San Clemente City Council
January 17, 2023

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

CITY OF SAN CLEMENTE
Tuesday, January 17, 2023
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 January 17, 2023
CLOSED SESSION (5:00 P.M.)
A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Existing litigation pursuant to Government Code section 54956.9(d)(1) Number of Cases: 1
Case Name: City of San Clemente v. Foothill/Eastern Transportation Corridor Agency, et al.

Riverside Superior Court Consolidated Case No.: RIC 1800232 CA Court of Appeal Case No.: E078045 (Fourth Appellate District, Division 2) B. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code section 54956.9(d) (2)
Number of potential cases: 1
BUSINESS MEETING PART (6:00 P.M.)

CALL TO ORDER
INVOCATION – Russ Greiner, Church of Jesus Christ of Latter Day Saints

PLEDGE OF ALLEGIANCE

ROLL CALL

1. Special Presentations
A. December Update on the Homeless Issue
B. Introduction of New Chief of San Clemente Police Services, Jay Christian Introduction of Jay Christian, Chief of San Clemente Police Services.

C. Recognition of NCAA Women's Soccer National Champions Recognition of Lauren Brzykcy, Madelyn Desiano, and Brianne Riley for their University of California Los Angeles Women's NCAA National Championship title.

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

2 City Council Regular Meeting Agenda January 17, 2023

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

4. 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.

5. Closed Session Report - City Attorney

6. 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) CITY ATTORNEY RESPONSE TO POINT OF ORDER DATED
DECEMBER 14, 2022.

City Attorney Recommendation
Recommend that the City Council deny the appeal and uphold the point of order decision from the meeting of December 6, 2022. (2) APPROVE CITY COUNCIL REGULAR MEETING MINUTES OF
DECEMBER 20, 2022.
(3) APPROVE THE CITY COUNCIL SPECIAL MEETING MINUTES OF DECEMBER 21, 2022.

B. Commission/Committee Minutes
Staff Recommendation:

Receive and file the following:
(1) ZONING ADMINISTRATOR REGULAR MEETING MINUTES OF
DECEMBER 22, 2022.
(2) PLANNING COMMISSION REGULAR MEETING MINUTES OF
DECEMBER 21, 2022.

3 City Council Regular Meeting Agenda January 17, 2023
C. Warrant Register
(1) APPROVE WIRE TRANSFER NOS.
2772 THROUGH 2777 AND WARRANT NOS.
585454 THROUGH 585678, PAID ON
12-23-22, IN THE AMOUNT OF $1,272,268.67
(2) APPROVE WIRE TRANSFER NOS.
2778 THROUGH 2781 AND WARRANT NOS.
585679 THROUGH 585726, PAID ON
1-6-23, IN THE AMOUNT OF $1,532,558.56
TOTAL WARRANT REGISTER $2,804,827.23
Payroll Register
Warrant Nos. 892 through 893
and Automatic Deposit Advises
83006 through 83277, for the period
12-12-22 through 12-30-22, paid
on 12-30-22, in the amount of………..……..….......………….…$ 435,915.76 TOTAL PAYROLL REGISTER………………………………….$ 435,915.76
D. ORDINANCE 1748 (SECOND READING) - AMENDING CHAPTER 16.50 AND CHAPTER 17.86 OF THE SAN CLEMENTE MUNICIPAL CODE TO

ESTABLISH OBJECTIVE DESIGN, DEVELOPMENT AND SUBDIVISION

STANDARDS REGULATING URBAN LOT SPLIT AND TWO-UNIT PROJECTS IN ACCORDANCE WITH CALIFORNIA SENATE BILL 9
Staff Recommendation
Adopt Ordianance No. 1748 entitled AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE AMENDING CHAPTERS 16.50 AND 17.86 AND AMENDING SECTION 17.52.020 TO THE SAN CLEMENTE MUNICIPAL

CODE TO REGULATE URBAN LOT SPLITS AND TWO-UNIT PROJECTS UNDER SB9; AND FINDING THE ACTION TO BE EXEMPT FROM
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

4 City Council Regular Meeting Agenda January 17, 2023
E. NOTICE OF COMPLETION - BEACH TRUNK SANITARY SEWER LINE

REHABILITATION
Staff Recommendation

1. Accept the Beach Trunk Sanitary Sewer Line Rehabilitation, from the contractor, Sancon Technologies, Inc., CIP Project No. 28206.

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the Beach Trunk Sanitary Sewer Line Rehabilitation.

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, Sancon Technology, Inc.

F. NOTICE OF COMPLETION - LA PATA SEWER LIFT STATION

REHABILITATION
Staff Recommendation

1. Accept the La Pata Sewer Lift Station Rehabilitation, from the contractor, Jennette Company, Inc., CIP Project No. 20201.

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the La Pata Sewer Lift Station Rehabilitation.

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, Jennette Company, Inc.

5 City Council Regular Meeting Agenda January 17, 2023
G. NOTICE OF COMPLETION - PURCHASE AND INSTALLATION OF

STORM DRAIN TRASH CAPTURE DEVICES FOR THE SAN

CLEMENTE PIER AND PICO CORRIDOR PROJECT AREA
Staff Recommendation

1. Accept the Purchase and Installation of Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area, from the contractor, G2 Construction, Inc., CIP Project No. 23805.

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the Purchase and Installation of Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area.

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, G2 Construction, Inc.

H. GRANT FUNDING APPLICATION TO THE CALIFORNIA

DEPARTMENT OF WATER RESOURCES FOR THE URBAN

COMMUNITY DROUGHT RELIEF GRANT PROGRAM
Staff Recommendation
Adopt Resolution No. 23-01 entitled A RESOLUTION OF THE CITY

COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA,

AUTHORIZING THE APPLICATION FOR GRANT FUNDS UNDER THE

CALIFORNIA DEPARTMENT OF WATER RESOURCES URBAN

COMMUNITY DROUGHT RELIEF PROGRAM FOR THE RECYCLED
WATER QUALITY IMPROVEMENT PROJECT.

I. UPDATE ON CONTRACT NEGOTIATIONS WITH CR&R
Staff Recommendation
Receive and file the Administrative Report dated January 17, 2023, and on file with the City Clerk.

6 City Council Regular Meeting Agenda January 17, 2023
J. CONTRACT AWARD - CALAFIA PUMP STATION FLOW METER AND

VAULT REPLACEMENT
Staff Recommendation

1. Approve the Plans and Specifications for Calafia Pump Station Flow Meter and Vault Replacement, Project No. 24401.

2. Approve and authorize the Utilities Director to execute, Contract No.

C23-01, by and between the City of San Clemente and Vicon Enterprise, Inc., in the amount of $79,500 for Calafia Pump Station Flow Meter and Vault Replacement.

3. Approve a budget transfer of $80,000 from Account #052-466-43470- 000-21403 to Account #052-466-43420-000-24401.

K. CONTRACT AMENDMENT - WATER QUALITY MANAGEMENT PLAN

PROGRAM ASSESSMENT AND IMPLEMENTATION
Staff Recommendation

1. Approve, and authorize the City Manager to execute, Amendment No. 3 to Contract No. C19-82, by and between the City of San Clemente and Geosyntec Consultants, providing for Water Quality Management Plan Program Assessment and Implementation services. This contract amendment increases the contract amount from $174,444 to $214,444 (an increase of $40,000).

2. Authorize the City Manager to approve a future amendment to complete plan checks for projects under review at the expiration of the contract amendment limit of $40,000 for an additional $15,000.

L. CONTRACT AWARD - CLASSIFICATION AND COMPENSATION

STUDY FOR FULL-TIME CITY OF SAN CLEMENTE EMPLOYEES
Staff Recommendation
Approve, and authorize the City Manager to execute, Contract No.

C23-02, by and between the City of San Clemente and Ewing Consulting, providing for a classification and compensation study for full-time City of San Clemente employees, in the amount of $79,600.

Alternatives
The Council could direct staff to execute a contract with a different consulting firm and appropriate additional funds from the unassigned fund balance into Account No. 001-171-43690.

7 City Council Regular Meeting Agenda January 17, 2023

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

A. ANNUAL REPORT CONCERNING THE MITIGATION FEE ACT FOR FISCAL YEAR 2021-22 - CITY OF SAN CLEMENTE
Public Hearing to consider the City of San Clemente's Annual Report for Fiscal Year 2022 on Mitigation Fees.

Staff Recommendation
Receive and file the Annual Report concerning the Mitigation Fee Act for Fiscal Year 2021-22 and on file with the City Clerk.

B. CONLEY HEARING ON APPEAL OF ADMINISTRATIVE ENCROACHMENT PERMIT E22-0112
Public Hearing to consider a resident initiated appeal of the Public Works Director's revocation of Administrative Encroachment Permit E22-0112 ("Permit") for the Conley Residential Landscape Improvements located in the street right of way of Via Manzana and Paseo Activo.

Staff Recommendation
Affirm the decision and revoke Administrative Encroachment Permit E22-0112.

8. Unfinished Business
A. CONSIDERATION OF PILOT “GREEN LINE” TROLLEY ROUTE
Staff Recommendation

1. Establish the operating timeframe of March 11 through May 21, 2023 on Saturdays and Sundays for the pilot “Green Line” Trolley.

2. Direct staff to pursue the inland route or the southern route for the pilot “Green Line” Trolley.

3. Direct city staff to collaborate with LAZ to establish the precise curb locations and signage for the temporary pilot route.

8 City Council Regular Meeting Agenda January 17, 2023

9. New Business
A. APPOINTMENT OF ANDY HALL AS CITY MANAGER
Staff Recommendation
It is recommended that the City Council approve, and authorize the Mayor to execute, City Manager Employment Agreement (Contract No. C23-03), by and between the City of San Clemente and Andy Hall, and authorize acceleration of the agreement's commencement date if that should become possible.

B. RECONSIDERATION OF THE CONTRACT AWARD FOR THE DESIGN OF RICHARD T. STEED MEMORIAL SPORTS PARK PICKLEBALL COURTS (Agendized at the December 6, 2022 City Council Meeting by Council.) Staff Recommendation

1. Direct staff to prioritize the construction of at least four pickleball courts and necessary associated amenities as outlined in the proposed Richard T.

Steed Park Master Plan pickleball facility design.

2. Incorporate opportunities for optimizing the use of available funding sources and future phased construction.

3. Approve, and authorize the Public Works Director/City Engineer to execute, Contract No. C22-67, by and between the City of San Clemente and RJM Design Group, Inc., providing engineering design services for the Richard T.

Steed Memorial Park pickleball courts, in the amount of $404,550.

C. INITIATION OF ZONING AMENDMENT TO CHAPTER 16.50
(STATE-MANDATED SUBDIVISIONS) AND CHAPTER 17.86
(STATE-MANDATED RESIDENTIAL PROJECTS) OF THE SAN CLEMENTE MUNICIPAL CODE TO 1) ADD LANGUAGE FOR NON-CONFORMING

URBAN LOT SPLITS AND TWO-UNIT PROJECTS AND DISCRETIONARY APPROVAL, 2) REVISE LANGUAGE FOR VERY HIGH FIRE HAZARD
SEVERITY ZONES, 3) REVISE ALLEY SETBACK AREA STANDARDS, IN ACCORDANCE WITH CALIFORNIA SENATE BILL 9
Staff Recommendation
Initiate Zoning Amendment to Chapter 16.50 (State-Mandated Subdivisions) and Chapter 17.86 (State-Mandated Residential Projects) of the San Clemente Municipal Code to:

1. Add language for non-conforming urban lot splits and two-unit projects and discretionary approval.

2. Revise language for very high fire hazard severity zones.

3. Revise alley setback area standards, in accordance with California Senate Bill 9.

9 City Council Regular Meeting Agenda January 17, 2023

10. 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.

11. Reports
A. Commissions and Committees
B. City Manager
Public Permit Counter Walk-In Hours Update
C. City Attorney
D. Council Members
(1) UPDATE TO COUNCIL APPOINTEES TO REGIONAL COMMITTEES,

COMMISSIONS AND CITY COUNCIL SUBCOMMITTEES
Staff Recommendation

1. Update Councilmember appointments to various regional committees, commissions and boards.

2. Determine whether or not to establish a citizen’s subcommittee to further analyze the feasibility of an amphitheater. If it is determined to establish a citizen’s subcommittee, each Councilmember will appoint a citizen, and notify the City Clerk of that appointment.

3. Update Councilmember appointments to various City Council subcommittees.

E. Council Subcommittee Updates

12. Adjournment
The next Regular Council Meeting is scheduled to take place on February 7, 2023.

Closed Session will begin at 5:00 p.m. and the Regular Business Meeting will begin at 6:00 p.m. The meeting will take place in the Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

Items to be Considered at a Future Meeting
February 7, 2023: Primo Foods Public Hearing

10 City Council Regular Meeting Agenda January 17, 2023

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. Closed Session items are considered at 5:00 p.m. and the Business Meeting will commence at 6:00 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, 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.

11 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: (1)
Subject:

City Attorney Response to Point of Order dated December 14, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/9/2023
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Scott C. Smith
(949) 263-6561
[email protected]
55452.01100\40906769.2
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Memorandum
To: Honorable Mayor and City Council
From: City Manager Sean Joyce and City Attorney Scott Smith Date: December 14, 2022
Re: Point of Order Regarding Nomination and Election of Mayor Pro Tem

SUMMARY
The City Council elected a new Mayor and Mayor Pro Tem at its December 6, 2022 meeting. The following day, Councilmember Gene James filed a point of order on the election process for the Mayor Pro Tem (the “appeal”). The City Council Policy detailed below allows Councilmembers to raise and resolve points of order at any time.

This point of order raises the question of whether elections for Council offices should be treated as (1) a “round” of voting, with all nominees in consideration until one nominee receives a majority of Council votes (the procedure followed) or (2) a series of stand-alone motions and substitute motions (the procedure advocated in the appeal). After reviewing the meeting proceedings and the guidance provided in the Council Policy and Rosenberg’s Rules of Order and analogous rules on this subject, the City Attorney recommends that the Council affirm the former interpretation, as used on the 6th. The Council, however, has the option to apply the latter interpretation, but in doing that should then vote on the nominees in reverse order with the second nomination standing as a substitute motion on the first.

DISCUSSION
Statement of Facts
On December 6, 2022, the City Council considered the election of its officers, resulting in the selection of Mayor Duncan and Mayor Pro Tem Knoblock under the procedure recommended and utilized for the nominations and election. After the Council meeting, Councilmember James raised the following point of order regarding the election process of the Mayor Pro Tem:

13 55452.01100\40906769.2
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“Under Rosenberg’s Rules a vote of 2 YES. 1 NO and 2 Abstain passes …we had that vote last on Victor Cabral. Unfortunately, that was not the ruling. I implore you to review Rosenberg’s. [We] need to cure this immediately.”
In essence, this appeal asserts that the election was not a round of voting on a series of nominees, but rather a vote on a stand-alone motion to elect Councilmember Cabral as Mayor Pro Tem.

Councilmember Cabral received two votes in favor (Cabral and James), one vote in opposition (Duncan), and two abstentions (Knoblock and Enmeier) – i.e., a 2-1-2 vote. Under this stand-alone motion theory, the appeal reasons that Councilmember Cabral received a majority of the votes cast in a motion to elect him, and thus, was elected as Mayor Pro Tem.

Points of Order
Points of Order are governed by Council Policy 1201-11 (the “Policy”).The Policy provides that the Mayor, with assistance from the City Attorney, is designated as the parliamentarian for City Council meetings.1 Points of order may be raised at any time by City Councilmembers, which shall then be considered by the Mayor. The City Council may override any parliamentary decision of the Mayor with a majority vote. (Section 4.1.2.)
Here, because the point of order was raised in this appeal after the meeting, this matter is being brought back to the Council post facto, using the process for resolving points of order from the public. As such, it is presented to the Council for consideration at the Council meeting where the previous meeting’s minutes are considered. At this time, the Mayor and Council can review the point of order raised and “determine whether it warrants scheduling and noticing of that item for reconsideration.” (Id.) Because Section 4.2.2 of Policy 1201-11 provides that “[t]he Mayor and Mayor Pro Tempore shall serve a one-year term at the pleasure of the Council majority” (emphasis added), the Council is not bound by a reconsideration process; it can elect new officers at any time (subject to public notice) and can skip the step of reconsideration to proceed directly to a new vote.

The Policy provides that “no ordinance, resolution, proceeding or other action of the City Council shall be invalidated or the legality thereof otherwise affected by the failure or omission to observe or following such rules.” (Section 4.1.1.) Therefore, even with deviations from the parliamentary procedures, the Council’s actions are legitimate and enforceable unless reversed by Council.

Election Procedure – Open Nominations
This section describes the procedure applied to the December 6th elections.

State law prescribes no particular method for Council’s election of its officers. Government Code section 36801 simply grants the City Council the authority to select the Mayor and Mayor Pro

1 The City Clerk stood in for the Mayor in this instance. 14 55452.01100\40906769.2
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Tem. City Council Policy 1201-11 provides that Rosenberg’s Rules of Order shall govern on all matters pertaining to parliamentary procedure. (Section 4.1.1.) The starting point for Rosenberg’s Rules is motions and votes on motions; motions are carried by a majority of those voting. (See below.) Rosenberg’s contains some additional, minimal guidance on the specific issue of parliamentary procedures for nominating and electing officers (i.e., the Mayor and Mayor Pro Tem):
“Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass.” (Emphasis added.)
This passage suggested to the City Attorney that Rosenberg’s contemplates a system of electing officers where all nominees are simultaneously in play (not just the first one nominated) until one nominee receives a majority of votes. But unfortunately, Rosenberg’s lacks guidance on what to do after that.

In the City Attorney’s experience, and in the experience of BB&K’s Director of Election Services, agencies traditionally use Robert’s Rules of Order to supplement these election procedures where both Rosenberg’s Rules and local policy are silent. Robert’s’ procedure of nominating and selecting officers can be summarized as follows: The “vita-voce” method of nomination is an “open nomination” solely by and from within the membership of the presently-seated board.

Nominations cannot be accepted from members of the public. No “second” is required for nomination, although sometimes members will second a nomination to indicate endorsement.

After the nomination period, a motion to close the nomination period may be made and seconded and a roll-call vote then ensues, which requires a 2/3 majority of the body.

Nominees are voted on in the order in which they are nominated (note that this is a mere roll-call vote). As soon as one of the nominees receives a vote of the majority of members participating in that round of voting, the chair then declares that person elected to that respective office, and no vote is taken on the remaining nominee(s). When a nominee does not secure the majority votes necessary, the next nominee is voted upon. This procedure continues in succeeding rounds of voting until a nominee receives votes from a majority of the body participating.

Robert’s notes that in connection with this process, members of the body may vote in connection with multiple nominees, voting “yes” for their candidate and “no” or abstaining on the others. (Robert’s Rules of Order, Sec. 46.) So, for example, if a member supports Candidate B, that member might vote against Candidate A or abstain in the vote on Candidate A, then later vote in favor of Candidate B. The intent of their “no” vote or abstention on Candidate A can’t be ascertained until the vote on all nominees is completed or until one nominee receives votes from a majority of the members thus mooting the need to vote on the remaining nominees. A person 15 55452.01100\40906769.2
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may vote twice: once against A, then for B. A person may also abstain on A then vote for B. Their vote is not “spent” or over with the “no” or abstention on any candidate until the election on nominees plays out.

Under this interpretation of Rosenberg’s with the overlay of Robert’s (via the Rosenberg’s reference to multiple nominees), the Council correctly voted on all nominees on December 6th, voting and tallying votes until the second nominee (Knoblock) received votes from a majority of the Council.2
Election Procedure – Simple Motions
This second section describes the alternative procedure proposed in the appeal of the point of order.

The appeal argues – in contrast to the parliamentary call made at the meeting and the analysis above – that the Council faced a simple motion to elect Councilmember Cabral as Mayor Pro Tem, which should have been considered alone. The 2-1-2 vote should have been considered as a successful outcome of the stand-alone motion that passed with the support of a majority of those voting on the motion. Rosenberg’s Rules provide that when the rules of the body are silent on which method, the default rule is that the body counts all votes that are “present and voting.” So, a 2-1-2 vote would have been sufficient. Under the “present and voting” method, members present are counted for purposes of determining a quorum, but are not considered in the motion itself.

Therefore, in a traditional motion that does not require a majority of the body, a 2-1-2 (two in favor, one opposed, and two abstentions) vote on a motion would result on its passage.

On this point, the appeal is technically correct. However, this interpretation does not acknowledge the unique status of “no” and abstention votes early in voting rounds, i.e., that someone wishing to vote for a later-nominated candidate has not really cast their vote until their candidate is called.

It also ignores Rosenberg’s reference to multiple nominees and the potential need to close those nominations.

It is possible that the “no” and abstention voters in this election were never going to vote (and they might have been confused or induced to vote by the City Attorney’s assertion at the meeting that a majority of the body’s vote was required). Nevertheless, the Council couldn’t have known this without proceeding to the vote on the second candidate to see their response to his nomination.

Finally, applying this “simple motion” interpretation to the Mayor Pro Tem election does not – in itself – resolve this matter. A pure motion/second process under Rosenberg’s would require treatment of Councilmember Knoblock’s nomination as a substitute motion. Rosenberg’s provide that when there are multiple motions on the floor (after motions and seconds), the first vote should proceed on the last motion made. If that substitute motion passes then no vote is taken on the first motion. Therefore, under the appeal’s interpretation of Council parliamentary procedures, the Council should have voted on Mayor Pro Tem Knoblock’s nomination first. If that had still

2 The Council employed this same process for the election of Mayor. 16 55452.01100\40906769.2
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resulted in three votes, the first motion on Councilmember Cabral’s nomination would have been moot. Thus, even if considering the simple motion approach, with the same alignment of votes, it might logically be assumed that Mayor Pro Tem Knoblock would have been elected.

COUNCIL OPTIONS
As noted above, the Policy provides that the Council will review the point of order raised on appeal and determine whether it warrants scheduling and noticing the underlying action for reconsideration.

Should the Council wish to reverse the decision on the point of order, it could do so, then skip a vote on reconsideration by scheduling a new vote subject to the replacement procedure. This is possible because the Council officers serve “at its pleasure.” If the Council reverses this procedural call, it can agendize a new vote on Mayor Pro Tem at the next Council meeting (with just a consensus of two).

RECCMMENDATION
We recommend that the City Council deny the appeal and uphold the point of order decision from the meeting on December 6th.

In the alternative, the Council could remove this item from the consent calendar, uphold the appeal by reversing the point of order decision, and agendize the election of Mayor Pro Tem for a future Council meeting.
17 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: (2)
Subject:

City Council Regular Meeting Minutes of December 20, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/10/2023
powered by Legistar™ 18

CITY OF SAN CLEMENTE
Tuesday, December 20, 2022 5:00 PM
City Council
Regular Meeting Minutes
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Council Chambers
5:00 p.m. - Closed Session
6:00 p.m. - Business Meeting
Mayor Duncan
Mayor Pro Tem Knoblock
Councilmember Cabral
Councilmember Enmeier
Councilmember James
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 Duncan on December 20, 2022 at 5:00 p.m. in the San Clemente City Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

PRESENT: Cabral, Enmeier, Knoblock, and Mayor Duncan
ABSENT: James
Mayor Duncan read a statement on behalf of Councilmember James regarding his absence.

STAFF PRESENT: Sean Joyce, Interim City Manager; Scott Smith, City Attorney; Laura Campagnolo, City Clerk; Megan Jimenez, Deputy City Clerk BUSINESS MEETING PART 1
Holiday Serenade - Las Palmas Elementary and Concordia Elementary School Choirs
Las Palmas and Concordia Elementary Schools, under the direction of Sharon Evans, performed a holiday serenade.

INVOCATION
Holland Davis, Senior Pastor Calvary Chapel San Clemente, gave the invocation.

PLEDGE OF ALLEGIANCE
City Treasurer Charlie Smith led the Pledge of Allegiance.

19 City Council Regular Meeting Minutes December 20, 2022

1. Motion waiving reading in full of all Resolutions and Ordinances Motion by Mayor Pro Tem Knoblock, second by Councilmember Enmeier, CARRIED 4-0 (James absent), to waive reading in full of all Resolutions and Ordinances.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

2. Consideration of agendizing items requiring immediate action None.

3. Oral Communications (Part 1)
Amanda Q narrated a Powerpoint presentation entitled "Articles during elections". A hard copy of the presentation is on file with the City Clerk.

Susan Ambrose spoke on the upcoming king tides on December 23 and 24, 2022 and the potential impacts to the San Clemente coastline.

4. Consent Calendar
The following items were removed from the Consent Calendar for discussion: 4A(1a), 4A(1b), 4B(1), 4H.

A. City Council Minutes
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:
(2) APPROVE THE CITY COUNCIL SPECIAL MEETING MINUTES OF DECEMBER 13, 2022.
(3) APPROVE THE CITY COUNCIL SPECIAL MEETING MINUTES OF DECEMBER 15, 2022.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

20 City Council Regular Meeting Minutes December 20, 2022 B. Commission/Committee Minutes
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to receive and file:
(2) DESIGN REVIEW SUBCOMMITTEE REGULAR MEETING MINUTES
OF OCTOBER 26, 2022
(3) DESIGN REVIEW SUBCOMMITTEE REGULAR MEETING MINUTES
OF NOVEMBER 9, 2022
(4) PLANNING COMMISSION REGULAR MEETING MINUTES
OF DECEMBER 7, 2022.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
C. Warrant Register
Motion by Mayor Pro Tem Knoblock, sencond by Councilmember Cabral, CARRIED 4-0 (James absent), to:
(1) APPROVE WIRE TRANSFER NOS.
2756 THROUGH 2765 AND WARRANT NOS.
585060 THROUGH 585187, PAID ON
12-2-22, IN THE AMOUNT OF $2,447,393.66
(2) APPROVE WIRE TRANSFER NOS.
2766 THROUGH 2767 AND WARRANT NOS.
585188 THROUGH 585316, PAID ON
12-9-22, IN THE AMOUNT OF $6,060,492.47
(3) APPROVE WIRE TRANSFER NOS.
2768 THROUGH 2771 AND WARRANT NOS.
585317 THROUGH 585453, PAID ON
12-16-22, IN THE AMOUNT OF $1,797,256.16
TOTAL WARRANT REGISTER……………………………$10,305,142.29
AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

21 City Council Regular Meeting Minutes December 20, 2022 Payroll Register
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

Approve Warrant Nos. 891 and Automatic
Deposit Advises 82472
through 82737, for the period
11-14-22 through 11-27-22, paid
on 12-2-22, in the amount of………..……..….......………….…….....$537,383.76 Approve Automatic Deposit Advises 82738
through 83005, for the period
11-28-22 through 12-11-22, paid
on 12-16-22, in the amount of………..……..….......……………...…..$440,359.16 TOTAL PAYROLL REGISTER……………………………………….….$977,742.92
AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
D. CITY OF SAN CLEMENTE FISCAL YEAR 2021-2022, MEASURE M2

EXPENDITURE REPORT
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to adopt Resolution No. 22-47 entitled A

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA, TO ADOPT THE FISCAL YEAR 2021-2022 MEASURE M2 EXPENDITURE REPORT FOR THE CITY OF SAN CLEMENTE.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
E. ORDINANCE NOS. 1740, 1741, 1742, 1743, 1744 AND 1745 (SECOND READING) - IMPLEMENTING THE CITY’S SIXTH CYCLE HOUSING

ELEMENT
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

1. Adopt Ordinance No. 1740 entitled AN ORDINANCE OF THE CITY

COUNCIL OF SAN CLEMENTE, CALIFORNIA AMENDING SECTION

17.24.070 OF THE SAN CLEMENTE MUNICIPAL CODE REGARDING

DENSITY BONUSES AND OTHER AFFORDABLE HOUSING INCENTIVES

REQUIRED BY STATE LAW AND FINDING THE ACTION TO BE EXEMPT FROM CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

22 City Council Regular Meeting Minutes December 20, 2022

2. Adopt Ordinance No. 1741 entitled AN ORDINANCE OF THE CITY

COUNCIL OF SAN CLEMENTE, CALIFORNIA AMENDING SECTION

17.56.100 OF THE SAN CLEMENTE MUNICIPAL CODE TO COMPLY WITH ASSEMBLY BILL 139 REGARDING PARKING REQUIREMENTS FOR

EMERGENCY SHELTERS AND FINDING THE ORDINANCE NOT SUBJECT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

3. Adopt Ordinance No. 1742 entitled AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA AMENDING SECTION 17.28.270 OF THE SAN CLEMENTE MUNICIPAL CODE

GOVERNING ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY

DWELLING UNITS TO COMPLY WITH CHANGES IN STATE LAW AND
FINDING THE ACTION TO BE EXEMPT FROM CEQA (CEQA).

4. Adopt Ordinance No. 1743 entitled AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA AMENDING

VARIOUS PROVISIONS OF THE SAN CLEMENTE MUNICIPAL CODE TO

ENSURE CONSISTENCY WITH STATE LAW REGARDING LOW BARRIER

NAVIGATION CENTERS AND FINDING THE ACTION TO BE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

5. Adopt Ordinance No. 1744 entitled AN ORDINANCE OF THE CITY

COUNCIL OF SAN CLEMENTE, CALIFORNIA AMENDING VARIOUS

PROVISIONS OF THE SAN CLEMENTE MUNICIPAL CODE TO ENSURE

CONSISTENCY WITH STATE LAW REGARDING SUPPORTIVE AND

TRANSITIONAL HOUSING AND FINDING THE ACTION TO BE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

6. Adopt Ordinance No. 1745 entitled AN ORDINANCE OF THE CITY

COUNCIL OF SAN CLEMENTE, CALIFORNIA AMENDING VARIOUS

PROVISIONS OF THE SAN CLEMENTE MUNICIPAL CODE REGARDING

RESIDENTIAL CARE FACILITIES AND FINDING THE ACTION TO BE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
F. ADOPTION OF CITY INVESTMENT POLICY 202-1
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to adopt Investment Policy 202-1, effective December 21, 2022.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

23 City Council Regular Meeting Minutes December 20, 2022 G. RATIFICATION OF EMERGENCY PURCHASES AND CONSTRUCTION

CONTRACTS FOR CYPRUS SHORE SEWER LINING
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

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. 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 $127,000 to Account No. 054-476-45300-000-12209 from the Sewer Fund Depreciation Reserve.

4. Ratify a Construction Contract with Sancon Technologies, Inc. providing for Cyprus Shore Emergency Sewer Lining, in the amount of $80,940.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
I. PROPOSED MODIFICATIONS TO CITY COUNCIL AGENDA TEMPLATE Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

1. Approve the agenda template changes as outlined in Attachment 1 of the Administrative Report, dated December 20, 2022, and on file with the City Clerk.

2. Adopt Resolution No. 22-48 entitled A RESOLUTION OF THE CITY

COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA, ESTABLISHING

THE DATE, TIME AND LOCATION OF CITY COUNCIL MEETINGS AND RESCINDING RESOLUTION NO. 22-10.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

24 City Council Regular Meeting Minutes December 20, 2022

ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION
4A(1a) CITY ATTORNEY RESPONSE TO POINT OF ORDER DATED
DECEMBER 14, 2022.

Amanda Q narrated a Powerpoint entitled "Point of Order - Re: Abstention & Quorums". A hard copy of the presentation is on file with the City Clerk.

Motion by Councilmember Cabral, second by Mayor Duncan, CARRIED 3-0-1 (James absent), to continue the City Attorney's response to the Point of Order to the January 17, 2023 City Council Meeting.

AYE: Cabral, Enmeier, and Mayor Duncan
NOE: None
ABSENT: James
ABSTAIN: Knoblock
Motion by Councilmember Enmeier, second by Mayor Duncan, CARRIED 4-0 (James absent), to agendize for a future Council meeting with recommendations on how to conduct the vote for Mayor and Mayor Pro Tem.
4A(1b)APPROVE THE CITY COUNCIL REGULAR AND SPECIAL MEETING MINUTES OF DECEMBER 6, 2022.

Concerned Citizen opined that the City should have a policy for when comments are read by staff during the meeting.

Amanda Q spoke on public comments missing from the minutes of December 6, 2022, regarding the vote for Mayor.

Motion by Mayor Pro Tem Knoblock, second by Councilmember Enmeier, CARRIED 4-0 (James absent), to approve the City Council Regular and Special Meeting minutes of December 6, 2022.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

25 City Council Regular Meeting Minutes December 20, 2022 4B(1) BEACHES, PARKS AND RECREATION COMMISSION REGULAR MEETING MINUTES OF OCTOBER 11, 2022.

This item was pulled by a member of the public who did not end up speaking on the item.

Motion by Councilmember Enmeier, second by Mayor Pro Tem Knoblock, CARRIED 4-0 (James absent), to receive and file.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
4H. CONTRACT AMENDMENT - MARINE SAFETY HEADQUARTERS

RELOCATION STUDY
Public Works Director/City Engineer Koger responded to Council inquiries.

Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to approve, and authorize the Public Works Director/City Engineer to execute, Amendment No. 1 to Contract No. C21-24, by and between the City of San Clemente and HMC Architects, providing for the Marine Safety Headquarters Relocation Study. This amendment increases the contract amount from $87,500 to $122,500 (an increase of $35,000). with the amendment to the contract term to state " the contract term is extended until the services are completed to the satisfaction of the City".

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

5. Reports
A. Commissions and Committees
None.

B. City Manager
Resignation of Assistant to the City Manager Savage
Interim City Manager Joyce announced Assistant to the City Manager Savage has resigned; acknowledged her efforts for the City.

Update on Idling Trains at T-Street
Interim City Manager Joyce reported that Orange County Transportation Autnority and Metrolink were responsive to the City's request concerning idling

26 City Council Regular Meeting Minutes December 20, 2022 trains; reported that trains are no longer idling at T-Street.

Announcement of Contracts Approved and Executed by the City Manager Interim City Manager Joyce reported that the following contracts were executed under his signature authority: 1) LSA Associates providing for the first amendment for the Montalvo Canyon Outlet Improvements in the amount of $40,937 (an increase of $18,587) 2) Sancon Technolcogies, Inc. providing for 429 Avenida Arlena 24" Storm Drain Rehabilitation and Manhole Repair in the amount of $32,718.

Parking Passes
Interim City Manager Joyce announced that the City will have a grace period for 2022 City Parking Passes through January 13, 2023. This will allow current pass holders an opportunity to renew their parking passes while taking into consideration the City's annual furlough from December 23, 2022 through January 2, 2023.

C. City Attorney
None.

D. Council Members
Recognition of outgoing Chief of Police Services, Captain Benfield Mayor Duncan recognized outgoing Captain Benfield, Chief of Police Services, and extended his appreciation for Captain Benfield's work in the community.

Walk-in Permit Counter Services
Mayor Pro Tem Knoblock, with the support of Councilmember Cabral and Councilmember Enmeier, agendized analysis of staffing for the building permit counter to have walk-in availability to obtain permits. (1) UPDATE TO COUNCIL APPOINTEES TO REGIONAL COMMITTEES,

COMMISSIONS AND BOARDS AND CITY COUNCIL
SUBCOMMITTEES.

Motion by Councilmember Cabral, second by Councilmember Enmeier, CARRIED 4-0 (James absent), to continue the selection of regional committees, commissions and boards and City Council subcommittees to the City Council Meeting of January 17, 2023 with the exception of the appointment to the Orange County Fire Authority Board.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

27 City Council Regular Meeting Minutes December 20, 2022 Motion by Mayor Duncan, second by Councilmember Enmeier, CARRIED 4-0 (James absent), to appoint Mayor Duncan as the San Clemente representative to the Orange County Fire Authority Board and adopted Resolution 22-49 entitled A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF SAN CLEMENTE, CALIFORNIA, DESIGNATING AND

APPOINTING ITS REPRESENTATIVE TO THE ORANGE COUNTY
FIRE AUTHORITY'S BOARD OF DIRECTORS.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
(2) ESTABLISHMENT OF COUNCIL MEETING SCHEDULE FOR 2023 AND EARLY 2024
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

1. Cancel the City Council meetings of July 4, 2023 and August 1, 2023 to accommodate Council and staff vacations.

2. Schedule the Long Term Financial Plan Meeting for February 28, 2023 at 4:00 p.m.

3. Schedule the Budget Workshop for May 23, 2023 at 4:00 p.m.

4. Cancel the City Council meeting of January 2, 2024.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
E. Council Subcommittee Updates
None
CLOSED SESSION (6:00 P.M.)
Motion by Councilmember Enmeier, second by Mayor Pro Tem Knoblock, CARRIED 4-0 (James absent), to recess to Closed Session at 6:00 p.m. to discuss the following:

A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Existing litigation pursuant to Government Code section 54956.9(d)(1) Number of Cases: 1
Case Name: City of San Clemente v. Foothill/Eastern Transportation Corridor Agency, et al.

Riverside Superior Court Consolidated Case No.: RIC 1800232 CA Court of Appeal Case No.: E078045 (Fourth Appellate District, Division 2)

28 City Council Regular Meeting Minutes December 20, 2022 B. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code section 54956.9(d)(2) Number of potential cases: 1
C. PUBLIC EMPLOYEE APPOINTMENT
Pursuant to Government Code Section 54957
Title: Chief of Police Services (advisory to Sheriff)
AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
BUSINESS MEETING PART 2
Council reconvened the meeting at 7:00 p.m. will all Councilmembers present, with the exception of Councilmember James, who was absent.

6. Closed Session Report - City Attorney
City Attorney Smith announced a Settlement Agreement and Stipulated Order was entered into with the property owner of 422 Avenida de la Estrella (Palizada Gas Station) on September 6, 2022. The motion was made by Mayor James, second by Mayor Pro Tem Duncan, CARRIED 5-0.

7. Special Presentations
A. Recognition of Senator Bates
Amanda Q narrated a Powerpoint entitled "Commemorating Senator Bates". A hard copy of the presentation is on file with the City Clerk.

Council presented Senator Bates with a commendation for her dedication to the City of San Clemente and its residents.

B. November Update on the Homeless Issue
Code Enforcement Manager Torrico and Deputy Community Development Director Atamian narrated a Powerpoint presentation entitled "Community Outreach & Engagement Monthly Report - November 2022" and responded to Council inquiries. A hard copy of the presentation is on file with the City Clerk.

