Agenda packet, regular meeting, third session — San Clemente City Council, July 18, 2023 (part 2 of 11)

W. CANADA

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W. PASEO DE CRISTOBAL W. AVE CORDOBA W. AVE GAVIOTA W. AVE VALENCIA

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LA ESPERANZA

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VIA ROBINA CL PATRICIA

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VIA ENSUENO

CERRITO CIELO

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AVE TRIESTE

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LA CIMA

CL AMENO

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VISTA VALINDA

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CL CUERVO

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VIA DELFIN

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CL EMPALME

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SOLANO

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AVE DE LA PAZ

AVE PIZARRO

AVE LA CUESTA

CL MIGUEL

CL ESCUELA CL FIESTA CL NEBLINA

CL DEL JUEGO

CL SALIDA

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ESPLANADE

CL MARINA
AVE SANTIAGO W. AVE BARCELONA

EL LEVANTE

AVE SALVADOR
CL SERENA A. T. & S. F. R. R.

CL TOLEDO

BOCA DEL CANON

LA RAMBLA

CL ROCA VISTA

CL PRIMAVERA

AVE SANTA BARBARA AVE MONTEREY

CAZADOR LN

POCO PASEO

AVE MADRID
S. OLA VISTA
W. AVE CADIZ TRAFALGAR LN

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AVE DEL MAR AVE CABRILLO

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AVE MATEO AVE ROSA

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CL PESCADOR

CL VILLARIO

CL DORADO

CL FELICIDAD

STA CLARA

CL DE SOTO CL SONORA

CL DE ANZA CL SONORA

CL CORTEZ

EL LEVANTE AVE SAN CARLOS

CL BALBOA

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AVE SALVADOR

CL NINA

AVE TERESA

CL DELICADA

CL PUEBLO

CL ROBLES CL FAMILIA

CL MENDOZA

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CL DULCINEA CL MALAGUENA

CL TIBIDABO

VIA ZARAGOZA

PASEO ALBA

VIA LA MISSION

VIA SANTA MARIA

CM SAN JOSE
(G ST)
CL
(L ST) GEMA ST

SAN CLEMENTE

STATE BEACH

CL PASTADERO

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FRESNO

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LA ESPERANZA

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EHEAD

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PACIFIC OCEAN

EL CAMINO REAL

CL AMENO

SAN CLEMENTE MUNICIPAL GOLF COURSE

AVE DEL PRESIDENTE

CALAFIA
PARK

SAN LUIS REY PARK

PACIFIC OCEAN

CONCORDIA

ELEMENTARY SCHOOL

AVE DEL PRESIDENTE

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AVE GRANADA

AVE CABRILLO
S. EL CAMINO REAL

CL DEL COMERCIO

SAN CLEMENTE

STATE BEACH

COMMUNITY CENTER/LIBRARY

AVE PICO

CL DESHECHA

AVE JUNIPERO AVE CORNELIO AVE RAMONA

OLA VISTA
TRAFALGAR LN W. AVE BARCELONA ESPLANADE

AVE MONTEREY AVE DEL MAR

AVE VICTORIA
CL OSO

LAS PALMAS

ELEMENTARY
SCHOOL

MAX BERG

PLAZA PARK

BUENA VISTA

AVE PELAYO

CL PUENTE

CL DE LOS MOLINOS
RITO

AVE SAN PABLO

AVE MONTALVO
W. PASEO DE CRISTOBAL

AVE SAN PABLO

CL MONTE CRISTO

CL MONACO

AVE DE LA RIVERA
5 AVE PALIZADA

AVE VICTORIA

CL MIGUEL

AVE LA CUESTA CL DORADO

AVE SANTA BARBARA

VISTA OLA
W. PASEO DE CRISTOBAL
W. PASEO DE CRISTOBAL

CLCONCHITA

ELORIENTE

AVE DE LA RIVIERA
AVE

FLORENCIA

BOCA DE LA PLAYACL COLINA
W. AVE DE LOS

LOBOS MARINOS

MONTEREY LN

AVE DEL PRESIDENTE

ARRIBA LINDA

AVE BUENA
SUERTE
W. AVE GAVIOTA W. AVE VALENCIA

CL FIESTA CL NEBLINA

CL PUEBLO

CL FAMILIA CL DELICADA

AVE BUENOS AIRES

TERRAZA VISTA BAHIA

AVE PATERO DE ORO

SAN CLEMENTE MUNICIPAL GOLF COURSE

AVE VISTA HERMOSA

PICO PARK

AVE SIERRA

VERDE PARK

CL MAYITA

AVE ORTEGA
LOMA CL BELLA SEGURO CL W. AVE DE LOS

LOBOS MARINOS

ENTRADA PARAISO

CL DE LOS MOLINOS
N. OLA VISTA

AVE PRESIDIO

LOS MARIOS CLALCAZAR

C I T Y O F S A N C L E M E N T E
910 CL Negocio, Suite 100
San CLEMENTE, CA 92673
Tel (949) 361-6100
Fax (949) 361-8316

LOCATION MAP
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IMPROVEME FY 2024 STREET . ct No 14337
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Page 2 ends

i:\cd\engineering\secure\projects\pn 14337 - fy 2024 sip\05-bidding\pn14337 bidders listing.docx

BIDDER'S
LISTING BID OPEN TIME: 2:00 PM
BID OPEN DATE: 6-22-2023
PRESENT:

ELECTRONIC BID
MH
Subject: Bid Opening: FY 2024 Street Improvement Program (Project No. 14337)
No. of Bids: 5
Company Information Bid Bond City Bidder is
From
1#
Addendums
NO

ADDENDUM
Amount
Roy Allan Slurry Seal,
Inc. YES
Santa Fe
Springs, CA $2,754,071.62
R.J. Noble Company
YES
Orange, CA
$3,443,958.10
All American Asphalt
YES
Corona, CA
$3,533,335.30
PALP, Inc.

YES
Long Beach,
CA $3,552,762.00
Hardy & Harper, Inc.

YES
Lake Forest,
CA $4,550,000.00
9 ATTACHMENT 4
SECTION 00500
CONSTRUCTION CONTRACT FOR FY 2024 STREET IMPROVEMENT PROGRAM, PROJECT NO. 14337 THIS CONSTRUCTION CONTRACT FY 2024 STREET IMPROVEMENT PROGRAM, PROJECT NO. 14337 (“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 Roy Allan Slurry Seal, Inc., a California corporation, with its principial place of business at 12643 Emmens Way, Santa Fe Springs, CA 90670, 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:

FY 2024 STREET IMPROVEMENT PROGRAM, Project No. 14337
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 100 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, a sum not to exceed Two Million Seven Hundred Fifty-four Thousand Seventy-two Dollars ($2,754,072) based on the actual work performed. 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. Approved additional work shall not exceed the 10% project contingency of $275,407 without prior approval of the City Council.

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 10 SECTION 00500
CONSTRUCTION CONTRACT FOR FY 2024 STREET IMPROVEMENT PROGRAM, PROJECT NO. 14337

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
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, CITY OF SAN CLEMENTE or may be obtained online at http//www.dir.ca.gov/dlsr. and which must be posted at the job site.
11 SECTION 00500
CONSTRUCTION CONTRACT FOR FY 2024 STREET IMPROVEMENT PROGRAM, PROJECT NO. 14337 IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

CITY OF SAN CLEMENTE
By:________________________________
ATTEST: Andy Hall, City Manager
______________________________ Dated: ____________________, 2023 CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
____________________________
Elizabeth A Mitchell, City Attorney

APPROVED AS TO AVAILABILITY
OF FUNDING:
________________________________
Finance Authorization

Roy Allan Slurry Seal, Inc., a
California corporation
(“CONTRACTOR”)
By:_____________________________
Wyatt Lawrence Allan, Chief
Executive Officer, Secretary, Chief
Financial Officer
Dated: __________________, 2023

END OF CONTRACT
12 ATTACHMENT 4
SECTION 00610

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of San Clemente (hereinafter referred to as “City”) has awarded to ____________________________________________________, (hereinafter referred to as the “Contractor”) an agreement for FY 2024 STREET IMPROVEMENT PROGRAM, Project No. 14337
(hereinafter referred to as the “Project”).

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

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

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

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the guarantee obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship the above obligation in penal sum thereof shall remain in full force and effect. However, anything in this paragraph to the contrary notwithstanding, the obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s 13 SECTION 00610

PERFORMANCE BOND
rights or the Contractor or Surety’s obligations under the Contract Documents, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

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

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

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

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project and the provisions of Section 2819 and 2845 of the California Civil Code. Without limiting the foregoing, such changes, extensions of time and alterations or additions shall include, but are not limited to, changes or alterations to the Contract Documents (including, without limitation, an increase in the total dollar amount of the Contract Documents), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of __________________________, 20___.
14 SECTION 00610

PERFORMANCE BOND

CONTRACTOR/PRINCIPAL
(Corporate Seal of Contractor/ _________________________________________ Principal, if a Corporation) Name of Contractor/Principal (Type or Print) By: ___________________________________
Name (Signature)
___________________________________
Name (Type or Print)
___________________________________
Title (Type or Print)
SURETY
(Seal of Surety) _________________________________________ Name of Surety (Type or Print)
By:____________________________________
Attorney-In-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of ___________________________________________ process in California, if different ___________________________________________ from above)
(Telephone number of Surety and ___________________________________________ Agent or Representative for service ___________________________________________ of process in California) ___________________________________________ 15 SECTION 00610

PERFORMANCE BOND
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto.

END OF PERFORMANCE BOND FORM
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SECTION 00620

PAYMENT BOND
SECTION 00620

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of San Clemente (hereinafter designated as the “City”), by action taken or a resolution passed ___________ , 20____ has awarded to ______________________________ ______________________________ hereinafter designated as the “Principal,” a contract for the work described as follows: FY 2024 STREET IMPROVEMENT PROGRAM, Project No. 14337 (the “Project”); and
WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said Contract Documents; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor, the Surety on this bond will pay for the same to the extent hereinafter set forth.

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

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract Documents, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond. 17 SECTION 00620

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

Notwithstanding any other provision of this bond, it is expressly understood, acknowledged and agreed that it shall provide all of the protections required by California Civil Code Sections 9550 through 9566, including the specific coverage protections required by Section 9554.

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

SIGNATURES ON FOLLOWING PAGE
18 SECTION 00620

PAYMENT BOND
IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the _____ day of ______________________ 20______ the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.

PAYMENT BOND
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto.

END OF PAYMENT BOND FORM
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SECTION 00620

PAYMENT BOND
21 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 7/18/2023 Agenda Item: 6I
Department: Utilities
Prepared By Dustin Burnside, Utilities Manager
Subject:

CONSIDERATION OF A RESOLUTION UPDATING THE SPILL EMERGENCY RESPONSE PLAN

SECTION OF THE CITY OF SAN CLEMENTE SANITARY SEWER MANAGEMENT PLAN AND

FINDING THE PROJECT CATEGORICALLY EXEMPT FROM THE ENVIRONMENTAL QUALITY ACT UNDER CLASS 8
Summary:

The California State Water Resources Control Board (SWRCB) adopted Order No. 2022-0103-DWQ (Order), requiring municipalities to amend the Spill Emergency Response Plan (SERP) section of the Sanitary Sewer Management Plan (SSMP). The SSMP provides a unified document containing a number of City programs, departmental information and efforts directed toward preventing sewer spills including:
· The City's program of scheduled preventative inspection and maintenance of sewer mains and pump stations.
· Maintaining and enforcing sewer design standards.
· The City’s Sanitary Sewer Overflow Prevention Plan.
· The City's Sanitary Sewer Emergency Response Plan.
· The City's sewer related capital improvement plan and ongoing assessment of sewer system capacity and rehabilitation needs.
· The City's pretreatment program for controlling discharges of grease and oil to the sewer system.

