, staff sends the vegetation owner a 90-day notice to contract with the tree trimming service and to perform the required restorative action.

After the required restorative action is performed and staff verifies all of the terms of the VRO, the vegetation owner is paid for the cost of the work from the funds held in the deposit trust account.

Enforcement
If there is any VRO noncompliance issue, either initially or long-term in regards to on-going vegetation limits or property access issues, City staff starts the processes to obtain the appropriate legal access authorization and code enforcement and/or nuisance abatement in order to authorize and obtain compliance. Liens or assessments recorded against the vegetation owner’s property are allowed.
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17.02.040 - View preservation and restoration.

The residents of the City of Rancho Palos Verdes, by the adoption of this section, have made a finding that the peace, health, safety and welfare of the community will be served by the adoption of this section and by the regulations prescribed herein.

Definitions. When not inconsistent with the context, the words used in the present tense include the future; words in the singular number include the plural; and those in the plural number include the singular. In carrying out the intent of this section, words, phrases and terms shall be deemed to have the following meanings ascribed to them:
"City" means the City of Rancho Palos Verdes and its employees and staff and those designated by the city council to act on behalf of the city. "City council" means the duly elected legislative body of the City of Rancho Palos Verdes. "Director" means the Director of the Planning, Building and Code Enforcement Department of the City of Rancho Palos Verdes. "Foliage" means natural growth of trees, shrubs and other plant life. "Lot coverage" means that portion of a lot or building site which is occupied by any building or structure, including trellises; decks over 30 inches in height (as measured from existing adjacent grade); parking areas; driveways; or impervious surfaces (impervious surfaces less than five feet in width and/or one patio area less than 500 square feet in area shall be excluded from the lot coverage calculation). "Neighborhood character" means the existing characteristics in terms of the following:

Scale of surrounding residences;
Architectural styles and materials; and
Front, side and rear yard setbacks.
"Planning commission" means the Planning Commission of the City of Rancho Palos Verdes as defined in Chapter 2.20 (Planning Commission) of this municipal code.
"Privacy" means reasonable protection from intrusive visual observation. "Scale" means the total square footage and lot coverage of a residence and all ancillary structures. "Setback" means the minimum horizontal distance as prescribed by this code, between any property line or private easement boundary used for vehicular and/or pedestrian access and the closest point on any building or structure, below or above ground level, on the property. In cases where there is no structure on a lot, setback shall mean the minimum horizontal distance between the property line or easement boundary line and a line parallel to the property line or easement boundary line. Please refer to Chapter 17.48 (Lots, Setbacks, Open Space Area and Building Height) for setback regulations.

Shall and May. "Shall" is mandatory and "may" is permissive. "Structure" means anything constructed or built, any edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner, which is located on or on top of the ground on a parcel of land utilized for residential purposes, excluding antennas, skylights, solar panels and similar structures not involving the construction of habitable area. "Style" means design elements which consist of, but are not limited to:

Facade treatment;
Height of structure;
Open space between structures;
Roof design;
The apparent bulk or mass of the structure; and
The number of stories.

View. On the Palos Verdes peninsula, it is quite common to have a near view and a far view because of the nature of many of the hills on the peninsula. Therefore, a "view" which is protected by this section is as follows:

A "near view" which is defined as a scene located on the peninsula including, but not limited to, a valley, ravine, equestrian trail, pastoral environment or any natural setting; and/or
A "far view" which is defined as a scene located off the peninsula including, but not limited to, the ocean, Los Angeles basin, city lights at night, harbor, Vincent Thomas Bridge, shoreline or offshore islands.

A "view" which is protected by this section shall not include vacant land that is developable under this code, distant mountain area not normally visible, nor the sky, either above distant mountain areas or above the height of offshore islands. A view may extend in any horizontal direction (360 degrees of horizontal arc) and shall be considered as a single view, even if broken into segments by foliage, structures or other interference. "Viewing area" means that area of a structure (excluding bathrooms, hallways, garages or closets) or that area of a lot (excluding the setback areas) where the owner and city determine the best and most important view exists. In structures, the finished floor elevation of any viewing area must be at or above existing grade adjacent to the exterior wall of the part of the building nearest to said viewing area.

The "view restoration commission" means the Planning Commission of the City of Rancho Palos Verdes.