C. Fiscal State of the City - Fiscal Year Ending June 30, 2022 and FY 2022 4th Quarter Financial Report and FY 2023 1st Quarter Financial Report Financial Services Officer Rahn reviewed the contents of the fiscal state of the City report, FY 2022 4th quarter report, and FY 2023 1st quarter report and responded to Council inquiries.

29 City Council Regular Meeting Minutes December 20, 2022

8. Public Hearings
A. CONTINUANCE OF APPEAL OF MINOR CONDITIONAL USE PERMIT 22-197, PRIMO FOODS BEER AND WINE, 2801 S. EL CAMINO REAL
Public Hearing to consider a City Council intitiated appeal of the Zoning Administrator's approval of Minor Conditional Use Permit 22-197, Primo Foods Beer and Wine, 2801 S. El Camino Real, which approved beer and wine sales at Primo Foods Market and Deli for off-site consumption, with hours of operation from 8:00 a.m. to 8:00 p.m. daily. The project does not propose changes to the existing market.

Motion by Councilmember Cabral, second by Mayor Pro Tem Knoblock, CARRIED 4-0 (James absent), to continue the Public Hearing to the Regualr City Council meeting of February 7, 2023.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
B. INTRODUCTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA AMENDING CHAPTER 16.50
(STATE-MANDATED SUBDIVISIONS) AND CHAPTER 17.86
(STATE-MANDATED RESIDENTIAL PROJECTS) OF THE SAN CLEMENTE

MUNICIPAL CODE TO ESTABLISH OBJECTIVE DESIGN, DEVELOPMENT

AND SUBDIVISION STANDARDS REGULATING URBAN LOT SPLIT AND

TWO-UNIT PROJECTS IN ACCORDANCE WITH CALIFORNIA SENATE BILL 9; (PROJECT NO. ZONING AMENDMENT 22-395).

Public Hearing to consider Amendments to Chapter 16.50 (State-Mandated Subdivisions) and Chapter 17.86 (State-Mandated Residential Projects) of the San Clemente Municipal Code to establish objective design standards, development and subdivision standards regulating urban lot splits and two-unit housing projects in accordance with California Senate Bill 9 (SB 9).

Senior Planner Toma narrated a Powerpoint presentation entitled "Zoning Ordinances - Urban Lot Splits and Two-Unit Projects" and responded to Council inquiries. A hard copy of the presentation is on file with the City Clerk.

Mayor Duncan opened the Public Hearing.

Scott McKann presented on the fire hazard severity zone map as it relates to SB 9 and made recommendations to Council regarding amendments to the proposed ordinance.

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

Deputy Community Development Director Atamian responded to Council

30 City Council Regular Meeting Minutes December 20, 2022 inquiries regarding public comments.

Community Development Director Gallardo-Daly responded to Council inquiries.

Motion by Councilmember Enmeier, second by Mayor Duncan, CARRIED 4-0 (James absent), to introduce Ordinance No. 1748 entitled AN ORDINANCE OF

THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE AMENDING
CHAPTERS 16.50 AND 17.86 AND AMENDING SECTION 17.52.020 TO THE

SAN CLEMENTE MUNICIPAL CODE TO REGULATE URBAN LOT SPLITS AND TWO-UNIT PROJECTS UNDER SB 9; AND FINDING THE ACTION TO BE EXEMPT FROM CALIFORNIA ENVIRONMENTAL QUALITY ACT.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

9. Unfinished Business
A. CONSIDERATION OF TRAFFIC CALMING IN THE COAST NEIGHBORHOOD - CALLE FRONTERA, CALLE JUAREZ, AND CALLE VALLARTA
Assistant City Engineer Ponsen and Traffic Engineer Kim narrated a Powerpoint presentation entitled "The Coast Traffic Calming". A hard copy of the presentation is on file with the City Clerk.

Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to:

1. Install electronic speed feedback signs, advisory speed signs and edge lines as illustrated in Attachment 5 of the Administrative Report, dated December 20, 2022, and on file with the City Clerk.

2. Appropriate the required funds from the Traffic Calming Project, CIP No. 39807.

3. Install yellow advisory signs on Calle Frontera.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

31 City Council Regular Meeting Minutes December 20, 2022

10. New Business
A. PROJECT PARTNERSHIP AGREEMENT - U.S. ARMY CORPS OF

ENGINEERS FOR THE SAN CLEMENTE SHORELINE PROJECT
Susan Ambrose expressed support regarding the project partnership with the Army Corps of Engineers for sand replenishment.

Public Works Director/ City Engineer Koger narrated a Powerpoint presentation entitled "Project Partnership with Corps of Engineers for the San Clemente Shoreline Project" and responded to Council inquiries. A hard copy of the presentation is on file with the City Clerk.

Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0 (James absent), to approve, and authorize the Interim City Manager to execute, Contract No. C22-70, a project partnership agreement by and between the City of San Clemente and the U.S. Army Corps of Engineers for the San Clemente Shoreline Project.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
Staff is to communicate with Supervisor Foley's office to determine if the sand replenishment round table will continue.

B. STAY OF ACTION PENDING COUNCIL APPEAL REGARDING REVOCATION

OF CONLEY ADMINISTRATIVE ENCROACHMENT PERMIT SUMMARY
Motion by Mayor Pro Tem Knoblock, second by Councilmember Enmeier, CARRIED 4-0 (James absent), to receive and file the administrative report dated December 20, 2022, and on file with the City Clerk.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
C. RECONSIDERATION OF THE CONTRACT AWARD FOR THE DESIGN OF RICHARD T. STEED MEMORIAL SPORTS PARK PICKLEBALL COURTS.

Linda Williams spoke in support of the City to proceeding with the design contract for pickleball courts at Richard T. Steed Memorial Park.

Marty Weinberg, USA Pickleball Ambassador, spoke in support of the development of pickleball courts at Richard T. Steed Memorial Park; opined that the City needs more pickpleball courts due to the demand from players.

Amanda Q commented on the previous staff reports that are related to the

32 City Council Regular Meeting Minutes December 20, 2022 development of pickleball at Richard T. Steed Memorial Park.

Concerned resident presented a picture of Richard T. Steed Memorial Park; opined on the pickleball project at Richard T. Steed Memorial Park. A hard copy of the photograph is on file with the City Clerk.

Motion by Councilmember Cabral, second by Mayor Pro Tem Knoblock, CARRIED 4-0 (James absent), to continue the reconsideration of the contract award for the design of Richard T. Steed Memorial Sports Park pickleball courts to the Regular City Council Meeting of January 17, 2023.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
D. WEEKEND TROLLEY SERVICE EXTENSION
Mikii Rathmann supports the use of the trolley throughout the year and spoke to the benefits to the downtown businesses; opined that a trolley line should be added to the southern part of the City.

Motion by Councilmember Enmeier, second by Mayor Pro Tem Knoblock, CARRIED 4-0 (James absent), to:

1. Approve, and authorize the City Manager to execute, Amendment No. 2 to Contract No. C19-35, by and between the City of San Clemente and LAZ Parking, extending the term of the contract through December 31, 2023 and providing for additional trolley service days (Saturdays and Sundays) during the months of January through March 2023.

2. Authorize a supplemental appropriation of $93,230 to Account No. 021-808- 43690 (Other Professional Services) for Trolley operations between January and March 2023 with three trolleys on the red line and two trolleys designated for a pilot route as directed by the City Council and approve a funding transfer from the General Fund unassigned fund balance in the amount of $93,230 to the Local Transit Fund (Account No. 021-000-39204.

3. Direct staff to pursue a scope change request through OCTA’s semiannual review process to seek approval for any desired changes to the seasonal schedule of the Trolley. (OCTA has already approved extended weekend service in the months of April, May, and October-December for 2023. OCTA has not yet reviewed or approved any expanded service beyond 2023.)

4. Direct staff to return to Council at its Regular Meeting of January 17, 2023, with additional route options for consideration. The Contract start date will be delayed due to the consideration of an additional route to be determined by Council.

33 City Council Regular Meeting Minutes December 20, 2022 AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James

12. Oral Communications (Part 2)
Randy McMahon presented a flyer for the memorial event for the sacrifice of the four immortal chaplains on February 3, 2023 at 1:00 p.m. at Semper Fi Park. A hard copy of the flyer is on file with the City Clerk.

Aaron Washington commented on the need for sand replenishment and anchoring the replenished sand once it is placed on the beaches.

13. Adjournment
Motion by Mayor Pro Tem Knoblock, second by Councilmember Cabral, CARRIED 4-0, to adjourn at 9:03 p.m. The next Regular Meeting to be held on January 17, 2022.

Closed Session will begin at 5:00 p.m. The Regular Business Meeting will commence at 6:00 p.m. The meeting will take place at City Hall Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

AYE: Cabral, Enmeier, Knoblock, and Mayor Duncan
NOE: None
ABSENT: James
_______________________________
MAYOR of the City of
San Clemente, California
_______________________________
CITY CLERK of the City of
San Clemente, California

34 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: (3)
Subject:

APPROVE THE CITY COUNCIL SPECIAL MEETING MINUTES OF DECEMBER 21, 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: 1/17/2023 Agenda Item: (1)
Subject:

ZONING ADMINISTRATOR REGULAR MEETING MINUTES OF DECEMBER 22, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/13/2023
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These minutes will be approved by the Zoning Administrator on 1/19/2023

CITY OF SAN CLEMENTE

MINUTES OF THE REGULAR MEETING

OF THE ZONING ADMINISTRATOR
DECEMBER 22, 2022
San Clemente City Hall
First Floor Community Room
910 Calle Negocio
San Clemente, California 92673

1. CALL TO ORDER
Zoning Administrator Gallardo-Daly called the Regular Meeting of the City of San Clemente Zoning Administrator to order on December, 2022 at 3:02 p.m. The meeting was held in the First Floor Community Room of City Hall, 910 Calle Negocio, and San Clemente, California.

Staff Present: Cecilia Gallardo-Daly, Zoning Administrator David Carrillo, Assistant Planner
Tamara Tatich, Office Specialist

2. MINUTES
A. Receive and file Minutes from the November 3, 2022 Zoning Administrator Regular Meeting.

B. Receive and file Minutes from the November 17, 2022 Zoning Administrator Regular Meeting.

3. ORAL AND WRITTEN COMMUNICATION
None

4. PUBLIC HEARING
A. Minor Cultural Heritage Permit (MCHP) 22-196, Seasurf Fish Company, Exterior Improvements – 202 N. El Camino Real (Carrillo) A request to allow exterior improvements, including an awning structure, to an existing outdoor dining patio located in the Downtown T-Zone District.

DRAFT
39 Minutes of the Zoning Administrator Meeting December 22, 2022 Page 2 Staff recommends that the project be found Categorically Exempt from CEQA pursuant to State CEQA Guidelines Section 15031 (Class1:Existing Facilities).

Assistant Planner David Carrillo summarized the staff report.

ZA Gallardo-Daly asked staff for the minutes of the Design Review Subcommittee that were referenced in the staff report, whereby staff presented the minutes for review. ZA Gallardo-Daly cited the Design Review Subcommittee’s suggestion to add more Spanish colonial revival elements on areas more visible from El Camino Real and Avenida Cabrillo, and asked if that was addressed in the applicant’s response by adding the wall, wrought iron features and additional landscaping. Staff responded that the applicant proposes to beautify the landscape area with a low stucco wall, brick cap and wrought iron detailing. The detailing was an inspiration from the Iva Lee’s awning structure that is referenced in the Design Review Subcommittee meeting minutes.

ZA Gallardo-Daly referred to the second to the last comment made by the Design Review Subcommittee where it was recommended that the applicant add more details to the awning structure, similar but not identical to the Iva Lee’s awning structure. Staff confirmed that instead of adding the detailing to the awning, the applicant elected to add detailing to the wall at a greater expense.

Staff also confirmed that the Design Review Subcommittee supported the blue awning color.

Having no further questions, ZA Gallardo-Daly opened the public hearing. There being no public comments, ZA Gallardo-Daly closed the public hearing.

ZA Gallardo-Daly stated that she reviewed the staff report and drawings, Conditions of Approval, the recommendations made by the Design Review Subcommittee, and evaluated the committee’s input due to the site’s prominent location, pointing out that any kind of rehabilitation or reuse of the property benefits when cultural aesthetics and architecture can be addressed. ZA Gallardo stated that the applicant responded very well to the Design Review Subcommittee’s comments, and the low stucco wall with wrought iron and awning lighting and additional landscaping will frame the additional patio nicely.

Based on the information in the staff report and subject to the required Findings and Conditions of Approval, ZA Gallardo-Daly determined the project Categorically Exempt from CEQA pursuant to State CEQA Guidelines Section 15301 (Class 1: Existing Facilities).

Action: The Zoning Administrator adopted Resolution ZA22-023, and approved Minor Cultural Heritage Permit 22-196, The Seasurf Fish Company Exterior Improvements – 202 N. El Camino Real, subject to the Conditions of Approval.

DRAFT
40 Minutes of the Zoning Administrator Meeting December 22, 2022 Page 3

5. NEW BUSINESS
None

6. OLD BUSINESS
None

7. ADJOURNMENT
The meeting adjourned at 3:15 p.m. to the Regular Meeting of the Zoning Administrator, which will be held Thursday, January 19, 2023 at 3:00 p.m. at Community Development Department, City Hall, First Floor Community Room, located at 910 Calle Negocio, San Clemente, California.

Respectfully submitted,

SAN CLEMENTE ZONING ADMINISTRATOR
__________________________________
Cecilia Gallardo-Daly, Zoning Administrator
DRAFT
41 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: (2)
Subject:

PLANNING COMMISSION REGULAR MEETING MINUTES OF DECEMBER 21, 2022.

CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/13/2023
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These minutes will be considered for approval at the Planning Commission meeting of 01-18-2023.

MINUTES OF THE REGULAR MEETING

OF THE CITY OF SAN CLEMENTE

PLANNING COMMISSION
December 21, 2022 @ 6:00 p.m.

San Clemente City Hall Council Chambers
910 Calle Negocio, San Clemente, CA 92673
Teleconference via www.san-clemente.org/live or Cox Channel 854

CALL TO ORDER
Chair McKhann called the Regular Meeting of the Planning Commission of the City of San Clemente to order at 6:00 p.m. The meeting was offered in person at San Clemente City Hall Council Chambers, 910 Calle Negocio, San Clemente, California, 92673, and also via live stream from the City’s YouTube Channel or live on Cox Channel 854.

2. PLEDGE OF ALLEGIANCE
Commissioner Prescott-Loeffler led the Pledge of Allegiance.

3. ROLL CALL
Commissioners Present: Barton Crandell, Karen Prescott-Loeffler Gary P. McCaughan, M.D.; Vice Chair Cameron Cosgrove, Chair Scott McKhann
Commissioners Absent: Brent Davis, Chair pro tem M. Steven Camp Staff Present: Adam Atamian, Deputy Community Development Director John Ciampa, Contract Planner
Zachary Ponsen, Assistant City Engineer
Ryan Kim, Senior Civil Engineer/Traffic Engineer
Ryan Stager, Deputy City Attorney

4. SPECIAL ORDERS OF BUSINESS
None

5. MINUTES
A. Minutes from the Regular Planning Commission Meeting of December 7, 2022.

IT WAS MOVED BY COMMISSIONER PRESCOTT-LOEFFLER,

SECONDED BY COMMISSIONER CRANDELL AND UNANIMOUSLY

CARRIED TO RECEIVE AND FILE THE MINUTES FROM THE DECEMBER 7, 2022, PLANNING COMMISSION PLANNING COMMISSION REGULAR MEETING AS SUBMITTED.
43 Minutes of Regular Planning Commission Meeting of December 21, 2022 Page 2

6. ORAL AND WRITTEN COMMUNICATION
None

7. CONSENT CALENDAR
A. Traffic Calming Update Regarding Camino Faro
As directed during the Planning Commission meeting on October 19, 2022, Public Works staff will provide an update regarding the Traffic Calming request on Camino Faro and staff’s meeting with members of the HOA.

This item was pulled from the Consent Calendar to allow Commission discussion and hear public testimony.

Zachary Ponsen, Assistant City Engineer, and Ryan Kim, Civil/Traffic Engineer, reviewed the staff report. Staff has met with representatives from the New Providence Home Owners Association (HOA), and discussed the potential traffic calming measures the street qualifies for under the City’s Traffic Calming Policy and Resource Manual. Due to the topography of the street and results from the various studies, under the City’s Traffic Calming Policy, staff can offer traffic warning or “Slow Down” signs. Additionally, to address the line-of-sight issues, staff would need to perform analyses of the intersections and may result in loss of street parking.

Chair McKhann opened the public hearing.

Chloe Brittain, resident, questioned whether the additional signage will actually slow traffic; advocated for converting Faro to a one-way street; suggested resident-only permit parking on the street.

Adalyn Brittain, resident, expressed concern regarding the safety of her friends and other kids on the streets if action is not taken to slow traffic.

Jake Brittain, resident, stated that 400 kids a year are killed by cars annually, and requested statistics on the number of kids’ deaths as a result of speed cushions. People speed along the streets and use Faro as a short cut to avoid traffic. He asked the Commission to do the right thing to make the street safer and potentially avoid loss of life now that they have been informed of the unsafe conditions.

Nancy Stoll, resident, requested the City take steps to slow traffic and safeguard the street for the benefit of residents, especially children.

Caylin Wade, resident, noted the amount of traffic, noise pollution, and accidents/car theft has increased dramatically in the last 23 years on Faro. 44 Minutes of Regular Planning Commission Meeting of December 21, 2022 Page 3 She requested the Commission work diligently on solutions and reconsider making Faro one-way to increase traffic safety.

Ryan Balducci, resident, supported additional signage and resident only permitted parking to address the speeding traffic and parking shortage.

Burt Sanden, resident and HOA Boardmember, thanked staff for their efforts to find solutions; requested the City authorize police presence at least once a month on the street; requested the City revisit the issue and consider new and/or additional solutions if additional signage does not result in improved conditions. The HOA may consider installing humps/cushions on its own if the City is unable to afford/afraid of liability.

Chair McKhann closed the public hearing.

Commission Comments/Suggestions:
 Established with staff the somewhat lengthy process to do studies, poll residents, conduct meetings, etc., in order to establish a resident-only parking zone; suggested the HOA could allow overnight parking on its streets in order to help ease the parking shortage; agreed to place the radar trailer on Faro to help slow traffic.
 Suggested that in addition to commuter traffic, residents are also abusing traffic/speed laws; requested the HOA actively educate residents about traffic safety using leaflets, volunteers, constant reminders; opined a phased approach with regular assessment and consistent feedback may be the most effective.
 Endorsed the staff-recommended plan to install traffic safety signage and study potential solutions to the line-of-sight issues. Additionally, requested staff place the speed trailer on the street, requested staff ask the Orange County Sheriff’s Department (OCSD) to increase presence and citations to help change driver behavior, and suggested staff continue to research potential solutions.

IT WAS MOVED BY COMMISSIONER MCCAUGHAN, SECONDED BY
COMMISSIONER CRANDELL, AND UNANIMOUSLY CARRIED TO:
1) Install the new traffic warning signage as outlined in the staff report. 2) Recommend staff install the speed trailer at their discretion to help slow traffic.
3) Recommend staff contact OCSD to request deputies increase presence in the area and issue citations for speed and illegal traffic actions as warranted.
4) Recommend staff continue communicating with the HOA with regard to results of the recommended actions and continue to research and consider potential solutions if necessary.
[DECISION FINAL. SUBJECT TO APPEAL OR CALL UP BY COUNCIL.] 45 Minutes of Regular Planning Commission Meeting of December 21, 2022 Page 4

8. PUBLIC HEARING
A. Conditional Use Permit 22-071 and Minor Conditional Use Permit 22-420 Flights and Irons Full Alcohol, Expansion, and Shared Parking 372-378 Camino De Estrella
A request to consider the expansion of the restaurant into suites 372-374 with the sale of beer, wine, liquor and spirits, (Type 47 License) for on-site and indoor consumption. The project also includes shared parking with the other businesses in the center.

John Ciampa, Contract Planner, narrated a PowerPoint Presentation entitled, “Flights and Irons Full Alcohol, CUP 22-071/MCUP 22-420,” dated December 21, 2022. A copy of the Presentation is on file in Planning Division.

In response to questions from the Commission, Mr. Ciampa stated the majority of the restaurant’s business is during the evening hours; noted if the applicant decides to add outdoor seating, City Planner approval is required; suggested revision to Condition No. 1.7 to clarify daytime parking uses.

Victor Sandoval, the applicant, thanked Mr. Ciampa and staff for their assistance; was available for questions.

Chair McKhann opened the public hearing, and there being no public testimony, closed the public hearing.

IT WAS MOVED BY COMMISSIONER MCCAUGHAN, SECONDED BY
COMMISSIONER COSGROVE, AND UNANIMOUSLY CARRIED TO:
1) Determine the project is categorically exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15301, Class No. 1(e) (Existing facilities); and direct staff to file a Notice of Exemption, and:
2) Adopt Resolution PC 22-035, entitled, “A RESOLUTION OF THE

PLANNING COMMISSION OF THE CITY OF SAN CLEMENTE,
CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 22-071/MINOR CONDITIONAL USE PERMIT 22-420, FLIGHTS AND IRONS, TO ALLOW AN

EXPANSION, FULL ALCOHOL SERVICE, AND SHARED PARKING
AGREEMENT AT FLIGHTS AND IRONS LOCATED AT 372-378 CAMINO DE ESTRELLA.”
Amended as follows:

seating area in suites 372-374 shall not be used during normal business (9:00 am to 5:00 pm) hours.” with “During weekday business hours, the seating area 46 Minutes of Regular Planning Commission Meeting of December 21, 2022 Page 5 in suites 372-374 shall not be used during normal business (9:00 am to 5:00 pm) hours.”
[DECISION FINAL. SUBJECT TO APPEAL OR CALL UP BY COUNCIL.] B. Zoning Amendment 22-366 – Zoning Permit Streamlining A request to consider a City-initiated amendment to San Clemente Municipal Code Zoning Code to: 1) streamline or eliminate various planning permit requirements, where projects regularly aren’t of public concern, don’t have significant impacts, and the projects maintain or improve the quality of life according to the Design Guidelines and General Plan; 2) consolidate applications to simplify submittals and administrative work; 3) streamline or eliminate ineffective rules; and 4) clarify procedures so they are easier to understand and implement.

Deputy Director Atamian recommended the Commission table this item.

The Commission requested staff provide additional information when the project comes back, including detailed analyses of the problems, root causes, and proposed solutions.

IT WAS MOVED BY COMMISSIONER CRANDELL, SECONDED BY

COMMISSIONER COSGROVE, AND UNANIMOUSLY CARRIED TO
CONTINUE, WITH RE-NOTICING, ZONING AMENDMENT 22-366 –
ZONING PERMIT STREAMLINING.
[ITEM CONTINUED. PLANNING COMMISSION DECISION PENDING.]

9. NEW BUSINESS
A. Establishment of Commission Meeting Schedule for 2023 and Early 2024 Deputy Director Atamian reviewed the staff report; suggested the Commission consider canceling the meeting of November 23, 2023, due to holiday scheduling constraints, in addition to those listed in the staff report.

IT WAS MOVED BY COMMISSIONER MCCAUGHAN, SECONDED BY

COMMISSIONER PRESCOTT-LOEFFLER, AND UNANIMOUSLY CARRIED TO CANCEL THE PLANNING COMMISSION MEETINGS OF JANUARY 4, 2023, JULY 5, 2023, NOVEMBER 22, 2023 AND JANUARY 3, 2024. [DECISION FINAL. SUBJECT TO APPEAL OR CALL UP BY COUNCIL.]

10. OLD BUSINESS
None.
47 Minutes of Regular Planning Commission Meeting of December 21, 2022 Page 6

11. REPORTS OF COMMISSIONERS AND STAFF
A. Planning Commissioners Academy
Commissioner Crandell referred to the flyer included in the Commissioners’ packets and recommended that all Commissioners attend the upcoming Planning Commissioners Academy on March 29-31, 2023, at the Hyatt Regency Orange County, located at 11999 Harbor Blvd, Garden Grove, CA.

Deputy Director Atamian stated that there was funding for all Commissioners to attend and all those interested should contact him to register.

B. Tentative Future Agenda
Included in the packet for the Commissioners’ consideration.

Reports received and filed.

12. ADJOURNMENT

IT WAS MOVED BY COMMISSIONER PRESCOTT-LOEFFLER, SECONDED BY

COMMISSIONER COSGROVE AND UNANIMOUSLY CARRIED TO ADJOURN AT 7:27 P.M. TO THE NEXT REGULAR PLANNING COMMISSION MEETINGS TO BE HELD IN-PERSON ON JANUARY 18, 2023, AT 5:00 P.M. AT THE SAN CLEMENTE CITY HALL COUNCIL CHAMBERS LOCATED AT 910 CALLE NEGOCIO, SAN CLEMENTE, CA, 92672, AND TELECONFERENCE AVAILABLE TO THE PUBLIC VIA LIVE STREAM FROM THE CITY’S YOUTUBE CHANNEL OR LIVE ON COX CHANNEL 854.

Respectfully submitted,
Scott McKhann, Chairman
Attest:

Adam Atamian, Deputy Community Development Director / City Planner 48 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: (1)
Subject:

Approve Wire Transfer Nos.
2772 through 2777 and Warrant Nos.
585454 through 585678, paid on
12-23-22, in the amount of $1,272,268.67
CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/9/2023
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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: 1/17/2023 Agenda Item: (2)
Subject:

Approve Wire Transfer Nos.
2778 through 2781 and Warrant Nos.
585679 through 585726, paid on
1-6-23, in the amount of $1,532,558.56
TOTAL WARRANT REGISTER $2,804,827.23
CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/13/2023
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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: 1/17/2023 Agenda Item: D.

Subject:

Ordinance 1748 (Second Reading) - Amending Chapter 16.50 and Chapter 17.86 of the San Clemente Municipal Code to Establish Objective Design, Development and Subdivision Standards Regulating Urban Lot Split and Two-Unit Projects in Accordance with California Senate Bill 9 CITY OF SAN CLEMENTE Page 1 of 1 Printed on 1/10/2023
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ORDINANCE NO. 1748

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN CLEMENTE AMENDING CHAPTERS 16.50 AND 17.86
AND AMENDING SECTION 17.52.020 TO THE SAN

CLEMENTE MUNICIPAL CODE TO REGULATE URBAN
LOT SPLITS AND TWO-UNIT PROJECTS UNDER SB 9;

AND FINDING THE ACTION TO BE EXEMPT FROM

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
WHEREAS, the City of San Clemente, California (“City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, in 2021, the California Legislature approved, and the Governor signed into law Senate Bill 9 (“SB 9”), which among other things, adds Government Code section 65852.21 and 66411.7 to impose new limits on local authority to regulate urban lot splits and two-unit projects; and
WHEREAS, SB 9 allows local agencies to adopt objective zoning, subdivision, and design review standards for urban lot splits and two-unit projects; and WHEREAS, SB 9 took effect January 1, 2022, and preempts any conflicting city regulation; and
WHEREAS, the City desired to amend its local regulatory scheme to comply with Government Code sections 66411.7 and 65852.21 and to appropriately regulate projects under SB 9; and
WHEREAS, on December 7, 2021, the City Council Adopted Urgency Ordinance No. 1723, to establish appropriate objective standards for urban lot splits and two-unit projects under SB 9; and
WHEREAS, the City desires to amend its regulations of urban lot splits and twounit projects to better meet the needs of the City while maintaining compliance with SB 9; and
WHEREAS, on November 3, 2022 the City gave public notice of a Planning Commission public hearing to be held to consider this ordinance by advertisement in a newspaper of general circulation; and
WHEREAS, on November 16, 2022, the Planning Commission conducted a dulynoticed public hearing to consider the staff report, recommendation by staff, and public testimony concerning the Ordinance. Following the public hearing, the Planning 76 Commission voted to forward the Ordinance to the City Council with the Commission’s recommendation; and
WHEREAS, on December 8, 2022, the City gave public notice of a City Council public hearing to be held to consider this ordinance by advertisement in a newspaper of general circulation; and
WHEREAS, on December 20, 2022, the City Council held a duly-noticed public hearing to consider the Ordinance, including: (1) the public testimony and agenda reports prepared in connection with the Ordinance, (2) the policy considerations discussed therein, and (3) the consideration and recommendation by the City’s Planning Commission; and
WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE DOES ORDAIN AS FOLLOWS:

Section 1. The recitals above are each incorporated by reference and adopted as findings by the City Council.

Section 2. Under California Government Code sections 65852.21, subd. (j), and 66411.7, subd. (n), the adoption of an ordinance by a city or county implementing the provisions of Government Code sections 66411.7 and 65852.21 and regulating urban lot splits and two-unit projects is statutorily exempt from the requirements of the California Environmental Quality Act (“CEQA”). Therefore, the proposed ordinance is statutorily exempt from CEQA in that the proposed ordinance implements the laws enacted by SB 9.

Moreover, amendments to Chapter 16.50 are exempt from CEQA review. CEQA Guidelines §15315 (Class 15, Minor Land Divisions) of Title 14 of the California Code of Regulations applies to projects that consist of the division of property in urbanized areas zoned for residential, commercial, or industrial use into four or fewer parcels, which the State has determined to be a class of projects that will not have a significant effect on the environment. Here, the ordinance is consistent with the exemption class description specified above because the ordinance regulates a single urban lot split of one parcel into two separate lots between 60 percent and 40 percent of the original lot are in a residential zone.

The Zoning Code Amendments to Chapter 17.86 are also exempt from CEQA under Guidelines §15303 (Class 3, New Construction or Conversion of Small Structures) of Title 14 of the California Code of Regulations, which applies to projects that consist of construction and location of limited numbers of new small structures and the conversion of existing small structures from one use to another, including the construction of a second dwelling unit in a residential zone and a duplex or similar multi-family residential structure 77 totaling no more than four dwelling units, which the State has determined to be a class of projects that will not have a significant effect on the environment. Here, the ordinance is consistent with the exemption class described above because the ordinance regulates the construction of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit, in a residential zone.

Section 3. Required Findings. In accordance with subsection (F) of San Clemente Municipal Code section 17.16.040, the Planning Commission hereby makes the following findings:

1. General Plan. This Ordinance amendment to San Clemente Municipal Code section 16.50 and 17.68 are consistent with the City’s adopted General Plan. Specifically, Land Use Element Policy LU-1.03 provides that the City should maintain neighborhood character by maintaining elements of residential street that unify and enhance the character of neighborhoods, including parkways, street trees, and compatible setbacks. This Ordinance is consistent with—and effectuates—Policy LU-1.04 by ensuring that qualifying properties under SB 9 projects are providing site designs to convey a high level of architectural and landscape quality in accordance with the Urban Design Element and Zoning Code, and in consideration of the following: a) varied and distinct building elevations, facades, and masses (avoiding undifferentiated "box-like" structures); b) building scale and massing that is compatible with existing development; c) use of extensive site landscaping to complement the architectural designs of structures; d) reduced area and width of paving in front yards for driveway and garage access; and e) location and design of garages so that they do not dominate the appearance of the dwelling from the street. Collectively, this will facilitate housing projects with a variety of housing types, styles and densities in the City. Furthermore, this Ordinance is consistent with, and in furtherance of, the General Plan as it implements a component of Programs from the City’s Sixth Cycle Housing Element.

2. Health, Safety, and Welfare. Adoption of the Ordinance will not adversely affect the public health, safety, and welfare as it simply updates the San Clemente Municipal Code to comply with state law requirements governing the instances where the City must allow the ministerial approval of qualifying urban lot splits and two unit projects as required by state law. Adoption of this Ordinance is also consistent with—and contemplated by—the City’s Sixth Cycle Housing Element, the adoption which the City Council determined will not adversely impact the public health, safety and welfare. 78 For these reasons, adoption of this Ordinance will not adversely affect the public health, safety, and welfare.

Section 4. The San Clemente Municipal Code is hereby amended as indicated in Exhibit A, attached hereto and incorporated herein by reference.

Section 5. This ordinance takes effect 30 days after its adoption.

Section 6. If any provision of this ordinance or its application to any person or circumstance is held to be invalid, such invalidity has no effect on the other provisions or applications of the ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this resolution are severable. The City Council declares that it would have adopted this ordinance irrespective of the invalidity of any portion thereof.

Section 7. The City Council hereby directs staff to prepare, execute, and file with the Orange County Clerk a notice of exemption within five working days of the adoption of this ordinance.

Section 8. The custodian of records for this ordinance is the San Clemente city clerk, and the records compromising the administrative record for this ordinance are located at 910 Calle Negocio, San Clemente, CA 92673.
(Continues on next page)
79 APPROVED AND ADOPTED this 20th day of December, 2022.

ATTEST:
_______________________________ __________________________ Laura Campagnolo, City Clerk Chris Duncan, Mayor
80 STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.

CITY OF SAN CLEMENTE )
I, Laura Campagnolo, City Clerk of the City of San Clemente, California, hereby
certify that Ordinance No. _______ having been regularly introduced at the meeting of _______________________, was again introduced, the reading in full thereof unanimously waived, and duly passed and adopted at a regular meeting of the City Council held on the _____day of _____________, _______, and said ordinance was adopted by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this ____ day of __________, 2023. __________________________
Laura Campagnolo, City Clerk

APPROVED AS TO FORM:
__________________________
Scott Smith, City Attorney
81 EXHIBIT A
Amendments to Municipal Code
(follows this page)
82 Chapter 16.50 is hereby amended to the San Clemente municipal code to read in its entirety as follows:

Chapter 16.50 – State-mandated Subdivisions.

Section 16.50.010 – Urban Lot Splits.

A. Purpose. The purpose of this section is to allow and appropriately regulate urban lot splits in accordance with Government Code section 66411.7.

B. Definition. An “urban lot split” means the subdivision of an existing, legally subdivided lot into two lots in accordance with the requirements of this section.

C. Application.

1. Owners.
a. Only individual property owners may apply for an urban lot split. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15).
b. Any person with a mortgage interest in the lot to be split under this section must sign the application and the parcel map indicating the person’s consent to the project.

2. An application for an urban lot split must be submitted on the City’s approved form. Only a complete application will be considered. The City will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.

3. The City may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application.

D. Approval.

1. An application for a parcel map for an urban lot split is approved or denied ministerially, by the director of community development, without discretionary review.

2. A tentative parcel map for an urban lot split is approved ministerially if it complies with all the requirements of this section. The tentative parcel map may Exhibit A: Code Amendments
83 not be recorded. A final parcel map is approved ministerially as well, but not until the owner demonstrates that the required documents have been recorded, such as the deed restriction and easements. The tentative parcel map expires 12 months from the City’s approval of the map.

3. The approval must require the owner and applicant to hold the City harmless from all claims and damages related to the approval and its subject matter. The holdharmless obligation runs with the land and applies to future successors of the property and so must be reflected in the recorded covenant and deed restriction.

4. The approval must require the owner and applicant to reimburse the City for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code.

E. Requirements. An urban lot split must satisfy each of the following requirements:

1. Map Act Compliance.
a. The urban lot split must conform to all applicable objective requirements of the Subdivision Map Act (Gov. Code § 66410 et. seq., “SMA”) and implementing requirements in this title, except as otherwise expressly provided in this section.
b. If an urban lot split violates any part of the SMA, the City’s subdivision regulations, including this section, or any other legal requirement:
(i) The buyer or grantee of a lot that is created by the urban lot split has all the remedies available under the SMA, including but not limited to an action for damages or to void the deed, sale, or contract.
(ii) The City has all the remedies available to it under the SMA, including but not limited to the following:
(A) An action to enjoin any attempt to sell, lease, or finance the property.
(B) An action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.
(C) Criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor.
(D) Record a notice of violation.
(E) Withhold any or all future permits and approvals.
84 c. Notwithstanding section 66411.1 of the SMA, no dedication of rights-ofway or construction of offsite improvements is required for an urban lot split.

2. Zone. The lot to be split is in a single-family residential zone. For purposes of this section, a single-family residential zone is a zone where the only residential use that is allowed as a primary use is a single residential dwelling on a lot.

3. Lot Location.
a. The lot to be split is not located on a site that is any of the following:
(i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.
(ii) A wetland.
(iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
(iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
(vi) Within a 100-year flood hazard area, unless the site has either:
(A) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the
local jurisdiction, or
(B) meets Federal Emergency Management Agency
requirements necessary to meet minimum flood plain
management criteria of the National Flood Insurance
Program.
(vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification.
(viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
(ix) Habitat for protected species.
85 (x) Land under conservation easement.
b. The purpose of subpart E.3.a above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).)
c. The applicant must provide evidence that the requirements of Government Code section 65913.4(a)(6)(B)–(K) are satisfied.

4. Not Historic. The lot to be split must not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a City or county landmark or as a historic property or district.

5. No Prior Urban Lot Split.
a. The lot to be split was not established through a prior urban lot split. b. The lot to be split is not adjacent to any lot that was established through a prior urban lot split by the owner of the lot to be split or by any person acting in concert with the owner. “Any person acting in concert with the owner” here includes any third-party that coordinates or assists the owners of two adjacent lots with their respective urban lot splits.

6. No Impact on Protected Housing.
a. The urban lot split must not require or include the demolition or alteration of any of the following types of housing:
(i) Housing that is income-restricted for households of moderate, low, or very low income.
(ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its policy power.
(iii) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
(iv) Housing that has been occupied by a tenant in the last three years. b. As part of the urban lot split application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that subpart E.6.a above is satisfied.
(i) The sworn statement must state that:
86 (A) No housing that is income-restricted for households of moderate, low, or very low income will be demolished or altered.
(B) No housing that is subject to any form of rent or price control will be demolished or altered.
(C) No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last 15 years will be demolished or altered.
(D) No housing that has been occupied by a tenant in the last three years will be demolished or altered.
c. The City may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the City may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.

7. Lot Size.
a. The lot to be split must be at least 2,400 square feet. b. The resulting lots must each be at least 1,200 square feet. c. Each of the resulting lots must be between 60 percent and 40 percent of the original lot area.