Dr. Michael Welch prepared the original SSMP document approved by the City Council in 2009, prepared the 2014 five-year SSMP update, the current 2019 update, and made the 2023 required amendments. This update contains minor modifications including changes in personnel, contact information, equipment and methodologies.

Background:

City of San Clemente wastewater collection operations are regulated by the SWRCB under the City’s Order which establishes statewide requirements governing sewer collection system operations, management, performance, reporting and notification. The requirements of the Order are directed toward minimizing the potential for spills from sewer facilities. The Order defines a sewer system spill, also known as a sanitary sewer overflow (SSO) as a discharge of sewage from any portion of a sanitary sewer system (either publicly or privately owned) due to a sanitary sewer system overflow, operational failure, or infrastructure failure. The City’s Order prohibits spills, requires the reporting of spills through a statewide electronic reporting system, and requires sewer agencies to maintain and CITY OF SAN CLEMENTE Page 1 of 2 Printed on 7/13/2023
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Meeting Date: 7/18/2023 Agenda Item: 6I
spills through a statewide electronic reporting system, and requires sewer agencies to maintain and update SSMPs.

Council Options:
· Approve Resolution No. 23-66 and authorize the City Manager and the Utilities Manager to approve any future minor updates to the Sewer System Management Plan. · Approve Resolution No. 23-66 with modifications, including that any minor modifications be brought before the City Council.
· Continue the item with direction to staff to provide additional information.

Fiscal Impact:

None.

Environmental Review/Analysis:

These services qualify for a categorical exemption under the California Environmental Quality Act (CEQA), Class 8 (Actions by Regulatory Agencies for Protection of the Environment), Section 15308 of the state CEQA Guidelines because they consist of actions taken by regulatory agencies, as authorized by state law, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.

Following Council approval, utilities staff will file a CEQA Notice of Exemption for the revised SERP and SSMP.

Recommended Actions:

Staff Recommendation
Staff recommends that the City Council adopt Resolution No. 23-66, which will:

1. Determine that the Project is categorically exempt from CEQA under Class 8 (Actions by Regulatory Agencies for Protection of the Environment, 14 CCR section 15308), of the state CEQA guidelines;

2. Approve the Spill Emergency Response Plan; and

3. Authorize the City Manager and Utilities Manager to approve the Spill Emergency Response Plan Amendment and any future minor updates mandated by the State Water Resources Control Board regarding the Sanitary Sewer Management Plan, Sanitary Sewer Overflow Prevention Plan and Sanitary Sewer Overflow Emergency Response Plan.

Attachment:

1. Spill Emergency Response Plan document

2. Resolution No. 23-66

3. CEQA Notice of Exemption Form D
Notification:

None.

CITY OF SAN CLEMENTE Page 2 of 2 Printed on 7/13/2023
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Developed in Compliance with Requirements of
State Water Resources Control Board
Order No. WQ 2022-0103-DWQ
May 2023
Attachment 1
3 SAN CLEMENTE

WATER RECLAMATON PLANT

SPILL EMERGENCY RESPONSE PLAN
City of San Clemente
Utilities Division
Management Approval
Approved:
______________________________ __________________
Andy Hall Date
City Manager
Approved:
______________________________ __________________
Dustin Burnside Date
Utilities Manager
May 2023
4 Spill Emergency Response Plan i May 2023
Table of Contents

CHAPTER ONE - INTRODUCTION

1.1 Regulation of Sewer System Overflows and Spills .............................................................. 1 - 1

1.2 Purpose of Spill Emergency Response Plan .......................................................................... 1 - 2

1.3 Preparation of Spill Emergency Response Plan .................................................................... 1 - 3

CHAPTER TWO - SPILL DETECTION

2.1 Overview of Wastewater Collection System......................................................................... 2 - 1

2.2 Potential Spill Sources and Methods of Detection ............................................................... 2 - 2

2.3 Target Response Times......................................................................................................... 2 - 5

CHAPTER THREE - EQUIPMENT AND PERSONNEL

3.1 Personnel and Organization.................................................................................................. 3 - 1

3.2 Training ............................................................................................................................... 3 - 3

3.3 Available Response Equipment ........................................................................................... 3 - 4

CHAPTER FOUR - SPILL RESPONSE ACTIONS

4.1 Spill Response Overview ..................................................................................................... 4 - 1

4.2 Initial Assessment and Spill Classification ........................................................................... 4 - 1

4.3 Office of Emergency Services Notification .......................................................................... 4 - 2

4.4 Site Perimeter and Traffic Control ...................................................................................... 4 - 4

4.5 Spill Containment or Diversion ........................................................................................... 4 - 5

4.6 Posting ................................................................................................................................. 4 - 6

4.7 Spill Termination ................................................................................................................. 4 - 6

4.8 Assessment, Cleanup and Restoration ............................................................................... 4 - 8

4.9 Reporting and Follow-Up Actions......................................................................................... 4 - 9

4.10 Record Keeping .....................................................................................................................4 - 16 APPENDIX 1 Emergency Contact Information
5 Spill Emergency Response Plan ii May 2023
List of Figures
Figure 2-1 City of San Clemente Spill Response Chain of Command ................................................. 2 - 6 List of Tables
Table 3-1 City of San Clemente Spill Response Team
Available Utilities Division Personnel .............................................................................. 3 - 2 Table 3-2 Emergency Preparedness Training and Testing................................................................ 3 - 4 Table 3-3 City of San Clemente Spill Response Team, Key Available Equipment ........................... 3 - 5 Table 4-1 Spill Categories.................................................................................................................. 4 - 3 Table 4-2 Notification, Monitoring and Reporting Requirements for Category 1 and Category 2 Spills................................................................................................................4 - 11 Table 4-3 Required Information for CIWQS Sanitary Sewer System Database Draft and Certified Reports for Category 1 and Category 2 Spills ....................................4 - 12 Table 4-4 Notification, Monitoring and Reporting Requirements for Category 3 and Category 4 Spills................................................................................................................4 - 13 Table 4-5 Required Technical Report Information for Category 1 Spill Technical Reports ..............4 - 15 Table 4-6 Required Spill Report Records ..........................................................................................4 - 16 6 Spill Emergency Response Plan iii May 2023
List of Abbreviations
CIWQS California Integrated Water Quality System (online database) I&I Inflow and infiltration
MS4 Municipal Separate Storm Sewer System
NPDES National Pollutant Discharge Elimination System (discharge permit) OCHCA Orange County Health Care Agency
OES State of California Office of Emergency Services
PLSD private lateral sewer discharges (spills from private sewer facilities) RWQCB California Regional Water Quality Control Board, San Diego Region SCADA supervisory control and data acquisition
SCWRP City of San Clemente Water Reclamation Plant
SERP Spill Emergency Response Plan
SOCWA South Orange County Wastewater Authority
SSMP Sewer System Management Plan
SSO sanitary sewer overflow (also known as a “spill”)
SWRCB State Water Resources Control Board
7 Spill Emergency Response Plan Page 1 - 1 May 2023
Chapter 1

INTRODUCTION

1.1 Regulation of Sewer System Overflows and Spills
Overview City of San Clemente Wastewater Operations. The San Clemente Water Reclamation Plant (SCWRP) treats wastewater from a service area that covers a significant majority of the incorporated area of the City of San Clemente. SCWRP recycled water treatment and reuse operations are regulated by the Regional Water Quality Control Board, San Diego Region (RWQCB) Order No. R9-2003-0123. In accordance with requirements of RWQCB Order No. R9-2003-0123, SCWRP produces tertiary treated recycled water that is used for irrigation at the San Clemente Municipal Golf Course, the Pacific Golf Course, and other approved sites within the San Clemente Hydrologic Area.

SCWRP secondary effluent flows in excess of recycled water demands are discharged to the South Orange County Wastewater Authority (SOCWA) San Juan Creek Ocean Outfall (SJCOO) via the San Clemente Land Outfall. The SCWRP discharge to the SJCOO is regulated by RWQCB Order No. R9-2022-0005. 1 Sewer System Management Requirements. City of San Clemente wastewater collection operations are regulated under State Water Resources Control Board (SWRCB) Order No. WQ 2022-0103-DWQ.2 Order No. WQ 2022-0103-DWQ establishes state-wide requirements governing sewer collection system operations, management, performance, reporting and notification. The requirements of Order No.

WQ 2022-0103-DWQ are directed toward minimizing the potential for spills from sewer facilities. Order No. WQ 2022-0103-DWQ defines a sewer system spill (also known as a sanitary sewer overflow or SSO) as a discharge of sewage from any portion of a sanitary sewer system due to a sanitary sewer system overflow, operational failure, or infrastructure failure.3 Order No. WQ 2022-0103-DWQ prohibits spills,
requires the reporting of spills through a statewide electronic4 reporting system, and requires sewer agencies to maintain and update Sewer System Management Plans (SSMPs).

In accordance with SWRCB requirements, the City of San Clemente maintains an SSMP that details the systems, operations, and procedures the City has implemented to prevent spills from the City’s sewer collection facilities. The City’s current SSMP was adopted in 2019.5

1 RWQCB Order No. R9-2022-0005 (NPDES CA01007417) was adopted by the RWQCB on March 9, 2022. 2 SWRCB Order No. WQ 2022-0103-DWQ was adopted by the SWRCB on December 6, 2022 and became effective on June 5, 2023. Order No. WQ 2022-0103-DWQ supersedes SWRCB Order 2006-0003-DWQ (as amended by SWRCB Order No. 2013-0058-EXEC) which had previously regulated spills from sanitary sewer systems. 3 Definition of a spill is presented within Attachment A to Order No. WQ 2022-0103-DWQ. Exfiltration of sewage is not considered a spill under Order No. WQ 2022-0103-DWQ, provided that the exfiltrated sewage remains in the subsurface and does not reach a surface water. 4 California Integrated Water Quality System (CIWQS).
5 SWRCB Order No. WQ 2022-0103-DWQ requires SSMPs to be updated by August 2, 2025, and thereafter on a six-year basis. 8 City of San Clemente Chapter 1
Utilities Division Introduction
Spill Emergency Response Plan Page 1 - 2 May 2023
Spill Emergency Response Plan (SERP) Requirements. Order No. WQ 2022-0103-DWQ also requires the City to maintain and update a Spill Emergency Response Plan (SERP) that details measures to respond to spills in a timely manner, protect public health and the environment and to terminate, intercept, recover, and clean up sewage spills. Order No. WQ 2022-0103-DWQ requires that SERPs identify sewer agency measures and procedures to:
• Notify primary responders, appropriate local officials, and appropriate regulatory agencies of a spill in a timely manner.
• Notify other potentially affected entities (for example, health agencies, water suppliers, etc.) of spills that potentially affect public health or reach waters of the State. • Comply with the notification, monitoring, and reporting requirements of Order No.