ATTACHMENT 7
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1. a.
b.
c.

Regulations.

Building Height. Any individual or persons desiring to build a new structure or an addition to an existing structure shall be permitted to build up to 16 feet in height pursuant to subsection B of this section provided there is no grading, as defined in Section 17.76.040 (Grading Permit) of this title, to be performed in connection with the proposed construction, and further provided that no height variation is required, and all applicable residential development standards are or will be met. In cases where an existing structure is voluntarily demolished or is demolished as a result of an involuntary event, a height variation application will not be required to exceed 16 feet in height, provided that the replacement structure will have the same or less square footage and building height as the existing structure and will be reconstructed within the building envelope and footprint of the pre-existing structure. Approval for proposed structures or additions to existing structures exceeding 16 feet in height, may be sought through application for a height variation permit, which, if granted pursuant to the procedures contained herein, will permit the individual to build a structure not exceeding 26 feet in height, except as provided in subsection (B)(1)(d) of this section, or such lower height as approved by the city, measured as follows:

For sloping lots which slope uphill from the street of access or in the same direction as the street of access and for which no building pad exists, the height shall be measured from the preconstruction (existing) grade at the highest point on the lot to be covered by the structure to the ridgeline or the highest point of the structure, as illustrated in Figure 1 below.

FIGURE 1
For sloping lots which slope downhill from the street of access and for which no building pad exists, the height shall be measured from the average elevation of the setback line abutting the street of access to the ridgeline or the highest point of the structure, as illustrated in Figure 2 below.

FIGURE 2
For lots with a "building pad" at street level or at a different level than the street or lot configurations not previously discussed, the height shall be measured from the preconstruction (existing) grade at the highest elevation of the existing building pad area covered by the structure to the ridgeline or highest point of the structure, as illustrated in Figure 3 below. Portions of a structure which extend beyond the "building pad" area of a lot shall not qualify as the highest elevation covered by the structure, for the purposes of determining maximum building height.

Structures allowed pursuant to this subsection shall not exceed 20 feet in height, as measured from the point where the lowest foundation or slab meets finished grade, to the ridgeline or highest point of the structure. Otherwise, a height variation permit shall be required.

FIGURE 3
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4. On sloping lots described in Sections 17.02.040(B)(1)(a) and 17.02.040(B)(1)(b) of this chapter, the foundation of the structure shall contain a minimum eight foot step with the slope of the lot, as illustrated in Figure 4 below. However, no portion of the structure shall exceed 30 feet in height, when measured from the point where the lowest foundation or slab meets finished grade to the ridge line or highest point of the structure. The 30-foot height shall not exceed a horizontally projected 16 foot height line (from the high point of the uphill step of the structure).

Setbacks for Sloping Lots. On lots which slope uphill from the street of access and where the height of a structure is in excess of 16 feet above the point where the lowest foundation or slab meets the ground, areas in excess of the 16 foot height limit shall be set back one foot from the exterior building facade of the first story, most parallel and closest to the front property line, for every foot of height in excess of 16 feet, as measured from the point where the lowest foundation or slab meets the ground, as illustrated in Figure 4 below.

FIGURE 4
Foliage Obstruction. No person shall significantly impair a view from a viewing area of a lot by permitting foliage to grow to a height exceeding:

The height determined by the view restoration commission through issuance of a view restoration permit under Section 17.02.040(C)(2) of this chapter; or
If no view restoration permit has been issued by the view restoration commission, a height which is the lesser of:

The ridge line of the primary structure on the property; or Sixteen feet.

If foliage on the property already exceeds the provisions of subdivisions (i) and (ii) of Section 17.02.040(B)(3) of this chapter on the effective date of this section, as approved by the voters on November 7, 1989, and significantly impairs a view from a viewing area of a lot, then notwithstanding whether any person has sought or obtained issuance of a view restoration permit, the foliage owner shall not let the foliage exceed the foliage height existing on the effective date of this section (November 17, 1989). The purpose of this paragraph is to ensure that owners of foliage which violates the provisions of this paragraph on the effective date of this section shall not allow the foliage to increase in height. This paragraph does not "grandfather" or otherwise permit such foliage to continue to block a view.