8. Easements.
a. The owner must enter into an easement agreement with each publicservice provider to establish easements that are sufficient for the provision of public services and facilities to each of the resulting lots. b. Each easement must be shown on the tentative parcel map and final map. c. Copies of the unrecorded easement agreements must be submitted with the application. The easement agreements must be recorded against the property before the final map may be approved, in accordance with section D.2 above.
d. If an easement is recorded and the project is not completed, making the easement moot, the property owner may request, and the City will provide, a notice of termination of the easement, which the owner may record.

9. Lot Access.
87 a. Each resulting lot must adjoin the public right of way. b. Each resulting lot must have frontage on the public right of way of at least

12.5 feet.

10. Development Standards and Design Criteria. In addition to the standards criteria set forth in the section, except as otherwise required by state law, an SB 9 urban lot split and all development on the resulting lots must conform to all applicable objective development standards that are set forth in this code, as well as in, any applicable specific plans; in a planned unit development ordinance; or resolution; or by conditions duly promulgated and adopted by the City.

11. Unit Standards.
a. Quantity. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, “unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under section 17.86.010 of this code, an ADU, or a JADU
b. Unit Size.
(i) The total floor area of each primary dwelling that is developed on a resulting lot must be
(A) less than or equal to 800 square feet and
(B) more than 500 square feet.
(ii) A primary dwelling that was legally established prior to the urban lot split and that is larger than 800 square feet is limited to the lawful floor area at the time of the urban lot split. It may not be expanded.
(iii) A primary dwelling that was legally established prior to the urban lot split and that is smaller than 800 square feet may be expanded to 800 square feet after the urban lot split.
c. Height Restrictions.
(i) On a resulting lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.
(ii) On a resulting lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back 88 by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the setback. (iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot resulting from an urban lot split.
d. Lot Coverage. Lot coverage on resulting lot may not exceed the lot coverage established for the underlying zone. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. Lot coverage includes all dwellings (primary and accessory) and other structures, including, but not limited to, covered porches and patios, and covered parking areas. e. Urban Open Area.
(i) For purposes of this subsection (E)(11)(e), the term “urban open area” has the same meaning as defined in Title 17, section 17.88 (Definitions). It is calculated as a percentage of net lot area. (ii) If all required urban open area is provided at grade, the lot must include at least 15 percent urban open area for each primary dwelling on the lot.
(iii) If any required urban open space is provided above grade (e.g., a deck on a second story), the lot must include at least 25 percent urban open area for each primary dwelling on the lot.
f. Setbacks.
(i) Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone.
(ii) Exceptions. Notwithstanding subpart E.11.f(i) above:
(A) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same
dimensions as an existing legally established structure. (B) 800 sf; four-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any
structure be less than four feet from a side or rear property line.
(iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed after an urban lot split must be at 89 least 30 feet from the front property lines. The front setback areas must:
(A) be kept free from all structures greater than three feet high; (B) be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect;
(C) allow for vehicular and fire-safety access to the front structure.
g. Parking. Each new primary dwelling unit that is built on a lot after an urban lot split must have at least one off-street parking space per unit unless one of the following applies:
(i) The lot is located within one-half mile walking distance of either (A) a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
(B) a site that contains
(1) an existing rail or bus rapid transit station,
(2) a ferry terminal served by either a bus or rail transit service, or
(3) the intersection of two or more major bus routes
with a frequency of service interval of 15 minutes
or less during the morning and afternoon peak
commute periods.
(ii) The site is located within one block of a car-share vehicle location. h. Garage. Any proposed covered or enclosed garage must comply with the following requirements:
(i) Each enclosed garage must maintain a parking space with an interior parking clearance of at least 9 feet wide by 18 feet long for each vehicle that the garage is designed to hold.
(ii) Storage cabinets or mechanical equipment, including, but not limited to water heaters, utility sinks, or washer and dryers, must not encroach into the required parking area.
(iii) The garage must be equipped with an automatic roll-up door 90 opener.
(iv) Each garage must maintain each required parking space clear and accessible to park at all times.
i. Building Separation. Except as otherwise allowed by state law, a minimum building separation of 10 feet must be maintained between all detached structures on a lot, including all dwelling units, garages, and accessory structures.
j. Architecture.
(i) Unit Design Standards
A. If there is a legal primary dwelling on the lot that was established before the urban lot split, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

B. If there is no legal primary dwelling on the lot before the urban lot split, or if an existing primary dwelling is demolished in accordance with this code, and if two primary dwellings are then developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

C. All exterior lighting must be energy-efficient, shielded, and comply with other applicable provisions of the Zoning Ordinance.

D. If any portion of a dwelling allowed to encroach into a setback established by the underlying zone, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least 6 feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

E. Each new primary dwelling unit must have a clear passageway to the main exterior entrance that is accessible directly from the street. For purposes of this section, a passageway means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the dwelling unit. The main entrance of the new dwelling must be covered with an overhang or roof that is at least 3 feet deep.

F. A pedestrian pathway must be provided to access front doors to all units.
91 G. If pedestrian access and drive access are provided via the same pathway, the pedestrian pathway must meet ADA walking path width and non-slip surface standards, and must be distinctive in materials from the driveway.
k. Landscaping.
(i) Tree Removal.
(A) No mature tree may be removed on a lot with any
development under this section unless removal is necessary to constructing a dwelling unit that must be allowed under state law.
(B) “Mature tree” means a tree with a diameter of six inches or more or a height of eight feet or taller.
(C) A tree may only be removed under subparagraph
E.11.k(i)(A) above if it is replaced with at least two mature trees of the same type and with a combined trunk diameter that is the same or larger than that of the removed tree. (D) If a certified arborist determines that there is not space on the lot for a replacement tree that is required under
subparagraph E.11.k(i)(C) above, owner may pay the
replacement cost of the tree, as determined by the City’s tree-replacement cost schedule.
(ii) Setback Landscaping. In setback areas that are visible from the public right-of-way, all space that is not a walkway, parking space, drive aisle, or private recreation area, must be fully landscaped and irrigated.
(iii) Lot Generally. The lot must comply with the landscaping and irrigation requirements contained in the Landscape Standards in the Zoning Ordinance.
(iv) Screening. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
(A) According to a planting and irrigation plan that is prepared by a licensed landscape architect.
(B) At least one 15-gallon size plant must be provided for every fifteen linear feet of exterior wall. Alternatively, at least one 24” inch-box size plant must be provided for every
twenty-five linear feet of exterior wall. Plantings required 92 by this subsection must be planted adjacent to applicable exterior walls.
(C) Trees must be at least six feet tall when installed. As an alternative, a solid fence of at least 6 feet in height may be installed.
(D) All landscaping must be drought-tolerant.
(E) All landscaping must be from the City’s approved plant list. l. Storage Facility. Each new primary dwelling unit must provide private secure storage space of at least 96 cubic feet. Closets and cupboard space within the unit interior do not count toward this requirement. m. Laundry Facilities. Any proposed washer and dryer facilities must be located in an enclosed portion of a dwelling. The laundry equipment may not be located in any required parking area or outside of an enclosed building.
n. Water Heaters. Each new primary dwelling unit must have a separate water heater. A water heater with tank must be located in the unit’s interior. No exterior water heater tank enclosures are permitted. A tankless water heater inside or outside the dwelling may be substituted for a tank heater, if all building standards are satisfied.
o. Mechanical Equipment, Metering Devices. All roof- and groundmounted mechanical equipment and metering devices must be completely screed from public view. All ground-mounted equipment and aboveground utility meters, including, but not limited to, heating, cooling, or ventilating equipment, water meters, gas meters, and irrigation equipment, must be shown on the site plan and must be placed outside of the required front setback area, unless they are installed below grade. If mechanical equipment or a metering device is located between a structure and the property line, an unobstructed path at least three feet wide must be provided to and between the equipment and the property line. p. Access and Circulation.
(i) All on-site vehicular access, circulation, back-up, and turn-around areas must comply with applicable City standards.
(ii) No more than one drive approach may be created on either lot. (iii) A driveway must be at least 14 feet wide. A greater width might be required by the fire authority.
q. Refuse Storage Areas.
93 (i) Each primary dwelling on the lot must have at least three receptacles (one each for trash, recyclables, and organics) from the City’s Franchise Waste Hauler (collectively, “trash containers”). (ii) Trash containers must be stored within designated refuse-storage areas only. They may not be stored within required parking areas. (iii) The storage area required for each trash container must be at least 3 feet wide by 3 feet deep.
(iv) No trash container may be stored so as to be visible from any public right-of-way.
r. Nonconforming Conditions. An urban lot split is approved without requiring a legal nonconforming zoning condition to be corrected. s. Utilities.
(i) Each primary dwelling unit on the lot must have its own direct utility connection to the utility service provider.
(ii) Notwithstanding paragraph E.11.s(i) above, a primary dwelling unit may have a direct utility connection to an onsite wastewater treatment system in accordance with this paragraph and the City’s code. Each primary dwelling unit on the lot that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
(iii) All utilities must be underground.
(iv) All easements for the provision of electricity, gas, water, sewer, and other utility or public service to the lot and each primary dwelling unit must be obtained by the property owner or the applicant before the final map may be recorded. The City may condition approval of the tentative parcel map under this section on the applicant providing evidence that such easements have been agreed to and recorded.
(v) Submitted site plans must show the location and dimension of all proposed underground utility and public service facilities serving the lot and each dwelling unit on the lot and the location and dimensions of all related easements.
t. Building & Safety. All structures built on the lot must comply with all current local building standards. An urban lot split is a change of use. 94 12. Fire-Hazard Mitigation Measures.
a. A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures:
(i) It must have direct access to a public right of way with a paved street with a width of at least 40 feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate.
(ii) All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone. (iii) All enclosed structures on the site must have fire sprinklers. (iv) All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
(v) If the lot does not have a swimming pool, the lot must have a water reservoir of at least 5,000 gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment.
b. Prior to submitting an application for an urban lot split, the applicant must obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subpart E.12. The City or its authorized agent must inspect the site, including all structures on the site, and certify as to its compliance. The certificate must be included with the application. The applicant must pay the City’s costs for inspection. Failure to pay is grounds for denying the application.

13. Separate Conveyance.
a. Within a resulting lot.
(i) Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other. (ii) Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an urban lot split.
(iii) All fee interest in a lot and all dwellings on the lot must be held equally and undivided by all individual property owners. (iv) No timeshare, as defined by state law or this code, is permitted.

This includes any co-ownership arrangement that gives an owner 95 the right to exclusive use of the property for a defined period or periods of time.
b. Between resulting lots. Separate conveyance of the resulting lots is permitted. If dwellings or other structures (such as garages) on different lots are adjacent or attached to each other, the urban lot split boundary may separate them for conveyance purposes if the structures meet building code safety standards and are sufficient to allow separate conveyance. If any attached structures span or will span the new lot line, the owner must record appropriate CC&Rs, easements, or other documentation that is necessary to allocate rights and responsibility between the owners of the two lots.

14. Regulation of Uses.
a. Residential-only. No non-residential use is permitted on any lot created by urban lot split.
b. No Short-term Rentals. No dwelling unit on a lot that is created by an urban lot split may be rented for a period of less than 30 days. c. Owner Occupancy. The applicant for an urban lot split must sign an affidavit stating that the applicant intends to occupy one of the dwelling units on one of the resulting lots as the applicant's principal residence for a minimum of three years after the urban lot split is approved.

15. Notice of Construction.
a. At least 30 business days before starting any construction of a structure on a lot created by an urban lot split, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:
(i) Notice that construction has been authorized,
(ii) The anticipated start and end dates for construction, (iii) The hours of construction,
(iv) Contact information for the project manager (for constructionrelated complaints), and (v) Contact information for the Building & Safety Department. b. This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued.

Approval is ministerial. Under state law, the City has no discretion in approving or denying a particular project under this section. This notice 96 requirement is purely to promote neighborhood awareness and expectation.

16. Deed Restriction. The owner must record a deed restriction on each lot that results from the urban lot split, on a form approved by the City, that does each of the following:
a. Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
b. Expressly prohibits any non-residential use of the lots created by the urban lot split.
c. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
d. States that:
(i) The lot is formed by an urban lot split and is therefore subject to the City’s urban lot-split regulations, including all applicable limits on dwelling size and development.
(ii) Development on the lot is limited to development of residential units under section 17.86.010 of this code, except as required by state law.

F. Specific Adverse Impacts.

1. Notwithstanding anything else in this section, the City may deny an application for an urban lot split if the building official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

2. “Specific adverse impact” has the same meaning as in Gov. Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).

3. The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact. 97 G. Coastal Regulations Apply in Full. Nothing in this section alters or lessens the effect or application of the California Coastal Act.
98 Chapter 17.86 is hereby amended to the San Clemente municipal code to read in its entirety as follows:

Chapter 17.86 – State-mandated Residential Projects
Section 17.86.010 – Two-unit Projects
A. Purpose. The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Government Code section 65852.21.

B. Definitions.

1. A “two-unit project” means the development of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this section.

C. Application.

1. Owners.
a. Only individual property owners may apply for a two-unit project. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Rev. & Tax Code § 214.15).
b. Any person with a mortgage interest in the lot to be developed with a twounit project under this section must sign the application indicating the person’s consent to the project.

2. An application for a two-unit project must be submitted on the City’s approved form.

3. The applicant must obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application.

4. Only a complete application will be considered. The City will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.

5. The City may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The City council may establish and change the fee by resolution. The fee must be paid with the application.
99 D. Approval.

1. An application for a two-unit project is approved or denied ministerially, by the director of community development, without discretionary review.

2. The ministerial approval of a two-unit project does not take effect until the City has confirmed that the required documents have been recorded, such as the deed restriction and easements.

3. The approval must require the owner and applicant to hold the City harmless from all claims and damages related to the approval and its subject matter. The holdharmless obligation runs with the land and applies to future successors of the property and so must be reflected in the recoded covenant and deed restriction.

4. The approval must require the owner and applicant to reimburse the City for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code.

E. Requirements. A two-unit project must satisfy each of the following requirements:

1. Map Act Compliance. The lot must have been legally subdivided.

2. Zone. The lot is in a single-family residential zone. For purposes of this section, a single-family residential zone is a zone where the only residential use that is allowed as a primary use is a single residential dwelling on a lot.

3. Lot Location.
a. The lot is not located on a site that is any of the following:
(i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.
(ii) A wetland.
(iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
(iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
(vi) Within a 100-year flood hazard area, unless the site has either:
100
(A) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the
local jurisdiction, or
(B) meets Federal Emergency Management Agency
requirements necessary to meet minimum flood plain
management criteria of the National Flood Insurance
Program.
(vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification.
(viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
(ix) Habitat for protected species.
(x) Land under conservation easement.
b. The purpose of subpart E.3.a above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).)
c. The applicant must provide evidence that the requirements of Government Code section 65913.4(a)(6)(B)–(K) are satisfied.

4. Not Historic. The lot must not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a City or county landmark or as a historic property or district.

5. No Impact on Protected Housing.
a. The two-unit project must not require or include the demolition or alteration of any of the following types of housing:
(i) Housing that is income-restricted for households of moderate, low, or very low income.
(ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its policy power.
(iii) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
101
(iv) Housing that has been occupied by a tenant in the last three years. b. As part of the two-unit application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that subpart E.5.a above is satisfied.
(i) The sworn statement must state that:
(A) No housing that is income-restricted for households of moderate, low, or very low income will be demolished or altered.
(B) No housing that is subject to any form of rent or price control will be demolished or altered.
(C) No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last 15 years will be demolished or altered.
(D) No housing that has been occupied by a tenant in the last three years will be demolished or altered.
c. The City may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the City may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.

6. Development Standards and Design Criteria. In addition to the standards and criteria set forth in this section, except as otherwise required by state law, an SB 9 two-unit project, including any development on a lot created through an urban lot split, must conform to all applicable objective development standards that are set forth in this code, as well as, any applicable specific plans; a planned unit development ordinance or resolution; or by conditions duly promulgated and adopted by the City.

7. Unit Standards.
a. Quantity.
(i) No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, “unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this section of this code, an ADU, or a JADU.
(ii) A lot that is not created by an urban lot split may have a two-unit project under this section, plus any ADU or JADU that must be 102
allowed under state law and SCMC section 17.28.270 (Accessory Dwelling Units).
b. Unit Size.
(i) The total floor area of each primary dwelling built that is developed under this section must be
(A) less than or equal to 800 square feet and
(B) more than 500 square feet.
(ii) A primary dwelling that was legally established on the lot prior to the two-unit project and that is larger than 800 square feet is limited to the lawful floor area at the time of the two-unit project.

The unit may not be expanded.
(iii) A primary dwelling that was legally established prior to the twounit project and that is smaller than 800 square feet may be expanded to 800 square feet after or as part of the two-unit project. c. Height Restrictions.
(i) On a lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.
(ii) On a lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the setback. (iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot with a two-unit project.
d. Demo Cap. The two-unit project may not involve the demolition of more than 25 percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years. e. Lot Coverage. A two-unit project may not exceed the maximum lot coverage established in the underlying zone. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. The lot coverage includes all dwellings (primary and accessory) and other structures, including, but not limited to, covered porches and patios, and covered parking areas. 103
f. Urban Open Area.
(i) For purposes of this subsection (E)(7)(f), the term “urban open area” has the same meaning as provided in Title 17, section 17.88 (Definitions). It is calculated as a percentage of net lot area. (ii) If all required urban open area is provide at grade, the lot must include at least 15 percent urban open area for each primary dwelling on the lot.
(iii) If any required urban open space is provided above grade (e.g., a deck on a second story), the lot must include at least 25 percent urban open area for each primary dwelling on the lot.
g. Setback.
(i) Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone.
(ii) Exceptions. Notwithstanding subpart E.7.g(i) above:
(A) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same
dimensions as an existing legally established structure. (B) 800 sf; 4-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line. (iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed under this section must be at least 30 feet from the front property lines. The front setback area must:
(A) be kept free from all structures greater than three feet high; (B) be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect;
(C) allow for vehicular and fire-safety access to the front structure.
h. Parking. Each new primary dwelling unit must have at least one off-street parking space per unit unless one of the following applies:
104
(i) The lot is located within one-half mile walking distance of either (A) A corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
(B) A site that contains
(1) An existing rail or bus rapid transit station,
(2) A ferry terminal served by either a bus or rail transit service, or
(3) The intersection of two or more major bus routes
with a frequency of service interval of 15 minutes
or less during the morning and afternoon peak
commute periods.
(ii) The site is located within one block of a car-share vehicle location. i. Garage. Any proposed covered or enclosed garage must comply with the following requirements:
(i) Each enclosed garage must maintain a parking space with an interior parking clearance of at least 9 feet wide by 18 feet ling for each vehicle that the garage is designed to hold.
(ii) Storage cabinets or mechanical equipment, including, but not limited to water heaters, utility sinks, or washer and dryer, must not encroach into the required parking area.
(iii) The garage must be equipped with an automatic roll-up garage door opener.
(iv) Each garage must maintain all required parking spaces clear and accessible to park at all time.
j. Building Separation. Except as otherwise allowed by state law, a minimum building separation of 10 feet shall be maintained between all detached structures on a lot, including all residential units, garages, and accessory structures.
k. Architecture.
(i) Unit Design Standards.

A. If there is a legal primary dwelling on the lot that was established before the two-unit project, any new primary dwelling unit must 105
match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

B. If there is no legal primary dwelling on the lot before the two-unit project, or if an existing primary dwelling is demolished in accordance with this code, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

C. All exterior lighting must be energy-efficient, shielded, and comply with other applicable provisions of the Zoning Ordinance.

D. If any portion of a dwelling allowed to encroach into a setback established by the underlying zone, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least 6 feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

E. Each new primary dwelling unit must have a clear passageway to the main exterior entrance that is accessible directly from the street. For purposes of this section, a passageway means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the dwelling unit. The main entrance must be covered with an overhang or roof that is at least 3 feet deep.

F. A pedestrian pathway must be provided to access front doors to all units on the lot.

G. If pedestrian access and drive access are provided via same pathway, the pedestrian pathway must meet ADA walking path width and non-slip surface standards, and must be distinctive in materials from the driveway.
l. Landscaping.
(i) Tree Removal.
(A) No mature tree may be removed on a lot with any
development under this section unless removal is necessary to constructing a dwelling unit that must be allowed under state law.
(B) “Mature tree” means a tree with a diameter of six inches or more or a height of eight feet or taller.
106
(C) A tree may only be removed under subparagraph
E.7.l(i)(A) above if it is replaced with at least two mature trees of the same type and with a combined trunk diameter that is the same or larger than that of the removed tree. (D) If a certified arborist determines that there is not space on the lot for a replacement tree that is required under
subparagraph E.7.l(i)(C) above, owner may pay the
replacement cost of the tree, as determined by the City’s tree-replacement cost schedule.
(ii) Setback Landscaping. In setback areas visible from the public right-of-way, and all space that is not walkways, parking space, drive aisle, or private recreation area, must be fully landscaped and irrigated.
(iii) Lot Generally. The lot must comply with the landscaping and irrigation requirements contain in the Landscape Standards in the Zoning Ordinance.
(iv) Screening. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
(A) According to a planting and irrigation plan that is prepared by a licensed landscape architect.
(B) At least one 15-gallon size plant must be provided for every fifteen linear feet of exterior wall. Alternatively, at least one 24” inch-box size plant must be provided for every
twenty-five linear feet of exterior wall. Plantings required by this subsection must be planted adjacent to applicable exterior walls.
(C) Trees must be at least six feet tall when installed. As an alternative, a solid fence of at least 6 feet in height may be installed.
(D) All landscaping must be drought-tolerant.
(E) All landscaping must be from the City’s approved plant list. m. Storage Facilities. Each new primary dwelling unit must provide private secure storage space of at least 96 cubic feet. Closets and cupboard space within the unit interior do not count toward this requirement. n. Laundry Facilities. Any proposed washer and dryer facilities must be located in an enclosed portion of a dwelling. The laundry equipment may 107
not be located in any required parking area or outside of an enclosed building.
o. Water Heater. Each new primary dwelling unit must have a separate water heater. A water heater with tank must be located in the unit’s interior. No exterior water heater tank enclosures are permitted. A tankless water heater inside or outside the dwelling may be substituted for a tank heater if all building standards are satisfied.
p. Mechanical Equipment, Metering Devices. All roof- and groundmounted mechanical equipment and metering devices must be completely screen from public view. All ground-mounted equipment and aboveground utility meters, including, but not limited to, heating, cooling, or ventilating equipment, water meters, gas meters, and irrigation equipment, must be shown on the site plan and must be placed outside of the required front setback area, unless they are installed below grade. If mechanical equipment or a metering device is located between a structure and the property line, an unobstructed path at least three feet wide must be provided to and between the equipment and the property line. q. Access and Circulation.
(i) All on-site vehicular access, circulation, back-up, and turn-around areas must comply with applicable City standards.
(ii) No more than one drive approach may be created for any two-unit projects.
(iii) A driveway must be at least 14 feet wide. A greater width might be required by the fire authority.
r. Refuse Storage Areas.
(i) Each primary dwelling on the lot must have at least three receptacles (one each for trash, recyclables, and organics) from the City’s Franchise Waste Hauler (collectively, “trash containers”) (ii) Trash containers must be stored within designated refuse-storage areas only. They may not be stored within required parking areas. (iii) The storage area required for each trash container must be at least 3 feet wide by 3 feet deep.
(iv) No trash container may be stored so as to be visible from any public right-of-way.
s. Nonconforming Conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected.
108
t. Utilities.
(i) A primary dwelling unit may have a direct utility connection to an onsite wastewater treatment system in accordance with this paragraph and the City’s code. Each primary dwelling unit on the lot that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
(ii) All utilities must be underground.
(iii) All easements for the provision of electricity, gas water, sewer, and other utility or public service to the lot and each primary dwelling unit must be obtained by the property owner or the applicant before the final map may be recoded. The City may condition approval of the tentative parcel map under this section on the applicant providing evidence that such easement have been agreed to and recorded.
(iv) Submitted site plans must show the location and dimension of all proposed underground utility and public service facilities serving the lot and each dwelling unit on the lot and the location and dimensions of all related easements.
u. Building & Safety. All structures built on the lot must comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot, and all structures, to the City’s current code.

8. Fire-Hazard Mitigation Measures.
a. A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures:
(i) It must have direct access to a public right of way with a paved street with a width of at least 40 feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate.
(ii) All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone. (iii) All enclosed structures on the site must have fire sprinklers. (iv) All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
109
(v) If the lot does not have a swimming pool, the lot must have a water reservoir of at least 5,000 gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment.
b. Prior to submitting an application for an urban lot split, the applicant must obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subpart E.8. The City or its authorized agent must inspect the site, including all structures on the site, and certify as to its compliance. The certificate must be included with the application. The applicant must pay the City’s costs for inspection. Failure to pay is grounds for denying the application.

9. Separate Conveyance.
a. Primary dwelling units on the lot may not be owned or conveyed separately from each other.
b. Condominium airspace divisions and common interest developments are not permitted within the lot.
c. All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners.
(i) No timeshare, as defined by state law or this code, is permitted.

This includes any co-ownership arrangement that gives an owner the right to exclusive use of the property for a defined period or periods of time.

10. Regulation of Uses.
a. Residential-only. No non-residential use is permitted on the lot. b. No Short-term Rentals. No dwelling unit on the lot may be rented for a period of less than 30 days.
c. Owner Occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project must occupy one of the dwellings on the lot as the owners’ principal residence and legal domicile.

11. Notice of Construction.
a. At least 30 business days before starting any construction of a two-unit project, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:
110
(i) Notice that construction has been authorized,
(ii) The anticipated start and end dates for construction, (iii) The hours of construction,
(iv) Contact information for the project manager (for constructionrelated complaints), and (v) Contact information for the Building & Safety Department. b. This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued.

Approval is ministerial. Under state law, the City has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.

12. Deed Restriction. The owner must record a deed restriction, on a form approved by the City, that does each of the following:
a. Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
b. Expressly prohibits any non-residential use of the lot. c. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
d. If the lot does not undergo an urban lot split: Expressly requires the individual property owners to live in one of the dwelling units on the lot as the owners’ primary residence and legal domicile.
e. Limits development of the lot to residential units that comply with the requirements of this section, except as required by state law.

F. Specific Adverse Impacts.

1. Notwithstanding anything else in this section, the City may deny an application for a two-unit project if the building official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

2. “Specific adverse impact” has the same meaning as in Gov. Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, 111
based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).

3. The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact.

G. Coastal Regulations Apply in Full. Nothing in this section alters or lessens the effect or application of the California Coastal Act.

H. Remedies.

If a two-unit project violates any part of this code or any other legal requirement:

1. The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract.

2. The City may:
a. Bring an action to enjoin any attempt to sell, lease, or finance the property. b. Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.
c. Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor.
d. Record a notice of violation.
e. Withhold any or all future permits and approvals.
f. Pursue all other administrative, legal, or equitable remedies that are allowed by law or the City’s code.

Section 17.52.020 of the San Clemente municipal code is hereby amended to read in its entirety as follows (adding a new subsection B, renumbering the rest):

Section 17.52.020 – Applicability.

A. The provisions in this section shall apply to all areas designated in the City of San Clemente General Plan Land Use Element as requiring a specific plan, including the following:
112

1. Properties for which a specific plan has not been prepared, but for which a specific plan is required prior to development in accordance with the City's General Plan; and

2. Properties for which a specific plan has been prepared and adopted by the City Council, and which are currently designated with the name of their specific plan.

B. Notwithstanding anything else in this code or in a specific plan:

1. Any project proposed in a specific plan under the authority of Government Code section 65852.21 is subject to Chapter 16.50.

2. Any project proposed in a specific plan under the authority of Government Code section 66411.7 is subject to Chapter 17.86.
113

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: E.

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

ACCEPTANCE AND NOTICE OF COMPLETION FOR THE BEACH TRUNK SANITARY SEWER LINE REHABILITATION, CIP PROJECT NO. 28206
Fiscal Impact:

Yes. The total project construction cost of $66,113 is within the approved construction budget of $76,133 from the Sewer Depreciation Reserve Fund.

Summary:

Acceptance and Notice of Completion for Sancon Technology, Inc., for contract work on the Beach Trunk Sanitary Sewer Line Rehabilitation. Refer to Attachment 1 for Location Map and Attachment 2 for Notice of Completion.

Background:

On October 4, 2022, City Council awarded a construction contract to Sancon Technology, Inc. to rehabilitate the existing 16-inch Beach Trunk sewer line, via a trenchless Cured in Place Pipe (CIPP) technology and to re-establish sewer service laterals.

A summary of the total construction expenditures is provided below:

Construction Management and Inspection $2,500
Construction 63,613
Total Project Construction Cost $66,113
Plan and Policy Consistency:

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

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects CITY OF SAN CLEMENTE Page 1 of 2 Printed on 1/10/2023
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Meeting Date: 1/17/2023 Agenda Item: E.
best available technology and service in that the project maintains City infrastructure.

Recommended Actions:

1. Accept the Beach Trunk Sanitary Sewer Line Rehabilitation, CIP Project No. 28206, from Sancon Technology, Inc.;

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the Beach Trunk Sanitary Sewer Line Rehabilitation, CIP Project No. 28206; and

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

Attachment:

1. Location Map

2. Notice of Completion

3. Staff Report Dated October 4, 2022 (without attachments) Notification:

None
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 1/10/2023
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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
116
ATTACHMENT 2
Recording Requested By:

City of San Clemente
When Recorded, Mail To:

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

Space above this line is for Recorder’s Use Only

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

1. Project title or description of work: Beach Trunk Sanitary Sewer Line Rehabilitation, CIP Project No. 28206

2. Date of completion: December 22, 2022

3. Street address or legal description of the project site: 608 Avenida Victoria (west of Railroad Tracks), San Clemente, CA 92672

4. Name of owner: City of San Clemente

5. Interest or estate of owner: Sewer Easement

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

7. Name and address of contractor: Sancon Technology, Inc., 5841 Engineering Drive, Huntington Beach, CA, 92649
I am the Public Works Director/City Engineer for the City of San Clemente, a Municipal Corporation, the owner of the indicated interest or estate in the property described above.

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

Executed on __________________________ in San Clemente, California. ________________________________________
Kiel Koger, Public Works Director/City Engineer
City of San Clemente
117

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: 4F
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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Attachment 3
118
Meeting Date: 10/4/2022 Agenda Item: 4F
· 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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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: F.

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

ACCEPTANCE AND NOTICE OF COMPLETION FOR THE LA PATA SEWER LIFT STATION REHABILITATION, CIP PROJECT NO. 20201
Fiscal Impact:

Yes. The project construction cost of $117,323 is within the approved construction budget of $136,745 from the Sewer Depreciation Reserve Fund.

Summary:

Acceptance and Notice of Completion to Jennette Company, Inc. for contract work on La Pata Sewer Lift Station Rehabilitation. Refer to Attachment 1 for Location Map and Attachment 2 for Notice of Completion.

Background:

On July 19, 2022, the City Council awarded a construction contract to Jennette Company, Inc. to implement the needed modifications to the La Pata Pump Station to increase the pump station’s performance and efficiency (Attachment 3). This modification included installation of an interior partition wall in the station to reduce the wet well volume by approximately 50%.

A summary of the total construction expenditures is provided below:

Construction Management and Inspection $ 10,500
Construction 106,823
Total Project Construction cost $117,323
Plan and Policy Consistency:

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

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain infrastructure that reflects CITY OF SAN CLEMENTE Page 1 of 2 Printed on 1/11/2023
powered by Legistar™120
Meeting Date: 1/17/2023 Agenda Item: F.
best available technology and service in that the project maintains City infrastructure.

Recommended Actions:

1. Accept La Pata Sewer Lift Station Rehabilitation, CIP Project No. 20201, from Jennette Company, Inc.;

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the La Pata Sewer Lift Station Rehabilitation, CIP Project No. 20201; and

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

Attachment:

1. Location Map

2. Notice of Completion

3. Staff Report Dated July 19, 2021 (without attachments) Notification:

None
CITY OF SAN CLEMENTE Page 2 of 2 Printed on 1/11/2023
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FRESNO

AVE LA PATA

CLE DEL CERRO

FINCA ST

CAM SAN JOSE
(K ST)
(L ST)

FINCA ST
(J ST)

ALBERGAR ST

CLE PINTORESCO

CLE IGLESIA

CLE IGLESIA
(I ST)
(H ST)

VIA CALLEJON

CLE PASTADERO CAM KATIA

AVE FABRICANTE

AVE LA PATA

CALLE EXTREMO

AVD FABRICANTE

GURREGO

EL BERRO

AVE OSSA

EL VUELO

BOLIVIA

DEL DIOS

LOMA ADRIA

ZORRO VISTA

LA FREMONTIA
FUTURA

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EL CHICO

CARNAROS CHAPITAL

CLE IGLESIA

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PASEO PINTO

CIRCULO EL

PLAZA FLORA

CALLE CARACAS

VIA LA MISSION

LOCATION MAP
La Pata Sewer Lift Station
Rehabilitation
Attachment 1
PN 20201

NOT TO SCALE

PROJECT

LOCATION
122
ATTACHMENT 2
Recording Requested By:

City of San Clemente
When Recorded, Mail To:

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

Space above this line is for Recorder’s Use Only

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

1. Project title or description of work: La Pata Sewer Lift Station Rehabilitation, CIP Project No. 20201

2. Date of completion: December 7, 2022

3. Street address or legal description of the project site: 241 Avenida La Pata, San Clemente, CA 92673

4. Name of owner: City of San Clemente

5. Interest or estate of owner: Fee Property

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

7. Name and address of contractor: Jennette Company, Inc., 9235 Trade Place, Suite B, San Diego, CA, 92649
I am the Public Works Director/City Engineer for the City of San Clemente, a Municipal Corporation, the owner of the indicated interest or estate in the property described above.

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

Executed on __________________________ in San Clemente, California. ________________________________________
Kiel Koger, Public Works Director/City Engineer
City of San Clemente
123
Department:

Prepared By:

Subject:

AGENDA REPORT

SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: July 19, 2022
Public Works / Engineering Division
Amir K. llkhanipour, Senior Civil Engineer
Agenda Item 4 S
Approvals:

City Manager 6
Dept. Head �
Attorney CJ
Finance ,j \'<.,.

CONSTRUCTION CONTRACT AWARD TO JENNETTE COMPANY, INC. FOR THE LA PATA SEWER LIFT STATION REHAB/UTA TION, CIP PROJECT No. 20201 Fiscal Impact: Yes. The available project budget is $106,100. The estimated total construction cost is $136,745; therefore, a supplemental appropriation in the amount of $31,000 is recommended from the Sewer Depreciation Reserve Fund.

Summary: Staff recommends approval of a construction contract with Jennette Company, Inc., in the amount of $90,745 for the La Pata Sewer Lift Station Rehabilitation.

Background: The La Pata Lift Station (Station) is located along the south side of Avenida La Pata adjacent to Richard Steed Memorial Park, as shown on Attachment 1. The La Pata Lift Station was originally designed and built to serve a portion of Rancho San Clemente Business Park at higher anticipated sewage flows.

However, based on tenants within the Business Park, lower sewage flows are experienced, making operation of the Station more challenging and inefficient.

In order to increase the Station's performance and efficiency, the wet well needs to be modified with installation of an interior partition wall to reduce the wet well volume by approximately fifty percent.

A consultant prepared a bid package for the above improvements and staff advertised the project for competitive bidding on the PlanetBids website. Five bids were received on May 23, 2022, ranging from $90,745 to $210,881, as shown on Attachment 2. The lowest responsive bidder was Jennette Company, Inc. of San Diego, California, at $90,745. Based on the low bid, construction costs are estimated as follows:

Construction Contract
Construction Management, Administration
and Inspection
Project Contingency (20%)
Total Estimated Construction Costs
$90,745
28,000
18,000
$136,745
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 3). Project plans and specifications are on file in the City Clerk's office.

Public Works Agenda Report 7-19-22 I 4S-1
Attachment 3
124
Agenda Report Page 2
Recommended
Action: Staff Recommends That the City Council:
1 . Approve the Plans and Specifications of the La Pata Sewer Lift Station Rehabilitation, CIP Project No. 20201;

2. Approve a supplemental appropriation in the amount of $31,000 from the Sewer Depreciation Reserve Fund to Account No. 054-476-43470-000- 20201; and

3. Approve and authorize the Public Works Director to execute Contract No. ___ , by and between the City of San Clemente and Jennette Company, Inc., in the amount of $90,745, for the La Pata Sewer Lift Station Rehabilitation, CIP Project No. 20201.

Attachments: 1.

2. 3.

Location Map
Bidders' List
Contract without attachments
Notification: None.
s:lcd\engineering\secure\admin\2022\7-19\6r\agendareport.docx 7-19-22 / 4S-2
(
(
125

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: G.

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

ACCEPTANCE AND NOTICE OF COMPLETION FOR PURCHASE AND INSTALLATION OF

STORM DRAIN TRASH CAPTURE DEVICES FOR THE SAN CLEMENTE PIER AND PICO CORRIDOR PROJECT AREA, CIP PROJECT NO. 23805
Fiscal Impact:

The project cost of $308,500 is within the approved construction budget of $360,000 from the Clean Ocean Fund Reserve. To minimize the impact on the Clean Ocean Fund Reserve, the City was approved for a $240,000 grant that will be reimbursed by the Orange County Transportation Authority (OCTA) after project completion.

Summary:

Acceptance and Notice of Completion to G2 Construction, Inc. for contract work on the purchase and installation of storm drain trash capture devices for the San Clemente Pier and Pico Corridor Project Area. Refer to Attachment 1 for Location Map and Attachment 2 for Notice of Completion.

Background:

On September 20, 2022, the City Council awarded a construction contract to G2 Construction, Inc. to purchase and install trash capture devices in the Pier and Pico Corridor area. The City is subject to a mandate requiring the installation of such devices to capture litter and trash as small as 5mm in size to prevent debris from reaching any receiving waters such as the Pacific Ocean by the State Water Resources Control Board (SWRCB). The City has until 2031 to retrofit catch basins that drain commercial, industrial and high-density residential land uses.

A summary of the construction expenditures is provided below:

Administration and Project Management $ 1,000
Construction Management and Inspection 1,000
Construction 306,500
Total Project cost $308,500
The City was awarded a $240,000 M2 Project X Environmental Cleanup Program Tier 1 Grant from the OCTA in the fall of 2021. Upon receipt of a recorded Notice of Completion from the County of Orange Recorder’s office, staff will work with OCTA to finalize the reimbursement.