WQ 2022-0103-DWQ, state laws and regulations, and applicable RWQCB Orders. • Ensure that appropriate staff and contractors implement the SERP and that responding spill staff and contractors are appropriately trained.
• Address emergency system operations, traffic control and other necessary response activities. • Contain the spill and prevent/minimize discharge to waters of the State or any drainage conveyance system.
• Minimize and remediate public health impacts and adverse impacts on beneficial uses of waters of the State.
• Remove sewage from the drainage conveyance system.
• Clean the spill area and drainage conveyance system in a manner that does not inadvertently impact beneficial uses in the receiving waters.
• Implement technologies, practices, equipment, and interagency coordination to expedite spill containment and recovery.
• Implement pre-planned coordination and collaboration with storm drain agencies and other utility agencies/departments prior, during, and after a spill event.

1.2 Purpose of Spill Emergency Response Plan
This City of San Clemente SERP is implemented by the City of San Clemente to ensure compliance with provisions of SWRCB Order No. WQ 2022-0103-DWQ. 6 To this end, this updated SERP documents emergency measures, policies, procedures, and plans implemented by the City to respond to respond to sewer system spills or threatened spills and to minimize impacts resulting from the spills. The updated Spill Emergency Response Plan presented herein supersedes the City's previous spill emergency response plan (2019 update), and documents policies and procedures used by City of San Clemente Utilities Division staff to:
• Detect sewer system spills or overflows.
• Assess the cause, source, and nature of the spills.
6 This 2023 version of the City’s SERP is developed in accordance with requirements of SWRCB Order No. WQ 2022-0103-DWQ and supersedes the Sanitary Sewer Overflow (SSO) Spill Prevention and Response Plan adopted by the City in 2019, which was developed in accordance with requirements of the prior SWRCB Order No. 2006-0003-DWQ, as amended by Order No. WQ 2013-0058-EXEC. 9 City of San Clemente Chapter 1
Utilities Division Introduction
Spill Emergency Response Plan Page 1 - 3 May 2023
• Identify equipment and manpower required to respond to the spills. • Take actions to contain the spilled sewage and protect public health. • Comply with the notification, monitoring, reporting, and record-keeping requirements established within SWRCB Order No. WQ 2022-0103-DWQ.
• Perform any necessary posting or public notification. • Take actions to correct the problem causing the spill. • Clean up the spilled sewage and restore affected areas to pre-spill conditions. • Document causes of the spill, preventative measures taken, and impacts associated with the spill. • Assess the cause/source of the spill and modify prevention or response actions to minimize the potential for recurrence.

In addition to addressing notification, reporting, monitoring, and record-keeping requirements established in SWRCB Order No. WQ-2022-0101-DWQ, this updated plan also incorporates experience gained by Utilities Division staff in responding to previous spill events.

1.3 Preparation of Spill Emergency Response Plan
This updated Spill Emergency Response Plan was prepared by the City of San Clemente Utilities Division under the direction of Dustin Burnside, City of San Clemente Utilities Manager. Questions or comments concerning this plan should be directed to the Utilities Manager at:

Mr. Dustin Burnside
Utilities Manager
City of San Clemente Utilities Division
380 Avenida Pico, Building N
San Clemente, CA 92672
Tel: (949) 361-8355
Email: [email protected]
10 Spill Emergency Response Plan Page 2 - 1 May 2023
Chapter 2

SPILL DETECTION

2.1 Overview of Wastewater Collection System
The City of San Clemente Utilities Division wastewater service area is comprised of approximately 14.3 square miles. The Utilities Division service area represents approximately 84 percent of the total 17.1 square-mile incorporated area of the City of San Clemente. Wastewater service within the remaining portions of the City of San Clemente is provided by the South Coast Water District and Santa Margarita Water District.

The sewer service area tributary to the SCWRP includes land within seven topographic drainage areas.

Key trunk mains serving the seven drainage regions include:
• Camino De Los Mares Trunk (Drainage Region 1).
• Avenida Pico Trunk (Drainage Region 2).
• Frontera Trunk (Drainage Region 3).
• El Camino Real North Trunk (Drainage Region 4).
• San Gabriel Trunk (Drainage Region 5).
• Pacific Coast Highway Trunk (Drainage Region 6).
• Beach Trunk (Drainage Region 7).

Wastewater collected from Drainage Regions 1, 4, 6, and 7 is transported via gravity and force mains to the Main Pump Station (located near Avenida Pico and El Camino Real). Wastewater collected from Drainage Regions 2, 3, and 5 is transported via gravity and force mains to the Los Molinos Pump Station (located along Avenida Pico west of Interstate 5). The Main Pump Station and Los Molinos Pump Station lift the collected wastewater to the SCWRP.

The City maintains eight local pump stations within the SCWRP tributary area which lift wastewater within portions of the seven drainage regions:
• La Pata Pump Station (Drainage Region 2).
• Frontera Pump Station (Drainage Region 3).
• Colina Rodante Pump Station (Drainage Region 3).
• San Gabriel Pump Station (Drainage Region 5).
• Colombo Pump Station (Drainage Region 5).
• Cypress Shores Pump Station (Drainage Region 7).
• La Ramba Pump Station (Drainage Region 7).
• Linda Lane Pump Station (Drainage Region 7).
11 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 2 May 2023
The City also maintains the Liberty Park Pump Station, which is located within the City limits but is outside the tributary area of the SCWRP. The Liberty Park Pump Station conveys wastewater to the Santa Margarita Water District through an interagency agreement between the City and Santa Margarita.

The City maintains an updated atlas that details all sewer collection system facilities. The sewer system atlas shows the location of gravity mains, manholes, force mains, and other facilities. A master electronic version of the City's sewer system atlas is maintained on the City's computer network, and copies are backed up weekly. Copies of the atlas are carried on City response vehicles.

Spill Prevention. As part of its SSMP, the City has developed and implemented an action plan to minimize the potential for spills that includes procedures regarding inspection, preventative maintenance, system operations, public education, capital improvements, monitoring and reporting, forensic assessment, and system audits.

2.2 Potential Spill Sources and Methods of Detection
As part of developing its SSMP, Utilities Division staff assessed prior spills, shared information with other regional agencies, evaluated historic and potential sewer spill causes, and researched state-wide spill reports to identify potential causes of spills. Potential causes of sewer spills within the City's sewer system include:
• Sewer gravity main breaks or failures.
• Sewer gravity main blockages.
• Sewer gravity main surcharging.
• Pressure main rupture.
• Pump station pump/motor/control failure.
• Pump station electrical failure.
• Pump station surcharging.

Gravity Sewer Main Breaks. Spills may be caused by failure (breaks) in gravity sewer mains. Potential causes of gravity sewer main failure may include:
• Penetrating tree roots.
• Corrosion
• Pipe wall or pipe joint failure.
• Inadequate sewer main installation/construction.
• Construction excavation activities.
• Earth slides or earth movement.

Spills resulting from sewer main breaks would result in either wastewater overflowing from the manhole immediately upstream from the break or wastewater flowing to the surface at or downstream from the point of the break. Virtually all City of San Clemente gravity mains are located in City streets. As a result, spills resulting from sewer main breaks are likely to be quickly noticed by the public or personnel within other City of San Clemente Departments. Utilities Division personnel also monitor for breakrelated spills through flow monitoring data generated at wastewater pump stations and at the SCWRP. 12 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 3 May 2023
Gravity Sewer Main Blockages. The potential exists for spills to occur as a result of blockages or clogs within gravity sewer mains or manhole structures. Such blockages or clogs could be caused by • Penetrating roots through pipe joints or pipe walls.
• Penetrating roots through connections with private service laterals. • Grease or other congealing or viscous substances.
• Rags, paper, plastic bags, or other semi-solid debris. • Solid material or debris.
• Pipe wall failure.
• Vandalism.

Spills resulting from sewer main blockages or clogs would result in wastewater overflowing from the manhole immediately upstream from the blockage. Virtually all City of San Clemente gravity mains are in City streets in highly-visible areas. As a result, visual inspection of City wastewater facilities by Utilities Division staff represents a key means of detection for blockage-related spills.

Spills resulting from sewer main blockages are likely to be quickly noticed by the public or personnel within other City of San Clemente Departments. The Utilities Division also monitors for blockage-related spills through flow monitoring data generated at wastewater pump stations and at the SCWRP.

Gravity Sewer Main Surcharging. As documented in the City's SSMP, scheduled City of San Clemente Utilities Division capital improvements have kept pace with development and wastewater flows within the City of San Clemente. As a result, no City of San Clemente sewer mains are at risk for surchargerelated spills during dry weather. Sewer mains are also sized to handle maximum anticipated wet-weather wastewater flows plus infiltration and inflow (I&I).

Spills resulting from sewer main surcharges would result in wastewater overflowing from manholes. As noted, virtually all City of San Clemente gravity mains are located in City streets in highly-visible areas.

Visual inspection of City wastewater facilities by Utilities Division staff and reports from the public or other City of San Clemente departments thus represents a key means of detecting surcharge-related spills.

The Utilities Division also monitors for surcharge-related spills through flow monitoring data generated at wastewater pump stations and at the SCWRP. Additionally, many of the key gravity mains are equipped with telemetered manhole covers which provide City staff with real-time monitoring data on flows and water levels in manholes and provide alerts to City staff when conditions of unusual flow or water levels are detected.

Pressure Main Ruptures. The potential exists for spills to occur as a result of pressure main ruptures.

Pressure main ruptures could be caused by:
• Corrosion.
• Pipe wall failure or joint failure.
• Inadequate installation/construction.
• Pressure build-up from blockages.
• Construction excavation activities.
• Earth movement.
13 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 4 May 2023
Spills resulting from pressure main breaks would result from pressurized wastewater breaking the ground surface in the immediate vicinity of the pressure main break. Since virtually all City of San Clemente pressure mains are located along roads or in areas with high foot and/or vehicle traffic, pressure main breaks would be visually recognizable. In addition to being highly visible, pressure main breaks would be detectable through pump station flow rate and pumping pressure data, and flow data monitored at SCWRP. As a result, pressure main ruptures would typically be rapidly detected.

Pump Station Pump/Motor/Control Failure. To minimize the potential for spills caused by pump station pump or motor failures, each of the City's wastewater pump stations is equipped with multiple pump/motors, with at least one pump/motor combination being on standby for use in the event of failure or maintenance of any of the other pump/motor combinations. To minimize the potential for spills resulting from failure of pump station controls, each of the pump stations can be operated under automatic controls or by manual actuation. Additionally, the City's Supervisory Control and Data Acquisition (SCADA) system allows for remote monitoring of pump station pumps, motors, pressures, flows, wet well water levels, and alarms. The SCADA system also allows for remote operation of pump station equipment and operating parameters.

For a spill to occur as a result of pump station pump, motor, or control failure, such failure would have to be comprehensive and affect multiple pumping units and control systems. Spills resulting from such a comprehensive failure would be detectable to City crews through pump station alarms and remotely accessed pump station performance data. Additionally, all City of San Clemente pump stations are located in highly-visible areas, and visual reports of the spill would be quickly noted by Utilities Division staff, other City of San Clemente personnel, or the public.

Pump Station Electrical Outages. Eight of the City's ten wastewater pump stations are equipped with standby power generators that automatically actuate in the event of power failure. Emergency power is not needed at the two remaining pump stations, as wastewater can be diverted by gravity main around the San Gabriel Pump Station, and wet well capacity at the Columbo Pump station is sufficiently large compared to the small wastewater inflows to negate the need for onsite emergency power.

With the presence of emergency onsite generators at the City's wastewater pump stations, a power failure spill could not occur unless failure of an onsite emergency power generator occurred simultaneously with failure of the local electrical power grid. To minimize the potential for such an occurrence, Utility Division crews routinely perform scheduled checks of onsite emergency power generating equipment, and routinely exercise the emergency power generators to insure that they are in proper working order.