Removal of Foliage as Condition of Permit Issuance. The city shall issue no conditional use permit, variance, height variation, building permit or other entitlement to construct a structure, or to add livable area to a structure on a parcel utilized for residential purposes, unless the owner removes that part of the foliage on the lot exceeding 16 feet in height or the ridge line of the primary structure, whichever is lower, that significantly impairs a view from the viewing area of another parcel. The owner of the property is responsible for maintaining the foliage so that the views remain unimpaired. This requirement shall not apply where removal of the foliage would constitute an unreasonable invasion of the privacy of the occupants of the property on which the foliage exists and there is no method by which the property owner can create such privacy through some other means allowed within the development code that does not significantly impair a view from a viewing area of another property. The initial decision on the amount of foliage removal required or the reasonable degree of privacy to be maintained shall be made by 543

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the director, the planning commission or the city council, as appropriate for the entitlement in question. If the permit issuance involves property located within the Miraleste Recreation and Park District, the findings of Section 17.02.040(C)(2)(c)(vi) of this chapter shall apply. A decision by the director on either of these matters may be appealed to the planning commission, and any decision of the planning commission may be appealed to the city council.

Determination of Viewing Area.

The determination of a viewing area shall be made by balancing the nature of the view to be protected and the importance of the area of the structure or lot from where the view is taken. Once finally determined for a particular application, the viewing area may not be changed for any subsequent application. In the event the city and owner cannot agree on the viewing area, the decision of the city shall control. A property owner may appeal the city's determination of viewing area. In such event, the decision on the viewing area will be made by the body making the final decision on the application. A property owner may preserve his or her right to dispute the decision on the viewing area for a subsequent application, without disputing the decision on a pending application, by filing a statement to that effect and indicating the viewing area the property owner believes to be more appropriate. The statement shall be filed with the city prior to consideration of the pending application by the city.

Procedures and Requirements.

Preservation of Views Where Structures are Involved.

Any person proposing to construct a structure above 16 feet shall submit a height variation permit application to the city. A determination on the application shall be made by the director in accordance with the findings described in Section 17.02.040(C)(1)(e) of this chapter. The director shall refer a height variation application directly to the planning commission for consideration under the same findings, as part of a public hearing, if any of the following is proposed:

Any portion of a structure which exceeds 16 feet in height extends closer than 25 feet from the front or street-side property line; or The area of the structure which exceeds 16 feet in height (the second story footprint) exceeds 75 percent of the first story footprint area (residence and attached garage);
Sixty percent or more of a garage footprint is covered by a structure which exceeds 16 feet in height (a second story); The portion of the structure which exceeds 16 feet in height is being developed as part of a new single-family residence; or Based on an initial site visit, the director determines that any portion of a structure which is proposed to exceed 16 feet in height may significantly impair a view as defined in this chapter.

The applicant shall take reasonable steps established by the city council to consult with owners of property located within 500 feet of the applicant's property. The applicant shall obtain and submit with the application the signatures of the persons with whom the applicant consulted. Where a homeowners' association existing in the neighborhood affected has provided written notice to the director of its desire to be notified of height variation applications, the applicant shall mail a letter to the association requesting its position on the application. A copy of this letter and the response of the association, if any, shall be submitted with the application. A fee shall be charged for the application as established by resolution of the city council.

The director shall, by written notice, notify property owners within a 500-foot radius of the subject property and the affected homeowners' association, if any, of the application and inform them that any objections to the proposed construction must be submitted to the director within 30 calendar days of the date of the notice.

The applicant shall construct on the site at the applicant's expense, as a visual aid, a temporary frame of the proposed structure.

A height variation application to build a new structure or an addition to an existing structure, either of which exceeds 16 feet in height up to the maximum height permitted in subsection (B)(1) of this section, may be granted with or without conditions if the following findings can be made:

The applicant has complied with the early neighbor consultation process established by the city; The proposed new structure that is above 16 feet in height or addition to an existing structure that is above 16 feet in height does not significantly impair a view from public property (parks, major thoroughfares, bike ways, walkways or equestrian trails) which has been identified in the city's general plan or coastal specific plan, as city-designated viewing areas; The proposed new structure is not located on a ridge or a promontory; The area of a proposed new structure that is above 16 feet in height or addition to an existing structure that is above 16 feet in height, as defined in subsection B of this section, when considered exclusive of existing foliage, does not significantly impair a view from the viewing area of another parcel. If the viewing area is located in a structure, the viewing area shall be located in a portion of a structure which was constructed without a height variation permit or variance, or which would not have required a height variation or variance when originally constructed had this section, as approved by the voters on November 7, 1989, been in effect at the time the structure was constructed, unless the viewing area located in the portion of the existing structure which required a height variation permit or variance constitutes the primary living area (living room, family room, dining room or kitchen) of the residence; If view impairment exists from the viewing area of another parcel but it is determined not to be significant, as described in subsection (C) (1)(e)(vi) of this section, the proposed new structure that is above 16 feet in height or addition to an existing structure that is above 16 feet 544
vi.
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ix.
f.
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j.