Plan and Policy Consistency:

The project is consistent with the following General Plan Goals and Policies:
· Stormwater and Urban Runoff - To protect and preserve the quality of local surface CITY OF SAN CLEMENTE Page 1 of 2 Printed on 1/11/2023
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· Stormwater and Urban Runoff - To protect and preserve the quality of local surface waters, community public health and the environment through implementation of activities to reduce stormwater and also to reduce or eliminate urban runoff pollution from industrial, commercial, new development and construction, and residential areas that may enter the storm drainage system and discharge to local creeks or coastal waters. · Policy PSFU-7.13. We implement pollution prevention methods supplemented by pollutant source controls and treatment. We use collection strategies located at, or as close as possible to, the source (e.g., the point where water initially meets the ground) to minimize the transport of urban runoff and pollutants offsite and into the municipal storm drain system and coastal waters.

Council Strategy:

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

Recommended Actions:

1. Accept the Purchase and Installation of Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area, CIP Project No. 23805, from G2 Construction, Inc.;

2. Authorize the Public Works Director/City Engineer to execute and record the Notice of Completion for the Purchase and Installation of Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area, CIP Project No. 23805; and

3. Authorize the City Clerk to release the Payment Bond 35 days from the recordation of the Notice of Completion upon verification with the Engineering Division that no liens have been levied against the Contractor, G2 Construction, Inc.

Attachment:

1. Location Map

2. Notice of Completion

3. Staff Report Dated September 20, 2022 (without attachments) Notification:

None
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1 5
6 4
3 2
7 66 CBs
- 64 CPS-Mod & ARS-CL devices
- 2 GITS under-grate screens
City of San Clemente 2022 Attachment 1
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MAP# 1 City of San Clemente 2022 10 CBS
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MAP# 2 City of San Clemente 2022 10 CBS
130
MAP# 3 City of San Clemente 2022 16 CBS
Finca St. 12224 7’w
131
MAP# 4 City of San Clemente 2022 10 CBS
132
MAP# 5 City of San Clemente 2022 4 CBS / 2 Alt CBs
Map #3
Map #4
11834 10’w ALTERNATE
11833 10’w ALTERNATE
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MAP# 6 City of San Clemente 2022 7 CBS
Finca St.
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MAP# 7 City of San Clemente 2022 9 CBS
Finca St.
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Attachment 2
Recording Requested By:

City of San Clemente
When Recorded, Mail To:

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

Space above this line is for Recorder’s Use Only

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

1. Project title or description of work: Purchase and Installation of Storm Drain Trash Capture Devices for the San Clemente Pier and Pico Corridor Project Area, CIP Project No. 23805

2. Date of completion: November 22, 2022

3. Street address or legal description of the project site: San Clemente Pier and Pico Corridor Area, San Clemente, CA 92672

4. Name of owner: City of San Clemente

5. Interest or estate of owner: Public Streets

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

7. Name and address of contractor: G2 Construction, Inc., 1352 E. Borchard Ave., Santa Ana, CA, 92705
I am the Public Works Director/City Engineer for the City of San Clemente, a Municipal Corporation, the owner of the indicated interest or estate in the property described above.

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

Executed on __________________________ in San Clemente, California. ________________________________________
Kiel Koger, Public Works Director/City Engineer
City of San Clemente
136

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio,
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 9/20/2022 Agenda Item: 4D
Department: Public Works
Prepared By: Amir K. Ilkhanipour, Principal Civil Engineer Subject:

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

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

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

Summary:

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

Background:

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

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

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Attachment 3
137
Meeting Date: 9/20/2022 Agenda Item: 4D
Discussion:

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

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

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

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

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

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

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Meeting Date: 9/20/2022 Agenda Item: 4D
The City was awarded $240,000 from OCTA and will provide the required 20% match amount of $60,000. City Council approved the submittal of the grant application (https://www.sanclemente.org/home/showpublisheddocument/64100) and providing the required match via Resolution 21-15 at its June 1, 2021 meeting (Attachment 6).

Project costs are estimated as follows:

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

Staff Recommendation

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

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

Attachment:

1. City Map of Priority Land Uses

2. San Clemente OCTA Grant Project Map

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

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

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

6. City Council Resolution 21-15
Notification:

None
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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: 1/17/2023 Agenda Item: H.

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

ADOPT RESOLUTION FOR GRANT FUNDING APPLICATION TO THE CALIFORNIA

DEPARTMENT OF WATER RESOURCES FOR THE URBAN COMMUNITY DROUGHT RELIEF

GRANT PROGRAM
Fiscal Impact:

Yes. Receipt of this grant from the California Department of Water Resources (CDWR) Urban Community Drought Relief Funding Program may potentially provide up to 75% funding for the Recycled Water Quality Improvement Project (Project) and is a potential funding source for design and construction. The estimated cost of the project is approximately $13,000,000. The design phase of the Project is funded for $995,207 in Fiscal Year 2023 with additional funding anticipated in Fiscal Year 2024 from local reserves and a Federal loan.

Summary:

Staff recommends that the City Council adopt the Resolution (Attachment 1), and authorize the City Manager, or his/her designee to submit an application to Urban Community Drought Relief Funding Program for design and construction for the Project.

Background:

Considering the impacts of climate change and the subsequent increase in severe, more frequent, and longer duration of droughts in California, it is crucial for water agencies to engage in comprehensive planning to develop and implement sustainable sources of water, such as, recycled water use. The effects of drought are demonstrated with the Governor of California declaring a statewide State of Emergency due to the drought. The Governor’s State of Emergency declaration is accompanied by a call for all state residents to cut down on water use by 15%. With climate change resulting in hotter, drier summers and reduced precipitation, severe and prolonged droughts are forecast to be a normal part of California’s future.

The City provides wastewater treatment of approximately 3.6 million gallons per day (MGD) at its Water Reclamation Plant (WRP). A portion of the wastewater is treated at a tertiary level where it is used for recycled water irrigation and WRP processes. The City is in the design phase of the Project.

This Project will install new microfiltration (MF) and reverse osmosis systems (RO) at WRP to improve water quality by reducing total dissolved solids to meet regulatory permit limits (see Attachment 2 for location). This Project will provide high quality recycled water allowing the City to continue meeting its existing recycled water demand of 1,165 acre feet per year (AFY) and potentially expand its recycled water system while also supplying up to 2,195 AFY to the Santa Margarita Water District. Sale of recycled water to the Santa Margarita Water District will offset a portion of the project CITY OF SAN CLEMENTE Page 1 of 3 Printed on 1/11/2023
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Meeting Date: 1/17/2023 Agenda Item: H.
cost and operation.

Discussion:

The Urban Community Drought Relief Grant Program is a funding program provided by the CDWR to assist public agencies in addressing drought impacts through implementation of projects. The Urban Community Drought Relief Grant Program provides up to 75 percent of total project costs. Projects must meet certain minimum requirements to be eligible for this funding, including non-state matching funds of 25 percent. City staff will propose funding in Fiscal Year 2024 from local reserves and a loan from the Water Infrastructure Finance and Innovation Act (WIFIA) program which could be used as the required matching funds.

Staff has prepared the necessary submittal documents to satisfy the requirements and demonstrate eligibility for the Urban Community Drought Relief Grant Program. While the City has met all of these eligibility requirements, CDWR requires approval of the attached resolution prior to any consideration of City applications.

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 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 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.

In addition, the project is consistent with the 2007 Recycled Water Master Plan.

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. The project is also consistent with Council Strategy 1 - Ensure financial stability as demonstrated by low debt, high ratings, and new revenue generation - in that staff continues to actively pursue grant opportunities.

Recommended Actions:

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, AUTHORIZING THE

APPLICATION FOR GRANT FUNDS UNDER THE CALIFORNIA DEPARTMENT OF WATER

RESOURCES URBAN COMMUNITY DROUGHT RELIEF PROGRAM FOR THE RECYCLED WATER QUALITY IMPROVEMENT PROJECT.

Attachment:

1. Resolution

2. Location Map
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Notification:

None
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Attachment 1
RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF SAN CLEMENTE, CALIFORNIA, AUTHORIZING

THE APPLICATION FOR GRANT FUNDS UNDER THE

CALIFORNIA DEPARTMENT OF WATER RESOURCES

URBAN COMMUNITY DROUGHT RELIEF PROGRAM

FOR THE RECYCLED WATER QUALITY
IMPROVEMENT PROJECT.

WHEREAS, the increasing frequency of multiyear droughts presents a significant risk to California's ability to ensure adequate water supplies for communities, agriculture, and fish and wildlife; and
WHEREAS, Governor Newsom issued a Proclamation of State of Emergency on October 19, 2021 in response to the State of California experiencing drought conditions; and WHEREAS, California has enacted a new emergency regulation on June 8, 2022 in response to worsening drought conditions and lagging conservation efforts; and WHEREAS, The Water Boards recognize the importance of recycled water as a critical water supply for California on August 5, 2022; and WHEREAS, the objectives of the Recycled Water Quality Improvement Project is to reduce the use of potable water for irrigation and other non-potable uses by supplying those demands with recycled water; and
WHEREAS, the City of San Clemente proposes to implement the Recycled Water Quality Improvement Project; and
WHEREAS, the City of San Clemente has the legal authority and is authorized to enter into a funding agreement with the State of California; and WHEREAS, the City of San Clemente intends to apply for the Urban Community Drought Relief grant funding from the California Department of Water Resources for the Recycled Water Quality Improvement Project.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN
CLEMENTE HEREBY RESOLVES AS FOLLOWS:

SECTION 1. That pursuant and subject to all of the terms and provisions of Budget Act of 2021 (Stats. 2021, ch. 240, § 80) as amended (Stats. 2022, ch. 44, § 25, the City of San Clemente City Manager, or his/her designee is hereby authorized and directed to prepare and file an application for the Urban Community Drought Relief Program funding 143
Resolution No. Page 2
for the design and construction of the Recycled Water Quality Improvement Project with the Department of Water Resources, and take such other actions necessary or appropriate to obtain grant funding.

SECTION 2. The City of San Clemente City Manager, or his/her designee is hereby authorized and directed to execute the Urban Community Drought Relief Program funding agreement for the Recycled Water Quality Improvement Project with the Department of Water Resources and any amendments thereto.

SECTION 3. The City of San Clemente City Manager, or his/her designee, is hereby authorized and directed to submit any required documents, invoices, and reports required to obtain grant funding.

SECTION 4. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions. 144
Resolution No. Page 3
PASSED AND ADOPTED this _____ day of January, 2023.
_______________________
Mayor of the City of
San Clemente, California
ATTEST:
__________________________
CITY CLERK of the City of
San Clemente, California
145
Resolution No. Page 4

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, 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 _______ day of January 2023, by the following vote:

AYES:

NOES:

ABSENT:
_______________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
City Attorney
146

NOTTO SCALE

PROJECT

LOCATION
0 m

SAN CLEMENTE

WATER RECLAMATION
PLANT
City of San Clemente
s:
0 r
z
0 (/)
910 Calle Negocio, Suite 100
San Clemente, CA 92673
Tel (949) 361-6100
Fax (949) 361-8316

LOCATION MAP
WRP
Recycled Water Quality
Improvement Project
P.N. 13203
Attachment 2
147

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: I.

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

RECEIVE AND FILE UPDATE ON CONTRACT NEGOTIATIONS WITH CR&R Fiscal Impact:

There is available funding for negotiations in the amount of $40,000 in account number 058-518- 43690.

Summary:

Negotiations with CR&R are in progress; staff estimates presenting a contract for Council consideration at the end of February or early March.

Background:

On September 6, 2022, City Council authorized staff to send a letter to CR&R ending its automatic Franchise Agreement renewal beginning on July 1, 2024. Based on an analysis by MSW Consultants (MSW) regarding other solid waste and recycling services within Orange County (Attachment 1 of Attachment 1), MSW recommended negotiating with CR&R for up to four months, including the provision of Street Sweeping services or revenue to perform the services as part of the contract. If negotiations were unsuccessful within four months, then a Request for Proposal for solid waste and recycling services would be prepared.

Discussion:

City staff, MSW and the City Attorney have been diligently working to finalize a revised contract for City Council review. Unfortunately, due to the complexities and scope to prepare a new detailed contract, four months was an aggressive timeline (including holidays). Staff anticipates City Council review of a proposed contract at a regularly scheduled meeting late February or early March.

Plan and Policy Consistency:

The approval is consistent with the following General Plan Goals and Policies:
· Goal: Continue to implement a cost-effective solid waste management program (consisting of source reduction, collection, recycling and disposal that meets or exceeds State and Federal waste diversion and recycling standards.
· Policy PSFU-8.01 Coordination. We coordinate with contractors and other public agencies to identify and implement cost-effective solid waste and recycling strategies.

Council Strategy:

The approval is consistent with Council Strategy 2 - Grow resident confidence and value in City services and operations - in that the City is evaluating its contractual services to make improvements CITY OF SAN CLEMENTE Page 1 of 2 Printed on 1/12/2023
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Meeting Date: 1/17/2023 Agenda Item: I.
services and operations - in that the City is evaluating its contractual services to make improvements and continue to meet changing environmental regulatory requirements.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council receive and file this administrative status report.

Attachment:

1. September 6, 2022 Agenda Report with attachments.

Notification:

None.

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AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
Meeting Date: 9/6/2022 Agenda Item: 10B
Department: Utilities
Prepared By: David Rebensdorf, Utilities Director
Subject:

REVIEW OF THE CITY’S CR&R SOLID WASTE AND RECYCLING AGREEMENT BY MSW CONSULTANTS.

Fiscal Impact:

Yes, there is available funding for the proposed $40,000 expenditure in account number 058-518- 43690.

Summary:

MSW Consultants reviewed and analyzed the City’s Franchise Agreement with CR&R, Inc. (CR&R), neighboring agencies’ Solid Waste and Recycling Contracts, and current market conditions and made recommendations as outlined in the “Recommendation Regarding the City’s Solid Waste Franchise Agreement with CR&R” (Attachment 1).

Background:

The City has a Franchise Agreement with CR&R for solid waste and recycling handling and hauling services from residential and commercial properties in the City. The City is mandated by the State to provide for CalRecycle requirements as to waste handling and hauling in the City. The Franchise Agreement with CR&R has been amended several times over the years to provide additional services to meet mandates. The Fiscal Year 2021-22 budget included funding for the City to hire a specialty consultant to assist staff with review of the existing agreement with CR&R as to the City’s compliance with current State mandates, competitiveness of City’s services as to rates charged by CR&R and the franchise fee paid to the City, and to identify service improvements that may be implemented.

To facilitate an analysis, City staff solicited a Request for Proposals (RFP) from qualified consultants through PlanetBids and the City Manager approved a contract with MSW Consultants in the amount of $25,000 to evaluate the City’s Franchise Agreement with CR&R.

Discussion:

MSW Consultants prepared a report titled “Recommendation Regarding the City’s Solid Waste and Franchise Agreement with CR&R” (Attachment 1) which provides information related to trends within the industry, information about the current market, a list of companies currently providing solid waste and recycling services within Orange County, an overview of the franchise agreements, and recommendations for the City. In addition, the report compares the risks and benefits of issuing CR&R a notice to terminate the automatic contract extension. Based on the City’s existing Franchise Agreement, if the City does not issue a notice prior to July 1, the Franchise Agreement automatically renews for three years starting July 1. If notice is given, the Franchise Agreement will terminate in two years beginning on July 1, 2024, which allows the City time to potentially acquire a new hauler or CITY OF SAN CLEMENTE Page 1 of 3 Printed on 9/1/2022
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two years beginning on July 1, 2024, which allows the City time to potentially acquire a new hauler or modify its existing Franchise Agreement. Due to scheduling challenges, CR&R has extended the July 1 deadline to September 30, 2022.

Based on the report by MSW Consultants, the recommendation is to issue CR&R a notice to terminate service prior to June 30, 2022 and negotiate with CR&R for up to six months from June 30, 2022. CR&R is interested in negotiating a new contract with the City and has provided a proposal to the City (Attachment 2) outlining proposed changes to the Franchise Agreement. In the event a revised Franchise Agreement cannot be finalized within the next four months, the recommendation is to conduct an RFP, which will provide the City approximately 18 months to complete the RFP process and bring on a new hauler if one is chosen by the City Council.

As part of the negotiation, staff is recommending including Street Sweeping or a mechanism for collecting fees for Street Sweeping as part of the Solid Waste and Recycling Franchise Agreement.

Revenue for Street Sweeping was previously included as part of the Clean Ocean Fee which requires voter approval for funding. This is an opportunity to establish a consistent revenue source to clean trash and debris from public City streets. The current Street Sweeping program requires approximately $300,000 in revenue with a total program cost of approximately $600,000 annually with $300,000 from violations.

To facilitate an evaluation of proposed rates by CR&R, preparation of a revised Franchise Agreement and negotiations, staff is recommending a First Amendment to the Professional Services Agreement with MSW Consultants. As part of MSW Consultants proposal from January 24, 2022, there was a scope of work for negotiating in the amount of $40,000 and conducting a competitive bid process for $110,000. Based on CR&R’s willingness to fast track the negotiation given their initial proposal to the City, it is anticipated less than $40,000 will be required, the First Amendment contract work will be billed on actual expenses not-to-exceed $40,000.

Plan and Policy Consistency:

The approval is consistent with the following General Plan Goals and Policies:
• Goal: Continue to implement a cost-effective solid waste management program (consisting of source reduction, collection, recycling and disposal that meets or exceeds State and Federal waste diversion and recycling standards. • Policy PSFU-8.01 Coordination. We coordinate with contractors and other public agencies to identify and implement cost-effective solid waste and recycling strategies. • Policy PSFU-8.08. Collection. We provide solid waste collection for commercial, industrial, and residential uses and developments, in accordance with State law.

Council Strategy:

The approval is consistent with Council Strategy 2 - Grow resident confidence and value in City services and operations - in that the City is evaluating its contractual services to make improvements and continue to meet changing environmental regulatory requirements.

Recommended Actions:

Staff Recommends That the City Council:

1. Authorize the City Manager to issue CR&R a notice of termination of the automatic renewal of the Franchise Agreement prior to September 30, 2022. This will result in the CITY OF SAN CLEMENTE Page 2 of 3 Printed on 9/1/2022
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renewal of the Franchise Agreement prior to September 30, 2022. This will result in the Franchise Agreement termination on June 30, 2024;

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

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

4. Approve and authorize the City Manager to execute, Amendment No. 1 to Contract AC1046, by and between the City of San Clemente and MSW Consultants, providing for solid waste and recycling negotiations. This Amendment increases the contract from $25,000 to an amount not to exceed $65,000 (an increase of $40,000).

Attachments:

1. Recommendations Regarding the City’s Solid Waste and Franchise Agreement with CR&R prepared by MSW Consultants.

2. CR&R Solid Waste Management System Proposal to the City of San Clemente dated 8/16/2022.

3. City of San Clemente Franchise Agreement with CR&R.

4. Professional Services Agreement with MSW Consultants.

5. First Amendment to the Professional Services Agreement with MSW Consultants.

6. Presentation from MSW Consultants titled “Solid Waste Agreement: Negotiate or RFP.” Notification:

None.

CITY OF SAN CLEMENTE Page 3 of 3 Printed on 9/1/2022
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Recommendation Regarding
the City’s Solid Waste Franchise Agreement with CR&R
Prepared by
Solid Waste Consultants
to Local Government
June 7, 2022
Attachment 1
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i
Table of Contents
1 EXECUTIVE SUMMARY ...................................................................................................................... 1 2 RECENT TRENDS IN THE SOLID WASTE INDUSTRY.................................................................................. 2

2.1 SB 1383 – SHORT-LIVED CLIMATE POLLUTANTS .............................................................................................2

2.2 FACTORS CREATING UPWARD PRESSURE ON OPERATING COSTS .......................................................................3 3 SOLID WASTE MARKET IN ORANGE COUNTY ....................................................................................... 4

3.1 HAULER MARKET SHARE AND MAJOR SOLID WASTE FACILITIES.........................................................................4

3.2 RECENT EVENTS AND CIRCUMSTANCES...........................................................................................................5

3.3 RATE COMPARISON .....................................................................................................................................7 4 SAN CLEMENTE’S AGREEMENT WITH CR&R........................................................................................ 9

4.1 2010 FRANCHISE AGREEMENT......................................................................................................................9 5 BASIS FOR RECOMMENDATION ........................................................................................................ 11

5.1 GENERAL PROS AND CONS OF NEGOTIATING VS. ISSUING AN RFP ...................................................................11

5.2 APPLICATION OF GENERAL PROS AND CONS TO THE CITY OF SAN CLEMENTE.....................................................12

5.3 CONSIDERATION OF PROS AND CONS OF GIVING NOTICE TO END AUTOMATIC EXTENSION.................................12 6 SUMMARY OF RECOMMENDATIONS ................................................................................................. 15 1556

1 Executive Summary
In March 2022, the City retained our firm to provide a recommendation to the City whether it should either:
• Enter into sole-source negotiationsfor a new solid waste franchise agreement with its current waste hauler, CR&R Incorporated (CR&R) or;
• Issue an RFP and solicit competitive proposals a new agreement.

In developing our recommendation, we:

1. Considered recent trends in the solid waste industry.

2. Surveyed the solid waste market in Orange County.

3. Reviewed the City’s current solid waste agreement.

4. Outlined the general pros and cons of conducting sole-source negotiations vs. issuing an RFP.

5. Analyzed those pros and cons in relation to the City’s current agreement.

Based on our review and analysis, we recommend that the City:
• Enter into negotiations now with CR&R, for a period not to exceed six (6) months. • In addition, prior to June 30, 2022, give CR&R a notice of termination of the automatic renewal of the term of the current franchise agreement. As a result of this action, the term of the current agreement will be set to end on June 30, 2024.

If the City does not give notice of automatic termination on or before June 30, 2022, due to provisions in the agreement, the term of the current agreement will automatically be extended for an additional year to June 30, 2025. • If the City and CR&R are not able to successfully negotiate a new agreement within six (6) months, conduct a competitive procurement process by developing and issuing an RFP to other qualified firms.
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2 Recent Trendsin the Solid Waste Industry
The two most significant trends today in the solid waste industry in California are the implementation of SB 1383, and a combination of economic factors that are creating upward pressure on solid waste collection and recycling operating costs.

2.1 SB 1383 – Short-lived Climate Pollutants
In 2016, the State adopted SB 1383, the most significant change to solid waste handling regulations in 30 years. SB 1383 requires cities to implement programs to significantly reduce the amount of organic waste and recoverable edible food sent to landfills. The goals of SB 1383 are to reduce by 75% the amount of organic waste going to landfills by 2025, and reduce by 20% the amount of recoverable edible food that is currently landfilled.

While this new law was adopted in 2016, the final regulations that implemented the law were not finalized until November of 2020, and it did not become effective until January 2022. Although waste and recycling companies will perform many of the tasks of SB 1383, the regulatory requirements of this new law are placed squarely on the backs of local governments. SB 1383 requires local jurisdictions to:
• Amend their municipal codes to enforce the requirement that essentially all waste generators recycle their organics, including dry organics (cardboard, paper, etc.). • Ensure that their waste haulers provide organics collection service. • Estimate the amount of organic waste and recoverable edible food generated within their boundaries and provide that information to their county for facility planning purposes.
• Enhance existing edible food recovery programs to reduce the amount of recoverable edible food sent to landfills.
• Ensure that all newly constructed buildings have readily accessible space for recycling.
• Ensure that all new construction be designed with water efficient landscape. • Develop inspection and compliance review programs to ensure that waste generators fulfill the requirements of SB 1383 and the jurisdiction’s municipal code.
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• Conduct periodic education and outreach to all waste generators, and specifically, generators of edible recoverable food.
• Ensure that the City’s hauler performs annual route inspections to minimize contamination.
• Procure a minimum quantity of recovered organic waste products. • Prepare and submit annual compliance reports to CalRecycle.

While SB 1383 is a major driver of the recent increase in solid waste customer rates across the State, there are several other economic factors that are contributing to this trend.

2.2 Factors Creating Upward Pressure on Operating Costs In addition to SB 1383, a significant trend in the solid waste industry today is the conflation of economic factors that are creating upward pressure on waste hauler’s operating costs, and thereby, causing increases in customer rates. These economic trends include:
• A shift in tonnage volume per unit from the commercial sector to the residential sector
• Continuing shortage of qualified truck drivers
• Continuing impact of China virtually banning the import of recyclables (China Sword)
• Supply chain constraints
• Steel prices
• Increased fuel costs
• General Inflation
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3 Solid Waste Market in Orange County
Our survey of the solid waste market in South County is comprised of: 1) an overview of hauler market share and major waste facilities, 2) a description of recent events and circumstances, and, 3) a comparison of current rates.

3.1 Hauler Market Share and Major Solid Waste Facilities Chart 1 below shows the current market share of waste haulers in Orange County, as well as major waste facilities. This chart shows that one hauler (Republic) has most of the market in North County, and that two haulers, CR&R and Waste Management (WM), have all the market in South County. Chart 1 also shows that, of the three haulers with the most market share, CR&R’s facility of the Ortega Highway (and its planned facility near the Prima Desheca Landfill) are the closest to the City of San Clemente of the three haulers with the most market share.

Chart 1 – Waste Hauler Market Share and Major Facilities (Draft) 15910

Table 1 below lists the operating facilities of the major waste haulers that are able to serve South County along with the distance of each facility from the City of San Clemente. This list shows that CR&R currently has the closest facility to the City (9 miles), and that its planned facility near the Prima Desheca Landfill will result in CR&R’s operating facility being only 4 miles away from the City.

Table 1 – Operating Facilities of Major Waste Haulers
Facility Name Hauler Location Distance from
San Clemente
CVT MRF Republic
Services
In Anaheim near intersection of 57 and 91
Freeways 38
CR&R South County
MRF CR&R Ortega Highway off of Gibby Road 9
CR&R Recycling and
Transfer (Planned for
2024)
CR&R La Pata Avenue near the Prima Desheca
Landfill 4
Sunset Environmental WM Near the intersection of Barranca and Jamboree Rd. in Irvine 28
Madison Resource
Recovery
WARE
Disposal
In Santa Ana on Fourth St. between
downtown and the I-5 Freeway 30

3.2 Recent Events and Circumstances
Table 2 the following page describes some recent events and circumstances cities in South County related to solid waste franchise agreements. Chart 2 on the following page compares the solid waste contract expiration dates of each of the cities in South County. 16011

Table 2 – Recent Events and Circumstances in Orange County City Event
Aliso Viejo
CR&R has served the city since 2005. On November 2021 the city negotiated Amended and Restated the Franchise Agreement with CR&R. The current term of the city’s agreement is set to end in October 2027.

Dana Point
CR&R had served the city since 1996, when it acquired Solag Disposal. In 2019, the city amended its agreement with CR&R. As a result, the current term of the city’s agreement is set to end in June 2024. The city is currently in the process of negotiating amended and extended agreement; likely by 5 years.

Irvine
WM has the exclusive right (and obligation) to serve only the single-family residential sector. Several haulers openly compete for customers in the commercial and multi-family sector. WM has served the residential sector in the city for several decades. The current term of the city’s agreement is set to end in August 2026. The city is currently in negotiations with WM.

Laguna Beach
WM has served the city since 1993. The current term of the city’s agreement is set to end in June 2023. In May 2021, the city Council decided to begin a competitive procurement process. The city is now developing an RFP.

Laguna Hills
The current term of the city’ agreement with CR&R is set to end in June 2024. Lake Forest and Laguna Hills are now collaboratively conducting a single competitive procurement process.

Laguna Niguel
CR&R has served the city since 1996, when it acquired Solag Disposal. In 2018, the city negotiated a new agreement with CR&R. As a result, the current term of the city’s agreement is set to end in December 2028.

Laguna Woods
In April 2021, with less than two years remaining on its contract, and a potential option to extend its term by 5 years, WM notified the city that it would not object if the city issued an RFP. In July 2021, the City issued an RFP, and received two (2) proposals; from WM and CR&R. The city awarded the contract to CR&R in October 2021. The term of the new contract extends to 2032.

Lake Forest
The current term of the city’s agreement with CR&R is set to end in December 2028.

Lake Forest and Laguna Hills are now collaboratively conducting a single competitive procurement process.

Mission Viejo
Mission Viejo’s city code requires the city to competitively procure waste collection every 10 years. The city issued an RFP in July 2019. City received proposals from CR&R, Republic Services, and WM. CR&R and WM were shortlisted. In December 2019, city awarded an eight-year agreement to WM. As a result, the current term of the city’s agreement is set to end in December 2028.

Rancho Santa
Margarita
CR&R had served the city since 2004, when it was awarded the contract via a competitive procurement. In October 2021, city negotiated a 5-year Amended and Restated the Franchise Agreement with CR&R. As a result, the current term of the city’s agreement is set to end in June 2024.

San Juan
Capistrano
CR&R has served the city since 1996, when it acquired Solag Disposal. In May 2019, the city conducted a limited RFI (request for information) process. Three haulers submitted responses: CR&R, Republic, and WM. CR&R was selected. The new agreement has 10-year term with two options to extend the term by 5 years. 16112

Chart 2 – Current South County Solid Waste Contract Expiration Dates

3.3 Rate Comparison
A comparison of customer rates for the most common levels of residential and commercial service are shown below in Chart 3 and Chart 4, respectively. The top portion of each bar in these charts reflects the portion of the rate that is retained by the city or attributable to street sweeping. The bottom portion reflects the portion that is retained by the hauler for solid waste collection service. The amounts shown in Chart 3 and Chart 4 are listed in Table 3 and Table 4 on the following page.

Chart 3 – Monthly Single-family Solid Waste Rates in South County Mar Jun Sep Dec Mar Jun Sep Dec Mar Jun Sep Dec Mar Jun Sep Dec Mar Jun Sep Dec Mar Jun Sep Dec Mar Jun Sep Dec M J S D M J S D M J S D M J S D M J S D M J S D M J S D Aliso Viejo
Dana Point
Irvine
Laguna Beach
Laguna Hills
Laguna Niguel
Laguna Woods
Lake Forest
Mission Viejo
Rancho Santa Margarita
San Clemente
San Juan Capistrano City of San Juan Capistrano negotiated a new agreement in 2020.

City
Automatially extended by two years beginning on October 31, 2025. Remaining term is 2-years until further notice.

City of Dana Point is currently negotiating with CR&R.

City of Irvine is currently negotiating with WM.

City of Laguna Beach is currently undertaking an RFP process.

City of Laguna Hills is currently undertaking an RFP process in concert with Lake Forest. 2032 2033 2034 2035
Automatic Extension
City of Laguna Woods has option to extend by 5-years beginning on February 28, 2032 City of Lake Fores is currently undertaking an RFP process in concert with Laguna Hills.

City of Mission Viejo completed an RFP process in 2019.

City of Rancho Santa Margarita negotiated new agreement in 2021. 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031
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Chart 4 – Monthly Commercial Solid Waste Rates in South County Table 3 – Monthly Single-family Solid Waste Rates in South County Table 4 – Monthly Commercial Solid Waste Rates in South County Customer Rate City Fees Hauler Portion
Laguna Woods $12.73 $0.64 $12.09
Irvine $13.01 $0.65 $12.36
Laguna Hills $15.55 $0.00 $15.55
Dana Point $16.79 $0.84 $15.95
Lake Forest $17.79 $0.89 $16.90
Aliso Viejo $19.48 $1.39 $18.09
Rancho Santa Margarita $21.09 $1.05 $20.04
Mission Viejo $21.78 $1.74 $20.04
Laguna Niguel $21.69 $1.08 $20.61
San Juan Capistrano $22.36 $1.12 $21.24
Laguna Beach $22.05 $0.00 $22.05
San Clemente $23.51 $1.18 $22.33
City
Monthly Rate
Customer Rate City Fees Hauler Portion
Lake Forest $97.70 $4.89 $92.82
Rancho Santa Margarita $101.42 $5.07 $96.35
Laguna Woods $120.39 $6.02 $114.37
Aliso Viejo $126.81 $9.07 $117.74
Laguna Hills $124.10 $0.00 $124.10
Laguna Niguel $145.20 $7.26 $137.94
Mission Viejo $153.34 $12.27 $141.07
Dana Point $155.74 $11.68 $144.06
San Juan Capistrano $154.53 $7.73 $146.80
San Clemente $165.11 $17.75 $147.36
Laguna Beach $167.86 $16.79 $151.07
Monthly Rate
City
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4 San Clemente’s Agreementwith CR&R

4.1 2010 Franchise Agreement
Under the terms of the current franchise agreement, CR&R has the exclusive right and obligation to provide waste and recyclables collection service to all of the City’s singlefamily, multi-family, and commercial customers. CR&R’s relationship with the City dates back to 1996 when CR&R acquired the City’s then long-time hauler, Solag Disposal.

Term of the 2010 Agreement
The City’s current Agreement with CR&R was negotiated in 2010. The initial term of the current Agreement was for an eleven and one half (11 ½) year term through June 30, 2022. The Agreement provides that, beginning on July 1, 2020, the term of the Agreement is to be automatically extended each year on July 1st for an additional year. The term of the Agreement will continue to be extended each year unless either the City or CR&R notifies the other party prior to June 30th of any year of its intent to end the term of the Agreement.

As a result, if neither party notifies the other, the Agreement will continually have a remaining term of between two and three years. As of the date of this letter, the remaining term of the Agreement extends to June 30, 2024. If neither the City or CR&R notifies the other party of its intent to end the term by June 30, 2022, the term of the Agreement will automatically extend for another year to June 30, 2025.

The 2016 Amendment
Also in 2016, the City amended its Agreement with CR&R to direct the company to transport organic waste collected in the City to CR&R’s anaerobic digestion facility (AD facility) in the City of Perris. As a result of redirecting its organic waste away from landfills and to CR&R’s AD facility, the City’s organic waste collection program is in compliance with SB 1383.

The 2021 Amendment
Although2016 amendment to the Agreement enabled the City to comply with much of SB 1383, the SB 1383 regulations that were promulgated in November 2020 included some requirements that are not addressed in the City’s current Agreement with CR&R. These additional requirements include waste characterizations, route reviews, and edible food recovery programs.

Favorable Diversion Rates Compared to CalRecycle Targets During CR&R’s tenure, the City has met its AB 939 waste diversion requirements. AB 939 requires that cities implement waste reduction and recycling programs such that the amount of 16415

landfilled waste originating in the city does not exceed a certain maximum allowable amount.

The actual and maximum allowable amounts are expressed in the average disposal per person per day.

From 2007 through 2019 (the most recent year that disposal data is available),the City’s average actual disposal per person per day has been below the maximum allowable amount set by CalRecycle. This is shown below in Chart 5.

Chart 5 – Actual Per Capital Disposal Compared to Maximum Allowed Rate Recent Service Issues
According to City staff, CR&R has a history of providing high quality service. However, in the last two years, the City has received many more complaints about CR&R’s service than in previous years. These complaints have been primarily about spillage, missed pickups, and improperly commingling recyclables in the same truck as regular trash (which defeats the purpose recycling). The City is in frequent communication with CR&R about service complaints, and CR&R has represented that it is working to improve service and significantly reduce the number of complaints.

Based on City staff conversations with other cities that have other waste haulers, the increase in complaints do not seem to be unique to the City of San Clemente. City staff expects that CR&R will be able to improve service quality to what it was in the past. 16516

5 Basis for Recommendation
To develop our recommendation, we: 1) considered the general pros and cons of sole source negotiation verses a competitive procurement, 2) applied these general pros and cons to the specific circumstances of the City of San Clemente, and, 3) considered the advantages and disadvantages of providing CR&R with notice to terminate the automatic extension.

5.1 General Pros and Cons of Negotiating vs. Issuing an RFP Table 4 below lists the advantages of negotiating vs. the advantages of soliciting competitive proposalsthat would generally apply to any jurisdiction.

Table 5 – Solid Waste Agreement Negotiate vs. Competitive Procurement Advantages of Negotiating with Incumbent Hauler Advantages of Soliciting Competitive Proposals from Several Haulers
▪ If there is adequate time remaining on the
current contract term, allows the City to
subsequently issue an RFP if the negotiations
are not successful.
▪ Avoids the risk of problems arising from the
transition to a new service provider (e.g.,
changed pickup days, a new hauler will not be
familiar with the City’s unique service
requirements, etc.).
▪ Avoids the problems that may occur if the City
receives a ‘low-ball’ bid; avoids the risk of
creating a high-profile and controversial
contractor selection process.
▪ Allows the City to achieve much of the same
assurances that it has obtained a fair deal by
comparing its rates, services and terms to those
in nearby jurisdictions.
▪ May require less City Council and staff time.
▪ Provides more assurance that City has obtained
the greatest value.
▪ Provides more assurance to the public that
contractor was selected in a fair manner.
▪ City benefits from the technical creativity of
several firms in identifying a menu of program
and service options to achieve the waste
diversion requirements.
▪ Allows the City to choose from several haulers.
▪ Allows the City to ‘mix ‘n match’ features from
multiple proposals.
▪ May require more City Council and staff time.
▪ Provides opportunity for Council members to
learn about solid waste issues.

Bottom line:

More appropriate when City is already meeting its
solid waste program objectives:
▪ Hauler provides high quality, reliable service;
and,
▪ Rates are reasonable; and,
▪ City meeting diversion mandates; and,
▪ Scope of services will not change.

Bottom line:

More appropriate when City is not meeting its solid
waste program objectives:
▪ City is less satisfied with hauler, or
▪ Rates are higher than nearby, comparable
jurisdictions; or,
▪ City not meeting diversion goals; or,
▪ City intends to make significant changes to the
scope of services.
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5.2 Application of General Pros and Cons to the City of San Clemente Reasons to renegotiate with CR&R:
• According to City staff, CR&R has a history of providing high-quality service.