The City also maintains mobile emergency power generators for use in the event of failure of any of the onsite pump station generators.

Simultaneous failure of the power grid and emergency generators would be rapidly detectable to City crews through pump station alarms and remotely accessed pump station performance data. It is probable that Utilities Division crews would be alerted to the power failure in advance of occurrence of any spill. Additionally, all City of San Clemente pump stations are sited in highly-visible areas, and visual reports of any spill would be quickly noted by Utilities Division staff, other City of San Clemente personnel, or the public.
14 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 5 May 2023
Pump Station Surcharging. Major upgrades to several of the City's ten wastewater pumping stations have recently been completed, and scheduled City of San Clemente Utilities Division capital improvements have kept pace with anticipated future development and projected wastewater flows within the City of San Clemente. With these recent upgrades, risks associated with surcharge-related spills are minimized.

Spills caused by pump station surcharging would be expected to occur only during times of comprehensive system failure during wet weather periods (such as the rupture of a gravity main or flood-related infiltration to manholes).

Spills resulting from pump station surcharges would result in wastewater overflowing from the pump station, and would be instantly detectable to City crews through pump station alarms and remotely accessed pump station performance data. Additionally, since City of San Clemente pump stations are sited in highly-visible areas, visual reports of any such surcharge-related spill would be quickly noted by Utilities Division staff, other City of San Clemente personnel, or the public.

2.3 Target Response Times
Figure 2-1 (page 2-6) presents the City's spill response chain of command. City of San Clemente Utilities Division staff monitor telephones 24-hours per day, 7 days per week to receive reports of spills, potential spills, or threatened spills.

Spills Reported During Business Hours. Spill reports received during business hours are instantly forwarded to the Sewer/Storm Drain Collections Chief Operator and the Utilities Manager. The Sewer/Storm Drain Collections Chief Operator is responsible for organizing and mobilizing work crews.

On days or times Sewer/Storm Drain Collections Chief Operator is for some reason unavailable, the Assistant Utilities Manager shall designate an alternate person as being on call and responsible for organizing and mobilizing response crews.

It is the City of San Clemente's goal to respond as rapidly as possible to reports of spills or threatened spills. Response times for Utilities Division staff to reach spill sites will vary by location, day of the week, and time of day. Utilities Division work/inspection crews are routinely on patrol within the City during business hours, and cell phone or radio communications are used to identify the location of available personnel. During business hours, depending upon location, the nearest crew may be able to arrive on the scene of a reported spill site within a matter of a few minutes after the spill report is first received.

If no crew is in the immediate area of the spill, Utilities Division management can immediately mobilize a response crew from onsite staff or staff engaged in offsite activities. The Utilities Division headquarters and yard is located on Avenida Pico at the SCWRP. Because of the central location of the Utilities Division headquarters within the sewer service area, maximum travel time from the Utilities Division headquarters on Avenida Pico to the farthest reaches of the City is approximately 20 minutes. Travel time from the Utilities Division site to either of the two principal wastewater pumping stations (Main Pump Station and Los Molinos) is approximately 5 minutes.
15 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 6 May 2023
Figure 2-1
City of San Clemente Sewer Spill Response Chain of Command 16 City of San Clemente Chapter 2
Utilities Division Spill Detection
Spill Emergency Response Plan Page 2 - 7 May 2023
Spills Reported During Non-Business Hours. As noted, San Clemente staff monitor telephones 24-hours per day, 7 days per week to receive reports of spills, potential spills, or threatened spills.

During non-business hours (night times, weekends, and holidays), the Sewer/Storm Drain Collections Chief Operator schedules an emergency response crew as being on call and available to respond to spill reports. Spill reports during non-business hours are instantly forwarded via cell phone to the collections system stand-by staff, who then notify the Sewer/Storm Drain Collections Chief Operator and the Utilities Manager. Mobilization times during non-business hours vary, depending upon personnel travel times and time of day.

During non-business hours, the City endeavors to achieve a goal of first response and spill site assessment within 30 minutes. The City further endeavors to achieve a goal of having a response team at the site within one hour of receipt of the spill report. If initial assessment indicates the need for more crews than are on call, Utilities Division collections supervisors are empowered to authorize overtime and mobilize any required off-duty personnel to respond to the spill. 17 Spill Emergency Response Plan Page 3 - 1 May 2023
Chapter 3

EQUIPMENT AND PERSONNEL
Utilities Department resources from both wastewater and water operations are available to respond to spills. This chapter summarizes resources available to the City of San Clemente in responding to spills or threatened spills.

3.1 Personnel and Organization
Response Personnel. Table 3-1 (page 3-2) summarizes available Utilities Division personnel available to participate in responding to spills or threatened spills. As shown in Table 3-1, available Utilities Division personnel include:
• Management personnel.
• Sewer collection system specialists.
• Mechanical and electrical specialists.
• Environmental and monitoring specialists.
• Additional response team personnel available for use in wastewater containment, cleanup, facilities repair, spill mitigation, site control, and spill notification and documentation duties.

City of San Clemente Utilities Division personnel are knowledgeable of wastewater collection facilities and operations and receive ongoing training. A number of the Utilities Division management personnel and staff are cross-trained in multiple disciplines. Additionally, personnel from both City of San Clemente water and wastewater operations are available to respond to spill events.

Designation of Onsite Supervisor. All spill response actions detailed in Chapter 4 of this Spill Emergency Response Plan will be directed by an Onsite Supervisor. For all spills within the City's wastewater system, the designated Onsite Supervisor (unless otherwise designated by the Utilities Manager) shall be the Sewer/Storm Drain Collections Chief Operator.
18 City of San Clemente Chapter 3
Utilities Division Equipment and Personnel
Spill Emergency Response Plan Page 3 - 2 May 2023
Table 3-1
City of San Clemente Sewer Spill Response Team
Available Utilities Division Personnel
Specialty Personnel Title Number of Available
Personnel
Spill Response Management
Utilities Manager 1
Assistant Utilities Manager 1
Utilities Operations Supervisor - Wastewater 1
Sewer/Storm Drains Collections Chief Operator 1
Utilities Maintenance Supervisor 1 A
Electrical
Lead Electrical Technician 1 A
Electrician Technicians 2 A
SCADA Tech 1
Mechanical
Chief Mechanic 1 A
Utilities Mechanics 3 A
Sewer Collection System
Specialists
Collection System Chief Operator 1
Collection System Operator I/II 4
Laboratory & Monitoring Laboratory Supervisor 1
Laboratory Technician 1
Additional Response Team
Members
Chief Operator (Water) 1 B
Lead Water Distribution System Operator 1 B
Water Distribution Operators 3 B
Water Conservationist 1 B
Total Available Response Personnel C,D 26 C,D
Table 3-1 Notes:

A Normal duties include electrical or mechanical work at the wastewater plant, pump stations or other City facilities, but personnel are available on call to assist with collection system spill responses.

B Normal duties of the listed personnel may also include water system operations, but the personnel are available on call to assist with collection system spill responses.

C In addition to the City of San Clemente Utilities Division staff shown above, Sheriff's Department personnel will be called to assist with site and traffic control. Additional work crews from other City departments may also be called in to assist in the spill effort.

D The City of San Clemente maintains interagency “mutual aid” agreements with adjoining agencies (South Coast Water District and Santa Margarita Water District) which allow agencies in need to call upon emergency support staff and resources from adjoining agencies in the event of need.

When Utilities Division staff arrive at the spill scene in advance of the designated Onsite Supervisor, the senior onsite Utilities Division staff member will assume the duties of the Onsite Supervisor until the Sewer/Storm Drain Collections Chief Operator arrives.

When the Sewer/Storm Drain Collections Chief Operator is on vacation or are otherwise unavailable, the Assistant Utilities Manager shall designate an experienced Utilities Division staff member to serve as the on call Onsite Supervisor responsible for responding to and taking charge of spill response efforts. Any 19 City of San Clemente Chapter 3
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Spill Emergency Response Plan Page 3 - 3 May 2023
received spill reports shall be immediately directed to the designated oncall Onsite Supervisor as well as the Utilities Manager.

Response Teams. All Utilities Department workers are available via cell phone/radio communications during business hours. As discussed in Section 2.3 (pages 2-5 through 2-7), Utilities Department supervisors can quickly mobilize spill response crews by (1) routing crews already in the field to the response site and/or (2) directing crews at Utilities Division offices/yards to the response site.

The Sewer/Storm Drain Collections Chief Operator is to ensure that schedules are maintained so that a senior-level Utilities Supervisor and an emergency response crew is scheduled as being on call and available during all non-business hours.

3.2 Training
Utilities Division personnel spill response training is the responsibility of the Utilities Manager, Assistant Utilities Manager, and Utilities Operations Supervisor - Wastewater. Ongoing Utilities Division training includes:
• Orientation Training and Mentorship. New employees are trained in assigned duties by experienced Utilities Division staff. Supervisors serve as mentors in order to allow newer employees to better understand City wastewater facilities, staffing responsibilities, and wastewater system operations.
• Specialized Training. Using either Utilities Division staff or outside instructors, Utilities Division personnel receive periodic training in such areas as first aid, safety (including confined space entry and ventilation), fire prevention, traffic control, and equipment operation. • Coordination with Storm Drain Staff. Since storm drains with the City of San Clemente are maintained by City, City storm drain and wastewater staff routinely coordinate and cooperate in preparing for and responding to spill events.
• Drills and Test Exercises. Utilities Division drills and training exercises are periodically conducted by senior Utilities Division staff. Table 3-2 (page 3-4) presents the Utilities Division training schedule for drills and tests. Drills and test exercises directed by senior Utilities Division staff include notification tests, equipment tests, communication tests, mobility drills, and troubleshooting training. • Professional Training and Certification. Utilities Division employees are encouraged to achieve professional certifications and participate in such professional organizations as Water Environment Federation and California Water Environment Association. Employees are encouraged to attend training sessions and seminars that relate to sewer system operation, spill prevention, spill containment, and spill recovery.
• Professional Development. Professional promotions within the Utilities Division are, in part, based on employee's work performance, professional certifications, and well-rounded knowledge of all facets of the City's wastewater facilities and operations. Employees seeking advancement are thus encouraged to (1) cross-train in areas beyond their normal duties and (2) increase their breadth of knowledge outside their immediate responsibilities. 20 City of San Clemente Chapter 3
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The Utilities Manager is responsible for developing and implementing procedures to ensure that wastewater division personnel are familiar with:
• Reporting and notification requirements established by the SWRCB within SWRCB Order No.

WQ 2022-0103-DWQ.
• Reporting and notification requirements established by the RWQCB within RWQCB Order No.

R9-2007-0005.
• Reporting guidelines and notification requirements established by the Orange County Health Care Agency (OCHCA).
• Sewer overflow response guidelines and provisions established within this SERP.

Table 3-2
Emergency Preparedness Training and Testing
Test or Drill Test or Drill
Frequency A
Notification drills to test mobilization of staff Quarterly Interdepartmental and intradepartmental communications exercises Monthly Exercise standby pumps Monthly
Test and exercise emergency power generators Monthly
Pump station controls and pump stations operations training As-needed Test pump station alarms Weekly
Safety training or drills Quarterly
Trouble-shooting exercises on pump controls Annually
Drills for mobilizing emergency equipment and materials Annually Drills to test spill response actions Annually
Table 3-2 Notes:

A Approximate frequency of test or drill in the absence of spill events. Actual frequencies may vary depending on spill history, staff experience, and training needs identified by Utilities Division supervisors.