2. a.
b.
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ii.
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vi.
d.
e.
in height is designed and situated in such a manner as to reasonably minimize the impairment of a view; There is no significant cumulative view impairment caused by granting the application. Cumulative view impairment shall be determined by: (a) considering the amount of view impairment that would be caused by the proposed new structure that is above 16 feet in height or addition to a structure that is above 16 feet in height; and (b) considering the amount of view impairment that would be caused by the construction on other parcels of similar new structures or additions that exceed 16 feet in height; The proposed structure complies with all other code requirements; The proposed structure is compatible with the immediate neighborhood character; The proposed new structure that is above 16 feet in height or addition to an existing structure that is above 16 feet in height does not result in an unreasonable infringement of the privacy of the occupants of abutting residences.

Written notice of the director's or planning commission's decision shall be sent to the applicant, his/her representative and to all parties who responded to the original notice.

The decision of the director may be appealed to the planning commission by the applicant or any person who responded in writing to the director prior to the director's decision; provided, the appeal is filed in writing within 15 calendar days after the date of the director's decision.

The appellant shall pay an appeal fee as established by resolution of the city council.

Notice of the public hearing for an initial determination of a height variation application by the planning commission or an appeal to the planning commission and/or city council shall be mailed 30 calendar days prior to the hearing, to property owners within 500 feet of the applicant's property, as well as any additional property owners previously determined by the city to be affected by the proposal.

In hearing an appeal of the director's decision, the planning commission shall grant the application and cause a permit to be issued, only if it finds that all of the requirements of subsection (C)(1)(e) of this section have been met.

A decision of the planning commission may be appealed to the city council by the applicant or any person who commented orally or in writing to the planning commission; provided, the appeal is filed in writing within 15 calendar days after the date of the planning commission's decision. The appellant shall pay an appeal fee as established by resolution of the city council. In order to grant a permit, the city council must determine that all of the requirements listed in subsection (C)(1)(e) of this section have been met.

Restoration of Views Where Foliage is a Factor.

Any resident owning a residential structure with a view may file an application with the city for a view restoration permit. The applicant shall file with the application proof that the applicant consulted, or attempted to consult, with the property owner whose foliage is in question. The applicant shall pay a fee for the view restoration permit as established by resolution of the city council.

The application shall be submitted to the view restoration commission. Written notice of the time and place for the hearing on the application shall be sent to the applicant and the property owner(s) of the foliage involved at least 30 calendar days prior to the meeting of the commission. Commission members shall inspect the site prior to the public hearing. Only view restoration commission members who make a site inspection may participate in the public hearing.

In order for a view restoration notice to be issued, the commission must find:

The applicant has complied with the early neighbor consultation process and has shown proof of cooperation on his/her part to resolve conflicts;
Foliage exceeding 16 feet or the ridge line of the primary structure, whichever is lower, significantly impairs a view from the applicant's viewing area, whether such foliage is located totally on one property, or when combined with foliage located on more than one property; The foliage to be removed is located on property, any part of which is less than 1,000 feet from the applicant's property line(s); The foliage significantly impairing the view did not exist, as view impairing vegetation, when the lot from which the view is taken was created;
Removal or trimming of the foliage will not cause an unreasonable infringement of the privacy of the occupants of the property upon which the foliage is located;
For property located within the boundaries of the Miraleste Recreation and Park District, the commission shall also find the removal or trimming of the foliage strikes a reasonable balance between meeting the purposes of this section, as set forth in the ordinance approved by the voters on November 7, 1989, and preserving the historical developments of the Miraleste Recreation and Park District area with a large number of trees.