Although CR&R has had some recent services issues, these appear to be related to COVID-19 and other challenging industry trends. Based on staff discussions with other jurisdictions, other solid waste haulers in other cities have experienced similar service issues. CR&R’s history of providing high-quality service (and CR&R’s professed intention to regain its reputation for delivering high-quality service) helps to justify entering into negotiations with CR&R for a new agreement. • The City does not intend to make significant changes to the scope of services. The 2016 amendment provided for the organics collection services needed to comply with SB 1383, and the 2021 amendment to CR&R’s agreement addressed many of the scope requirements of SB 1383. As a result, the City does not need to make any significant changes to the scope of the agreement.
• The City is meeting its diversion mandates. As shown above in Chart 5, the City has been meeting its waste diversion targets. CalRecycle has recently requested the City to prepare a Formal Plan due to low participation rates among its commercial businesses. However, this is primarily due to businesses in the City electing to not recycle.

Reason to conduct a competitive procurement:
• The City’s rates are higher than other cities in South County.

5.3 Consideration of Pros and Cons of Giving Notice to End Automatic Extension Reasons to not give notice:
• There is some risk to the City of terminating the automatic extension and setting in motion a negotiation/procurement process. If the City and CR&R are not able negotiate an agreement, and the City issues an RFP, the City may undertake curtained risks. Other haulers may perceive that CR&R (as the incumbent and with facilities that are closest to the City) has a competitive advantage. There may be a risk that the City does not receive adequate competitive proposals in response to the RFP. There is a risk that other haulers may not offer competitive rates due to their relatively higher operating costs due to their distance from the City. There is also a risk that the rates bid by CR&R in response to an RFP might be higher than those that the City might otherwise be able to negotiate. 16718

• If the City does not give notice (and assuming that CR&R does not give notice to the City), the City would be able to enjoy continued uninterrupted service at stable (although relatively higher) rates over time.

Reasons to give notice:
• With a firm contract expiration date, both parties will be more earnest in negotiations. If the City does not give notice, both parties would have less incentive to hurry, and the process may be prolonged.
• Due to its location in the southern-most part of the County, and its relative distance from the operating yards of other competing waste haulers, the City has less negotiating leverage for waste services than other cities to its north. Due to the current negotiations and procurements of these other nearby cities, this negotiating leverage may diminish even more in the next two years as these cities renegotiate or reprocure their waste agreements. The City of San Clemente may have more negotiation leverage with CR&R now than in the next two years. • There is a risk that WM may exit the waste market in Orange County. As shown below in Table 6, twenty years ago, WM was the exclusive provider in eight cities in Orange County. This year (with the transfer of the City of Santa Ana to Republic Services), WM will be the exclusive provider in only three Orange County cities.

Table 6 – WM Decrease in Orange County Market Share
OC Contracts Held by
WM in 2002
OC Contracts Held by
WM July 2022
Irvine Irvine
La Habra
Laguna Beach Laguna Beach
Lake Forest
Mission Viejo Mission Viejo
Orange
Santa Ana
Tustin
One of these three cities is the difficult-to-serve City of Laguna Beach, which is currently in the RFP process. Another is the City of Lake Forest in which WM has the exclusive obligation to service all residential customers at some of the lowest rates in the County, while it openly competes with other haulers in the more lucrative commercial sector. WM’s other city is the City of Mission Viejo, which selected WM in an RFP process in 2019. As a result, WM has far fewer customers 16819

over which to spread its fixed costs than it did twenty years ago, and its remaining cities may not provide the company with high profit margins.

If WM were to retain Laguna Beach, and acquire Lake Forest and Laguna Niguel, it would be less likely that it would exit the waste market in Orange County.

However, these outcomes may not be as likely given the lack of competitiveness WM demonstrated in Laguna Woods.

If another waste company were to offer to purchase WM’s contracts in Orange County, it may be more economic for WM to sell these contracts than to continue to operate at thin margins. Moreover, due to CR&R’s presence in South County, at some purchase price, WM’s current contracts in Irvine and Mission Viejo may be more valuable to CR&R than they are to WM. For all these reasons, there is a risk that WM may exit the waste market in Orange County. If this were to happen, the City of San Clemente would have even less negotiating leverage. 16920

6 Summary of Recommendations
The reasons to initially negotiate with CR&R are summarized below in Table 7. The reasons to issue a notice to terminate the automatic extension are summarized below in Table 8.

Table 7– Reasons to Initially Negotiate with CR&R
Key Reasons Why San Clemente Should Initially Conduct Negations with CR&R ▪ CR&R has the infrastructure in place (Perris AD facility) to process the City’s organics in compliance with SB 1383.
▪ The City’s current agreement with CR&R includes all the services the City needs to comply with SB 1383
▪ Due to its market share and facilities in South County, CR&R has the ability to bring economies of scale, and thereby, more competitive rates to the City of San Clemente.
▪ The City may be able to negotiate more favorable rates. ▪ If the City and CR&R are not able to successfully negotiate a new agreement within six months, the City will still have adequate time to conduct a competitive procurement.

Table 8– Reasons to Issue a Notice to Terminate the Automatic Extension Key Reasons to Issue a Notice to Terminate
▪ Both parties will be more earnest, and an agreement would be negotiated more quickly.
▪ The City has less negotiating leverage for waste services than other cities to its north, and this negotiating leverage may diminish more over time due to other contracts becoming finalized in the next two years.
▪ There is a risk that WM may exit the waste market in Orange County in the nottoo-distant future resulting in even less negotiating leverage for the City. 17021
Attachment 2
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17324
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384/062266-0187
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AMENDED AND RESTATED AGREEMENT

BETWEEN THE

CITY OF SAN CLEMENTE
AND

CR&R,INCORPORATED

FOR SOLID WASTE HANDLING SERVICES
EFFECTIVE JANUARY 1, 2011
Attachment 3
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TABLE OF CONTENTS

1. RECITALS 2

2. DEFINITIONS 2
A. AB 939 2
B. Affiliate 2
C. Anilnal Waste 3
D. Bins 3
E. Board 3
F. Bulky Iten1s 3
G. Cart 3
H. City 4
I. City Lin1its 4

1. City Manager 4
1<.. Collect/Collection 4
L. Commercial Premises 4
M. Container 4
N. Contractor 4
O. County Agreement 4
P. Customer 5
Q. Dwelling Unit 5
R. Effective Date 5
S. Environmental Laws 5
T. Franchise Area 5
U. Franchise Fee 5
V. Gross Receipts 5
W. Hazardous Substance 6
X. Hazardous Waste 6
Y. Household Special Wastes 6
Z. Multi-Family Dwelling 7
AA. Municipal Code 7
BB. Person 7
CC. Premises 7
DD. Recyclable Material 7
EE. Residential Premises, 8
FF. RolloffBox 8
GG. Single Family Dwelling 8
HH. Solid Waste 8
II. Solid Waste Handling Services 8
J1. Special Wastes 8
1<.1<.. Temporary Service 9
LL. Term 9
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3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE HANDLING

SERVICES FROM ALL RESIDENTIAL AND COMMERCIAL PREMISES,

AND FOR PROVIDING TEMPORARY SOLID WASTE HANDLING
SERVICE 9
A. Scope of Franchise 9
B. Matters Excluded From Scope of Franchise 9
C. Enforcelnent ofExclusivity 10

4. ACCEPTANCE; WAIVER 10

5. TERM 11

6. SERVICES PROVIDED BY CONTRACTOR 11
A. GeneraL 11
B. Residential Solid Waste Handling Service 15
C. Commercial Solid Waste Handling Services 18
D. Telnporary Services 20
E. Recycling Obligations and Public Education Program 22 F. Additional Services 25
G. Special Services 26

7. MINIMUM STANDARDS FOR COLLECTION VEHICLES 27
A. GeneraL 27
B. Air Quality/Fuel Requirements 27
C. Specific Requirements 27
D. Costs of Operation and Damages 29
E. City Inspection 29
F. Correction of Defects and Removal of Vehicles from Use within City 29

8. CONTRACTOR'S PERSONNEL 29
A. Unifonns 29
B. Identification of Employees 29
C. Employee List 30
D. Driver's License 30
E. Screening of Field Employees 30
F. Discontinued Use of Unsatisfactory Employees 30
G. Training and Legal Compliance 30
H. Hiring of Undocumented Workers Prohibited 30

9. CONTRACTOR'S CONSIDERATION 30
A. Franchise Fee 31
B. Services at City Facilities 31
C. Public Refuse Fund 31

10. ADDITIONAL CHARGES AND INTEREST FOR LATE PAyMENTS 32

11. FAITHFUL PERFORMANCE 32
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12. INSURANCE COVERAGE 33
A. Scope of Insurance Coverage 33
B. Environmental Pollution Control Insurance 34
C. Adjustments to Coverage 35
D. Deductibles and Self-Insured Retention 35
E. Verification of Coverage 35
F. Subcontractors 35
G. Loss or Reduction in Insurance 35

13. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS
AND LIMITATIONS 36

14. FRANCHISE TRANSFER; FEES AND SECURiTy 37

15. CITY'S REMEDIES; DEFAULT AND TERMINATION 37
A. Notice of Default 37
B. Failure to Cure 37
C. Review by City Manager 38
D. City Council Review 38
E. Performance During Reviews 38
F. Termination without Right to Cure 38

16. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING 39
A. Adlninistrative Hearing 39
B. Other Remedies; Claims 39
C. Actions for Damages 40

17. CITY'S ADDITIONAL REMEDIES 40

18. RIGHTS OF CITY TO PERFORM DURING EMERGENCy 40
A. Provision of Service 40
B. Possession of Equiplnent 41
C. Exclusions from Right to Possession of Equipment without Compensation 41

19. PRIVACy 41

20. REPORTS AND ADVERSE INFORMATION 41
A. Annual Reports 41
B. Adverse Information 42
C. Tonnage Report 43
D. Failure to Repoli 43

21. COMPENSATION 43
A. Contractor's Rates 43
B. Annual Producer Price Index Adjustments to Contractor Component and Processing COlnponent 43
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C. Annual Adjustments to Disposal Component 44
D. Discretionary Adjustments 44
E. Resolution of Disputes Regarding Rate Adjustments 45 F. Billing and Paylllent 45
G. Delinquent Accounts 45
H. Refunds 45

1. Recyclable Material Revenue 46

1. Additional Charges 46

22. IDENTIFICATION OF CONTRACTOR 46

23. PUBLIC ACCESS TO CONTRACTOR 46
A. Office Hours 46
B. Service COlllplaints 46
C. GovenUllent Liaison Person 47

24. RESOLUTION OF DISPUTED CUSTOMER COMPLAINTS 47
A. Notification of Arbitration Procedure 47
B. Customer Requests for Review; Time Limits 47
C. Referral of Complaints to Contractor 47
D. City Manager Review of Complaints 47
E. Records of Complaints 47

25. FLOW CONTROL; COUNTY AGREEMENT 47

26. INDEMNIFICATION 48
A. General. 48
B. Hazardous Substances Indemnification 49

27. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 51
A. Maintenance and Inspection ofRecords 51
B. CERCLA Defense Records 51

28. TRANSITION OBLIGATIONS 51

29. GENERAL PROVISIONS 52
A. Force Majeure 52
B. Independent Contractor 52
C. Pavement Damage 52
D. Property Damage 52
E. Right of Entry 53
F. City's Authorized Agent 53
G. Law to Govern; Venue 53
H. Amendment 53

1. Notices 53

1. Savings Clause 54
IZ. Exhibits Incorporated : 54
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L. Joint Drafting 54
M. Attorneys' Fees and Litigation Costs 54
N. Corporate Resolution 54
O. Integration 54
P. Section Headings 54
Q. Conlpliance with Law 55

EXHIBITS
A. RATE SCHEDULE
B. MINIMUM BIN AND CONTAINER SPECIFICATIONS
C. SPECIFICATIONS FOR HOUSEHOLD SPECIAL WASTE COLLECTION

SERVICES
D. SPECIFICATIONS FOR SOLID WASTE CONTAINER ORDINANCE ASSISTANCE 384/062266-0187
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AGREEMENT
This Exclusive I:ranchise Agreement ("Agreement") is entered into to be effective as of the day of JtlIlv.ary, 2011, by and between the City of San Clemente ("City") and CR&R Incorporated ("Contra'ctor") (collectively, the "Parties") to provide an exclusive franchise for Solid Waste Handling Services within the City.

A. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of all Solid Waste within their jurisdictions.

B. Pursuant to California Public Resources Code Section 40059(a)(l), the City Council of the City of San Clemente has determined that the public health, safety, and welfare require that an exclusive franchise agreement be awarded to a qualified solid waste enterprise for Solid Waste Handling Services within the City Limits.

C. City previously entered a franchise agreement for Solid Waste Handling Services with Contractor dated August 6, 1997 (the "Prior Agreement"). The Prior Agreement has been amended three (3) times previously. It is the desire of the parties by entering this Amended and Restated Agreement to restate existing obligations in a single document, and, with respect to specific newly adopted provisions supersede the Prior Agreement, as more fully set forth herein.

D. City and Contractor are mindful of the provisions of the laws governing the safe collection, transpOli, recycling, and disposal of Solid Waste, including AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles, and to memorialize that by entering into this Agreement. City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the collection, transpOli for disposal, composting, and recycling of municipal Solid Waste in the City which may contain hazardous substances.

City and Contractor understand and agree that it is Contractor, and not City, who will anange to collect Solid Waste, that City has not, and, by this Agreement does not, instruct Contractor on its collection methods, nor supervise the collection process, nor do the Parties intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor, and fmiher that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. By entering this Agreement City and Contractor fmiher desire to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvelient or intentional collection, transpOliation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement.
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E. Contractor has agreed, as part of this Agreement, to provide such services as are necessary or desirable to ensure City complies with the requirements of AB 939 and Public Resources Code Section 40000, et seq.

F. City desires, among other things, to ensure adequate landfills remain available to meet the public's need for the safe handling and disposal of Solid Waste, and fmiher desires to ensure its citizens do not incur undue costs in safely disposing of Solid Waste they generate, and has thus entered into the County Agreement (as defined herein.) Contractor has agreed, as part ofthis Agreement, to provide such services and take such actions as are necessary or desirable to ensure City complies with its obligations pursuant to the County Agreement.

Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Patiies, City and Contractor hereby agree as follows:

1. RECITALS.

The Parties acknowledge the above recitals are true and correct and incorporate them herein as ifthey were fully restated.

2. DEFINITIONS.

Whenever any term used in this Agreement has been defined by the California Public Resources Code, the definition of such term set f01ih therein shall apply unless the term is otherwise defined in this Agreement.

A. AB 939.
"AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq. as it may be amended from time to time.

B. Affiliate.
"Affiliate" means a business in which Contractor owns a direct or indirect ownership interest, a business (including corporations, limited and general patinerships and sole proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) ofthe Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 3l8(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or 384/062266-0187
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indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater.

C. Animal Waste.
"Animal Waste" shall mean animal carcasses, dead animals, and/or palis or pOliions of dead animals. Animal Waste shall not include manure.

D. Bins.
"Bins" shall mean a metal or plastic Container, including dumpsters, compactors, and any similar such devices with a capacity of under ten (10) cubic yards.

E. Board.
"Board" shall refer to CalRecyle, the agency currently charged with enforcing and implementing regulations related to AB 939, the successor to the former California Integrated Waste Management Board, and any successor agency.

F. Bulky Items.
"Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within a Cali including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); Residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall specifically include items commonly known in the waste industry as "brown goods," "e-waste" and "universal waste" (including, without limitation all types of electronic waste, stereos, televisions, computers and monitors, cellular phones, VCRs, microwaves and other similar type of equipment and products), batteries, and fluorescent light tubes. Bulky Items do not include car bodies, Construction and Demolition Debris or (with the exception of appliances/white goods described above) items that cannot reasonably be moved with equipment ofthe type which, pursuant to industry standards would normally be carried in a truck Collecting Bulky Items. In the event a question arises as to whether a specific item, or category of items meets the definition of Bulky Items, the City Manager shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Paliies.

G. Cali.
"Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi-automated process, as opposed to a manual process oflifting and dumping. 384/062266-0187
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H. City.
"City" shall mean the City of San Clemente, a municipal corporation, located in Orange County, California.

I. City Limits.
"City Limits" shall mean the territorial boundaries of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office ofthe City Clerk ofthe City of San Clemente, and which are from time to time amended to reflect changes.

J. City Manager.
"City Manager" shall mean the City Manager of the City of San Clemente or his or her designee.

K. Collect/Collection.
"Collect" or "Collection" shall mean to take physical posseSSIOn of, transport, and remove Solid Waste from a premises.

L. Commercial Premises.
"Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the propeliy. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated shall be deemed to be Commercial Premises.

M. Container.
"Container" means any and all types of Solid Waste receptacles, including Carts and Bins.

N. Contractor.
"Contractor" shall mean CR&R Incorporated, the entity granted the franchise pursuant to this Agreement, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof.

O. County Agreement.
"County Agreement" shall mean that celiain waste disposal agreement entered between various Orange County cities, including specifically the City of San Clemente, and the County of Orange relating to the use of County landfills for the disposal of Solid Waste collected in such 384/062266-0 \87
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cities, and which is on file in the office of City's City Clerk, as the same may be amended from time to time.

P. Customer.
"Customer" shall mean any person recelvmg Solid Waste Handling Services from Contractor within the Franchise Area.

Q. Dwelling Unit.
"Dwelling Unit" shall mean one or more rooms designed for occupancy by one family for living and sleeping purposes and containing kitchen facilities or an area designed for the preparation offood for use solely by one family.

R. Effective Date.
"Effective Date" shall mean January 1,2011.

S. Environmental Laws.
"Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §2601 et seq.; the Occupational Safety and Health Act, 29 USC §651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the CarpenterPresley-Tanner Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder.

T. Franchise Area.
"Franchise Area" shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date.

U. Franchise Fee.
"Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section 9 hereof.

V. Gross Receipts.
"Gross Receipts" shall mean and include all monies, fees, charges, consideration, and revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in connection with, arising from, or in any way attributable to the Solid Waste Handling Services 384/062266-0187
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carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes, without limitation, monthly Customer charges for the Collection of Solid Waste and any other materials Collected hereunder, any franchise fees or other fees imposed and collected pursuant to this Agreement, sums collected in connection with Temporary Services, and tipping and/or disposal fees charged to and collected from Customers. Notwithstanding any provision to the contrary herein, Gross Receipts shall not include revenues received by Contractor from the sale ofRecyclable Materials.

W. Hazardous Substance.
"Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances," "hazardous materials," "Hazardous Wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Enviromnental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §5l01, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §740l et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local laws or regulations, including any of the Environmental Laws, currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and byproducts.

X. Hazardous Waste.
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. y. Household Special Wastes.
"Household Special Wastes" means the following waste materials when they are used at and discarded from a Residential Premises, but does not include any of the following waste if generated in the course of operating a business concern at a Residential Premises: (i) "Household Pharmaceutical Waste" meaning unused or expired prescription and non-prescription human medications, veterinary drugs, and diagnostic agents, nutritional supplements and personal care products such as fragrances, cosmetics, and sun-screen agents [but excluding controlled substances and medical waste not specifically described herein]; (ii) Sharps as defined in Section 117671 of Title 22 of the California Code of Regulations, including hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the 384/062266-0187
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delivery of medications; (iii) Universal Waste as defined in Section 66261.9 of Title 22 of the California Code of Regulations, including but not limited to: fluorescent bulbs and tubes; household batteries (e.g. D, C, AA, button-type, etc.); non-empty aerosol cans; electronic devices (e.g. televisions, computer monitors, cell phones, radios, video cassette recorders, etc.); and mercury containing devices (e.g. thermometers, thermostats, gauges, etc.); and (iv) "Household Hazardous Waste" meaning any Hazardous Waste generated at a Residential Premises including but not limited to: automotive maintenance and repair products (e.g. motor oil, oil filters, antifreeze; lead-acid batteries, brake fluid, etc.); lawn and garden chemicals (e.g. pesticides, herbicides, fungicides, etc.); cleaning products (e.g. bathroom cleaners, drain cleaners, chlorine bleach, solvents, oven cleaners, etc.); and home improvement supplies (e.g. stains, paints, varnish, paint thinners, chemical strippers, glue, pool chemicals, etc.).

Z. Multi-Family Dwelling.
"Multi-Family Dwelling" means any Residential Premise containing more than one Dwelling Unit at which Contractor determines (and City agrees) the Dwelling Units must receive Solid Waste Handling Services through the use of Bins rather than Calis. Generally speaking, this will occur when: (i) a City approved enclosure for a Bin(s) exists; and (ii) there is sufficient space on the Customer's property to provide safe access for Contractor's collection equipment; and (ii) either, (a) the Customer's property is comprised of four or more dwelling units on a single assessor's parcel or (b) the Customer's property is comprised of three or less dwelling units on a single assessor's parcel and Contractor obtains City's approval to use Bin service in place of Calis. Any ambiguity or dispute as to whether a Customer's Premises qualifies for purposes of this Agreement as a Single Family Dwelling, which may be serviced using Carts, or Multi-Family Dwelling, which may be serviced using Bins, shall be resolved by the City Manager whose decision shall be final.

AA. Municipal Code.
"Municipal Code" shall mean City's Municipal Code.

BB. Person.
"Person" shall mean any individual, firm, association, organization, palinership, corporation, business trust, joint venture, the United States, the State of California, the County of Orange, towns, cities, and special purpose districts.

CC. Premises.
"Premises" shall mean any land, building, and/or structure within the City Limits where Solid Waste is generated or accumulated.

DD. Recyclable Material.
"Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the Franchise Area which is capable of being recycled.
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EE. Residential Premises.
"Residential Premises" shall mean all premises upon which Dwelling Units exist.

Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels exist shall be deemed to be Commercial Premises.

FF. RolloffBox.
"Rolloff Box" means Solid Waste Collection Containers of ten (10) yards or larger, including compactors.

QQ. Single Family Dwelling.
"Single Family Dwelling" means a building or lot containing one Dwelling Unit, and for purposes of this Agreement includes buildings and lots with more than one Dwelling Unit where such Dwelling Units are determined by the City to be reasonably able to receive individualized Solid Waste Handling Service by the automated process utilizing Calis contemplated herein. It is generally assumed by the Paliies, although not required by this Agreement, that any Residential Premises upon which between one (1) and three (3) or Dwelling Units exists will be deemed to be a Single Family Dwelling and receive services utilizing Carts rather than Bins.

Any ambiguity or dispute as to whether a Customer's Premises qualifies as a Single Family Dwelling or Multi-Family Dwelling shall be resolved by City.

HH. Solid Waste.
"Solid Waste" shall mean and include all discarded putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, Refuse, rubbish, construction waste, industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid, and liquid waste permitted to be disposed of at a Class III landfill and which are included within the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as it may be amended from time to time. Solid Waste does not include hazardous (Class I) waste, low-level radioactive waste, untreated medical waste, or Special Wastes as defined herein.

II. Solid Waste Handling Services.
"Solid Waste Handling Services" means the Collection, transfer, transpOli, recycling, processing, and disposal of Solid Waste.

J1. Special Wastes.
"Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge, industrial sludge, asbestos, auto bodies, tires, used motor oil, hazardous waste, Animal Waste, explosive substances, radioactive materials, sharps, pharmaceutical waste, universal waste, household hazardous waste, and other materials which may not be disposed of at a Class III landfill or which require special handling.
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KK. Temporary Service.
"Temporary Service" shall mean Solid Waste Handling Services provided by Contractor on an as-needed and temporary basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Rolloff Boxes.

LL. Term.
"Term" shall have the meaning ascribed in Section 5 ofthis Agreement.

3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE HANDLING

SERVICES FROM ALL RESIDENTIAL AND COMMERCIAL PREMISES, AND

FOR PROVIDING TEMPORARY SOLID WASTE HANDLING SERVICE
A. Scope of Franchise.

Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise.

Area. The exclusive franchise, right and privilege to provide Solid Waste Handling Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof.

B. Matters Excluded From Scope of Franchise.

Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive franchise granted herein shall exclude:
(1) the collection, transpOliation, recycling, and disposal of any Solid Waste otherwise within the scope of this Agreement which is transported to an appropriate disposal facility by an occupant of the premises upon which the Solid Waste was generated (but not including any agent, representative, or contractor ofsuch occupant); (2) the collection, transpOliation, recycling, and disposal of any Solid Waste otherwise within the scope of this Agreement which is transpOlied to an appropriate disposal facility by an officer or full time permanent employee of the commercial, construction, or industrial enterprise that generated the Solid Waste (but not including any independent contractor, non-employee agent, or representative, or other contractor ofsuch enterprise); (3) the sale or donation of Recyclable Material by the person or entity that generated such Recyclable Material (the "Generator") to any person or entity other than 384/062266-0187
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Contractor; provided, however, to the extent permitted by law, ifthe Generator is required to pay monetary or non-monetary consideration for the Collection, transpOliation, transfer, or processing of Recyclable Material to any person or entity other than Contractor, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation; (4) any Solid Waste otherwise within the scope of this Agreement which is Collected or transpOlied to a disposal or recycling facility by City employees in the course and scope oftheir employment with City;
(5) the Collection, transpOliation, or disposal of Hazardous Waste; Universal Waste; E-Waste; biohazardous waste; untreated medical waste; infectious waste; Animal Waste; used cooking fats, oils, grease and similar waste; or other materials which do not constitute Solid Waste;
(6) the Collection, transpOliation, and disposal of Construction and Demolition Waste by a contractor, handyman, repairman, or other similar service provider, using its own equipment, as an incidental part of the services provided to its Customers, rather than as a hauling service, provided that such waste is not Collected or transported by a third patiy hired for the primary purpose of Collecting and transpOliing said materials; (7) the Collection, transpOliation, and disposal of green waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services provided to its customers, rather than as a hauling service provided that such Solid Waste is not collected or transported by a third patiy hired for the primary purpose of Collecting and transporting said materials;
(8) Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or otherwise, as long as and to the extent such legal right continues to exist, except that to the degree any territory in which Contractor has a franchise granted by another governmental entity is annexed into City during the Term, Contractor agrees the provisions of this Agreement shall apply to such territory and fmiher acknowledges that this Agreement constitutes any notice required by the Public Resources Code in connection therewith.

C. Enforcement of Exclusivity.

Contractor shall be responsible for enforcing the exclusivity of this Agreement. City shall have the right to enforce the exclusivity provisions hereof if, in its absolute and sole discretion, it chooses to do so, but shall have no obligation to do so for the benefit of Contractor or otherwise. City additionally shall have the right, but not the obligation, to request that Contractor enforce the exclusivity provisions hereof. Contractor shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City.

4. ACCEPTANCE; WAIVER
Contractor agrees to be bound by and comply with all the requirements of this Agreement. Contractor waives Contractor's right to change the terms of this Agreement under 384/062266-0187
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Federal, State, or local law, or administrative regulation. Contractor waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code. Additionally, by and upon the execution of this Agreement, Contractor agrees to the termination of the Prior Agreement as of the Effective Date, agrees to waive any and all rights under the Prior Agreement, and agrees to release and hold the City harmless from any of the City's obligations thereunder (excepting, however, the right to compensation for services provided at the rates approved by City as of the Effective Date); provided, however, nothing contained in this provision is intended to or shall relieve Contractor from any obligation existing under the Prior Agreement peliaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from any obligation set forth in the Prior Agreement which are called out as surviving the termination thereof, and all such obligations, including specifically those indemnification obligations relating to Environmental Laws, general liability, and AB 939 shall survive the termination ofthe Prior Agreement.

5. TERM
The term ofthis Agreement (the "Term") shall be for the period of time commencing on January 1,2011, and ending July 1,2022, unless this Agreement is terminated sooner pursuant to Section 15 hereof, or otherwise. On July 1,2020, and on July 1 of each subsequent year unless a Party has provided a notice of nonrenewal as provided below, the Term of the Agreement shall be extended (without further action by the Patiies) for an additional year (the "Automatic Renewal") so that the remaining term ofthe Agreement shall be two (2) years. Either Party may give notice oftermination ofthe Automatic Renewal on or before midnight on June 30, 2020, or on or before midnight on June 30 of each subsequent year. Once notice of the termination of the Automatic Renewal is given by either Patiy no further Automatic Renewals shall occur, and this Agreement shall remain in effect only for its then remaining two-year term.

6. SERVICES PROVIDED BY CONTRACTOR
A. General.

Contractor shall furnish all labor, superVlSIOn, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement; and shall comply with all ofthe following provisions:
(1) Performance Standards
Contractor shall perform Solid Waste Handling Services as required hereunder in a workmanlike manner consistent with good housekeeping standards and all relevant provisions of the Municipal Code. Contractor's equipment shall be maintained so as to both: (1) meet the highest industry standards with regards to effOlis to prevent liquid from leaking and to the degree possible be "wateliight" and "leak-proof' and, (2) at all times comply with the provisions of all laws and regulations, including any applicable National Pollution Discharge Elimination Systems ("NPDES") permit, with regards to leaking of materials. Contractor shall immediately clean up any spills from its equipment of which it becomes or is made aware. 384/062266-0187
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(2) Noise and Disruption
Contractor shall perform Solid Waste Handling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Contractor shall use its best effOlis to coordinate its Collection schedules such that street sweeping on any given street shall occur the business day following Collection of Solid Waste by Contractor.
(3) Collection Times
Contractor shall not commence Solid Waste Handling Services for Customers at Commercial Premises until 6:00 a.m. and for Customers at Residential Premises until 7:00 a.m., nor shall such activities occur after 7:00 p.m. for Customers at Commercial Premises and 7:00 p.m. for Customers at Residential Premises. The City Manager may require Contractor to comply with time frames applicable to Residential Premises in connection with Solid Waste Handling Services for Customers at Commercial Premises whose premises are in close proximity to Residential Premises. Bulky Item Collection may occur on Saturdays. No Solid Waste Handling Services shall occur on Sundays at Residential Premises, except in exceptional circumstances for which specific approval is given by the City Manager. Solid Waste Handling Services may occur at Commercial Premises on Sundays; provided, however, no such service shall occur on Sundays in connection with any Premises at which the City Manager determines such service would be contrary to the public interest.
(4) Collection Schedule
Contractor shall establish Collection routes and a Collection schedule which shall be approved by the City Manager such that Customers at all Residential and Commercial Premises within the City will have not less than one established Collection day each week. Contractor shall provide notice to each Customer of its established Collection day(s), and shall provide at least one week's notice to Customers of any change in their established Collection day(s).

Notwithstanding any provision herein to the contrary, should any established Collection date fall on a legal holiday, or on any other holiday which is observed by either a landfill or other lawful disposal site to which Solid Waste is taken for disposal, or a recycling facility to which Recyclable Material is taken, Contractor shall provide for Collection one (1) day later during the pick-up week, and the regular pick-up schedule shall be resumed the following week. A pick-up week shall be defined as Monday through Saturday. Contractor may not change its established Collection schedules without obtaining the prior written consent ofthe City Manager. (5) Commingling ofRoutes
Contractor shall not during its Collection process commingle Solid Waste Collected hereunder with Solid Waste Collected in any other City, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to services provided pursuant to this Agreement with Collection routes for other jurisdictions it may service. Notwithstanding the forgoing, if Contractor desires to commingle routes with and Solid Waste Collected from other jurisdictions, it may present a proposal for doing so to the City Manager. Such proposal shall 384/062266-0187
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include an explanation for the reason to commingle routes/Solid Waste as well as the methodology proposed to properly allocate Solid Waste generated in the City. The City Manager may approve any such proposal in his discretion, or, alternatively, the City Manager may, in his discretion, refer any such proposal to the City Council for its consideration. Any proposal approved pursuant to this Section may be revoked by the City Manager, at any time, if in his discretion he determines it is not in the City's best interest. (6) Replacement of Containers
Contractor shall, whenever possible, place Cmis in the street gutter, adjacent to the curb upon completing Collection. Contractor shall replace all Bins in the location upon the propeliy of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doors, and/or enclosures when applicable.
(7) Contractor's Containers
a. Contractor shall be responsible to maintain and replace, as necessary, all of its Containers.
b. All Contractor's Containers shall comply with the specifications set fOlih in Exhibit B, and shall be maintained by Contractor in good repair with any question as to the meaning ofthis standard to be resolved by the City Manager. c. All Cmis and Bins shall be maintained by Contractor m a wateliight condition.
d. Contractor shall replace any damaged Cmis at no charge to Customers, provided, however, Contractor shall be entitled to charge Customers for the replacement of any Cart that has been damaged by a Customer, ordinary wear and tear excepted, with such charges being subject to City's approval.
e. Contractor shall replace any lost or stolen Carts within three business days, at no cost to Customers. Contractor shall only be obligated to replace a lost or stolen Cart for a Customer at no charge two times. For each replacement of a lost or stolen Cmi thereafter, Contractor shall be entitled to charge Customers provided the rates charged by Contractor shall be subject to City's approval, and shall not exceed Contractor's actual costs. f. Contractor shall at Customer's request annually refurbish, replace, and steam clean as necessary all Bins and Rolloff Boxes at no charge to Customers; provided, however, City may require the steam cleaning or replacement ofBins utilized at restaurants, bars and grocery stores/markets more frequently if it determines such action is needed to protect public health and safety. Additional steam cleaning shall be provided to any Customers who request it at a charge not to exceed the maximum rate set fOlih in Exhibit A hereto, or alternatively Contractor shall provide a replacement Bin/RolloffBox to Customers at no charge. g. Contractor shall remove any graffiti that appears on its Containers within twenty-four (24) hours after becoming aware of it. 384/062266-0187
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h. All Bins and Rolloff Boxes shall be kept freshly painted in a uniform fashion and shall be identified with Contractor's name and phone number in letters not less than three inches high on its exterior so as to be visible when the Container is placed for use. i. At a Customer's request, Contractor shall provide Bins with locking lids and locks and may charge rates to Customers for locking Bins which do not exceed the maximum rates set fOlih on Exhibit A.
(8) Missed Pick-ups
In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste and Recyclable Material from such Customer no later than the next day of the pick-up week following the date of the call. Records of the addresses of all missed pick-ups shall be maintained by Contractor, and shall be repOlied to City upon request. If Contractor demonstrates to the satisfaction ofthe City Manager a pattern of ongoing late "set-outs" by a given Customer, missed pick-ups resulting from late set-outs by that Customer shall not be counted as missed pick-ups in evaluating Contractor's performance hereunder. The Customer service phone system required by Section 23 hereof is intended, among other things, to serve as a "hotline" for Customers to call in the event Solid Waste placed for Collection is not Collected by Contractor and to facilitate having such Solid Waste Collected as soon as reasonably possible, and in no event later than as required by the provisions hereof.
(9) Record of Non-collection
As more fully set forth herein, Contractor shall Collect all Solid Waste placed for Collection by Customers, excepting materials that are specifically called out herein (such as hazardous materials.) Whenever Contractor determines not to Collect any Solid Waste deposited for Collection, Contractor shall leave a tag at least 2" by 6" in size, indicating the reason for Contractor's refusal to do so. This information may be either handwritten or left by means of a check system (i.e., checking off boxes on a preprinted form). The tag shall provide Contractor's business name and its local telephone number and shall be securely fastened to the Container or the atiicle refused. Contractor shall maintain a record of all such taggings at its place of business. Such record shall contain the date of such notice, street address, reason for noncollection, and a summary of any communications between Contractor and the Customer involved. Such notice shall be retained so that it may be conveniently inspected by representatives of City upon request.
(10) Waste Required to be Collected
Contractor shall only be required to collect Solid Waste and Recyclable Material which has been placed, kept, or accumulated and completely enclosed in Carts or Bins, and is only required to do so with respect to those Calis or Bins that are placed at curbside or other designated pick-up locations pre-approved by City and Contractor prior to Contractor's normal Collection time.
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B. Residential Solid Waste Handling Service.
(1) Single Family Dwellings - Automated Collection.

Contractor shall provide each Customer at a Single Family Dwelling with the Customer's choice of either one (1) thirty-five (35) gallon or one (1) sixty-seven (67) gallon Cali designated for the Collection of mixed Solid Waste (a "Refuse Cart"). Contractor shall Collect all Solid Waste placed out for Collection in Refuse Calis by each Customer at a Single Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set fOlih in Exhibit A. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one or more additional Refuse Carts, and shall Collect all Solid Waste placed for Collection in such additional Refuse Carts at rates which do not exceed the maximum rates set forth in Exhibit A. Wherever feasible, Customers shall be directed by Contractor to place Calis for Collection either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises in the alley or easement in the rear of their Premises. If a Customer and Contractor cannot agree upon a Collection location, or if City determines the selected location may cause safety or other concerns, City may make the final determination ofthe Collection location.
(2) Walk-Out Service.

Contractor shall provide eligible Single Family Dwelling or Multi-Family Dwelling Customers with "walk-out service" as set fOlih in this paragraph at no additional charge. This service shall require Contractor to use its own forces to bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after disposal of the contents thereof, returning said Containers to the location where they are regularly stored. To be eligible for this service a Customer shall have a DMV issued disabled person placard/license plates, or be a person who provides a physician's letter as described herein. Each Customer desiring walk-out service shall cause a letter to be submitted to Contractor from a physician confirming the Customer is unable to move his/her Calis to the curb, and that to the best of his knowledge there is no other capable persons living in the Customer's household to provide this service.

Contractor may require each eligible Customer to provide a new letter from a physician on an annual basis in order to maintain eligibility for walk-out service. In order to receive walk-out service, a Customer will be required to sign a standardized agreement, the terms of which shall be subject to City's approval, that authorizes entry onto the Customer's property and holds Contractor harmless for any liability (including specifically liability related to pets escaping) associated with Contractor providing the service. Any dispute regarding a Customer's eligibility for walk-out service shall be resolved by the City Manager. Single Family Dwelling or MultiFamily Dwelling Customers who do not qualify for "free" walk-out service may contract with Contractor for such services at rates not exceeding those set fOlih on the attached Exhibit A. (3) Use ofBins for Single Family Dwelling Customers Prohibited.

Contractor may not supply Single Family Dwelling Customers with Bins in place of Calis, or otherwise use Bins for Single Family Dwelling Solid Waste Handling Services, 384/062266-0187
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excepting, however, Temporary BinJRolloff Services provided to Single .family Dwelling Customers in the manner authorized herein.
(4) Recycling Program for Single Family Dwellings.

Contractor shall provide each Customer at a Single Family Dwelling to whom it provides a Refuse Cali with the Customer's choice of either one (1) thirty-five (35) gallon or one (1) sixty-seven (67) gallon Cali designated for the Collection of Recyclables (a "Recycling Cart") at no additional charge. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one (1) additional Recycling Cart at no additional charge.