3.3 Available Response Equipment
As detailed in Chapter 4, spill response actions to be led by the Onsite Supervisor may include spill assessment, spill containment, wastewater facilities repairs, site control, sampling and monitoring, spill cleanup, and notification/documentation. Table 3-3 (page 3-5) summarizes key equipment and facilities that is available to the Onsite Supervisor to handle spill events. 21 City of San Clemente Chapter 3
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Table 3-3
City of San Clemente Spill Response Team
Key Available Equipment
Equipment A Number
Available A
2100 Series Vactor Truck B 2
Tool-equipped maintenance vehicles C 35
Portable welders (truck-mounted or portable) 2
Backhoe excavators 2
Traffic control light trailers 2
8-inch portable wastewater pump D 1
6-inch portable pump D 1
Mobile emergency generators E 3
Sewer pipe replacement sections See note F
Misc. pipe sleeves, couplings, and other fittings See note G Misc. pump seals, bearings, and spare parts See note H
Filled sand bags (for dikes, berms, spill containment) 2500 Table 3-3 Notes:

A City-owned available response equipment. Additional response equipment may be available from adjoining sewer agencies through mutual assistance agreements. Additional equipment may also be available from "as needed" contractors, suppliers, or local rental organizations. The City maintains an updated list of emergency contractors.

B Each Vactor truck is equipped with a positive displacement compressor vacuum system, a 1500-gallon tank, a Vactor Jet 2000 psi water pump, an 800-foot rotating hose reel, and a telescoping boom.

C Includes pickups, vans, and other Utilities Division vehicles equipped with some or all of the following: tool kits, traffic cones, emergency lights, first aid kits, manhole lifters, monitoring vials, sewer spill posting signs, etc.

D Each portable pump is equipped with 1000 linear feet of discharge hose and 50 linear feet of suction hose. In addition to the 8-inch and 6-inch pumps, the City maintains numerous smaller 2-inch and 3-inch trash or diaphragm pumps.

E Includes 155-kilowatt, 300 kilowatt, and 350 kilowatt portable generators.

F Miscellaneous pipe sections for gravity and force mains are stored in the City's Utilities Division maintenance yard and are available for use if sewer main breaks require replacement of pipe sections.

G Miscellaneous pipe sleeves and other fittings are maintained in inventory. The Utilities Division establishes a list of critical parts/components based on manufacturer/designer recommendations, past history of failure, operating and use experience, and parts availability.

H As detailed in the City's SSMP, the City conducts routine inspection and maintenance of all City wastewater pump stations. As part of this program, the City maintains a complete inventory of pump seals, bearings, and spare parts required for maintaining and repairing pumping facilities. 22 Spill Emergency Response Plan Page 4 - 1 May 2023
Chapter 4

SPILL RESPONSE ACTIONS

4.1 Spill Response Overview
This chapter summarizes City of San Clemente Utilities Division actions for responding to sewer system spills. All spill response actions will be under the direction of the designated Onsite Supervisor.

Response actions shall include:
• Initial assessment and spill classification.
• Office of Emergency Services (OES) and RWQCB notification. 7 • Securing the site perimeter.
• Spill containment.
• Posting.
• Spill control.
• Monitoring and spill documentation.
• Site cleanup and restoration.
• Follow-up activities.

Response actions taken by the City will be in accordance with provisions established within SWRCB Order No. WQ 2022-0103-DWQ.

4.2 Initial Assessment and Spill Classification
Initial Assessment. When arriving onsite, the Onsite Supervisor shall assume direction and management of all response personnel and resources. The Onsite Supervisor shall take command of onsite Utilities Division staff, assess the spill site, and collect information from Utilities Division staff to:
• Identify what is causing the spill (or threatening to cause the spill). • Determine where the spilled sewage will flow and identify potentially affected areas. • Identify strategies for gaining site control and keeping people and spectators away. • Assess strategies for containing the spill, and identify personnel and resources required for spill containment.
• Assess strategies for terminating or redirecting the source of the spill, and identify personnel and equipment required to terminate the spill source.
7 OES notification is required for spills from public sewer systems exceed 1000 gallons and will or are projected to discharge to surface waters. OES notification is voluntary if the spill exceeds 1000 gallons and originates from a privately-owned sewer lateral or collection system. RWQCB notification (per RWQCB Order No. R9-2007-0005) is required for any spill of 1000 gallons or more. Notification to the RWQCB is to occur within 24 hours of becoming aware of the spill. 23 City of San Clemente Chapter 4
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Spill Emergency Response Plan Page 4 - 2 May 2023
• Determine if the spill has the potential to threaten public health, cause property damage, or impact the environment.
• Communicate the nature of the problem to the Utilities Manager. • In consultation with the Utilities Manager, call in required additional personnel and equipment resources.
• If the spill discharges to surface waters (Category 1 Spill) or exceeds 1000 gallons in volume (Category 2 Spill), call the Office of Emergency Services (OES) at (800) 852-7550 within two hours of becoming aware of the spill, provide the OES with requested information, and obtain a notification control number from the OES. Also notify the RWQCB within 24 hours of becoming aware of any spill to surface waters that exceeds 1000 gallons in volume. • Consult with other primary responders contacted by OES (e.g., health officials or other responding agencies) and determine if any downstream parties need to be notified to protect public health. • Estimate the duration and volume of spilled sewage.
• Determine if any upstream dischargers need to be contacted to reduce wastewater quantities discharged to the sewer system.

Spill Classification. Table 4-1 (page 4-3) presents SRWQCB classifications for spills, as defined within Section 5.13.1 of Order No. WQ 2022-0103-DWQ.

Per Order No. WQ 2022-0103-DWQ, Category 1 spills are defined as a discharge of untreated or treated wastewater of any volume that reach surface water or a drainage channel tributary to surface water.

Category 1 spills also include any discharge untreated or partially treated wastewater that reaches a Municipal Separate Storm Sewer System (MS4) and is not fully captured and properly disposed (unless the MS4 is tributary to a dedicated groundwater infiltration or percolation basin).

4.3 Notifications
Office of Emergency Services (OES) Notification. In accordance with the requirements of Order No.

WQ 2022-0103-DWQ, the Onsite Supervisor is responsible for notifying the OES within two hours of becoming aware of any Category 1 or Category 2 spill. The Onsite Supervisor shall provide the OES with requested information and obtain an OES notification control number. Spill information requested by OES may include the following:
• Name, agency, and contact information of person notifying OES of the spill. • Estimated spill volume discharged in gallons.
• If ongoing, the estimated spill discharge rate in gallons per minute. • Spill Incident Description, including:
a. Brief narrative of the spill.
b. On-scene point of contact for additional information (name and cell phone number). c. Date and time enrollee became aware of the spill.
d. Name of sanitary sewer system agency causing the spill. e. Spill cause (if known).
• Indication of whether the spill has been contained.
24 City of San Clemente Chapter 4
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• Indication of whether surface water is impacted.
• Name of surface water impacted by the spill, if applicable. • Indication of whether a drinking water supply is or may be impacted by the spill. • Any other known spill impacts.
• Spill incident location (address, city, state, and zip code).

Upon receipt of the spill information, OES forwards notification information to local government agencies and applicable first responders, including the OCHCA, hazardous waste officials, and the RWQCB.

Table 4-1
Spill Categories
Category A Description
Category 1
A discharge of untreated or partially treated wastewater from sanitary sewer system facilities in any volume that:
• Reaches surface waterB and or reaches a drainage channel tributary to a surface water. • Discharges to a Municipal Separate Storm Sewer System (MS4) and is not fully captured and returned to the sanitary sewer system (unless discharged to a dedicated infiltration basin or percolation pond).

Category 2
A discharge of untreated or partially treated wastewater from sanitary sewer system facilities of 1000 gallons or more resulting from a sanitary sewer system failure or flow condition that does not reach surface water, a drainage channel, or a MS4 unless the entire spill discharged to a storm drain system if fully recovered and properly disposed. B A spill of 1000 gallons or more that spills out of a lateral and is caused by a failure or blockage in the sanitary sewer system is a Category 2 spill.

Category 3 A discharge of untreated or partially treated wastewater from sanitary sewer system facilities of less than 1000 gallons but more than 50 gallons that does not discharge to surface water. C Category 4 A discharge of untreated or partially treated wastewater from sanitary sewer system facilities of less than 50 gallons that does not discharge to surface water. D Table 4-1 Notes:

A Spill categories are defined within Section 5.13.1 of SWRCB Order No. WQ-2022-0103-DWQ B Any spill volume not recovered from a drainage conveyance system is considered a discharge to surface water unless the drainage conveyance system discharges to a dedicates stormwater infiltration basin or facility.

C A spill of more than 50 but less than 1000 gallons that is caused by a failure or blockage in the sanitary sewer system is a Category 3 spill.

D A spill of less than 50 gallons that is caused by a failure or blockage in the sanitary sewer system is a Category 4 spill.

Following the initial notification to OES, the Utilities Division shall provide updates to OES on any substantial changes in the estimated volume of untreated or partially treated wastewater or any substantial changes to known impacts. This notification shall be made by the Onsite Supervisor if such substantial changes are in evidence while City crews are still on the scene responding to the spill. The Sewer/Storm Drain Collections Chief Operator shall make the report to OES if such substantial changes 25 City of San Clemente Chapter 4
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are determined to have occurred after City response crews have left the site but prior to the time the spill report is logged into the California Integrated Water Quality System (CIWQS) Sanitary Sewer System Database.

Order No. WQ-2022-0103-DWQ encourages (but does not require) sewer system operators to notify OES of discharges to surface waters exceeding 1000 gallons from private lateral sewer discharges (PLSDs).8

In accordance with this directive, the City shall endeavor to notify OES whenever City staff become aware of PLSDs to surface waters that exceed 1000 gallons.

RWQCB Notification. RWQCB Order No. R9-2007-005 establishes spill reporting requirements in addition to state-wide spill reporting requirements established in SWRCB Order No. WQ 2002-0103-DWQ.

RWQCB Order No. R9-2007-0005 requires agencies to notify the RWQCB via telephone or email within 24 hours9 of becoming aware of a spill of 1000 gallons or more from a public sewer system or private lateral that reaches surface waters. The RWQCB notification is to include:
• The name of the sewer agency.
• The name and telephone number of the agency person reporting the spill. • The estimated spill volume.
• The location of the spill and the affected receiving water. • The start time of the spill and (if applicable) the end time of the spill. • Confirmation that the local health agency has been notified.

4.4 Site Perimeter and Traffic Control
Site Perimeter Control. Concurrent with the initial assessment, the Onsite Supervisor shall take immediate actions to isolate the public from the spill. Site control shall be achieved using portable barriers, signs or postings, stakes and tape, existing fencing, parked vehicles, or natural terrain.

The Onsite Supervisor shall contact the Sheriff's department if additional assistance is (1) required for isolating the public from the spill, (2) required for controlling crowds or onlookers, or (3) if members of the public are interfering with efforts of the spill response team.

Traffic Control. If the potential exists for spill response actions (or parked response vehicles) to impact traffic, the Onsite Supervisor shall also take actions to divert traffic around the response site and ensure the safety of traffic, the public, and response crews. Traffic shall be diverted where necessary using traffic cones, portable signs, emergency lights, flag personnel, vehicles, and/or portable traffic-direction light trailers.