Should the commission make findings requiring issuance of a view restoration permit, the director shall send a notice to the property owner to trim, cull, lace or otherwise cause the foliage to be reduced to 16 feet or the ridgeline of the primary structure, whichever is lower, or such limit above that height which will restore the view. The property owner will have 90 calendar days to have the foliage removed. The applicant shall be responsible for the expense of the foliage removal and/or replacement ordered pursuant to this subsection only to the extent of the lowest bid amount provided by contractors licensed to do such work in the City of Rancho Palos Verdes and selected by the applicant. After the initial trimming, culling, lacing or removal of the foliage, the owner, at the owner's expense, shall be responsible for maintaining the foliage so that the view restoration required by the view restoration permit is maintained.

To the extent legally permissible, trees or foliage on property owned by any governmental entity, except the city and the Miraleste Recreation 545
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and Park District, shall be subject to view restoration control, as per the provisions of this section; except, that the foliage shall be trimmed or removed 30 calendar days following issuance of the notice. Trees and/or foliage located on city property, or in the public right-of-way, as defined in Chapter 17.96 (Definitions), shall be subject to view restoration control.

The view restoration commission may impose such reasonable conditions or restrictions on the approval of a view restoration permit as may be found to be appropriate or necessary to protect the public health, safety or welfare or the foliage owner's reasonable enjoyment of his or her property. Such conditions or restrictions may include, but are not limited to: (1) requiring the complete removal of the subject foliage when the commission finds that the trimming, culling, lacing or reducing of that foliage to 16 feet or the ridge line is likely to kill the foliage, threaten the public health, safety and welfare, or will destroy the aesthetic value of the foliage that is to be pruned or reduced in height, provided that the property owner consents to the removal; and (2) requiring replacement of such foliage when the commission finds that removal without replacement will cause a significant adverse impact on: (a) the public health, safety and welfare, (b) the privacy of the property owner, (c) shade provided to the dwelling or the property, (d) the energy-efficiency of the dwelling, (e) the health or viability of the remaining landscaping, or (f) the integrity of the landscape plan, provided that the property owner consents to the replacement.

The applicant, the owner of the property where the foliage is located, or any other interested person may appeal the decision of the view restoration commission to the city council by filing with the city clerk a written notice of appeal, including the grounds for the appeal, and any specific action being requested by the appellant, together with the appeal fee established by resolution of the city council, within 15 calendar days after the view restoration commission adopts the resolution setting forth its decision. The decision of the view restoration commission is final if no appeal is filed within 15 calendar days. If such an appeal is timely and properly filed, a copy of the findings of the view restoration commission and all materials on file with the director shall be transmitted to the city council, which shall be part of the appeal hearing record, together with the notice of appeal and any other written materials submitted by interested parties. Additional written materials shall be submitted to the city clerk at least seven calendar days prior to the date that the appeal will be heard by the city council.

Upon receiving the notice of appeal, the city clerk shall schedule the matter for review at a forthcoming meeting of the city council. At the city council meeting, oral testimony shall be limited to five minutes in length for each of the parties whose properties are affected by the decision and two minutes per person for other individuals. Oral testimony shall be limited to the issues raised in the written appeal. At the conclusion of the oral presentation, the city council may do one of the following:

Affirm the decision of the view restoration commission and approve the application upon finding that all applicable findings have been correctly made and all provisions of subsection (C)(2) of this section are complied with; Approve the application but impose additional or different conditions as the city council deems necessary to fulfill the purposes of subsection (C)(2) of this section;
Disapprove the application upon finding that all applicable findings cannot be made or all provisions of subsection (C)(2) of this section have not been complied with; or
Refer the matter back to the view restoration commission to conduct further proceedings. The remanded proceedings may include the presentation of significant new evidence which was raised in conjunction with the appeal. The city council shall state the ground(s) for the remand and shall give instructions to the view restoration commission concerning any error found by the city council in the commission's prior determination.

If, after 90 calendar days, the foliage has not been removed or trimmed in accordance with the requirements of a view restoration or view preservation permit, the City of Rancho Palos Verdes will authorize a bonded tree service to trim, cull, lace or remove the identified foliage at the owner's expense. In the event that the city is required to perform the work, the foliage owner will be billed for all city expenses incurred in enforcing the view restoration or preservation permit (including reasonable attorneys' fees). If the property owner does not pay the city for the amount set forth on the invoice, the city may record a lien or assessment against the foliage owner's property, pursuant to Chapter 8.24 (Property Maintenance) of this code, or pursue any and all available criminal or civil remedies for recovery of said city expenses in accordance with paragraph i of this section or Chapter 1.08 (General Penalty) of the code.