Contractor shall Collect Recyclable Material placed in Recycling Calis for Collection from each Customer at a Single Family Dwelling on the same day as such Customer's Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed to place Recycling Calis in the same location for Collection as Refuse Calis. At a minimum the following materials shall be allowed to be deposited by Customers for Collection in Recycling Calis: aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; polyethylene terephthalate plastic ("PET"); high density polyethylene plastic ("HDPE"); plastics types 3 -7; plastic bags, shrink wrap, plastic toys and tools, and other plastic materials (ifreadily identifiable as being recyclable); juice boxes and milk cartons (aseptic packaging, Tetra Pak© and waxed cardboard); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags and non-metallic wrapping paper); corrugated cardboard; and telephone books. (5) Green Waste Program for Single Family Dwellings.

Contractor shall provide each Customer at a Single Family Dwelling to whom it provides a Refuse Cart with the Customer's choice of either one (1) thitiy-five (35) gallon or one (1) sixty-seven (67) gallon Cali designated for the Collection of commingled green waste (a "Green Waste Cali") at no additional charge. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one (1) additional Green Waste Cali at no additional charge. Contractor shall Collect green waste placed in Green Waste Calis for Collection from each Customer on the same day as such Customers' Refuse Cali is Collected, using an automated collection process. Customers shall be directed to place Green Waste Calis in the same location for Collection as Refuse Calis. Contractor shall identify, to City's satisfaction, neighborhoods in the City where Green Waste Calis will not be provided due to lack of Green Waste generation. Customers in those neighborhoods shall receive only Solid Waste and Recycling Calis and the maximum rates applicable to such Customers shall not exceed the rates designated as "Set of 2 Carts" as set fOlih on the attached Exhibit A. (6) Use ofBins for Multi-Family Residential Customers.

Contractor shall supply Customers at Multi-Family Dwellings with Bins for Solid Waste Handling Services ("Refuse Bins"). Contractor shall provide a number of Bins reasonably needed for Solid Waste Collection at each Premises at which Multi-Family Dwellings exist bearing in mind both the number of Dwellings Units and space limitations. Contractor shall endeavor to provide at least one (1) Refuse Bin for every ten (10) Dwelling Units located at each Multi-Family Dwelling. The size of Refuse Bins utilized, and the frequency of their Collection, 384/062266-0187
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shall be mutually agreed upon by Contractor and its Customers, except that Collection shall occur not less than one time per week and City shall have the right to impose minimum requirements for Bin sizes and more frequent Collection should it determine such action is needed to protect public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Refuse Bins used at such location. Contractor may charge rates for each Bin provided to a Multi-Family Dwelling that do not exceed the maximum rates set forth in Exhibit A. All Solid Waste Collected by Contractor from Refuse Bins at MultiFamily Dwellings shall be taken for processing to a properly permitted, large volume transfer processing facility, meeting the requirements ofthe County Agreement, and all such Solid Waste shall be processed (not merely transferred to a landfill) in order to recover Recyclable Materials. (7) Bulky Items.
a. Residential Bulky Item Service.

Contractor shall provide unlimited Bulky Item Collection services to all Customers at Residential Premises on an on-call basis for a rate not exceeding the maximum flat rate set fOlih in Exhibit A. Each Customer at a Residential Premises shall be entitled to up to four (4) Bulky Item pick-ups per year at no cost ("No Charge Pick-ups"). One No Charge Pick-up will be deemed to have occurred each time Contractor Collects up to four (4) Bulky Items at the same time. Thus, for instance, if Contractor is required to Collect between five and eight Bulky Items at the same time, two No Charge Pick-ups shall be deemed to have occurred. On-call Bulky Item Collection service, whether for a fee or a No Charge Pick-up, shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service, or the next scheduled Collection day excluding Saturdays, whichever shall occur sooner.

Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service.
b. Bulky Item Diversion.

Bulky Items Collected pursuant to this Agreement may not be disposed of in a landfill until the following hierarchy of diversion effOlis has been followed by Contractor:
(i) Reuse as is (if energy efficient);
(ii) Disassemble for reuse or Recycling;
(iii) Recycle, Transformation, other means of diversion; and (iv) Disposal.
c. Proper Handling ofBulky Items.

Contractor shall properly handle all materials required to be collected as Bulky Items, including specifically items that require special handling pursuant to the Environmental Laws, such as materials that constitute "universal waste" and/or "e-waste." 384/062266-0187
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(8) Household Special Wastes.
a. Program Description.

A general description of the Household Special Waste Collection service to be provided is set fOlih in the accompanying Exhibit C. If and to the degree any discrepancies, ambiguities, or conflicts exist between Exhibit C and the terms of this Agreement, the terms of this Agreement shall control.
b. Household Special Waste Collection Service.

Each Customer at a Residential Premises shall be entitled to up to four (4) Collections per calendar year, on an on-call basis, of Household Special Wastes at no cost ("No Charge Collections"). On-call Household Special Waste Collection service shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service, or the next scheduled Collection day excluding Saturdays, whichever shall occur sooner.

To the degree Household Special Waste Collection service described in this Section is duplicative in any way of the Bulky Item Collection services set fOlih herein (i.e., such as with regards to certain electronic waste which is meets the definitions of both Bulky Waste and Household Universal Waste), the services set forth in this Section are intended to be in addition to such Bulky Item service, and hence Customers shall be entitled to both including the No Charge aspects of both. Contractor shall produce, keep current, and provide public information specifically outlining its Household Special Waste Collection service. c. Implementation of Household Pharmaceutical Waste Container Collection.

As of the Effective Date, Contractor does not have the requisite regulatory approvals to Collect Household Pharmaceutical Waste. Contractor shall diligently pursue such approvals and implement a program at the earliest time possible to provide for the Collection ofthis waste in a manner consistent with the terms set forth herein, as well as the program concepts set fOlih in Exhibit C. Once necessary approvals have been secured, Contractor shall provide a detailed program description to City, and the final program to be implemented shall be subject to the approval ofthe City Manager.
(9) Additional Collection Services.

Contractor may provide special pickup procedures or additional services in addition to the services described herein for Customers who request such services at rates agreed upon by Contractor and such Customers. All such rates must be reasonable as determined by the City Manager, and shall be subject to City Manager approval
C. Commercial Solid Waste Handling Services.
(1) Commercial Bins and RolloffBoxes.
a. Contractor shall provide all Customers at Commercial Premises ("Commercial Customers") with at least one Bin and/or Rolloff Box for Collection of mixed 384/062266-0187
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Solid Waste, and shall Collect all Solid Waste placed therein for Collection not less than once pet week, at rates that do not exceed the maximum rates set f01ih in Exhibit A. Contractor shall provide additional Containers to Customers and shall provide additional Collections upon request, or as may be required by City's Municipal Code, health and safety requirements, or by the City Manager, and may charge rates for such services which do not exceed the maximum rates set f01ih in Exhibit A. Bins and Rolloff Boxes shall be Collected by Contractor from the location upon each Customer's property designated for their storage, and replaced to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Contractor. It is the paliies intent that all Rolloff Boxes (including compactors) provided to Commercial Customers for service pursuant to this section will be taken for processing to a properly permitted, large volume transfer processing facility, meeting the requirements of the County Agreement, and all such Solid Waste shall be processed (not merely transferred to a landfill) in order to recover Recyclable Materials. Nevertheless, the parties recognize that the content of waste generated by certain Commercial Customers may not be appropriate for processing, and Contractor shall have the discretion in such cases to transport Rolloff Boxes to the County Landfill, with any dispute regarding such decision being resolved by the City Manager's in his discretion. Contractor may charge Commercial Customers utilizing Rolloff Boxes an amount not exceeding the "contractor component" set f01ih in Exhibit A for such services plus an amount equal to the actual tonnage disposed of multiplied by the processing component or disposal component as applicable, depending upon whether the Solid Waste in question is taken to a processing facility or landfilled.
(2) Commercial Calis.

As an alternative to the requirements of the preceding Section, Contractor shall offer Collection in Refuse and Recycling Calis to Commercial Customers that do not have space for, or do not generate enough Solid Waste to require the use of Bins for Collection. Rates for Customers receiving such service shall not exceed the maximum rates set forth on Exhibit A.

All Commercial Customers that are provided Refuse Carts shall also be provided a Recycling Cart, and such Customers shall have a choice between a set of sixty seven (67) gallon Calis or a set of ninety (90) gallon Carts. Upon request from any Commercial Customer using Carts rather than Bins for Collection service, Contractor shall provide such Customer with one or more additional Refuse or Recycling Calis at rates which do not exceed the maximum rates set forth in Exhibit A. If Contractor and a Commercial Customer have a disagreement as to whether use of Calis rather than Bins for Collection service is appropriate, or if City determines Collection for such a Customer using Carts causes health and safety or other concerns, City shall make the final determination as to whether Collection utilizing Calis may occur. (3) Commercial Bulky Item Service.

Contractor shall provide unlimited Bulky Item Collection services to Commercial Customers on an on-call basis. Contractor may charge rates for such services which shall not exceed the maximum rates set f01ih in the attached Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service. Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected 384/062266-0187
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pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 6.B(7)(b) and 6.B(7)(c).
(4) Additional Collection Services.

Contractor may provide special pickup procedures or additional services, in addition to the services described herein for Customers who request such services at rates agreed upon by Contractor and such Customers. All such rates must be reasonable as determined by the City Manager, and shall be subject to City Manager approval
(5) Commercial Recycling.

Contractor shall conduct an annual waste audit of all Commercial Customers utilizing Bins for Collection service to determine their Recyclable Material content. The purpose of such audits is to determine whether individual Customers are discarding Recyclable Material of a quantity that is sufficient to warrant such Customer's patiicipation in recycling programs. The process used to conduct this waste audit shall be shared with City, to ensure compliance and acceptance, and shall be subject to City Manager approval. Upon completion of such audit, and upon approval by City, those Customers whose waste stream is found to contain a significant Recyclable Material content shall be provided a Recycling Cart or Bin ("Recycling Bin") for Recyclable Material. Contractor shall Collect all Recyclable Material placed in Recycling Carts or Bins at least once per week, and more often as may be agreed upon with its Commercial Customers. Contractor may charge Commercial Customers who are provided with Recycling Carts or Recycling Bins rates for such service not exceeding the maximum rates set forth in the attached Exhibit A. In addition, any Commercial Customer who so desires, may be provided with Rolloff Boxes for clean, source separated loads of greenwaste, dili, concrete, asphalt, wood, metal, and paper/cardboard, with the maximum rates set fOlih in the following section related to Temporary Services being applicable to such services.

D. Temporary Services.

Contractor shall provide Temporary Services on an on call basis to any Customer requesting such service, pursuant to the following conditions:
(1) Temporary Bins: Three (3) cubic yard Bins that meet the standards set forth in the accompanying Exhibit B may be used for Temporary Service; provided, however, Bins used for such service shall not remain at the same address for a period that exceeds four consecutive weeks. Contractor shall charge Customers a flat rate for Temporary Services utilizing Bins, which rate shall not exceed that set out in Exhibit A, and may charge Customers such rate in advance of providing Temporary Service. No contractor or processing component is associated with said flat rate and Customers may be required to pay the full flat rate charged by Contractor without regard to actual processing fees incurred. (2) Temporary RolloffBoxes:
a. Temporarily placed Rolloff Boxes, and specifically either fOliy (40) cubic yard drop off boxes ("Drop Off Boxes") or ten (10) cubic yard lowboy containers ("Lowboy Containers"), that meet the standards ofthe attached Exhibit B may be used for larger 384/062266-0187
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projects such as construction and demolition or the collection of dirt and concrete; provided, however, Rolloff Boxes used for such service shall not be placed in any public rights-of-way so as to create a safety hazard or so as to block any rights-of-way to a degree that it is not reasonably usable; moreover, they shall not remain in any public rights-of-way for a period exceeding two consecutive weeks.
b. It is the patiies intent that all Rolloff Boxes used in connection with Temporary Service shall be delivered by Contractor for processing to a properly permitted facility, which complies with the County Agreement, that is specifically designed to process for recycling purposes, as appropriate: construction and demolition waste; dirt, concrete or asphalt; or, greenwaste. Neveliheless, the patiies recognize that the content of waste generated by certain Customers may not be appropriate for processing, and Contractor shall have the discretion in such cases to transpOli Rolloff Boxes to the County Landfill, with any dispute regarding such decision being resolved by the City Manager's in his discretion. c. Contractor may charge Customers utilizing Rolloff Boxes for Temporary Service an amount not exceeding the "contractor component" set forth in Exhibit A for such services plus an amount equal to the actual tonnage disposed of multiplied by the processing component or disposal component as applicable, depending upon whether the Solid Waste in question is taken to a processing facility or landfilled. To encourage recycling a discounted maximum rate applicable to the processing component for clean, source separated 40 cubic yard Drop Off Box loads of greenwaste is set fOlih on Exhibit A; and, fmiher, a maximum flat rate is set forth on Exhibit A as the "contractor component" (to which no processing or disposal component applies) for both clean, source separated 10 cubic yard Lowboy Container loads of dili, concrete, asphalt, and clean, source separated 40 cubic yard Drop Off Box loads of wood, metal, and paper/cardboard. For purposes ofthis section, a "clean, source separated load" shall mean a Solid Waste separated into a separate container at its point of generation that contains not less than 90% ofthe designated materials.
d. Contractor may charge Customers in advance of providing Temporary Services utilizing RolloffBoxes, by charging an amount not exceeding the contractor component set forth in Exhibit A for such services and a deposit calculated by multiplying the actual tipping fee Contractor will incur by 11 tons (i.e., on the Effective Date $50.53/ton x 11 tons for processed Solid Waste or $29.95/ton for landfilled Solid Waste.) After Contractor disposes of Solid Waste collected in temporarily placed Rolloff Boxes, it shall refund Customers utilizing such Temporary Service all amounts exceeding the actual per ton tipping fee incurred by Contractor. If the Rolloff Box is filled in excess of 11 tons by a Customer, Contractor may bill for and collect from such Customer any actual tipping fee Contractor incurs in excess of the above noted deposit.
(3) Placement of Temporary Bins and RolloffBoxes.

The placement of Temporary Bins and Rolloff Boxes in the public right-of-way, and maximum duration of such placement, shall be in accordance with the Municipal Code. In the event of any conflict between this Agreement and the Municipal Code, the Municipal Code shall govern.
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E. Recycling Obligations and Public Education Program.
(l) Minimum Requirements for Recyclable Materials.

Contractor shall utilize a truck dedicated for the purpose of Collecting green waste from Customers, such that green waste which has been separated prior to Collection, once Collected, is not commingled with other Solid Waste (including Recyclable Material). Similarly, Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable Materials, such that Recyclable Material Collected in Recycling Cmis, once Collected, is not commingled with other Solid Waste (including green waste). All material Collected by Contractor in Recycling Carts pursuant to this Agreement shall be delivered to a properly permitted facility for recycling and reuse purposes. All green waste separated prior to Collection and thereafter Collected by Contractor pursuant to this Agreement (including specifically materials Collected in Green Waste Calis or Customer provided Containers as well as Holiday Trees) shall be delivered to a properly permitted facility for recycling, mulching, composting, or alternative uses for which diversion credit is provided as may be approved by the Board. (2) Extent of Applicable Franchise Rights.

Nothing in this Agreement shall be construed as giving Contractor the right to Collect Recyclable Material which has not been discarded and placed for Collection by Contractor in the location designated for that purpose.
(3) AB 939 Obligations, Guarantee, and Indemnification. a. Warranties and Representations.

Contractor wan-ants and represents that it is aware of and familiar with City's Source Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be divelied, time frames for diversion, and any other requirements) set forth in AB 939, and all amendments thereto, and that it shall do so without imposing any costs or fees other than those set forth on the attached Exhibit A (including if new programs are implemented which are not called out herein).
b. Mutual Cooperation.

City and Contractor shall reasonably cooperate in good faith with all effOlis by each other to meet City's diversion and other compliance requirements. imposed by AB 939. In this regard, City's obligations shall include, without limitation, making such petitions and applications as may be reasonably requested by Contractor for time extensions in meeting diversion goals, or other exceptions from the terms of AB 939.
c. Waste Reduction and Program Implementation.

Contractor shall implement the programs identified in the Source Reduction and Recycling Element (SRRE) and Household Hazardous Wastes Element (HHWE) of the City's 384/062266-0187
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General Plan immediately upon the Effective Date hereof, and will implement any programs required by any amendments or modifications thereto. In meeting this obligation Contractor shall be mindful of and comply with all requirements of the County Agreement, including specifically, without limitation, the requirements thereof generally relating to (i) the delivery of Solid Waste only to transfer stations that provide quarterly certifications of Solid Waste delivered, and (ii) the disposal of residual Solid Waste that remains after recycling processes have been completed. Contractor shall provide City with monthly, qUaIierly and annual written repOlis in a form adequate to meet City's AB 939 related filing and repOliing requirements to the Board and to the County of Orange throughout the Term of this Agreement wherein City's performance under the above programs shall be set fOlih in detail. 'Contractor shall be responsible to prepare, or assist City with the preparation of, all reports and other information as may be required by any agency, including specifically, the State of California, in order to comply with AB 939.
d. Public Education Fund.

Contractor shall continually maintain a "Public Education Fund" for the sole purpose of supplying public education and information about source reduction, recycling, and composting.

The Fund shall be comprised sums to be set aside by Contractor from its charges to Residential Customers for collection services, in an amount equaling $.09 per month per Residential Customer. The public Education Fund shall be held in an interest bearing bank account, separate from other funds utilized by Contractor, and shall be made available for audit review upon request of the City. All interest earned in this fund shall remain as part of the fund. Contractor may only use sums in this Fund for the purposes set forth in this provision, unless other uses are approved in writing by the City Manager. Any amounts in this fund upon expiration ofthe Telm or earlier termination ofthis Agreement shall be delivered to the City. e. Guarantee and Indemnification.

Contractor warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) both it and City will at all times be in compliance with the requirements of AB 939, and (ii) the City will meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set fOlih in AB 939, and all amendments thereto. In this regard Contractor agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense:
(i) to the extent legally permitted, defend, with counsel approved by City, indemnify, and hold harmless City and City's officials, employees, and agents from and against all fines and/or penalties and other liabilities which may be imposed by the Board or any other regulatory agency if: (l) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or AB 939 and such failure or refusal prevents or delays City from submitting reports required by AB 939 in a timely manner.; or (2) the source reduction and recycling goals, diversion goals, program implementation requirements, or any other requirements of AB 939 are not met with respect to the waste stream Collected under this Agreement;
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(iii) assist City in preparing for, and pmiicipating in, the Board's biannual review of City's SRRE pursuant to Public Resources Code Section 41825; (iv) assist City in applying for any extension, including under Public Resources Code Section 41820, ifso directed by City; (v) assist City in any hearing conducted by the Board relating to City's compliance with AB 939;
(vi) assist City with the development of and implement a public awareness and education program that is consistent with the City's SRRE and Household Hazardous Waste Element, as well as any related requirements of AB 939; (vii) provide City with recycling, source reduction, and other AB 939 related technical assistance;
(viii) defend, with counsel acceptable to City, City and City's officials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by the Board pursuant to AB 939;
(ix) be responsible for and pay, any fees, penalties or other costs imposed against the City by the Bom'd, and indemnify and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of AB 939's diversion requirements, or violation of any other provision of AB 939, arising from or in any way related to Contractor's performance ofits obligations under this Agreement. (4) Waste Generation/Characterization Studies.

Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare repOlis, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, divelied or otherwise handled/processed to satisfy the requirements of AB 939. (5) Implementation of Additional Diversion Services.

In the event City does not meet the current diversion goal of 50% imposed by AB 939 with respect to all waste generated in City, City may direct Contractor to perform additional services (including the implementation of new diversion programs) or modify the manner in which it performs existing services, and Contractor agrees to do so at no additional charge. Pilot programs and innovative services which may entail new Collection methods, and use of new or alternative waste processing and disposal technologies are included among the kinds of changes which City may direct. In the event that the State increases the minimum diversion goal to greater than the current 50% goal imposed by AB 939, City may direct Contractor to perform pilot programs, at Contractor's expense, to provide additional services or implement new diversion programs. City and Contractor shall negotiate rates for any new permanent programs or services needed, after the conclusion ofthe pilot programs, to meet increased minimum diversion goals. 384/062266-0187
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F. Additional Services.

As pmi of the consideration for entering this Agreement, Contractor shall provide the following additional services at no charge, and Contractor shall not be entitled to adjust the Maximum Rates set fOlih in Exhibit A attached hereto to offset costs incurred in providing any ofthe following services:
(l) Contractor shall provide Bins to any qualified or cetiified non-profit group, e.g. Boy Scouts, Boys' and Girls' Clubs, churches, Emih Clubs, etc. The rates charged by Contractor to such groups shall not exceed the actual transportation costs incurred by Contractor in dropping off and picking up the Bins; and, Contractor shall impose no such charge for this service unless the non-profit group in question receives a monetary payment from recycling any materials collected in the Bins and such proceeds exceed Contractor's actual transportation costs.

Contractor shall appropriately dispose of or divert for recycling pursuant to the terms hereof any Solid Waste or Recyclable Material collected in Bins it provides pursuant to this paragraph, and shall pay non-profit organizations the prevailing market rate for any Recyclable Material collected in Bins provided by Contractor pursuant to this paragraph. (2) Contractor shall, free of charge, assist and cooperate with City in organizing City cleanup days. Contractor shall provide annually a total of up to fOliy Bins at no charge to City for organized cleanup days or otherwise, at least twenty (20) of which shall be not less than 36 cubic yard Bins. City shall pay all tipping fees associated with such Bins, and Contractor shall pay all other costs, including without limitation labor and transpOliation costs. (3) Contractor shall, free of charge, clean out any overflowing Bins or Bin enclosures within the Franchise Area within twenty-four (24) hours of notification by City.

Contractor shall work with the City Manager in identifying continual problems in Customer Bins or Bin enclosures. Contractor shall create a specific work order in response to each call received from City departments and shall provide City with a annual "Summary of clean out Item Work Orders Completed." Said summary shall include, but not be limited to the date, time, hours spent, and type of items collected.
(4) Contractor shall respond to calls from City's Maintenance and Code Enforcement Divisions and from authorized representatives of the Orange County Sheriffs Department and Orange County Fire Authority ("OCFA") to dispose of Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping occurring within the City Limits, and shall provide Solid Waste handling services in connection with such Solid Waste. Contractor shall respond to up to twenty (20) such calls each month, and provide Solid Waste handling services in connection therewith, free of charge. Contractor may charge City for Solid Waste handling services associated with calls in excess of the above noted twenty (20) per month at rates not exceeding the maximum rates set forth in the attached Exhibit A relating to Residential Bulky Item collection service, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall create a specific work order in response to each call and/or written request received from City depmiments and Sheriffs Depmiment and OCFA representatives and shall provide City with a qumierly summary thereof. Said summary shall 384/062266-0 \87
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include but not be limited to the date, time, hours spent, type ofitems collected, and what, if any, charge was incurred by City.
(5) Contractor shall assist persons designated by City (whether City employees or private individuals) who are responsible to coordinate special events or events in large venues (such as concelis or sporting events) in the implementation of recycling programs.

Contactor shall be responsible to prepare and submit to City a "waste reduction and recycling plan" prior to such events, and within 30 days following each such event shall submit a "waste characterization report" listing the amount of each material collected for disposal and recycling at the event.
(6) Contractor shall, free of charge, pickup all Holiday trees on the first two regularly scheduled pickup days for each Customer after Christmas Day. The trees shall be divelied from the landfill if possible, either by deposit at a composting facility or grinding operation.
(7) Contractor shall, free of charge, supply City with a total of ten (10) Emihquake/Catastrophe Preparedness Containers (not including contents). Each Emihquake/ Catastrophe Preparedness Container shall be a fully enclosed storage container, at least 30 cubic yards in volume, weather resistant and lockable. The location and contents of each Emihquake/Catastrophic Preparedness Container shall be approved by City before distribution.

Additionally, free of charge, and upon request by City, Contractor shall provide transpOli trucks to move, service, and/or exchange Earthquake/Catastrophe Preparedness Containers. (8) Contractor shall provide Bins and Containers, in quantities requested by City, as well as Solid Waste handling, including specifically collection of Solid Waste and Recyclable Material, for seven (7) special events per year, selected by City, i.e., parades, carnivals, run/walk races, etc., at no charge to City, the event organizer, or otherwise. (9) Contractor shall, free of charge, collect, transport and process the City's street sweeping debris.
(10) Contractor shall provide, free of charge, enforcement of the City's solid waste container Ordinance which provides certain requirements on the timing and duration Containers may be left on the street for Collection, as more fully set fOlih and described in the accompanying Exhibit D.

G. Special Services.

Contractor may provide special pickup procedures or services in addition to the services described herein for Customers who request or require such services at reasonable rates established by Contractor, which rates are subject to approval by the City Manager. Contractor shall notify the City Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections, review the proposed rate, and impose appropriate regulations.
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7. MINIMUM STANDARDS FOR COLLECTION VEHICLES
A. General.

Contractor shall provide vehicles for the Collection of Solid Waste ("Collection Vehicles") that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein.

Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. Upon request by City, Contractor shall provide City with copies of all repOlis relating to its California Highway Patrol's Bi-annual Inspection of Terminal (so called "BIT Inspection RepOlis").

B. Air Quality/Fuel Requirements.

Contractor's Collection Vehicles shall comply with all rules and regulations of the South Coast Air Quality Management District, the Air Resource Board, and any other regulatory body that may be in effect during the term ofthis Agreement, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. Contractor's Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the forgoing regulatory bodies during the Term.

C. Specific Requirements.

Each Collection Vehicle utilized by Contractor in the performance of this Agreement shall meet the following minimum standards:
(l) Each Collection Vehicle shall be registered with the California Department of Motor Vehicles.
(2) Each Collection Vehicle shall be inspected regularly by Contractor to ensure it meets the requirements of the California Vehicle Code and the California Highway Patrol. Contractor shall provide copies of its Biannual Inspection of Terminal ("BIT") inspection reports and shall make available all records related to its vehicles, including Contractor's maintenance records, to City upon request by the City Manager. (3) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the vehicle in which Solid Waste may be placed and, while operating upon the public rights-of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the vehicle. (4) Each Collection Vehicle shall be continuously maintained so as to both:
(1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible ensure each Collection Vehicle is "watertight" and "leak-proof' and, (2) at all times comply with the provisions of all laws and regulations including the Vehicle Code and any applicable NPDES permit, with regard to materials leaking from Collection Vehicles.

Contractor shall be responsible to promptly clean any spillage or Solid Waste that leaks or otherwise escapes the vehicle.
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(5) Each Collection Vehicle shall be painted periodically, which shall include all necessary body work, and shall be regularly cleaned, so that such vehicles do not become unsightly, as determined by the City Manager;. Each vehicle shall be painted with Contractor's colors and identifying information as required herein.
(6) Contractor's name, local or toll free telephone number, and a vehicle number shall be visibly printed or painted in letters not less than three (3) inches in height on both sides of each Collection Vehicle.
(7) Each Collection Vehicle shall be maintained in a clean and sanitary condition both inside and out and shall be washed at least once every seven (7) calendar days and steam cleaned on a regular basis.
(8) Each Collection Vehicle shall carry a broom, shovel, and operable fire extinguisher, and shall be equipped with a communication device sufficient to allow the driver to communicate directly with Contractor's dispatcher and/or main office. (9) Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment, including any new safety related technologies that become standard in the waste industry, and at a minimum shall have a video monitor based back-up system, or its equivalent. Contractor shall keep a sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance ofthe services contemplated by this Agreement. (10) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifications that repairs and maintenance has been properly performed, and shall make such records available to City upon request. (11) No Collection Vehicle shall be utilized if it is lealdng brake, hydraulic, or other fluids, and Contractor shall clean up any leaks or spills from their vehicles per the NPDES permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup effOlis.
(12) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement.

This inventory shall list all equipment by manufacturer, ID number, date of acquisition, type and capacity.
(13) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not be unreasonably intrusive on the community with respect to noise, emissions, 384/062266-0187
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maneuverability, safety, and other factors and to avoid or minimize pavement damage and wear and tear ofthe street or adjacent properties, as approved by the City Manager. (14) Contractor shall not load Collection Vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local laws or regulations.

Noise levels of equipment used for Collection shall not exceed 75db (seventy-five decibels) when measured at a distance of twenty-five (25) feet from the vehicle, five (5) feet from the ground.
(15) Any Collection Vehicle that the City Manager deems inappropriate for use in City for any reason (including its appearance) shall be removed from service in City, until such time as (and if) the City Manager determines his concern regarding said Collection Vehicle are corrected.

D. Costs of Operation and Damages.

Contractor shall be responsible for any costs incurred in connection with ensuring all Collection Vehicles comply with all applicable laws and regulations, including without limitation any such laws and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission standards, or weight limits.

E. City Inspection.

City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions ofthis Agreement.

F. Correction of Defects and Removal of Vehicles from Use within City.

Contractor agrees to immediately remove from service, and replace or repair, to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or otherwise in an unsatisfactory operating condition; and any such vehicle shall not be returned to service until the City Manager gives his written consent for its return..

8. CONTRACTOR'S PERSONNEL
A. Uniforms.

Each of Contractor's Collection employees shall wear a clean uniform bearing the Contractor's name.

B. Identification of Employees.

Contractor shall provide identification badges, cards or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with residents of the City. City may require Contractor to notify Customers yearly of the form of said identification.
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C. Employee List.

Contractor shall provide a list of current employees and authorized subcontractors to City upon request.

D. Driver's License.

Each employee operating a vehicle as pati of his duties shall, at all times, carry a valid operator's license for the type of vehicle he or she is operating. All employees who may have contact with Customers in the course of performing their duties shall be able to speak English.

E. Screening of Field Employees.

Contractor shall make reasonable effOlis to determine if its employees working in the field (i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at Customer Premises) have been convicted of a felony, and shall identify any such employees known to it to City. City shall have the ability to require that any employee so identified by Contractor not work in the field within City.

F. Discontinued Use of Unsatisfactory Employees.

No employee shall continue to have any involvement whatsoever with regard to any work in anyway relating to or arising from this Agreement if City gives notice to Contractor that such employee is determined by City to be discourteous, disorderly, inefficient, or otherwise objectionable (provided the term "otherwise objectionable" shall not permit City to "ban" an employee for reasons that violate public policy; and, further, City shall give a reason for requesting the "ban" of any employee from engaging in work related to this Agreement).

G. Training and Legal Compliance.

Contractor shall provide operating and safety training that meet mInImUm OSHA standards for all personnel, and shall comply with all laws and regulations applicable to its employees and personnel.

H. Hiring of Undocumented Workers Prohibited.

Contractor shall not hire or employ any person to perform work within the City of San Clemente or allow any person to perform work required under this Agreement unless such person is a United States citizen or is properly documented and legally entitled to be employed within the United States, and Contractor shall verify, through E-Verify, or any other similar method approved by the Federal Government, that all persons employed by Contractor to perform work required under this Agreement are legally entitled to be employed within the United States.

9. CONTRACTOR'S CONSIDERATION
In addition to any other consideration set forth herein, as pati of its consideration for the extension ofthe Original Agreement, and for the exclusive right to provide Solid Waste handling 384/062266-0187
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services and Temporary Bin/Rolloff Services within the Franchise Area, Contractor shall provide the following:

A. Franchise Fee.

Contractor shall pay to City, in lawful money of the United States, a franchise fee equal to five percent (5%) of Contractor's annual Gross Receipts during the entire Term of this Agreement (the "Franchise Fee.") Said Franchise Fee shall be due to City in four (4) quarterly payments, which shall be due on or before the fifteenth (l5th) day after the end of each calendar qumier (i.e., on or before April 15, July 15, October 15, and January 15). The amount of each such payment shall be equal to five percent (5%) of Contractor's Gross Receipts in the preceding calendar qUalier. Franchise Fee payments shall be accompanied by a statement celiified by an officer of Contractor attesting to the accuracy ofthe amounts paid, and setting forth the basis for . their calculation in a manner acceptable to City. The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the expiratioll of the Term hereof relating to Contractor's performance during the Term hereof.

B. Services at City Facilities
Contractor shall provide Collection services at all Premises owned and/or operated by the City (including without limitation all public buildings, parks, beaches, and bus stops), at no cost to City and shall provide Containers for such service as City deems appropriate for each of its various Premises (i.e., Carts, Bins or Rolloff Boxes). Such services shall be provided for all existing City facilities, as they may be expanded from time to time, as well as all new or additional facilities acquired/constructed during the Term hereof. Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree, approved by the City Manager
C. Public Refuse Fund.
(l) Contractor shall create and continually fund a "Public Refuse Fund" for the purpose of funding refuse related projects and programs as may be created and implemented by City.
(2) Contractor shall make payments into the Public Refuse Fund on or before the 15th day of each month during the Term hereof. Monthly payments shall be in a sum equal to $9.49 multiplied by the number of Refuse Bin's used for weekly Solid Waste handling services at Commercial Premises or Multi-Family Dwellings in the preceding month (i.e., this would not include Recycling Bins or Bins used for Temporary Services.) The Public Refuse Fund shall be held in an interest bearing ballle account at an institution of City's choosing, and shall not be accessible to Contractor. All interest earned in the Public Refuse Fund shall remain as part ofthe Fund. City may withdraw funds from the Public Refuse Fund for the purpose of funding refuse related projects and programs, or for such other purposes as it may deem appropriate (including without limitation any purposes for which General Fund expenditures could occur). 384/062266-0187
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10. ADDITIONAL CHARGES AND INTEREST FOR LATE PAYMENTS
In the event Contractor fails to timely make any ofthe payments to City that are provided for in this Agreement, Contractor shall pay to City, as additional consideration both of the following amounts:

A. A sum of money equal to five percent (5%) of the amount due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting for, and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving the revenue.

B. A sum of money equal to the lesser of (i) two percent (2%) ofthe amount due per month or (ii) interest on the delinquent sum (excluding the late payment charge referred to in clause A) at the maximum legal rate, with said sum to be applied as interest for loss of use ofthe money due.

11. FAITHFUL PERFORMANCE
A. Contemporaneously with execution of this Agreement, as security for Contractor's faithful performance of all obligations ofthis Agreement, Contractor shall provide a surety mechanism (the "Surety") as more fully defined below in the amount of One Hundred Thousand Dollars ($100,000.00). The Surety may be comprised of either a performance bond or an irrevocable letter of credit, or a combination of both. If a letter of credit utilized to satisfy some or all of the Surety requirement shall be drawn upon a financial institution with an office within one hundred (l00) miles of City, and otherwise in a form acceptable to the City Attorney.

The performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a from acceptable to the City Attorney. The cost of the Surety shall be the sole responsibility of Contractor. The Surety shall be released within thitiy (30) days after both (i) the expiration ofthe Term of this Agreement; and (ii) Contractor's satisfactory performance of all obligations hereunder.

B. In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a pOliion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thiliy (30) days of the City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach ofthis Agreement.

C. Notwithstanding any provision hereof to the contrary, thitiy (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, either the letter of credit or performance bond comprising the Surety may be utilized by City for purposes including, but not limited to:
(1) Payment ofsums due under the terms of this Agreement which Contractor has failed to timely pay to City, including specifically liquidated damages. 384/062266-0187
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(2) Reimbursement of costs borne by City to correct violations of this Agreement not cOlTected by Contractor.

D. City may draw upon the entire letter of credit (if any) utilized to meet Contractor's obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause the letter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration.

12. INSURANCE COVERAGE
Contractor shall procure and maintain during the entire Term ofthis Agreement insurance against claims for death or injuries to persons, damages to property, and economic loss which may arise from or in connection with Contractor' performance hereunder or the actions or inactions of Contractor's officers, agents, representative, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various indemnification obligations set forth herein.

A. Scope of Insurance Coverage.

Contractor shall procure and maintain during the entire Term of this Agreement, the following insurance coverages:
(1) Worker's Compensation Insurance.

Worker's Compensation insurance to cover Contractor's employees as required by the California Labor Code. Prior to City execution of this Agreement, but not later than ten (10) business days following Council approval of the contract, unless a waiver of this timing requirement is granted by City, Contractor shall file with City a signed Worker's Compensation Insurance Certification in substantially the following form:
"I am aware of, and will comply with Divisions 4 and 5 of the California Labor Code by securing, paying for, and maintaining in full force and effect for the duration of this Agreement, complete worker's compensation insurance, and shall furnish a celiificate of insurance. to the City before commencement of work under this Agreement."
(2) Comprehensive General Liability Insurance.

Comprehensive General Liability insurance covering death and personal injury and propeliy damage liability, automobile liability (both owned and leased) contractual liability, and independent contractor's liability, with minimum aggregate coverage of Ten Million ($10,000,000) and combined minimum liability limits of Three Million ($3,000,000) per occurrence, and a combined single limit of Three Million ($3,000,000) for automobile liability. 384/062266-0187
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a. Each such Policy of Insurance shall:
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(i) Be issued by a company that holds a cunent policy holder's alphabetic and financial size category rating of not less than A VIII, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by City's Human Resources/Risk Manager for all coverages except surety. (ii) Cover the operations of Contractor pursuant to the terms of the Agreement.
(iii) Be written on an occurrence and not a claims-made basis. b. The general liability and automobile liability policies required hereunder shall contain, or be endorsed to contain, the following provisions:
(i) City, its employees, agents, contractors, officials, volunteers, and officers are to be covered as named insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied, or used by Contractor; and automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City or its officials, employees, agents, contractors, and volunteers. (ii) This policy shall be considered primary insurance as respects City, its officials, employees, agents, contractors and volunteers. Any insurance or self-insurance maintained by City and its officials, employees, agents, contractors, and volunteers shall be excess of Contractor's insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City or its officials, employees, agents, contractors, or volunteers.
(iv) Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(v) Thhiy (30) days prior written notice by certified mail, return receipt requested, shall be given to City prior to any suspension, cancellation, reduction in scope or limits of coverage, or non-renewal ofthis policy, for any reason whatsoever, becoming effective. Such notice shall be sent to the City Clerk.