City response vehicles routinely carry traffic cones, barriers, and traffic control flags, and signs.

Additional materials required to secure the site perimeter (which include portable traffic-direction light trailers) are stored at the SCWRP and should be secured by the Onsite Supervisor if required. 8 Per Section 5.15 of Order No. WQ 2022-0103-DWQ, reporting of spills from privately-owned laterals or systems is voluntary. 9 Provided that such 24-hour notification can be provided without substantially impeding cleanup or other emergency measures. 26 City of San Clemente Chapter 4
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The Onsite Supervisor shall determine if onsite traffic control is adequate, or if law enforcement assistance is required. Sheriff's Department officials should be notified if required to assist in traffic control. Fire Department officials should be contacted if traffic controls could result in fire response delays. Response vehicles and crews are required to maintain current telephone numbers for the Sheriff's Department and Fire Department.

4.5 Spill Containment or Diversion
Upon achieving control of the site perimeter, response crews under the direction of the Onsite Supervisor shall endeavor to contain or divert the spill. To determine the best strategy (or strategies) for spill containment or diversion, the Onsite Supervisor shall evaluate the:
• Spill volume and flowrate of the spill.
• Terrain and natural barriers.
• Locations of downstream manholes or other sewer collection sewer facilities. • Locations or storm drains or streams.

Spill and recovery containment strategies to be evaluated, and (if appropriate) implemented by the response crews include:
• Using Vactor trucks to vacuum the spill.
• Using sandbags rubber dams, or other portable flow barriers to prevent the flow from entering storm drains or drainage channels.
• Diverting the spill by pumping around the overflow point or sewer break point back into the sewer system.
• Diverting the spill by berms or sandbags back into the sewer system. • Diverting or retaining the spill in a hollow, swale, or low area for subsequent recovery. • Constructing a temporary dam or dike to contain the spill for subsequent recovery.

Recovery from Storm Drains. City response vehicles are equipped with maps of municipal storm drain facilities. If the spill enters a storm drain, the Onsite Supervisor shall make all reasonable efforts identify a downstream location(s) where the storm drain can be dammed up to prevent the spill from reaching surface waters. The onsite supervisor will also contact the City’s storm drain supervisor to coordinate any response actions involving City storm drain facilities. Any spilled flow contained within the storm drain facilities shall be subsequently removed by portable pumps or Vactor trucks and discharged to the sanitary sewer system.

Recovery Through Streamflow Diversion Facilities. As a means of minimizing the potential for dry season storm drain flow to impact local beaches, the Utilities Division maintains a program of diverting dry season streamflow back into the sanitary sewer system at the following locations:
• Linda Lane Park Diversion.
• North Beach Diversion.
• M02 Diversion.
• Outlet Diversion.
27 City of San Clemente Chapter 4
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• Avenida da la Riviera Diversion.
• San Gabriel Diversion.

The Onsite Supervisor shall determine if the spills are in areas tributary to these streamflow diversion facilities. If so, the Onsite Supervisor shall ensure that streamflow diversion facilities are operational and that spilled flows not otherwise contained are recovered through the streamflow diversion facilities.

4.6 Posting
City response vehicles are equipped with signage for use in warning the public of contact with areas contaminated by spills. In consultation with OCHCA and in accordance with OCHCA regulations, affected areas shall be identified and posted as being contaminated with sewage.

Signage shall be posted in locations so as to maximize public visibility and minimize the potential for public contact with contaminated areas. Signs shall be posted along all routes the public may be reasonably expected use to enter the contaminated area.

Signs shall remain posted for a minimum of five days, unless the Utilities Division is otherwise directed by the OCHCA.

4.7 Spill Termination
Once spill containment is assured, response crews shall focus on eliminating the source or cause of the spill and terminating the spillage.

Gravity Sewer Main Breaks. For spills caused by breaks or failures of gravity sewer mains, the Onsite Supervisor shall determine the location and nature of the sewer main break, and identify equipment and resources required to repair the break. After sewage diversion actions are implemented, excavation equipment shall be called in to expose the break and allow the Onsite Supervisor to determine the appropriate measures for repairing the break. Minor breaks may be resolved with sleeves, patches, or fittings, while major breaks may require replacement of pipe sections.

The Onsite Supervisor shall assess whether the spill or potential repair actions associated with the spill may affect nearby water or stormwater conveyance facilities. The Onsite Supervisor shall coordinate with applicable water or stormwater conveyance operators in making this determination and assessing whether (and how many) water system or stormwater staff are required as part of the spill response effort.

Gravity Sewer Main Blockages. For spills caused by sewer main blockage, the Onsite Supervisor shall determine the location and nature of the sewer main blockage, and identify equipment and resources required to clear the blockage. Once the nature of the blockage is identified, blockages may be removed by a variety of strategies including:
• Sewer main water jetting.
• Application of degreasers.
• Vactor truck pumping.
28 City of San Clemente Chapter 4
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• Sewer main rodding.
• Manual removal.

Gravity Sewer Main Surcharging. For spills caused by gravity main surcharging, the Onsite Supervisor shall determine the nature and cause of the temporary surcharging, and direct actions to (1) temporarily divert wastewater flows, and (2) eliminate the cause of the surcharging. Activities required to eliminate the surcharging may include:
• Restoring manhole covers removed by citizens or by force of flow. • Installing temporary dikes or dams to protect facilities from runoff or standing water.

If the sewer system surcharging is caused by inflows of stormwater from flooded streets due to improperly operating storm drains, it may be necessary to eliminate the street flooding by unblocking or cleaning the storm drains to allow storm runoff to flow into the storm drains instead of flowing into the sanitary sewer system.

Pressure Main Ruptures. For spills caused by breaks of failures in pressure mains, the Onsite Supervisor shall determine the location and nature of the break/failure, and identify equipment and resources required to (1) divert flows around the rupture and (2) repair the break. After sewage diversion actions are implemented, excavation equipment shall be called in to expose the rupture and allow the Onsite Supervisor to determine the appropriate measures for repairing the break. Minor ruptures may be resolved with sleeves, patches, or fittings, while major breaks may require replacement of pipe sections.

The Onsite Supervisor shall assess whether the spill, potential repair actions, or erosion effects associated with the pressure main spill may affect nearby water or stormwater conveyance facilities. The Onsite Supervisor shall coordinate with applicable water or stormwater conveyance operators in making this determination and assessing whether (and how many) water system or stormwater staff are required as part of the spill response effort.

Pump Station Pump/Motor/Control Failure. For spills caused by pump station failure, the Onsite Supervisor shall determine the nature of the pump, motor, or control failure, and identify equipment and resources necessary to restore pump station operations. For use in the pump or motor repairs, an inventory of spare pump parts, motor bearings, and electrical controls are available at the Utilities Division the SCWRP site.

If automatic controls fail, Utilities Division staff are to revert to manual operation of pumps until the automatic controls are repaired or restored. If required, the Utilities Division maintains portable pumps and diversion equipment for use until full pump station operations are resumed.

Pump Station Electrical Failure. For spills related to electrical failures, the Onsite Supervisor shall determine the nature and cause of the failure of onsite emergency generators to actuate upon power grid failure, and take actions to restore pump station power. Power restoration response actions shall include:
• Attempt to manually start onsite emergency generators. • Order mobile generators to the site.
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• If onsite emergency generators cannot be manually started, hook up the mobile generators and restore power.
• Determine if onsite repair of the emergency generators or generator controls is possible. • Maintain mobile generators at the site (even after grid power is restored) until the source of problems for the onsite emergency generators is diagnosed and corrected.

Pump Station Surcharging. For spills caused by pump station surcharging, the Onsite Supervisor shall determine the nature and cause of the temporary surcharging, and direct actions to eliminate the cause of the surcharging. Activities required to eliminate the surcharging may include:
• Restoring manhole covers removed by citizens or by force of flow. • Installing temporary dikes or dams to protect facilities from runoff or standing water.

If the pump station surcharging is caused by inflows of stormwater into the sanitary sewer system from flooded streets due to improperly operating storm drains, it may be necessary to eliminate the street flooding by unblocking or cleaning the storm drains to allow storm runoff to flow into the storm drains instead of flowing into the sanitary sewer system.

4.8 Assessment, Cleanup and Restoration
Monitoring. For spills in excess of 50,000 gallons that reach surface water, SWRCB Order No.

WQ 2022-0103-DWQ requires daily receiving water monitoring during each day of the spill for ammonia, total coliform, fecal coliform, E. Coli and enterococcus. Daily receiving water quality monitoring is required at the following locations:
• DSC-001, the point in a drainage conveyance system before the drainage conveyance system discharges into a surface receiving water (representative of the spill quality itself). • RSW-001, the point in the receiving water where the spill initially enters the receiving water. • RSW-001U, a point in the receiving water upstream from the point where the spill enters surface waters (e.g., characterizing unimpacted upstream receiving water conditions). • RSW-001D, a point in the receiving water downstream from the point of discharge where the spill is fully mixed with the receiving water.

Additionally, if warranted after consultation with OCHCA and onsite Utilities Division environmental specialists, the Onsite Supervisor shall direct Utilities Division staff to collect bacteriological water quality samples at additional sites to assess possible impacts to public health and the environment. Samples shall be labeled to show the collection date, time, and site.

The Utilities Operations Supervisor - Wastewater is responsible for (1) developing and implementing protocols for water quality monitoring, (2) determining where monitoring may not be possible as a result of safety concerns or access restrictions, (3) ensuring that monitoring instruments and devices are properly maintained and calibrated, and (4) maintaining records that document instrument maintenance and calibration.

Collection of Photographic/Video Evidence. Where possible and appropriate during and after spill response activities, the Onsite Director shall direct that photographic or video evidence be collected to 30 City of San Clemente Chapter 4
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document (1) City response actions, (2) spill causes, (3) impacts to public health or the environment, and (4) cleanup and restoration measures. Photographic or video evidence shall be labeled to show the date, location, time, and person recording the event.

Site Cleanup and Restoration. After spill control is achieved, City response crews shall endeavor to return all spilled sewage to the sewer system (or as much as possible) and return the spill site to pre-spill conditions. Site cleanup operations shall be directed by the Onsite Supervisor, in consultation with OCHCA. The City currently maintains a “Hazardous Waste Response, Clean-up, Removal, and Disposal Environmental On-call Contract” for use in safely removing and cleaning chemical & biologically hazardous material such as chemicals spills, or blood and tissue clean-up from accidents.

Where appropriate, Vactor trucks or portable pumps shall be used to recapture spilled sewage and return it to the sewer system. Affected pavements, hardscapes shall be flushed with water, with flush water being recaptured and returned to the sewer system. Affected areas are to be assessed for impact to public health, biological resources, and other beneficial uses. Spill containment measures (barriers, dike, or dams) are not to be removed until the entire site clean-up is complete.

As part of this cleanup effort, City staff will (if storm drains are involved) coordinate with storm drain staff to ensure protection and integrity of storm water collection facilities. Additionally, if potable water conveyance facilities are near the spill site, City wastewater staff will coordinate with water system staff to ensure that repair or cleanup efforts do not endanger or adversely impact potable water conveyance facilities.