The remedies provided in this section are in addition to and do not supersede or limit any other remedies and penalties available under provisions of other applicable city ordinances, the laws of the State of California, or the laws of the United States. In the event of any violation of this section, the city may pursue any and all available criminal or civil remedies to prevent or remedy violations of this section set forth in Chapter 1.08 (General Penalty) of the code or as otherwise provided by law. The city shall be entitled to recover its attorneys' fees and costs arising from any civil action or administrative proceeding to enforce the provisions of this chapter and the code if the city is the prevailing party and provided it made the election to seek attorneys' fees at the commencement of the action. A responsible person shall be entitled to recover his or her attorneys' fees if the city made the election to seek attorneys' fees at the outset of the action and the responsible person prevails in that action. In no such legal action shall an award of costs, including reasonable attorneys' fees, to a prevailing party exceed the amount of costs, including reasonable attorneys' fees, incurred by the city in the action or proceeding. (Ord. 481 § 10, 2008; Ord. 442 § 1, 2006; Ord. 405 §§ 7—9, 2004; Ord. 400U §§ 7—9, 2004; Ord. 389 § 5, 2003; Ord. 386 § 3, 2003; Ord. 355 § 8, 2000; Ord. 340 § 8 (part), 1998; Ord. 329U § 1, 1997; Ord. 319 § 8, 1997: Ord. 298 § 1, 1994; Ord. 262 §§ 2, 3, 1991; Proposition M, passed November 7, 1989: Ord. 194 § 5 (part), 1985; Ord. 114 § 1, 1979: Ord. 90 § 1, 1977; Ord. 78 (part), 1975) (Ord. No. 510, § 9, 6-29-10; Ord. No. 570, §§ 12, 13, 7-7-15; Ord. No. 575, § 6, 12-15-15) 546
TABLE 02-A: SINGLE-FAMILY RESIDENTIAL DEVELOPMENT STANDARDS For exceptions and explanatory descriptions of these standards and for other development standards that apply to single-family residential areas, see Articles VI and VII of this title. The number which follows an "RS-" designation indicates the maximum number of lots per acre permitted in the zone; the "RS-A" number indicates the minimum number of acres per lot permitted.

DISTRICT LOT DIMENSIONS MINIMUM SETBACKS

FOR CITY CREATED LOTS

MINIMUM SETBACKS FOR

LOTS CREATED PRIOR TO

INCORPORATION/ANNEXATION

MAXIMUM
LOT

COVERAGE

MAXIMUM
HEIGHT
PA
RE

AREA WIDTH DEPTH FRONT INTERIOR
SIDE
STREET
SIDE

REAR FRONT INTERIOR
SIDE
STREET
SIDE
REAR le
5,
ha
sp
en
ga
TTL
BOTH
SIDES
ONE
SIDE
RS-A-5 5
acres
200 300 20 30 10 20 20 20 5 10 15 6% 16 5,
m
ha
sp
en
ga
RS-1 1 acre 100 150 20 25 10 20 20 20 5 10 15 25% 16
RS-2 20,000
s.f.
90 120 20 20 10 20 20 20 5 10 15 40% 16
RS-3 13,000
s.f.
80 110 20 20 10 20 15 20 5 10 15 45% 16
RS-4 10,000
s.f.
75 100 20 20 10 20 15 20 5 10 15 50% 16
RS-5 8,000
s.f.
65 100 20 20 10 20 15 20 5 10 15 52% 16

1. For an existing lot which does not meet these standards, see Chapter 17.84 (Nonconformities).

2. Lots of record, existing as of November 25, 1975 (adoption of this code), or within Eastview and existing as of January 5, 1983 (annexation), shall use these development standards for minimum setbacks.

3. For description, clarification and exceptions, see Chapter 17.48 (Lots, Setbacks, Open Space Area and Building Height).

4. For a description of height measurement methods and the height variation process, see Section 17.02.040 (View Preservation and Restoration) of this chapter. A height variation application shall be referred directly to the planning commission for consideration, if any of the following is proposed:

A. Any portion of a structure which exceeds 16 feet in height extends closer than 25 feet from the front or street-side property line.