B. Environmental Pollution Control Insurance.

Contractor maintain either an endorsement to its general liability policy, or a separate policy of insurance covering environmental pollution and contamination, that specifically covers Contractor's activities in connection with the Household Special Waste Collection services provided hereunder, and naming the City as an additional insured. Said coverage shall be in the amounts set fOlih in the preceding sub-section A with regard to Contractor's general liability insurance coverage, and shall substantially comply with all other provisions set forth in the preceding sub-section A.
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C. Adjustments to Coverage.

The types of coverage, limits of coverage, and insurance companies shall be subject to review and approval by City's Human Resources Manager every year. City may require that the coverage types or amounts, or companies of insurance, be increased or changed at that time such that they are at least equal to the quality, types, and amounts of coverage provided by City's own liability insurance, or any self-insurance or risk sharing pool City may have or participate in.

D. Deductibles and Self-Insured Retention.

Any deductible or self-insured retention amount must be declared to and approved by City. At the option of City, Contractor shall either:
(1) have the insurer reduce or eliminate such deductible or self-insured retention as respects City, its officials, employees, agents, contractors, and volunteers; or (2) provide to City a bond or inevocable letter of credit in an amount and form acceptable to the City Manager to guarantee payment of losses and related investigations, claims administration, and defense expenses which would otherwise be paid from Contractor's deductible or SIR.

E. Verification of Coverage.

Contractor shall furnish City with celiificates of insurance and original endorsements effecting coverage required by this section prior to commencement of services provided hereunder. The celiificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to issue binding coverage on its behalf. The certificates and endorsements are to be on forms approved by City. All certificates, letters, and endorsements are to be received and approved by City before work commences. City reserves the right to require complete, celiified copies of all required insurance policies, at any time.

F. Subcontractors.

In the event City provides its written consent for the use of subcontractors, Contractor shall include any such permitted subcontractors as insured under its policies or shall furnish separate celiificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all ofthe requirements stated herein.

G. Loss or Reduction in Insurance.

In the event that Contractor fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation to either terminate this Agreement, or to obtain insurance coverage as required herein on behalf of Contractor and utilize funds from either the Cash Deposit or Performance Bond to pay the cost of providing such coverage.
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13. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND

LIMITATIONS
A. The franchise granted by this Agreement shall not be sold, hypothecated, sublet, assigned, or otherwise transferred, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold, or otherwise transferred, either in whole or in pali, nor shall title thereto, either legal or equitable, or any right, interest, or propeliy therein, pass to or vest in any person, except Contractor, either by action or inaction of Contractor or by operation of law, (collectively referred to as an "Assignment") without the prior approval by the City Council of the City. Any such Assignment made without the approval by the City Council of the City shall be void and the attempted Assignment shall constitute a material breach of this Agreement, and shall give rise to City's right, but not obligation, to terminate this Agreement.

B. For purposes of this Section the term "Assigmnent" shall be given the broadest possible interpretation, and (without limiting the preceding subsection in any way) shall include, but not be limited to: (i) a sale, exchange or other transfer ofsubstantially all ofthe Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of any membership interest of Contractor to a third paliy; (iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor or any Affiliate or any "parent entity" that owns or controls Contractor; (iv) any assigmnent by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination ofthe foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. Any "change in control" of Contractor shall specifically be treated as an Assignment of this Agreement. Change in control of Contractor shall include any actual sale, transfer, or acquisition of Contractor; Contractor's grant of a management contract to any person or entity which is applicable to any aspect of Contractor's performance pursuant to this Agreement; or transfer ofthe beneficial interest of the cumulative amount of thirty percent (30%) or more of Contractor's voting stock to a person, entity, or group of persons acting in concert who, as of the effective date hereof, own less than 30% ofsuch voting stock (except that a transfer ofstock in trust to immediate family members of persons currently holding stock in Contractor shall not be considered in determining if a change in control is occurring so long as Contractor notifies City ofsuch transfer, in writing, prior to its occurrence.)
C. Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Handling Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these 384/062266-0187
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factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement.

D. City may impose conditions for its approval of any Assignment ofthis Agreement including, but not limited, to conditions requiring acceptance of amendments to this Agreement and payment of a transfer fee to be determined in the sole discretion ofthe City Council.

E. City may transfer its rights and obligations set forth in this Agreement to a joint powers authority for the management of Solid Waste and Recyclable Material within any area that includes the Franchise Area.

14. FRANCHISE TRANSFER; FEES AND SECURITY
A. Any request for approval of a franchise assignment or transfer or change in control of Contractor shall be made by an application presented in a manner prescribed by the City Manager. The application shall include a non refundable deposit in an amount to be determined by the City Manager to be applied to a transfer fee in an amount to be set by a Resolution of the City Council. The precise transfer fee, and deposit therefore, shall be determined at such time during the course of processing the application as the City Manager deems appropriate, and no transfer shall be effective until the transfer fee has been paid in full.

B. These franchise transfer fees are in addition to and not in lieu of any franchise fees specified in this Agreement.

15. CITY'S REMEDIES; DEFAULT AND TERMINATION
A. Notice of Default.

If the City Manager determines that Contractor has defaulted in the performance of any obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect to such matters has not been in conformity with reasonable industry standards which are obtained in similar cities in Southern California, the provisions ofthis Agreement, the requirements of the Municipal Code, the requirements of the Board, including, but not limited to, requirements for source reduction and recycling or any other applicable Federal, State, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of special wastes, or hazardous wastes, the City Manager may provide written notice to Contractor of such default.

The City Manager may, in such written notice, set a reasonable time within which correction of such default shall be made. Unless a longer or shorter time is otherwise specified by the City Manager, a reasonable time for correction shall be thiliy (30) days from the date such written notice is given.

B. Failure to Cure.

If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies contained in the written notice thereof within the specified time, or ifit is not reasonably possible to correct such deficiencies within the specified time, and Contractor fails to commence to correct or remedy such deficiencies within the specified time and diligently effect such 384/062266-0187
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correction or remedy thereafter, then the City Manager may refer the matter to the City Council for review, or review the matter himself.

C. Review by City Manager.

If the City Manager reviews the matter and determines that Contractor has failed to properly or adequately cure any default set fOlih above, the City Manager, in the exercise of his discretion, may terminate this Agreement, or take such other action as he deems appropriate to pursue any remedy available to City. A decision or order of the City Manager shall be final and binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within five (5) business days of the date the notice of the City Manager's decision is given. The City Manager shall schedule any appeal for consideration by the City Council at the earliest feasible City Council Meeting following the date a Notice of Appeal is given to City.

D. City Council Review.

In the event an appeal of a decision of the City Manager is filed, or if the City Manager refers the matter to the City Council without rendering a decision, the City Council shall set the matter for consideration before the City Council as a regular agenda item. In reviewing the matter the City Council may consider any information repOlied by the City Manager regarding the deficiencies, and shall give Contractor, or its representatives and any other interested person, a reasonable opportunity to be heard. The Council shall determine whether Contractor has failed to properly or adequately perform as set fOlih above, and if so whether to terminate the Agreement, or to pursue any other remedy available to City.

E. Performance During Reviews.

Contractor's performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision as to whether such performance is deficient.

F. Termination without Right to Cure.

The above right of termination as a result of Contractor's failure to timely cure any deficiency is in addition to City's right to terminate this Agreement without affording Contractor an opportunity to cure in circumstances where Contractor is determined by City to have materially breached this Agreement. City shall thus be afforded the right to terminate this Agreement in the event of any material breach hereof by Contractor without affording Contractor the right to cure as a result of any action, inaction or circumstance which is a legally defined material breach, or is defined herein as a material breach, and/or under any of the following circumstances which are hereby specifically defined as material breaches:
(1) If Contractor practices, or attempts to practice, any fraud upon City. (2) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor ofContractor in a bankruptcy proceeding. 384/062266-0187
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(3) If Contractor willfully violates any orders or rulings of any regulatory body having jurisdiction over Contractor relative to this Agreement. So long as City's rights are not prejudiced during the pendency of any challenge to such orders or rulings by Contractor, Contractor may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a final ruling has been rendered.
(4) If Contractor ceases to provide Solid Waste Handling Services, including Collection of Solid Waste and/or Recyclable Material, as required under this Agreement over all or any portion of the Franchise Area for a period of seven (7) days or more, for any reason not specified as a force majeure event hereunder.
(5) If Contractor fails to materially comply with any msurance or indemnification requirement set fOlih in this Agreement. (6) If City is required to pay any fine or penalty, which is not paid on its behalf by Contractor or which Contractor fails, refuses, neglects or is unable to payor indemnify City against, relating to any diversion or other requirement of AB 939. (7) If Contractor, or any management level employee of Contractor is convicted of a crime that the City Council determines, in its discretion, is material to a decision as to whether to permit Contractor continue to hold the rights granted by this Agreement (examples of which may include, but are not limited to, offenses related to its financial dealings with other public entities and/or offenses related to public corruption such as bribery, conflicts of interest, and/or vote selling.)

16. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING
A. Administrative Hearing.

Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager requesting an administrative hearing on the allegation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the parties, and shall be held before an impartial hearing officer to be determined by the City Manager. The hearing officer shall make an advisory ruling on Contractor's allegations, and suggest a remedy if a breach by City is determined to exist. The hearing officer's ruling and recommendations shall become final and binding ifthe parties so agree in writing within 30 days ofthe date notice ofthe decision is given to both parties. Otherwise, the hearing officer's ruling shall have no fuliher force or effect.

B. Other Remedies; Claims.

Contractor shall be entitled to all available remedies in law or equity for City's breach of this Agreement; provided, however, Contractor shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth above has been completed, and the above noted 30 day period to accept the hearing officer's decision has passed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing officer's decision.
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C. Actions for Damages.

As a prerequisite to the filing and maintenance of any action for damages by Contractor against City arising out of this Agreement, Contractor shall present a claim to City, as required by Government Code section 910 et seq., within 30 days ofthe date ofthe occurrence giving rise to the claim for damages.

17. CITY'S ADDITIONAL REMEDIES
In addition to any other remedies set f01ih herein, City shall be entitled to any or all ofthe following rights and remedies in the event of a breach ofthis Agreement by Contractor:

A. The right to use Contractor's equipment for the purpose of Collecting, transporting, and/or disposing of Solid Waste, including Recyclable Material, for a period not to exceed six (6) months. In the case of equipment not owned by Contractor, Contractor shall assign to City, to the extent Contractor is permitted to do so under the instruments pursuant to which Contractor possesses such equipment, the right to use and possess the equipment. If City exercises its rights under this Section, City shall pay to Contractor the reasonable rental value of the equipment for the period of City's possession thereof (although payment may, if appropriate, occur in the form of a setoff against damages otherwise owed by Contractor pursuant to the terms hereof);
B. The right to license others to perform the services otherwise to be performed by Contractor hereunder, or to perform such services itself; and C. The right to obtain damages and/or injunctive relief. Both parties recognize and agree that in the event of a breach of this Agreement by Contractor, City will suffer irreparable injury and incalculable damages sufficient to supp01i injunctive relief, to specifically enforce the provisions ofthis Agreement, and to enjoin the breach hereof.

18. RIGHTS OF CITY TO PERFORM DURING EMERGENCY
A. Provision of Service.

Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in City to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Contractor previously used in providing Collection, transp01iation, and disposal of Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise would be obligated to provide pursuant to this Agreement.

Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City's use.
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B. Possession of Equipment.

Contractor agrees, that in the event of circumstances described in Section 18A above, City may take temporary possession of and use all of said equipment and facilities without paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able to resume its normal responsibilities under this Agreement City shall either relinquish possession of all ofthe above mentioned propeliy to Contractor.

C. Exclusions from Right to Possession of Equipment without Compensation.

Specifically excluded from the circumstances in which City may possess and utilize Contractor's equipment without compensation are circumstances in which Contractor fails or refuses to provide'Solid Waste Handling Services hereunder for any reason which is not a force majeure event as defined herein. In such circumstances City's right to utilize and possess Contractor's equipment shall be subject to the provisions ofthe above Section 17.

19. PRIVACY
Contractor shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer's Solid Waste stream, or any of the billing information peliaining to any Customers, shall not be revealed to any person, governmental unit, private agency, or company, unless upon the authority of a cOUli of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste audits which may be required by AB 939 or this Agreement.

Contractor shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or state law.

20. REPORTS AND ADVERSE INFORMATION
A. Annual Reports.

On or before June 30 of each year during the Term of this Agreement and within fifteen (15) days prior to the end ofthe Term, Contractor shall submit a written annual repmi, at its sole expense, in a form approved by City, which includes, but is not limited to, the following information: '
(1) A summary of the previous year's activities including, but not limited to, services begun or discontinued during the repmiing year, and the number of Customers broken down on a monthly basis;
(2) A summary of the total tons of Solid Waste Collected in City in the preceding year as well as a summary of the total tOllilage diverted from the State's landfill systems during that time frame;
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(3) Information and reports required by City to meet its repOliing obligations imposed by AB 939 and the regulations implementing AB 939, in a form and content approved by the City Manager;
(4) A revenue statement, certified by the chief financial officer of Contractor, setting forth Franchise Fees and other fees paid or deposited pursuant to the terms hereof, and the basis for the calculation thereof, including specifically a breakdown of sources of revenue included in Gross Receipts and the amount ofrevenue derived from each such source comprising Gross Receipts;
(5) A list of Contractor's officers and the members of its Board of Directors. (if any), as well as a list identifying all Persons holding a membership interest in Contractor; and (6) A list of stockholders or other equity investors holding five percent (5%) or more ofthe interest in Contractor.

B. Adverse Information.

Contractor shall provide City two copies of all repOlis and other material adversely affecting the Agreement, submitted by Contractor to the United States Environmental Protection Agency, the Board, the California Regional Water Quality Control Board, and any other federal, state, regional, or local regulatory agency. Copies shall be submitted to City simultaneously with Contractor's filing of such matters with said agencies. Contractor's routine conespondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request.
(1) Contractor shall submit to City copies of all pleadings, applications, notifications, communications, and documents of any kind submitted by Contractor to, as well as copies of all decisions, correspondence, and actions by, any federal, state, and local cOUlis, regulatory agencies, and other government bodies relating in any manner to Contractor's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection. (2) Contractor shall submit to City such other information or repOlis in such forms and at such times as City may reasonably request or require. (3) All reports and records required under this or any other section shall be furnished at the sole expense of Contractor.
(4) A copy of each of Contractor's annual and other periodic financial reports and those of its parent, subsidiary, and affiliated corporations and other entities, as City requests, shall be submitted to City within thirty (30) days after giving notice to Contractor of such a request.
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C. Tonnage RepOli.

No later than twenty (20) days after the end of each calendar quarter during the Term of this Agreement, Contractor shall submit to the City Manager qUalierly reports setting fOlih the amount of tonnage of Solid Waste collected from within the City Limits and disposed of pursuant to this Agreement for the previous quarter and setting forth the cumulative year-to-date total amount of tonnage of such Solid Waste. Said repOlis shall be based upon the tonnage receipts provided to Contractor by any Solid Waste Facility. Contractor shall, upon demand by City provide true and accurate copies of the tonnage receipts in order to enable City to verify Contractor's qUalierly reports.

D. Failure to Report.

The refusal, failure, or neglect of Contractor to file any of the repolis required, or the inclusion of any materially false or misleading statement or representation made knowingly by Contractor in such repOli shall be deemed a material breach of the Agreement, and shall subject Contractor to all remedies, legal or equitable, which are available to City under this Agreement or otherwise.

21. COMPENSATION
A. Contractor's Rates.

Contractor shall provide services to Customers pursuant to this Agreement at rates it sets, charges to, and collects from Customers, which rates shall not exceed those set fOlih in the attached Exhibit A, which sets out the maximum rates that may be charged by Contractor, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. It is intended that the maximum rates set forth in Exhibit A will apply at the commencement of this Agreement but nevertheless may be increased or decreased based on the provisions herein addressing maximum rate adjustments. The maximum rates set fOIih in Exhibit A for Solid Waste handling services are inclusive of all services to be provided, including transportation, disposal, Container and Bin costs (including the cost of providing standard Bins with or without lids or wheels), and costs associated with moving Bins from standard enclosures such distance as is reasonably necessary to dump them (but not including costs associated with moving Bins beyond such distance in unusual circumstances or due to special requests by Customers), and no other charges shall be imposed by Contractor for such services unless approved by the City Manager.

B. Annual Producer Price Index Adjustments to Contractor Component and Processing Component.

Commencing on July 1, 2011, the "contractor component" and the "processing component" associated with any ofthe maximum rates set forth on Exhibit A shall be adjusted, 1 and such components of said rates shall be adjusted annually thereafter on July 1 during the Term hereof (the "Adjustment Dates"), by a percentage equal to the percentage change in the Notwithstanding any other provision herein to the contrary, maximum rates related to Rolloff Boxes shall not be adjusted until July 1,2012.
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Orange County area Producer Price Index ("PPI") for the twelve-month period commencing fifteen (15) months prior to the applicable Adjustment Date and ending three (3) months prior to the applicable Adjustment Date. Notwithstanding the above, no annual adjustment in which the forging items would otherwise increase shall occur if either: (a) the City Manager determines that Contractor did not fully comply with all terms of this Agreement in the 12 month period preceding the increase, including without limitation, provisions hereof relating to reporting, diversion, and Customer service standards; or (b) Contractor is delinquent in the payment of any Franchise Fee to the City. At least fifteen (15) days prior to charging Customers any rate increased due to an increase in the PPI as set forth herein, Contractor shall notify the City Manager of its intent to do so, and receive the City Manager's approval therefor, which approval shall not be withheld unless it conflicts with the provisions hereof.

C. Annual Adjustments to Disposal Component.

It is the intention of the parties that the "disposal component" associated with any of the maximum rates as set forth in Exhibit A shall be adjusted no more often than annually on each Adjustment Date such that they reflect each Customers pro-rata share of any increase or decrease in the actual landfill tipping fees incurred by Contractor for disposal of Solid Waste Collected pursuant to this Agreement. To arrive at an appropriate adjustment formula to satisfy this intent, the parties have agreed that the "Disposal Component Tonnage Basis" set forth in Exhibit A is a fair estimate of the amount of Solid Waste generated and ultimately disposed of by each applicable Customer and/or service type. The initial maximum rate associated with the disposal component for various services set fOlih in Exhibit A has been arrived at by multiplying the Disposal Component Tonnage Basis for each applicable Customer and/or service type by $29.95 which is the per ton tipping fee charged by the Orange County Landfill System (where as of the Effective Date Solid Waste must be delivered for disposal per the County Agreement). The Disposal Component TOllilage Basis is premised upon historical data of the actual tonnage of Solid Waste generated by each Customer type. The Parties may annually evaluate the actual disposal tonnage data related to each Customer type and, if approved by the City Manager, the Disposal Component Tonnage Basis may be adjusted upward or downward, as appropriate, effective upon any Adjustment Date. If upon any Adjustment Date a change becomes effective in the tipping fees charged to Contractor at the Orange County Landfill system, pursuant to the County Agreement, the disposal component associated with any of the maximum rates set forth in Exhibit A shall be adjusted as of the Adjustment Date by similarly multiplying the Disposal Component Tonnage Basis for each applicable Customer and/or service type by the per ton tipping fee then in effect. In the event an increase becomes effective in applicable tipping fees at a time other than an annual Adjustment Date, Contractor may request an adjustment to the maximum rates applicable to the Disposal Component set fOlih on Exhibit A pursuant to Section 21D hereof.

D. Discretionary Adjustments.

Contractor may request an .adjustment to the maximum rates set forth in Exhibit A at reasonable times for unusual changes in the cost of providing service under this Agreement, or as a result of changes in the cost for processing Solid Waste. For each request for an adjustment to the maximum rates brought pursuant to this Section Contractor shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City 384/062266-0187
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with support for assumptions made by Contractor in preparing the estimate. City shall review the Contractor's request and, in the City Council's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment.

Notwithstanding, and without limiting the forgoing, it is anticipated that increases to the processing component will occur based upon changes to the PPI in a manner similar to that set forth and without City may consider increases or decreases in the Contractor's total revenues and total cost ofservices when reviewing an extraordinary rate adjustment request.

E. Resolution ofDisputes Regarding Rate Adjustments.

Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the computation thereof, shall be decided by the City Manager. The rates in effect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the a.djusted IIlaxi11111111 tate following the tesolutiort of arty sUch dispute, whether retroactive or prospective, shall be determined by the City Manager.

F. Billing and Payment.

Contractor shall provide itemized bills, distinctly showing charges for all classifications of services, including charges for late payments. Contractor acknowledges that it, and not Customers, is to pay a franchise fee to City as consideration for this Agreement. Accordingly, Contractor's bills shall not include separate itemization of a "franchise fee" or other similar designation. Billings may be made monthly or quarterly and in advance for Commercial and Multi-Family Customers utilizing 3 yard Bins for weekly Solid Waste handling service, and may be made qUaIierly in advance for residential Customers. Billings shall be made in arrears on a monthly or qUaIierly basis for Customers utilizing Rolloff Boxes or compactors for weekly Solid Waste handling services. Retroactive adjustments shall be made on the basis of addresses of premises added and the date added. Premises ordering service after the first of the month shall be charged on a prorated daily basis.

G. Delinquent Accounts.

Contractor may discontinue service to any Customer as set fOlih in this Section.

Customers who have not remitted required payments within thiliy (30) days after the date of billing shall be notified on forms approved by City. Said forms shall contain a statement that services may be discontinued fifteen (15) days from the date of notice if payment is not made before that time. Upon payment of delinquent fees in an amount not in excess of the amount specified in Exhibit A, Contractor shall resume collection on the next regularly scheduled collection day.

H. Refunds.

Contractor shall refund to each Customer, on a pro rata basis, any advance service payments made by such Customer for service not provided when service is discontinued by the Customer.
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1. Recyclable Material Revenue.

Subject to the provisions of this Agreement, Contractor shall have the right to retain any benefit, revenue, or profit resulting from its right to retain, dispose of, or use Recyclable Material which it collects, and any such revenue shall not be considered as part of the Gross Receipts hereunder to which the Franchise Fee applies.

1. Additional Charges.

Contractor shall include any additional charges as may be approved by the City Manager on the billings.

22. IDENTIFICATION OF CONTRACTOR
Contractor has agreed to use the name "CR&R Incorporated" to identify itself to the public as the specific organization that shall provide all of the services under this Agreement.

This name shall be used for all correspondence, billing statements, directory listings, references, signs, and vehicle, Container, and Bin identification.

23. PUBLIC ACCESS TO CONTRACTOR
A Office Hours.

Contractor's office hours shall be, at a minimum, from 8:00 AM. to 5:00 P.M. daily, and 8:00 AM. to 12:00 P.M. on Saturdays, on all collection days. A representative of Contractor shall be available during office hours for communication with the public at Contractor's principal office. During normal office hours Contractor shall maintain either a local or toll free telephone number for calls within the City Limits. Contractor shall also maintain a local or toll free after-hours telephone number for use during other than normal business hours. Contractor shall have a representative or answering service available at said after-hours telephone number during all hours other than normal office hours.

B. Service Complaints.

Contractor shall address and manage all complaints in the following manner:
(l) All Customer complaints shall be directed to Contractor. Contractor shall maintain records listing the date of Customer complaints, the Customer's name, address and telephone number, description and nature ofthe complaint or request, and when and what action was taken by Contractor to resolve the complaint. All such records shall be maintained and shall be available for inspection by City, as described in Section 27, below. Contractor shall prepare monthly summaries of Customer complaints. The summaries shall be available and delivered monthly to the City Manager. Contractor agrees to use its best effOlis to resolve all complaints by close of business of the second business (waste collection) day following the date on which such complaint is received. Service complaints may be investigated by the City Manager. 384/062266-0187
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C. Government Liaison Person.

Contractor shall designate a "government liaison person" who shall be responsible for working with the City Manager to resolve Customer complaints.

24. RESOLUTION OF DISPUTED CUSTOMER COMPLAINTS
A. Notification of Arbitration Procedure.

Contractor shall notify all Customers of the complaint arbitration procedures set forth in this Section at the time Customers apply for or are provided service, and on or before every June 30 thereafter, as well as in connection with any complaint not immediately resolved in a manner apparently satisfactory to the Customer.

B. Customer Requests for Review; Time Limits.

A Customer dissatisfied with Contractor's decision regarding a complaint may ask the City Manager to review the complaint. To obtain this review, the Customer must request City review within 30 days of receipt of Contractor's response to the Complaint, or within 45 days of submitting the complaint to Contractor, if Contractor has failed to respond to the complaint. City may extend the time for good cause.

C. Referral of Complaints to Contractor.

Before reviewing the complaint, the City Manager shall refer it to Contractor. If Contractor fails to cure the complaint within ten (l0) days, the City Manager shall review the Customer's complaint and determine if further action is warranted. The City Manager may request written statements from Contractor and the Customer and/or oral presentations.

D. City Manager Review of Complaints.

The City Manager shall determine ifthe Customer's complaint is justified, and ifso, what remedy, if any, shall be imposed.

E. Records of Complaints.

Contractor shall maintain all records relating to Customer complaints for a period not less than one (l) year.

25. FLOW CONTROL; COUNTY AGREEMENT.

A. City shall have the option to direct and/or approve which transformation facility, recycling facility, material recovery facility, landfill, or other facility Contractor shall use to retain, recycle, process, and dispose of Solid Waste and construction materials generated within the Franchise Area as required to enable City to comply with the County Agreement. Contractor expressly consents to City's ability to direct the location for disposal of Solid Waste hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause ofthe United States Constitution. 384/062266-0187
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B. Contractor expressly acknowledges its awareness ofthe County Agreement which has been adopted and entered into by City. Moreover, Contractor acknowledges that it has had an oppOliunity to review the County Agreement, and is aware of the provisions thereof that require all Solid Waste collected in the City Limits to be disposed of in the Orange County landfill system. Contractor fUliher acknowledges that the County of Orange is an intended third party beneficiary of Contractor's obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement and the County Agreement. Contractor hereby adopts as its obligations hereunder such provisions ofthe County Agreement that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will perform its duties in connection with this Agreement in such a manner as to ensure that City does not breach the terms ofthe County Agreement as a result of Contractor's actions or inactions.

C. Upon the effective date of this Agreement City is deemed to have exercised its flow control option set fOlih hereinabove as to Solid Waste required to be delivered to the Orange County landfill system pursUant t6 the County Agl'eeIi1.ent, by virtue of the fact City has entered the County Agreement; and, further, City is deemed to have exercised such option in a manner consistent with its obligations pursuant to the County Agreement. At any time during the Term of this Agreement the City Manager may notify Contractor in writing that City no longer desires to exercise its flow control option hereunder. In the event City so notifies Contractor of its desire to cease exercising its flow control option, Contractor shall have the absolute discretion to utilize any transformation facility, recycling facility, material recovery facility, landfill, or other facility of its choosing to retain, recycle, process, and dispose of Solid Waste and constmction materials generated within the Franchise Area, provided such facility meets all other requirements ofthis Agreement.

26. INDEMNIFICATION
A. General.
(l) Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, and agents (collectively the indemnities) from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description including, but not limited to, injury to and death of any Person and damage to propeliy, or for contribution or indemnity claimed by third patiies) arising out of, resulting from, and/or in any way connected with this Agreement including: (l) the negligence or willful misconduct of Contractor, its officers, employees, agents, Companies and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, Companies and/or subcontractors to comply in all respects with the provisions ofthis Agreement (including without limitation Contractor's obligation to ensure City complies with the requirements of the County Agreement), applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Contractor, its officers, employees, agents, Companies and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws); and (4) any challenge to the award of, or any provisions of this Agreement (including any claim that the application of any provision hereof violates any. provision ofthe California Constitution). The foregoing indemnity and hold harmless provisions 384/062266-0187
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shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the indemnities negligence, but shall not extend to matters resulting from the indemnities sole negligence, or willful misconduct. Contractor fmiher agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) City, its elected and appointed boards and commissions, officers, employees, and agents against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any ofthe aforementioned events, and to reimburse the City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. (2) Contractor, upon demand of the City, made by and through the City Attorney, shall protect City and appear in and defend the City and its elected officials, officers, employees and agents, in any claims or actions by third paities, whether judicial, adl11il1.isttative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asseliing rights under the Dormant Commerce Clause or any other federal or state laws to provide Solid Waste Handling Services in the City.
(3) The provisions of this Section shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement.

B. Hazardous Substances Indemnification.
(1) Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Pmiies") harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that:
a. results in any demand, claim, notice, order, or lawsuit, asseliing that any Indemnified Party is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or
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b. relates to material collected, transpotied, recycled, processed, treated or disposed of by Contractor.
(2) Contractor's obligations pursuant to this Section shall apply, without limitation, to:
a. any Claims brought pursuant to or based on the provisions of the Environmental Laws, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the Carpenter-PresleyTanner Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws (California Health and Safety Code Sections 25100 et seq.), the California Potier-Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments and regulations thereto, and any other Federal, State, regional or local environmental statutory or regulatory provision;
b. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation by Contractor of any facility;
c. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transpotiation, disposal, processing or use of any materials recovered by Contractor;
d. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement.
(3) The foregoing indemnity and defense obligations shall apply irrespective ofthe negligence or willful misconduct of Contractor or any Affiliate of Contractor. (4) For purposes of this Agreement, the term "Hazardous Contaminant" shall mean any "hazardous material," as that term is defined under California Health & Safety Code Section 25501(0); any "hazardous substance," as that term is defined herein or under California Health & Safety Code Sections 25281(h), 25501(p), 25501.1 and under Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined herein and under Title 42, Section 6903(5) of the United States Code and under California Health & Safety Code Section 25501(q); any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or umefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos-containing material. The term "Hazardous Contaminant" shall also include any and all amendments to the above-referenced statutory and regulatory provisions made before or after the date of execution ofthis Agreement. (5) The provisions ofthis Section shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement.
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27. CONTRACTOR'S BOOKS AND RECORDS; AUDITS
A. Maintenance and Inspection ofRecords.

Contractor shall maintain all records relating to the services provided hereunder, including but not limited to Customer lists, billing records, accounts payable records, maps, AB 939 compliance records, records reflecting the number of refuse, recycling and green waste routes and route hours by service category (such as residential, multi-family, commercial, rolloff, and special services), records demonstrating facilities, equipment and personnel used to perform services, records reflecting the number of refuse, recycling and green waste containers in service by frequency of collection for each customer group (such as single family, multifamily, commercial, roll-off); records reflecting the number of roll-off box pulls, and such other documents and materials which reasonably relate to Contractor's compliance with the provisions of this Agreement (the "Records"), for the full Term of this Agreement, and an additional period thereafter of not less than three (3) yeats, at any langeI' petiad tequired by law. City shall have the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall be made available to City at Contractor's regular place of business, but in no event outside the County of Orange.

B. CERCLA Defense Records.

City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern.

Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager, City Clerk and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City. The requirements of this Section shall survive the expiration ofthe Term ofthis Agreement.

28. TRANSITION OBLIGATIONS
At the end ofthe Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent solid waste enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall include, but not be limited to, providing route lists, billing information and other operating records needed to service all premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance ofthis covenant and/or other equitable relief necessary to enforce this covenant.

Contractor shall provide any new solid waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final collection activities, so as to not disrupt services. Contractor shall provide City with detailed route sheets containing service names and 384/062266-0187
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addresses, billing names and addresses, monthly rate and service levels (number and size of containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new solid waste enterprise at least one full business day prior to its first day of collection, and within sufficient time so as to not impede in any way the new solid waste enterprise from easily servicing all containers.

29. GENERAL PROVISIONS
A. Force Majeure.

Contractor shall not be in default under this Agreement in the event that its ability to provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons:
riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods; earthquakes, landslides, fires, strikes, lockouts, and other labor disturbances or "other catastrophic events" which are beyond the reasonable control of Contractor. The term "other catastrophic events" does not include: (i) the financial inability of Contractor to perform; (ii) failure of Contractor to obtain any necessary permits or licenses from other governmental agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any public utility where such failure is due in substantial pmi to the acts or omissions of Contractor.

In the event a labor disturbance interrupts Solid Waste handling and/or Temporary Services by Contractor as required pursuant to this Agreement, City may elect to exercise its rights under 18 ofthis Agreement for the duration ofsuch dispute.

B. Independent Contractor.

Contractor is an independent contractor and not an officer, agent, servant, or employee of City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating a pminership or joint venture between City and Contractor. Neither Contractor nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees.

C. Pavement Damage.

Contractor shall be responsible for the cost of repair of any extraordinary damage to the City's public streets, alleys, and parking lots resulting from negligence that can be directly attributable to providing Solid Waste Handling Services or Temporary Services.

D. Property Damage.

Any physical damage caused by the negligent or willful acts or omissions of employees, agents, or subcontractors of Contractor to private or public property shall be promptly repaired or replaced by Contractor.
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E. Right of Entry.

Contractor shall not have the right, until Contractor receives permIssIOn from the property owner, to enter or drive on any private street, court, place, easement, or other private prope1iy for the purpose of providing Temporary Services and/or Solid Waste Handling Services pursuant to this Agreement.

F. City's Authorized Agent.

Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the City Manager is designated as the City's authorized agent to take any action with regard to any matter, or enforce any right, set f01ih herein requiring action by the City.

G. Law to Govern; Venue.

The laws ofthe State of California shall govern this Agreement. In the event of litigation between the parties, venue shall lie exclusively in the Superior Comi ofthe State of California, in the County of Orange.

H. Amendment.

No amendment of this Agreement shall be valid unless in writing duly executed by the pmiies.

1. Notices.

All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent bye-mail or fax, or United States first class mail, postage prepaid, and addressed as follows:

To City:

To Contractor:

City of San Clemente
Attn: City Manager
100 Avenida Presidio
San Clemente, California 92672
Phone: (949) 361-8322
Fax: (949) 361-8283
CR&R Incorporated
P. O. Box 125
Stanton, California 90680
Phone: (877) 728-0446
Fax: (714) 890-6347
or to such other address as either pmiy may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given when personally served or delivered by email or fax, or three (3) business days from the date such notice is deposited in the United States mail.
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1. Savings Clause.

If any non-material provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any ofthe remaining provisions ofthis Agreement.

K. Exhibits Incorporated.

Exhibits A through D are attached to and incorporated in this Agreement by reference.

L. Joint Drafting.

This Agreement shall be interpreted as if it were drafted jointly by the parties to the Agreement.

M. Attorneys' Fees and Litigation Costs.

In the event either party brings any action or proceeding to enforce or interpret the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including without limitation expert witness fees, consultant fees and costs. Without limiting its scope in any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any.appeal.

N. Corporate Resolution.

Concurrent with the execution of this Agreement, Contractor shall provide City with a corporate resolution of its Board of Directors demonstrating the authority for the undersigned to enter and lawfully bind Contractor to this Agreement.

O. Integration.

This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Patties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel.

Each of the Parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument.

P. Section Headings.

The section headings in this Agreement are for convenience ofreference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its prOVIswns.
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Q. Compliance with Law.

In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, the provisions of the Municipal Code, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended.