4.9 Reporting and Follow-Up Actions
Corrective Actions and Mitigation. After site cleanup, the Onsite Supervisor shall determine if any short-term corrective or mitigating measures are required to prevent spill recurrence. Short-term corrective measures may include:
• Temporarily stationing Utilities Division personnel at the site to monitor conditions and/or equipment after the spill is terminated.
• Stationing response equipment at the site until it can be confirmed that the spill threat is no longer present.
• Ordering additional immediate repair activities to strengthen the integrity of the wastewater collection system.
• Implementing special short-term video inspection of collection mains.

The Onsite Supervisor, in consultation with the Assistant Utilities Manager or the Utilities Operations Supervisor - Wastewater, shall also determine if any long-term corrective measures are required. Longterm measures may include:
• Increased frequency of video inspection of suspect pipe sections. • Replacing suspect pipe sections.
• Replacing or repairing suspect equipment.
• Acquiring additional spill response equipment.
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• Bolting manhole covers susceptible to vandalism.
• Installing seals on manhole covers subject to inflow or surcharging. • Revising Utilities Division personnel assignments and duties. • Reviewing/ modifying the City’s SSMP or Spill Emergency Response Plan procedures. • Conducting additional training or testing sessions.
• Authorizing redesign of wastewater facilities or equipment. • Revising or reprioritizing Capital Improvement Program projects.

CIWQS Sanitary Sewer System Database Notifications and Reporting. The Utilities Manager or his/her designee is authorized to oversee preparation and certification of spill compliance reports submitted to the State via the CIWQS Sanitary Sewer System Database pursuant to requirements established in SWRCB Order No. WQ 2022-0103-DWQ.

Table 4-2 (page 4-11) presents notification, monitoring and reporting requirements for Category 1 and Category 2 spills. Draft reports for Category 1 and Category 2 spills shall be submitted to the CIWQS Sanitary Sewer System Database within 3 business days of the time the City is aware of the spill. Final reports for Category 1 or Category 2 spills shall be certified through the CIWQS Sanitary Sewer System Database within 15 calendar days of the termination date of the spill.

Table 4-3 (page 4-12) presents information that is to be included in the draft and certified spill reports logged into CIWQS.

The Utilities Operations Supervisor - Wastewater shall be responsible for submitting City of San Clemente spill reports to the CIWQS Sanitary Sewer System Database. If CIWQS is temporarily not accessible, the Utilities Operations Supervisor - Wastewater shall:
• Fax or email the required information to the RWQCB (contact numbers are in Appendix 1) in accordance with the time schedules identified in Table 4-2, and • Ensure that the required information is entered into the CIWQS Sanitary Sewer System Database when the online database becomes available.

The Utilities Operations Supervisor - Wastewater is also responsible for providing the telephone or email notification (see page 4-4) to the RWQCB as required under RWQCB Order No. R9-2007-0005. 32 City of San Clemente Chapter 4
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Table 4-2
Notification, Monitoring and Reporting Requirements for Category 1 and Category 2 Spills SWRCB Order No. WQ 2022-0103-DWQA
Element Category 1 Spill Requirements A Category 2 Spill Requirements B Notification C
• Within two hours of becoming aware of any
Category 1 Spill D greater than or equal to 1,000
gallons discharged to surface water or spilled in a
location where it probably will be discharged to
surface water, notify OES at (800) 852-7550 and
obtain a notification control number.
• Within 24 hours of becoming aware of the spill,
notify the RWQCB via email at:

[email protected] or leave a
telephone message at (619) 516-1990.
• Within two hours of becoming aware of any
Category 2 Spill E greater than or equal to 1,000
gallons that does not discharge to surface
water or MS4 structures or spilled in a location
where a discharge to surface waters is
threatened, notify OES at (800) 852-7550 and
obtain a notification control number.

Reporting F
• Submit draft report within 3 business days of
becoming aware of the spill. G
• Submit a certified spill report within 15 calendar
days of the spill end date. G
• Submit a Technical Report within 45 calendar days
after the end date of any spill in which 50,000
gallons or greater are spilled to surface waters. G
• Submit an amended spill report within 90 calendar
days after the spill end date. G
• Submit draft report within 3 business days of
becoming aware of the spill. G
• Submit a certified spill report within 15
calendar days of the spill end date. G
• Submit an amended spill report within 90
calendar days after the spill end date. G
Water
Quality
Monitoring H
• Conduct spill-specific monitoring. I
• For each day of the spill, conduct daily water quality sampling within 18 hours after initial spill
notification for spills in which 50,000 gallons or
greater are spilled to surface waters, including one
daily sample at the point prior to the spill reaching a receiving water, one sample at the point where the
spill reaches receiving water, one sample
downstream from the point of discharge, and one
sample upstream from the point of discharge. G,J
• Conduct spill-specific monitoring. I
Table 4-2 Notes:

A Notification, monitoring and reporting requirements for Category 1 spills, as established within Table E2-1 of Attachment E2 of Order No. WQ 2022-0103-DWQ.

B Notification, monitoring and reporting requirements for Category 2 spills, as established within Table E2-2 of Attachment E2 of Order No. WQ 2022-0103-DWQ.

C Notification procedures are established in Section 1 of Attachment E1 of Order No. WQ 2022-0103-WQ.

D Category 1 spill is defined as a discharge of untreated or partially treated wastewater of any volume resulting from an enrollee’s sanitary sewer system failure or flow condition that (1) reaches surface water and/or reaches a drainage channel tributary to a surface water; or (2) reaches a Municipal Separate Storm Sewer System (MS4) and is not fully captured and returned to the sanitary sewer system or not otherwise captured and properly disposed. Any volume of wastewater not recovered from the MS4 is considered to have reached surface water unless the storm drain system discharges to a dedicated storm water or groundwater infiltration basin.

E Category 2 spill is defined as a spill of 1000 gallons or greater that does not discharge to surface water or a MS4 structure.

F Reporting procedures are established in Section 3.1 of Attachment E1 of Order No. WQ 2022-0103-WQ.

G The Utilities Operations Supervisor - Wastewater is the City of San Clemente legally responsible official for entering spill data and spill reports into the CIWQS Sanitary Sewer System Database at: http://ciwqs.waterboards.ca.gov/.

H Water quality monitoring requirements are established in Section 2 of Attachment E1 of Order WQ 2022-0103-WQ. Monitoring is to be conducted for ammonia, total coliform, fecal coliform, E. Coli and enterococcus.

J Water quality sampling of the spill is to be conducted for ammonia, total coliform, fecal coliform, E-coli and enterococcus. 33 City of San Clemente Chapter 4
Utilities Division Spill Response Actions
Spill Emergency Response Plan Page 4 - 12 May 2023
Table 4-3
Required Information for CIWQS Sanitary Sewer System Database Draft and Certified Reports for Category 1 and Category 2 Spills Spill Report Information Requirement A
Draft
Spill Reports

1. Spill Contact Information: Name and telephone number of enrollee contact person who can answer specific questions about the spill being reported.

2. Spill Location Name.

3. Location of the spill by entering GPS coordinates. If a single overflow event results in multiple appearance points, provide GPS coordinates for the appearance point closest to the failure point and describe each additional appearance point in the spill appearance point explanation field.

4. Whether or not the spill reached surface water, a drainage channel, or entered and was discharged from a drainage structure.

5. Whether or not the spill reached a municipal separate storm drain system.

6. Whether or not the total spill volume that reached a municipal separate storm drain system was fully recovered.

7. Estimate of the spill volume, inclusive of all discharge point(s).

8. Estimate of the spill volume that reached surface water, a drainage channel, or was not recovered from a storm drain.

9. Estimate of the spill volume recovered (if applicable).

10. Number of spill appearance point(s).

11. Description and location of spill appearance point(s). If a single sanitary sewer system failure results in multiple spill appearance points, each appearance point must be described.

12. Spill start date and time.

13. Date and time the enrollee was notified of, or self-discovered, the spill.

14. Estimated operator arrival time.

15. For spills greater than or equal to 1,000 gallons, the date and time OES was notified.

16. For spills greater than or equal to 1,000 gallons, the OES control number.

Certified
Spill Reports
In addition to the information provided for the Draft Category 1 spill reports, Certified Spill Reports shall include:

1. Description of spill destination(s).

2. Spill end date and time.

3. Spill causes (mainline blockage, roots, etc.).

4. Spill failure point (main, lateral, etc.).

5. Whether or not the spill was associated with a storm event.

6. Description of spill corrective action, including steps planned or taken to reduce, eliminate, and prevent reoccurrence of the overflow; and a schedule of major milestones for those steps.

7. Description of spill response activities.

8. Spill response completion date.

9. Whether or not there is an ongoing investigation, the reasons for the investigation and the expected date of completion.

10. Whether or not a beach closure occurred or may have occurred as a result of the spill.

11. Whether or not health warnings were posted as a result of the spill.

12. Name of beach(es) closed and/or impacted. If no beach was impacted, NA shall be selected.

13. Name of surface water(s) impacted.

14. If water quality samples were collected, identify parameters the water quality samples were analyzed for. If no samples were taken, NA shall be selected.

15. If water quality samples were taken, identify which regulatory agencies received sample results (if applicable). If no samples were taken, NA shall be selected.

16. Description of methodology(ies) and type of data relied upon for estimations of the spill volume discharged and recovered.

17. Spill Certification. B
Table 4-3 Notes:

A Requirements for initial reports for Category 1 spills that are to be filed in the CIWQS Sanitary Sewer System Database, as established by SWRCB Order No. WQ 2022-0103-DWQ. Draft Category 1 spill reports are to be filed as soon as possible, but no later than 3 business days after the discovery of the spill. Certified Category 1 Spill Reports are to be filed no later than 15 calendar days from the termination of the spill. The Utilities Operations Supervisor - Wastewater is the City of San Clemente legally responsible official for entering spill data and spill reports into the CIWQS Sanitary Sewer System Database.

B Upon spill certification, the CIWQS Sanitary Sewer System Database will issue a Final Spill Identification Number. 34 City of San Clemente Chapter 4
Utilities Division Spill Response Actions
Spill Emergency Response Plan Page 4 - 13 May 2023
Table 4-4 presents notification, monitoring and reporting requirements for Category 3 and Category 4 spills. As summarized in Table 4-4, reporting for Category 3 and Category 4 spills are addressed within monthly and annual reports that are to be submitted to the submitted to the CIWQS Sanitary Sewer System Database. Monthly reports are due within 30 calendar days of the end of the month, and annual reports are due by February 1st of the following year. The Utilities Operations Supervisor - Wastewater is responsible for entering the monthly and annual reports into CIWQS.

Table 4-4
Notification, Monitoring and Reporting Requirements for Category 3 and Category 4 Spills SWRCB Order No. WQ 2022-0103-DWQA
Element Category 3 Spill Requirements A Category 4 Spill Requirements B Notification C • Not required. • Not required.

Reporting D
• Submit a certified spill report within 30 calendar
days after the end of the month in which the
Category 3 spill occurs. E,F
• Submit an amended spill report within 90
calendar days after the certified spill report due
date. E,F
• For months in which Category 4 spills occur,
upload and certify a monthly report within 30
days after the end of the calendar month that
details the total number of Category 4 spills and
the estimated spill volume. E,G
• Upload and certify by February 1st of each year, an
annual report that identifies Category 4 spills and
spill volumes that occurred in the prior calendar
year. E,G
Water
Quality
Monitoring H
• Conduct spill-specific monitoring. I • Conduct spill-specific monitoring. I Table 4-4 Notes:

A Notification, monitoring and reporting requirements for Category 3 spills, as established within Table E2-3 of Attachment E2 of Order No. WQ 2022-0103-DWQ.