B. The area of the structure which exceeds 16 feet in height (second story footprint) exceeds 75 percent of the existing first story footprint area (residence and garage);
C. 60 percent or more of an existing garage footprint is covered by a structure which exceeds 16 feet in height (a second story).

D. The portion of a structure that exceeds 16 feet in height is being developed as part of a new single-family residence; or E. Based on an initial site visit, the director determines that any portion of a structure which is proposed to exceed 16 feet in height may significantly impair a view as defined in this chapter.

5. For parking development standards, see Section 17.02.030(B) of this chapter. 1 3, 6 2, 3, 6
8 3,
4, 7 5
547

6. A garage with direct access driveway from the street of access shall not be less than 20 feet from the front or street-side property line, whichever is the street of access.

7. Exterior stairs to an upper story are prohibited, unless leading to and/or connected to a common hallway, deck or entry rather than a specific room.

8. For purposes of calculating lot coverage, a private street easement shall not be considered a part of the lot area and the improved area of a private street easement shall not be counted as lot coverage.
548

CITY OF RANCHO PALOS VERDES

GUIDELINES AND PROCEDURES
FOR

RESTORATION OF VIEWS WHERE

FOLIAGE IS INVOLVED (VIEW RESTORATION PERMITS)

AND PRESERVATION OF VIEWS WHERE FOLIAGE IS INVOLVED
(CODE ENFORCEMENT)
ADOPTED ON:

July 20, 2010
Community Development Department
ATTACHMENT 8
549

TABLE OF CONTENTS
I. PURPOSE 2
II. DEFINITIONS 3
III. ESTABLISHING THE VIEWING AREA .4
IV. APPLICATION PROCEDURES 6
V. MANDATORY FINDINGS 9
VI. COMMISSION ACTION 15
VII. APPEAL OF COMMISSION DECISION 21
VIII. VIEW PRESERVATION 22

ATTACHMENTS
Notice of Intent to File a View RestorationNiew Preservation Permit Application Form View RestorationNiew Preservation Permit Application Form View Restoration Permit Early Neighbor Consultation Process View RestorationNiew Preservation Permit Process Flowchart View RestorationNiew Preservation Appeal Process Flowchart Map of Miraleste Recreation and Park District Boundaries List of Streets within the Miraleste Homeowners' Association RPV Development Code Section 17.02.040
Sample View Restoration Private Agreement
Documentation of Existing View or Foliage Form
550
View Restoration and Preservation Permit Guidelines and Procedures July 20,2010
I. PURPOSE
A. The View Restoration Commission was created in accordance with Article 17 of Paragraph A of Section 2 of the Rancho Palos Verdes Council of Homeowners Association and the City of Rancho Palos Verdes City Council Cooperative View Preservation and Restoration Ordinance, which was passed by the voters of the City on November 7, 1989. The Ordinance has been codified into the City's Municipal Code as Section 17.02.040, View Preservation and Restoration.

B. The ballot measure, which was approved by the voters, states the purposes of the Ordinance as follows:
"The hillsides of the City constitute a limited natural resource in their scenic value to all residents of and visitors to the City. The hillsides provide potential vista points and view lots. The City's General Plan recognizes these natural resources and calls for their protection. The public health, safety and welfare of the City require prevention of needless destruction and impairment of these limited vista points and view lots. The purpose of this Ordinance is to promote the health, safety and general welfare of the public by accomplishing the purposes set forth below, and this Ordinance shall be administered in accordance with such purposes. Where this Ordinance is in conflict with other City ordinances, the stricter shall apply.

Specifically, this Ordinance:

1. Protects, enhances and perpetuates views available to property owners and visitors because of the unique topographical features of the Palos Verdes Peninsula. These views provide unique and irreplaceable assets to the City and its neighboring communities and provide for this and future generations examples of the unique physical surroundings which are characteristic of the City.

2. Defines and protects finite visual resources by establishing limits which construction and plant growth can attain before encroaching onto a view.

3. Insures that the development of each parcel of land or additions to residences or structures occur in a manner which is harmonious and maintains neighborhood compatibility and the character of contiguous sub-community development as defined in the General Plan.

4. Requires the pruning of dense foliage or tree growth which alone, or in conjunction with construction, exceeds defined limits."