CITY OF SAN CLEMENTE
ATTEST:

APPROVED AS TO FORM:
/S/ Patrick Munoz
City Attorney
CR&R Incorporated
•
BY~~~~-
Title: ~L-.... \oJ1L\) h.t Pt?~t,.)dtnt.
~aArJ.
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EXHIBIT A
Rate Schedule
23990
EXHIBIT "A"

CITY OF SAN CLEMENTE

MAXIMUM RATES FOR SOLID WASTE HANDLING SERVICES
January 1, 2011
Contractor Disposal Component Total Maximum Rate
Residential Component Tonnage Basis Disposal Component (monthly) Set of 2 Carts: 35 Gallon $13.39 0.0727 $2.18 $15.57
Standard 3 Carts: 35 Gallon $14.18 0.0727 $2.18 $16.36
Set of 2 Carts: 67 Gallon $13.86 0.0770 $2.31 $16.17
Standard 3 Carts: 67 Gallon $14.66 0.0770 $2.31 $16.97
Additional 35 Gallon Refuse Cart $3.73 0.0123 $0.37 $4.10 Additional 67 Gallon Refuse Cart $3.91 0.0130 $0.39 $4.30 on ractor ota MaXimum Rate
Multi-Family Bin Service Component Processing Component (monthly) 3 Yard xl/week $113.91 $47.84 $161.75
3 Yard x2/week $121.15 $95.67 $216.82
3 Yard x3/week $149.33 $143.51 $292.84
3 Yard x4/week $177.18 $191.33 $368.52
3 Yard x5/week $205.02 $239.17 $444.20
3 Yard x6/week $232.89 $287.01 $519.90
4 Yard xl/week $151.88 $63;79 $215.67
4 Yard x2/week $160.26 $127.56 $287.82
4 Yard x3/week $199.12 $191.33 $390.45
4 Yard x4/week $236.25 $255.12 $491.37
4 Yard x5/week $273.38 $318.89 $592.27
4 Yard x6/week $310.58 $382.68 $693.26
Contractor Disposal Component Total Maximum Rate
Commercial Bin Service Component Tonnage Basis Disposal Component (monthly) 3 Yard xl/week $112.32 0.7936 $23.77 $136.88
3 Yard x2/week $117.97 1.5872 $47.54 $167.10
3 Yard x3/week $144.56 2.3808 $71.31 $218.25
3 Yard x4/week $170.82 3.1744 $95.08 $269.08
3 Yard x5/week $197.07 3.9680 $118.85 $319.89
3 Yard x6/week $223.35 4.7616 $142.62 $370.73
4 Yard xl/week $149.76 1.0581 $31.69 $182.51
4 Yard x2/week $156.02 2.1162 $63.39 $221.52
4 Yard x3/week $192.76 3.1743 $95.08 $291.01
4 Yard x4/week $227.77 4.2324 $126.77 $358.77
4 Yard x5/week $262.78 5.2905 $158.46 $426.53
4 Yard x6/week $297.86 6.3486 $190.16 $494.36
Contractor Disposal Component Total Maximum Rate
Commercial Cart Service Component Tonnage Basis Disposal Component (monthly) 67 Gallon Set $19.97 0.1546 $4.63 $24.60
90 Gallon Set $20.64 0.2300 $6.89 $27.53
Extra 67 Trash $9.24 0.1546 $4.63 $13.87
Extra 90 Trash $9.26 0.2300 $6.89 $16.15
Extra 67 Recycle $8.66 $8.66
Extra 90 Recycle $8.88 $8.88
o a MaXimum Ra e
Recycling Bins Accompanying Commercial Bin Service (monthly regular Bin) 3 Yard xl/week $60.95
3 Yard x2/week $97.52
3 Yard x3/week $146.28
3 Yard x4/week $195.04
3 Yard x5/week $243.80
3 Yard x6/week $292.56
4 Yard xl/week $79.23
4 Yard x2/week $126.78
4 Yard x3/week $190.16
4 Yard x4/week $253.55
4 Yard x5/week $316.93
4 Yard x6/week $380.32
24091
EXHIBIT "A"

CITY OF SAN CLEMENTE

MAXIMUM RATES FOR SOLID WASTE HANDLING SERVICES
January 1, 2011
o a M~ximum Ra e
Recycling Carts Accompanying Commercial Bin Service (monthly) 67 or 90 Gallon xl/week $18.28
67 or 90 Gallon x2/week $36.57
67 or 90 Gallon x3/week $54.85
67 or 90 Gallon x4/week $73.14
67 or 90 Gallon x5/week $91.42
67 or 90 Gallon x6/week $109.71
ontractor Processing
Roll-off (Commercial and Temporary Service) Component Component Disposal Component Roll off Boxs (except compactors) $176.02 $50.53/ton $31.53/ton Compactors $206.64 $50.53/ton $31.53/ton
Clean, Source Separated loads:

Dirt/Asphalt/Concrete (10 yd Lowboy) $355.21 n/a n/a
Wood, Metal, Paper/Cardboard (40 yd Drop Off Box) $285.21 n/a n/a Greenwaste (40 yd Drop Off Box) $176.02 $28.42
Bulky Item Collection
Residential (up to 4 items)
Commercial (up to 4 items)
Eech Additional Commerical Bulky Item
Temorary Service:

Bins (weekly flat rate)
Maximum Rate
$14.37
$50.26
$19.41
Maximum Flat Rate
$93.45
Service Fees
Walk-Out Residental Service (in addition to monthly service rates) $22.28 Additional Residential Pick Up $17.77 per pick up
Bin Cleaning Fee (in excess of one time per year) $31.50 per bin Convert Standard Bin to Locking $25.00 one time charge
Bin Roll-out Charges (25' -SO') $9.89 per month
Bin Roll-out Charges (SO' - 75') $19.71 per month
Additional Bin Pickup $77.15
Bin Overflow Charge $40.45
Locking Bin monthly Charge (Recyle or Refuse Bin) $14.56 Delinguency Fees
Residential After 90 days 1.5% of balance, minimum balance of $15.00, charged quarterly Commercial After 60 days 1.5% of balance, minimum balance of $15.00, charged monthly Temporary Service After 60 days 1.5% of balance, minimum balance of $15.00, charged monthly Administrative Fees
Stop Service $15.00
Refund Processing Fee $1.50
Container Replacement Charge (per Container) $50.00
24192
I I I'

EXHIBITB
Minimum Bin and Container Specifications
Carts:

1. Contractor shall only use Carts approved by the City Manager.

2. Carts used by Contractor shall contain a small inscription plainly labeled as follows:
a. Calis designated for Solid Waste shall be labeled: "REFUSE ONLY". b. Calis designated for Recyclable Material shall be labeled: "RECYCLABLES ONLY".
c. Calis designated for Green Waste Shall be labeled: "GREEN WASTE ONLY".

3. Each Cali provided for Residential or Commercial Solid Waste handling services shall have a capacity of ninety (90), sixty-seven (67) or thirty-five (35) gallons and be constructed of rigid, durable, and Recyclable Material with a minimum ten (10) year life expectancy warranted by the manufacturer. Contractor shall be responsible for the replacement of Cart wheels, lids, hinges, axles, and handles.

4. Each Cali provided for Residential Solid Waste handling services shall be labeled by Contractor in a manner approved by the City Manager to provide notice of City's rules and regulations pertaining to the time limitations applicable to placing Calis out for collection by Contractor.

Bins/RolloffBoxes:

1. Contractor shall only use Bins and Rolloff Boxes approved by the City Manager. The following generic types of Bins and Rolloff Boxes are approved for use hereunder, subject to the City Manager's approval ofthe specific models of each type to be used:
a. 3 cubic yard Bins
b. 40 cubic yard RolloffBoxes (also called Drop OffBoxes) c. 10 cubic yard Rolloff Boxes (also called Lowboys)
d. Commercial compactors minimum size: 36 cubic yards

2. The three cubic yard Bins used by Contractor shall be constructed of steel or plastic, and shall have plastic lids.
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I, '

EXHIBITC
Specifications for Household Special Waste Collection Services Overview
The purpose of this program is to improve collection of universal, pharmaceutical, sharps and household hazardous waste items and to help the City meet the State's landfill diversion mandate. The program consists of door-to-door collection of these wastes for single family and multi-family residential customers. This program will be handled as an on-call and on-collection day basis similar to the bulky-item collection program. Customers call CR&R to schedule a special waste pickup once they have collected a minimum quantity of waste. CR&R will then be responsible for proper collection, transpOli, disposal or recycling ofthe waste materials.

Wastes accepted
• Wastes identified as universal wastes in Section 66261.9 of Title 22 of the California Code ofRegulations, generated by a single family or multifamily residence, including but not necessarily limited to:
o Fluorescent bulbs and tubes (not longer than 4 feet), and other mercury-containing lamps, including high intensity discharge (HID), metal halide, sodium, and neon bulbs;
o Common household batteries (e.g. D, C, AA, AAA, button-type, etc.); o Non-empty aerosol cans;
o Electronic devices (e.g. televisions; computers, monitors, keyboards, mice, printers, desk copiers, scanners and multi-function machines; VCR's and DVD/CD/Tape players; cell phones; microwaves, toasters, irons, stereos, speakers, and cables); and o Mercury containing devices (e.g. lamps, thermometers, thermostats, gauges, electronic switches, etc.).
• Waste identified as home generated sharps waste in Section 117671 of Title 22 of the California Code of Regulations, generated by a single family or multifamily residence, including but not necessarily limited to:
o Syringes; hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery ofmedications. e Pharmaceutical and personal care product waste, generated by a single family or multifamily residence, including but not necessarily limited to the following:
o Prescription and over-the-counter human drugs, veterinary drugs, diagnostic agents (not including controlled substances);
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o Nutritional supplements; and
o Consumer products such as fragrances, cosmetics, and sun-screen agents. o This aspect of the program will not begin until all regulatory approvals are obtained, and CR&R shall diligently pursue obtaining such approvals.

GI Household hazardous waste, generated by a single family or multifamily residence, including but not necessarily limited to:
o Automotive maintenance and repair products (e.g. motor oil, oil filters, antifreeze; lead-acid batteries, brake fluid, etc.);
o Lawn and garden chemicals (e.g. pesticides, herbicides, fungicides, etc.); o Cleaning products (e.g. bathroom cleaners, drain cleaners, chlorine bleach, solvents, oven cleaners, etc.); and
o Home improvement supplies (e.g. stains, paints, varnish, paint thinners, chemical strippers, glue, pool chemicals, etc.).

Wastes Not Accepted
• Any waste generated in the course of operating a business concern at a residence, or other business-generated waste.
• Any waste that does not fall within the categories described above.

Notification and Outreach
GI CR&R to provide initial and ongoing notification to all residential accounts about the program via special flyer inserts in the qUaliedy solid waste bill, as well as information in the QUaliedy Recycle Newsletter, with such materials to be approved by City.

GI Information provided shall include but not necessarily be limited to:
o The toll-free number that customers will call to arrange for collection of accumulated wastes.
o How handle these wastes, store them until there is a quantity suitable for collection, and place them in a container (such as a cardboard box) for collection by CR&R crews.
o Thresholds for minimum quantities required for a pickup request, and also maximum quantities per pickup (to prevent abuse).
o Special assistance available for seniors and disabled persons. 384/062266-0187
2120575.1306/02111 -2-
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, "
Basic Program Operation

1. Resident calls CR&R's toll-free number to schedule a pickup. At this time CR&R's Customer Service Representative (CSR) and resident will determine mutually, a safe and convenient location on their property for placement of the accumulated materials. The CSR will provide information on how to properly store and package accumulated materials, and when to place materials at the agreed upon location.

2. The pickup will generally be on the resident's normally-scheduled solid waste collection day. Any alternative collection day can only be established with written approval by the City.

3. On the scheduled day, the resident places packaged waste materials in the previously agreed upon location on their propeliy for collection.

4. On the scheduled day, a CR&R crew arrives and inspects the materials, and collects acceptable materials to the collection vehicle.

5. The materials are then sorted by hazard class and placed into proper containers within the collection vehicle.

6. If residents leave unacceptable materials, the unacceptable materials will be carefully repackaged (when safe to do so) inside a new bag, and an information card will be placed with the unacceptable materials informing the resident on proper disposal options or to call for fuliher instructions.

7. Before leaving, the CR&R crew will leave a receipt to document the time and date of collection, as well as the type and quantity ofmaterials that were collected.

8. CR&R will ensure that the collected materials are properly transpOlied to final recycling or disposal facilities.

Operations
" CR&R will use cube-type, two-axle vans for this collection service. The minimum standards for collection vehicles per Section 8 ofthis Agreement shall apply. ., CR&R will use a separate propeliy apart from any existing solid waste site for the consolidation and packaging ofthese materials for proper recycling or disposal. " CR&R shall strive to maximize recycling of collected wastes.

CD For non-program calls received by CR&R, CR&R shall refer these to the City's hotline number (949-366-1553) if appropriate.
• CR&R shall maintain Environmental Pollution Control Insurance coverage, naming the City as an additional insured.
384/062266-0187
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24596
1II Wastes collected within the City of San Clemente shall not be commingled with loads from other cities, unless CR&R provides a means acceptable to the City to accurately identify and repmi the waste collected from both outside and within City limits. 1II CR&R shall maintain registration as a registered hazardous waste transporter in good standing with the State of California.

It Vehicle drivers must have a Depatiment of Motor Vehicle issued HAZMAT endorsement on the operator's license.
o Collection personnel must have 8-hour of HAZWOPER training and current celiifications.
.. Prior to transpmi, collected materials must be separated and secured to avoid contact with incompatible substances; All materials must·be packaged and transpOlied in' compliance with applicable local, State and Federal regulations.
.. CR&R Customer Services Representatives will have listings of accepted wastes and required minimum and maximum per pickup thresholds. Storage of wastes until a minimum quantity is generated at a household will be pati of a CSR's training and ability to explain to a customer.

It Sharps collections will only be via special "one-way" containers. o Materials must be weighed or counted as appropriate at the time of pickup to ensure accurate repmiing of data. Estimated weights or quantities may be accepted subject to review and approval by City of CR&R estimation procedures.

RepOliing and Documentation
o CR&R to provide postage paid survey cards (mailed back to the City), create monthly repOlis, provide bi-annual comprehensive repmis and analysis, provide documentation of each collection, and provide proof of consolidation and ultimate disposal. o Reports shall detail all materials collected, pounds or quantities per home, and other relevant details as may be required by the City.

Pickup Thresholds
• CR&R to provide a listing, for review and approval by the City, of minimum and maximum material pickup quan~ities, and also to designate maximum pickup frequencies to be reviewed and approved by the City.
• Pickups under this program will be in addition to and separate from the bulky item Collection Service required by this Agreement.
384/062266-0187
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24697

EXHIBITD
Specifications for Solid Waste Container Ordinance Assistance CR&R will provide assistance to the City of San Clemente at no added charges, in enforcing the provisions of the applicable portions of the City's Municipal Code which prescribes requirements and allowable durations for placement of containers for collection by CR&R.

CR&R shall:

1. Provide daily inspections of the service areas. This service will be provided daily between 7:00 AM and 7:00 PM on an agreed schedule for maximum effectiveness.

2. Place warning or violation tags, furnished by the City, on containers found to be in noncompliance. Take digital photoes) of containers found not to be in compliance. Make note ofserial number(s) of all containers found not to be in compliance.

3. Send duplicate notice (along with digital photos and container serial numbers) in a timely manner to the City so that City can notify residents of violations.

4. Provide vehicle and personnel to perform this service and who can communicate with residents if questions arise in the field.

5. Assist to resolve disputes with residents and City.
384/062266-0 \87
2\20575.1 a06/02/1i
24798
24899
100 249
101 250
102 251
103 252
104 253
105 254
106 255
107 256
108 257
109 258
110 259
111 260
112 261
113 262
114 263
115 264
116 265
117 266
118 267
119 268
120 269
Attachment 4
121 270
122 271
123 272
124 273
125 274
126 275
127 276
128 277
129 278
130 279
131 280
132 281
133 282
134 283
135 284
136 285
137 286
138 287
139 288
140 289
141 290

FIRST AMENDMENT TO

PROFESSIONAL CONSULTANT SERVICES AGREEMENT FOR

SOLID WASTE PROCUREMENT ASSISTANCE CONSULTING SERVICES
This First Amendment to Professional Consultant Services Agreement for professional SOLID WASTE PROCUREMENT ASSISTANCE consulting services (this “First Amendment”) is made and entered into on this ____day of ________, 2022, by and between the CITY OF SAN CLEMENTE, a California municipal corporation (“City”), and MSW CONSULTANTS (“Consultant”).

R E C I T A L S:

A. City and Consultant entered into that certain Professional Consultant Services Agreement for SOLID WASTE PROCUREMENT ASSISTANCE (the
“Agreement”) on March 21, 2022.

B. City and Consultant desire to amend the Agreement in the manner provided herein.

C O V E N A N T S:

Section 3.1 of the Agreement is hereby amended by adding services to provide for solid waste and recycling negotiations. In addition to the services to be performed by Consultant as referenced in Exhibit A to the Agreement, Consultant shall also perform those services described in Exhibit “A” to this First Amendment, which exhibit is attached hereto and incorporated herein by this reference.

Section 3.3 of the Agreement is hereby amended by increasing the not to exceed amount from Twenty Five Thousand Dollars ($25,000) to Sixty Thousand Dollars ($60,000) for the remainder of the Agreement.

Except as expressly amended by this First Amendment, the remaining portions of the Agreement shall remain in full force and effect.

Attachment 5
142 291
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment 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____
143 292
EXHIBIT “A”
SCOPE OF WORK -TASK 2 - NEGOTIATE WITH CR&R
Objective of Negotiation with CR&R
The main objective of a sole source negotiation is to realize the 'best of both worlds.' The objective is to avoid the potential risks involved with the selection and transition to a new service provider, while at the same time securing an agreement with CR&R that represents the same value that the City would have otherwise obtained if it had conducted a competitive procurement.

Scope of Work - Negotiate with CR&R
To accomplish this objective, we will perform the following tasks:

Task 2a - Negotiation Kickoff Meeting
If the City decides to begin negotiations with CR&R, we will conduct a kickoff meeting with City staff. We will also conduct a subsequent meeting with City staff and representatives from CR&R. The purpose of the meeting with City staff will be to confirm the project scope, schedule, key issues, deliverables, and the City's negotiating strategy. The purpose of the meeting with CR&R will be to discuss the project schedule, the information CR&R will need to provide, and potential modifications to the key terms and services in the franchise agreement.

Deliverables:
 Meeting agenda and notes
Task 2b - Gather Operational and Billing Information
We will gather from CR&R billing information about its customers in the City. This information will likely include the number of customers, number of dwelling units, and each residential customer's size and number of carts.

We will gather operational information from CR&R. For example, we will gather information about the number of routes they operate and the number of tons they collect. We will also gather information about the number of customers at each level of service, including the size and number of containers, and number of pickups per week, etc. We will analyze the information we gather and evaluate it for reasonableness. The purpose for gathering this information is to calculate the company's total revenue, disposal and fuel expense, as described below in Task 2c.1
We will also gather the bid results from other recent competitive solid waste procurements from other cities, including those in which CR&R may have participated. The purpose for gathering this market data is to gain a better understanding of CR&R's cost drivers and market objectives.

Deliverable:
 Information gathered from CR&R
1 This step will need to be performed whether the City negotiates or goes out to bid. If the City decides to subsequently issue an RFP, this operational data will be included in the RFP Package. The purpose for including this operational data in the RFP Package is to assist the proposers in estimating their cost of service.
144 293
Task 2c - Estimate Total Contract Revenue
We will use the information we gather in Task 2b above to estimate CR&R's total revenue in the City, as well as its disposal and fuel cost expense. The purpose for estimating the company's total revenue, disposal and fuel expense is to enable the City to understand the rate impact of various negotiating issues.

Deliverables:
 Workbook of CR&R's total current contract revenue
Task 2d - Develop Negotiating Strategy; Prepare Meeting Materials Based on the information we gather and our previous discussions with City staff, we will develop a negotiation strategy, and prepare meeting materials for use in our discussions with CR&R. We will develop a negotiation strategy by preparing an outline of the key contract terms, which will be accompanied by a 'preferred' and a 'fallback' outcome for each issue. The 'preferred' outcomes will be those that we believe would benefit the City and may be marginally acceptable to CR&R. The 'fallback' outcomes are those that would be marginally acceptable to the City, but not less favorable than the City might expect to achieve through a competitive procurement.

The purpose for developing such a negotiating strategy is not to necessarily prescribe the terms the City would be willing to accept. The City will always have the flexibility to 'call an audible,' and vary from its negotiating strategy. The primary purpose of having a written negotiation strategy is to cause the City to deliberate on all the issues, and thereby be better prepared for its discussions with CR&R.

We will also prepare written materials for use in negotiating meetings with CR&R. These materials will likely take the form of tables or exhibits listing all the issues. These materials will also include an updated version of the franchise agreement with the City's proposed changes 'redlined.' The purpose of the meeting materials will be to ensure that both parties have a common understanding of the issues, and to promote an organized and systematic approach to reaching an agreement that is best for the City.

Deliverables:
 Meeting materials
 Outline of negotiation strategy
Task 2e - Participate in Negotiating Sessions
We will prepare for and participate in up to four meetings with City staff and CR&R. At these meetings, we will listen to CR&R's proposals, and confirm our understanding of the company's objectives. We will also present the City's negotiating positions. To the extent that they will further the City's negotiating objectives, we will present various market information and cost analyses. We will seek to persuade CR&R to accept the City's proposals. The purpose of these meetings will be to systematically bring the parties closer together on the various issues, and to ultimately agree on a new franchise agreement that represents the best value for the City.

During the course the contract negotiations, we will perform other tasks such as preparing status reports for distribution to the Council Subcommittee, and revising our meeting materials (e.g., 'redlined' versions of the franchise agreement, etc.). 145 294
Deliverable:
 Meeting agenda and materials
Task 2f- Meet with Council Subcommittee
We have found that it is often beneficial to consult with a City Council subcommittee during the negotiation process. Therefore, after the negotiations are complete, we propose to meet once with the Council Subcommittee and review the results of the City's negotiations with CR&R. If the City and CR&R have agreed to terms for a new agreement, we will present those terms to the members of the Council Subcommittee.

If the City is not able to agree on terms with CR&R, we will describe the outstanding issues, outline each party's position, and explain why it is not in the City's interest to agree to CR&R's terms. The purpose of this task is to obtain the City's approval of the outcome of the negotiating process, and to formulate a recommendation to the City Council on how to move forward.

Deliverable:
 Meeting agenda and notes
Task 2g- Present Negotiation Results and Recommended Action to City Council We will prepare a Powerpoint summary of the results of the negotiations. If the negotiations result in the City and CR&R agreeing on terms for a new franchise agreement, we will prepare a City Council staff report and Power Point that outlines the services, rates, and key terms of the agreement. We will also present a rate comparison to other cities using the newly agreed-upon service rates.

If the negotiations are not successful, we will present, in general terms, the reasons why we found it not in the City's interest to agree to CR&R's proposed terms. However, we will be mindful to not present any information in public that may compromise the conduct of a competitive procurement. We will review this presentation with City staff, and revise it as necessary. We will attend a meeting of the City Council and present the outcome of the contract negotiations, and the recommended action.

Deliverables:
 City Council staff report
 Power Point presentation
 Presentation to City Council
146 295
9/6/2022
1 Solid Waste Consultants
to Local Government
MSW Consultants
Solid Waste Agreement:

Negotiate or RFP
September 6, 2022
Solid Waste Consultants
to Local Government
Residential Rates
• SB 1383
• Capital spending on organics facilities
• Decrease in recyclables market value
• Driver shortage
• Supply shortages; cost of material
• Cost of fuel; inflation
Attachment 6
147 296
9/6/2022
2 Solid Waste Consultants
to Local Government
Solid Waste Landscape in OC
Solid Waste Consultants
to Local Government
Solid Waste Landscape in OC
$0.00
$5.00
$10.00
$15.00
$20.00
$25.00
Single‐family Monthly Rate
Hauler Portion City Fees
148 297
9/6/2022
3 Solid Waste Consultants
to Local Government
Commercial Rates
$0
$20
$40
$60
$80
$100
$120
$140
$160
$180
Lake Forest Rancho
Santa
Margarita
Laguna
Woods
Aliso Viejo Laguna
Hills
Laguna
Niguel
Mission
Viejo
Dana Point San Juan
Capistrano
San
Clemente
Laguna
Beach
Commercial Monthly Rate
3‐yard Bin Picked Up Once per Week
Hauler Portion City Fees
Solid Waste Consultants
to Local Government
City’s Agreement with CR&R
• Negotiated in 2010 for 11 ½ years
• Automatic extensions each July 1st
• Amended to include organics services
• Meeting diversion goals
• Recent service issues
149 298
9/6/2022
4 Solid Waste Consultants
to Local Government
More appropriate to Negotiate
• High quality, reliable service
• Rates are reasonable
• City meeting diversion goals
• Scope of service will not change
Solid Waste Consultants
to Local Government
RFP More Appropriate
• City is less satisfied with hauler
• Rates are high
• City not meeting diversion goals
• Significant changes to scope of service
150 299
9/6/2022
5 Solid Waste Consultants
to Local Government
Recommendation
• Notify CR&R to terminate automatic renewal
• Negotiate for six months
• If parties cannot agree; conduct RFP process
Solid Waste Consultants
to Local Government
David L. Davis, CMA
MSW Consultants
41760 Ivy St., Suite 203
Murrieta, CA 92562
(951) 694-4001
[email protected]
www.msw-consultants.com
Minerva™:
www.mswcompliance.com
Questions and Answers
151 300

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: J.

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

CONSTRUCTION CONTRACT AWARD TO VICON ENTERPRISE, INC. FOR CALAFIA PUMP STATION FLOW METER AND VAULT REPLACEMENT, PROJECT NO. 24401 Fiscal Impact:

There is available funding for the estimated project cost of $127,410 from the Water Fund Depreciation Reserve. Due to limited available funding within Account Number 052-466-43420-000- 24401, staff is recommending a transfer from Account Number 052-466-43470-000-21403 to 052-466 -43420-000-24401 for $80,000.

Summary:

Staff recommends approval of a construction contract with Vicon Enterprise, Inc., in the amount of $79,500 for the Calafia Pump Station Flow Meter and Vault Replacement, and a budget transfer of $80,000.

Background:

Calafia Pump Station provides recycled water to a storage pond that serves the City’s Municipal Golf Course. A flow meter in a concrete vault located adjacent to the pump station measures recycled water delivered to the pond. The flow meter is no longer functioning and is at the end of its useful life.

Staff is additionally recommending replacement of the existing concrete vault because it is too small to allow for proper maintenance of the new flowmeter. To provide an accurate measurement of recycled water delivery to the golf course pond, MBF Consulting prepared plans and specifications to replace the flow meter and the undersized concrete vault.

Discussion:

The Calafia Pump Station Flow Meter and Vault Replacement Project was advertised for public bidding on Planet Bids; six electronic bids were received on December 1, 2022. The result from the bid opening is presented in the attached Bidder’s Listing (Attachment 2). The lowest responsive and responsible base bid of $79,500 was received from Vicon Enterprise, Inc.

Based on the low bid, project costs are estimated as follows:

Administration and Engineering Design $ 27,960
Construction Management and Inspection 12,000
Construction 79,500
Construction Contingency (approx. 10%) 7,950
Total Estimated Project Cost $ 127,410
As required by City Policy and State Law, the contractor will be required to provide performance and CITY OF SAN CLEMENTE Page 1 of 2 Printed on 1/12/2023
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Meeting Date: 1/17/2023 Agenda Item: J.

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.

Plan and Policy Consistency:

The approval is consistent with the following General Plan Goals and Policies:
· Goal: Maintain and improve a comprehensive system of potable water supply, storage and distribution, and wastewater treatment, reclamation, and reuse to meet daily and emergency needs in San Clemente.
· Policy PSFU-5.08. Recycled Water. We encourage, and in some cases require, the use of recycled water when available through a Mandatory Use Ordinance.

Council Strategy:

The project is consistent with Council Strategy 3 - Update and maintain Infrastructure that reflects best available technology and service in that the project replaces a flow meter at the end of its useful life and installs a larger concrete vault for improve access and maintenance of the flow meter hence increasing the life expectancy of the replaced asset.

Recommended Actions:

Staff Recommendation
Staff Recommends that the City Council:

1. Approve the Plans and Specifications for Calafia Pump Station Flow Meter and Vault Replacement, Project No. 24401; and

2. Approve and authorize the Utilities Director to execute, Contract ________, by and between the City of San Clemente and Vicon Enterprise, Inc., in the amount of $79,500 for Calafia Pump Station Flow Meter and Vault Replacement, Project No. 24401.

3. Approve a budget transfer of $80,000 from Account #052-466-43470-000-21403 to Account #052-466-43420-000-24401.

Attachment:

1. Location Map

2. Bidder’s Listing

3. Contract with Vicon Enterprise, Inc. (without attachments) Notification:

None.

CITY OF SAN CLEMENTE Page 2 of 2 Printed on 1/12/2023
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S ALAMOS

AVE LOBEIRO

AVE MONTALVO

AVE CALAFIA

PLAZA A LA PLAYA CLE CAPRI

AVE DE LA RIVIERA AVE MAGD
A. T. & S. F. R. R.

MONTE CRISTO MONACO

CLE MONTE CARLO CLE MADIERA

CLE MAJORCA

PACIFIC OCEAN

CALAFIA

TEST WELL

SAN CLEMENTE

STATE BEACH

AT&SF RR
Calafia Pump Station Flow Meter and
Vault Replacement

NOT TO SCALE
PN 24401

PROJECT

LOCATION

LOCATION MAP
Attachment 1
303
BIDDER’S LISTING
BID OPEN TIME: 2:00 PM
BID OPEN DATE: 12/01/2022
PRESENT: Electronic Bid (Planet Bids)
Subject: Bid Opening
Project: Calafia Pump Station Flow Meter and Vault Replacement – Project 24401 No. of Bids: 6
Company Information Bid
Bond,
Etc.

City Bidder is
from
Addendums Amount
1 Vicon Enterprise Inc. √ Anaheim $79,500.00
2 ISSA Electric Inc. √ Riverside $88,250.00
3 Jennette Company Inc. √ San Diego $90,725.00
4 T.E. Roberts, Inc. √ Irvine $96,625.00
5 Advanced Construction
Services, Inc.
√ Fallbrook $98,838.00
6 GCI Construction, Inc. √ San Clemente $99,050.00
Attachment 2
304
55452.01510\32905704.2
32 SECTION 00500

CONTRACT
SECTION 00500

CONTRACT
THIS CONTRACT is made this _____ day of _________, 2023, in the County of Orange, State of California, by and between the City of San Clemente hereinafter called City, and Vicon Enterprise, Inc., hereinafter called Contractor. City and the Contractor for the considerations stated herein agree as follows:

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

CALAFIA PUMP STATION FLOW METER AND VAULT REPLACEMENT
The Contractor and its surety shall be liable to City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION. The Work shall be commenced on the date stated in City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 40 working days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE. City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Seventy Nine Thousand Five Hundred Dollars ($79,500). Payment shall be made as set forth in the General Conditions.

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

ARTICLE 4. LIQUIDATED DAMAGES/EARLY COMPLETION INCENTIVE. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay City the sum of $500 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event that Liquidated Damages are not paid, the Contractor agrees City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents.

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

Notice Inviting Bids
Instructions to Bidders
Bid Form
Attachment 3
305
SECTION 00500

CONTRACT
55452.01510\32905704.2
33 SECTION 00500

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

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

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

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

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

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

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures. 306
SECTION 00500

CONTRACT
55452.01510\32905704.2
34 SECTION 00500

CONTRACT

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

BEST BEST & KRIEGER
____________________________
City Attorney

APPROVED AS TO AVAILABILITY
OF FUNDING:
________________________________
Finance Authorization
__________________________
(“CONTRACTOR”)
By:_____________________________
Its:_____________________________
Dated: __________________, 20____

END OF CONTRACT
307

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 1/17/2023 Agenda Item: K.

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

APPROVAL OF A THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT

WITH GEOSYNTEC CONSULTANTS FOR WATER QUALITY MANAGEMENT PLAN PROGRAM

ASSESSMENT AND IMPLEMENTATION
Fiscal Impact:

The $40,000 for costs related to the Water Quality Management Plan (WQMP) Plan Check Review task under the Third Amendment will be reimbursed to the City through developer deposit accounts, resulting in no net cost to the City.

Summary:

Staff recommends City Council approve a Third Amendment to the Professional Services Agreement with Geosyntec Consultants to continue the Water Quality Management Plan (WQMP) Plan Check Review task portion of the Agreement.

Background:

In 2003, the City’s National Pollutant Discharge Elimination System Municipal Separate Storm Sewer Permit (MS4 Permit) required on-site design measures for certain types of development projects and redevelopment projects, also known as Priority Development Projects (PDPs), which are intended to control pollutants in stormwater that could negatively impact the City’s creeks, beaches and ocean waters. Per the MS4 Permit, the City is required to implement a program that requires and confirms that structural Best Management Practices (BMPs) on all PDPs are designed, constructed, and maintained to remove pollutants in storm water.

In 2019, Utilities staff conducted a Request for Proposal process for a qualified third party to provide WQMP plan check review services, WQMP inspections, and WQMP inventory assessment to ensure the City’s WQMP program is compliant with MS4 Permit requirements. The City entered into a Professional Services Agreement with Geosyntec Consultants. The initial Agreement approved by City Council on December 3, 2019 was for an amount not to exceed $94,444 and authorized the City Manager to approve future amendments to the Agreement not to exceed $40,000 per Fiscal Year for a maximum of two additional years. Two Amendments have been executed for this Agreement so far, for a total of $80,000. Due to lack of staffing within the Clean Ocean Program, there is a need for continued services from Geosyntec for WQMP Plan Check Reviews. Staff is requesting a Third Amendment to the Agreement for an additional $40,000 for a new total of $214,444 for the remainder of the Agreement. Staff proposes to conduct a Request for Proposals prior to completion of the proposed $40,000 Amendment. To maintain consistency of ongoing development projects under review by Geosyntec, staff is recommending authorization for the City Manager to approve a contract Amendment up to $15,000.

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Discussion:

To continue meeting MS4 Permit requirements, the City’s MS4 Permit requires the preparation of WQMPs for PDPs that prescribe permanent structural and non-structural post-construction BMPs to accomplish the goal of removing pollutants from stormwater runoff that will discharge from PDP sites.

WQMPs are very technical and require an engineer with extensive water quality knowledge to review them to ensure that the developer is proposing appropriate type and size of BMPs specific to the land use type and that the BMPs are sized correctly based on the project site’s impervious area.

The main steps in the WQMP review process are as follows:
· Determine which components of a WQMP apply to the proposed project. · Review drafts and final version of a PDPs WQMP to ensure it complies with MS4 Permit requirements.
· Conduct supporting investigations and calculations.
· Ensure that the proposed BMPs are properly designed to remove pollutants from stormwater that are expected to be generated by the PDP land use.

At a minimum, each WQMP requires three reviews: initial, second, and final. Some WQMPs require additional reviews based on responses from project proponents. All costs associated with the plan check review will be reimbursed to the City through the developer deposit for the project.

Due to the steady increase in the number of PDPs that the City has been receiving for plan check review (approximately 12 annually), City staff sought assistance to streamline the plan check review process. Previously, both Clean Ocean Program and Engineering staff reviewed the draft WQMPs, which was inefficient due to City staff workload, lack of expertise related to new technological advances in water quality treatment devices, and the time required to perform research on new equipment and review design calculations for sizing to ensure pollutants are removed from the stormwater runoff. Having a consultant conduct the plan checks allows each WQMP review to be completed within a two-week period, which is mutually beneficial for the project proponent and the City. In addition, knowledge and experience with using the WQMP template and associated 600 page technical guidance document, as well as experience reviewing WQMPs will ensure that the WQMPs meet permit requirements.

Plan and Policy Consistency:

The approval is consistent with the following General Plan Goals and Policies:
• Goal: To protect and preserve the quality of local surface waters, community public health and the environment through implementation of activities to reduce stormwater and also to reduce or eliminate urban runoff pollution from industrial, commercial, new development and construction, and residential areas that may enter the storm drainage system and discharge to local creeks or coastal waters.
• Policy PSFU-7.04. Development Review. We require that new development and significant redevelopment projects (as defined in the City’s Stormwater Local Implementation Plan) implement appropriate site design, source control/nonstructural and structural best management practices to reduce or eliminate stormwater and urban runoff flows and pollution, to the maximum extent practicable.

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Council Strategy:

None.

Recommended Actions:

Staff Recommendation
Staff Recommends that the City Council:

1. Approve and authorize the City Manager to execute the Third Amendment by and between the City of San Clemente and Geosyntec Consultants providing for Water Quality Management Plan Program Assessment and Implementation services for an amount not to exceed $40,000; and

2. Authorize the City Manager to approve a future Amendment to complete plan checks for ongoing development projects under review at the expiration of the contract Amendment limit of $40,000 for an additional $15,000.

Attachments:

1. Agenda Report dated December 3, 2019 (without attachments)

2. Third Amendment to Professional Services Agreement with Geosyntec Consultants for Water Quality Management Plan Program Assessment and Implementation Notification:

None.

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Attachment 1
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312
313
314
315

THIRD AMENDMENT TO

PROFESSIONAL CONSULTANT SERVICES AGREEMENT FOR

WATER QUALITY MANAGEMENT PLAN PROGRAM ASSESSMENT AND

IMPLEMENTATION
This Third Amendment to Professional Consultant Services Agreement for Water Quality Management Plan Program Assessment & Implementation (this “Third Amendment”) is made and entered into on this ____ day of ________, 2023, by and between the CITY OF SAN CLEMENTE, a California municipal corporation (“City”), and Geosyntec Consultants (“Consultant”).

R E C I T A L S:

A. City and Consultant entered into that certain Professional Consultant Services Agreement for Water Quality Management Plan Program Assessment & Implementation (the “Original Agreement”) on December 3, 2019.

B. City and Consultant entered into that certain First Amendment to the Professional Consultant Services Agreement for Water Quality Management Plan Program Assessment & Implementation (“First Amendment”) on December 18, 2020.

C. City and Consultant entered into that certain Second Amendment to Professional Consultant Services Agreement for Water Quality Management Plan Program Assessment & Implementation (“Second Amendment”) on February 22, 2022. The Original Agreement, as modified by the First Amendment and the Second Amendment, is hereinafter referred to as the “Agreement”.

D. City and Consultant desire to amend the Agreement in the manner provided herein.

C O V E N A N T S:

Section 1.1 Term of the Agreement is hereby amended by changing the Term of this Agreement to be from December 3, 2019 until the services are completed to the satisfaction of the City, unless earlier terminated as provided in the Agreement.

Section 1.2 Scope of Services of the Agreement is hereby amended and in addition to the services to be performed by Consultant as referenced in Exhibit A to the Agreement, Exhibit A to the First Amendment, and Exhibit A to the Second Amendment, Consultant shall also perform those services described in Exhibit “A” to this Third Amendment, which exhibit is attached hereto and incorporated herein by this reference.

Section 3.1 Payment Schedule of the Agreement is hereby amended by increasing the not to exceed amount from One Hundred Seventy Four Thousand Four Hundred and Forty Four Dollars ($174,444) to Two Hundred Fourteen Thousand Four Hundred and Fourty Four Dollars ($214,444) for the remainder of the Agreement.

Except as expressly amended by this Third Amendment, the remaining portions of the Agreement shall remain in full force and effect.

Attachment 2
316
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment 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____
317
EXHIBIT “A”
Please see attached proposal from Geosyntec Consultants dated December 21, 2022. 318
3530 Hyland Ave, Suite 100
Costa Mesa, California 92626
PH 714.969.0800
www.Geosyntec.com
Contract C19-82 Proposal to Extend Scope of Work through 12-31-2023 December 21, 2022
Mr. David Rebensdorf
Utilities Director
City of San Clemente
380 E. Avenida Pico, Building N
San Clemente, California 92672
Subject: Contract C19-82 – Proposal to Extend WQMP Review Scope of Work through December 31, 2023

Dear Mr. Rebensdorf:

This proposal has been prepared at the request of the City of San Clemente (City) to modify the Professional Services Agreement for Water Quality Management Plan (WQMP) Program Assessment and Implementation. Specifically, the City has requested to extend the scope of work for Task 3 (WQMP Reviews) for one additional year through December 31, 2023.

ADDITIONAL SCOPE OF WORK
Task 3 – Water Quality Management Plan Reviews
Geosyntec will be available to conduct WQMP reviews, as needed, at the request of the City and assumes that each Plan will require three reviews (initial, secondary, and final). Initial Plan reviews will be completed and returned to the City along with review notes within two weeks following submittal to Geosyntec. Upon receipt of the first round of Plan revisions, Geosyntec will conduct the second Plan review within two weeks and return comments to the City. The final Plan review will be completed one week following submittal of the final Plan to Geosyntec.

Should WQMPs with non-conventional designs be submitted for review, Geosyntec will discuss an alternative review schedule with the City, if necessary.

The additional budget requested for this task assumes Geosyntec will complete reviews for approximately 10 projects that are currently in the process of submitting and updating WQMPs and provide additional WQMP review support to the City as needed.

ESTIMATED SCHEDULE
The additional scope of work will be completed by December 31, 2023. 319
Mr. Dave Rebensdorf
December 21, 2022