B Notification, monitoring and reporting requirements for Category 4 spills, as established within Table E2-4 of Attachment E2 of Order No. WQ 2022-0103-DWQ.

C Notification procedures are established in Section 1 of Attachment E1 of Order No. WQ 2022-0103-WQ.

D Reporting procedures are established in Section 3.1 of Attachment E1 of Order No. WQ 2022-0103-WQ.

E Enrollee's legally responsible officials must enter spill data and spill reports into the CIWQS Sanitary Sewer System Database at:
http://ciwqs.waterboards.ca.gov/.

F A Category 3 spill is defined as a spill of less than 1000 gallons but more than 50 gallons that originates from a public sanitary sewer system and does not discharge to a surface water.

G A Category 4 spill is defined as a spill of less than 50 gallons that does not discharge to a surface water. A spill of less than 50 gallons that originates from a sewer lateral is a Category 4 spill.

H Water quality monitoring requirements are established in Section 2 of Attachment E1 of Order WQ 2022-0103-WQ.

I Spill-specific monitoring (per Section 2 of Attachment E1 of Order No. WQ 2022-0103-DWQ) is to include a visual assessment of the spill location and spread, photography, global positioning system (GPS) descriptions, and an estimation of the spill volume. 35 City of San Clemente Chapter 4
Utilities Division Spill Response Actions
Spill Emergency Response Plan Page 4 - 14 May 2023
Spill Impacts Assessment. For spills in excess of 50,000 gallons or other significant spills which are determined to have occurred for a period in excess of 24 hours, the Utilities Operations Supervisor - Wastewater, in consultation with the Utilities Manager and City Environmental Manager, shall determine if an impacts assessment study is required to evaluate short-term or long-term impacts of the spills on beneficial uses or habitat.

The impacts study would document the nature and degree of spill impacts to beneficial uses and habitat and would evaluate recovery times and recommended mitigation actions. Results of the impacts study can be incorporated into City responses to any subsequent Administrative Civil Liability complaints filed against the City by the RWQCB.

Spill Technical Reports. SWRCB Order No. WQ 2022-0103-DWQ requires the City to develop and implement an Spill Technical Report for spills to surface waters of 50,000 gallons or more.

Table 4-5 (page 4-15) identifies information that, at a minimum, must be addressed within the Technical Report. The Utilities Operations Supervisor - Wastewater is responsible for developing Spill Technical Reports with the technical assistance of the Sewer/Storm Drain Collections Chief Operator, under the authority of the Utilities Manager. The Utilities Manager or his/her designee must submit the Technical Report in the CIWQS Sanitary Sewer System Database within 45 days of the termination date of the spill. 36 City of San Clemente Chapter 4
Utilities Division Spill Response Actions
Spill Emergency Response Plan Page 4 - 15 May 2023
Table 4-5
Required Technical Report Information for Category 1 Spill Technical Reports Category Required Technical Report Information A
Causes and
Circumstances
of the Spill
• Complete and detailed explanation of how and when the spill was discovered. • Photographs illustrating the spill origin, the extent and reach of the spill, drainage conveyance system entrance and exit, receiving water, and post-cleanup site conditions.
• Diagram showing the spill failure point, appearance point(s), the spill flow path, and ultimate destination.
• Detailed description of the methodology employed and available data used to calculate the volume of the spill and, if applicable, the spill volume recovered. • Detailed description of the spill cause(s).
• Description of the pipe material and estimate age of the pipe material at the failure location.
• Description of the impact of the spill.
• Copies of original field crew records used to document the spill. • Historical maintenance records for the failure location.

Spill Response
Actions
• Chronological narrative description of all actions taken by City to terminate the spill. • Explanation of how the Spill Emergency Response Plan was implemented to respond to and mitigate the spill.
• Final corrective action(s) completed and a schedule for planned corrective actions, including:
o Local regulatory agency enforcement action taken against an illicit discharge in response to this spill, as applicable.
o Identifiable system modifications and operation and maintenance program modifications needed to prevent repeated spill recurrences. o Necessary modifications to the Emergency Spill Response Plan to incorporate lessons learned in responding to and mitigating the spill.

Water Quality
Monitoring
• Description of all water quality sampling activities conducted. • List of pollutant and parameters monitored, sampled and analyzed, as required in Section 2.3 of Attachment E1 of SWRCB Order No. WQ 2022-0103-DWQ. • Laboratory results, including laboratory reports.
• Detailed location map illustrating all water quality sampling points. • Other regulatory agencies receiving sampling results (if applicable).

Impacts Evaluation • Evaluation of spill impacts, including a description of short-term and long-term impact(s) to beneficial uses of receiving waters.

Table 4-5 Notes:

A Technical Report requirement established within Section 3.1.3 of Attachment E1 to SWRCB Order No. WQ 2022-0103-DWQ. 37 City of San Clemente Chapter 4
Utilities Division Spill Response Actions
Spill Emergency Response Plan Page 4 - 16 May 2023

4.10 Record Keeping
SWRCB Order No. WQ 2022-0103-EXEC requires the City to maintain spill records for a minimum of five years.10 Table 4-6 itemizes spill information that must be maintained on record. The Utilities Manager or his/her designee is responsible for ensuring that applicable spill records are maintained and made available for review by regulators upon request.

Table 4-6
Required Spill Report Records
Category Required Spill Report Records to Be Maintained for Five Years A General Records
Maintain records to document compliance with all provisions of SWRCB Order No.

WQ 2022-0103-DWQ (as well as the prior Order No. WQ 2006-0003-DWQ, as amended by Order No. WQ 2013-0058-EXEC), including any required records generated by sewer system contractors.

Spill Complaints
Records documenting how the City responded to all notifications of possible or actual spills, both during and after business hours, including complaints that do not result in spills. Each complaint record shall, at a minimum, include the following information:
a. Date, time, and method of notification.
b. Date and time the complainant or informant first noticed the spill. c. Narrative description of the complaint, including any information the caller can provide regarding whether the complainant or informant reporting the potential spill knows if the spill has reached surface waters, drainage channels or storm drains.
d. Follow-up return contact information for complainant or informant for each complaint received, if not reported anonymously.
e. Final resolution of the complaint.

Spill Remediation
Records documenting steps and/or remedial actions undertaken by City, using all available information, to comply with section D.7 of SWRCB Order No.

WQ 2022-0103-DWQ.

Spill Flow Estimates Records documenting how all estimate(s) of volume(s) discharged and, if applicable, volume(s) recovered were calculated.

SSMP Revisions
Records documenting all changes made to the City's SSMP since its last certification indicating when a subsection(s) of the SSMP was changed and/or updated and who authorized the change or update. These records shall be attached to the SSMP.

Electronic Monitoring
Records
Electronic monitoring records relied upon for documenting spill events and/or estimating the spill volume discharged, including, but not limited to records from SCADA systems, alarm systems, flow monitoring devices, or other instruments used to estimate wastewater levels, flow rates, or flow volumes.

Table 4-6 Notes:

A Record keeping requirement established within Section 4.4 of Attachment E1 of SWRCB Order No. WQ 2022-0103-DWQ. 10 Records are required to be maintained for five years both for records required under SWRCB Order No. WQ 2022-0103-DWQ and records required under the prior Order No. WQ 2006-0003-DWQ as amended by Order No. 2013-0058-EXEC. 38 Spill Emergency Response Plan Appendix 1 May 2023
APPENDIX 1

EMERGENCY CONTACT INFORMATION
Regulatory and Resource Agencies Contact Numbers
Agency Telephone Number
Orange County Health Care Agency (OCHCA) (714) 443-6419 (714) 443-6000
Office of Emergency Services (OES) (800) 852-7550
(916) 262-1677 (fax)
Orange County Sheriff (949) 770-6011
Orange County Fire Authority (fire department) (714) 573-6000 Regional Water Quality Control Board (RWQCB)
[email protected]
(619) 516-1990
(858) 822-8344 (after hours)
(619) 516-1994 (fax)
City of San Clemente Spill Reporting Contact Numbers
Position or Responsible Party Telephone Number
Public Works Department (949) 361-6119
City Hall (949) 361-8200
Utilities Manager (949) 361-8355
Assistant Utilities Manager (949) 361-6155
Utilities Maintenance Supervisor (949) 361-8339
Utilities Division Hotline (24-hour) (949) 361-1553
Utilities Division On-Call Personnel (949) 361-1553
Sewer on-call personnel (949) 361-1553
Sewer/Storm Drain Collections Chief Operator (949) 361-8336 39 Attachment 2
RESOLUTION NO. 23-66

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, APPROVING THE UPDATE

TO THE SPILL EMERGENCY RESPONSE PLAN SECTION

OF THE CITY OF SAN CLEMENTE SANITARY SEWER

MANAGEMENT PLAN, AS REQUIRED BY RECENT

CALIFORNIA STATE WATER RESOURCES CONTROL
BOARD ADOPTED ORDER NO. 2022-0103-DWQ,

AUTHORIZING THE CITY MANAGER AND UTILITIES

MANGER TO APPROVE ANY FUTURE MINOR UPDATES

AS NEEDED AND FINDING THE PROJECT

CATEGORICALLY EXEMPT FROM THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT UNDER CLASS 8
(ACTIONS BY REGULATORY AGENCIES FOR THE
PROTECTION OF THE ENVIRONMENT), SECTION 15308

OF THE STATE CEQA GUIDELINES
WHEREAS, the California State Water Resources Control Board recently adopted Order No. 2022-0103-DWQ, which requires amendments to the City’s Sanitary Sewer Management Plan to include the Spill Emergency Response Plan.

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

Section 1. The foregoing recitals are true and correct and incorporated herein.

Section 2. This project is categorically exempt from the California Environmental Quality Act (CEQA) under Class 8 (Actions by Regulatory Agencies for Protection of the Environment, 14 CCR section 15308), Section 15308 of the state CEQA Guidelines because they consist of actions taken by regulatory agencies, as authorized by state law, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.

Section 3. The Spill Emergency Response Plan, as presented to City Council on July 18, 2023, is hereby approved and adopted.

Section 4. The City Manager and Utilities Manager are authorized to approve any future minor amendments to the Spill Emergency Response Plan as mandated by the State Water Resources Control Board, regarding the Sanitary Sewer Management Plan, Sanitary Sewer Overflow Prevention Plan and Spill Emergency Response Plan.

Section 5. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of ____________________, 2023. 40 Resolution No. 23-66 Page 2
ATTEST:
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California

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. 23-66 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:

AYES:

NOES:

ABSENT:

_______________________________________________
Notice of Exemption Appendix E
To: Office of Planning and Research From: (Public Agency): ____________________________ P.O. Box 3044, Room 113 _______________________________________________ Sacramento, CA 95812-3044 County Clerk
(Address)
___________________________
___________________________
County of: __________________
Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific:

Project Location - City: ______________________ Project Location - County:

Description of Nature, Purpose and Beneficiaries of Project:
_____________________
Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one):

Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Reasons why project is exempt:

Lead Agency
Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant:

1. Attach certified document of exemption finding.

2. Has a Notice of Exemption been filed by the public agency approving the project? Yes No Signature: ____________________________ Date:

Signed by Lead Agency Signed by Applicant
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR:

Reference: Sections 21108, 21152, and 21152.1, Public Resources Code. _______________
Categorical Exemption. State type and section number: ____________________________________ ______________________________________________
______________ Title: _______________________
Revised 2011
Attachment 3
42 AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 7/18/2023 Agenda Item: 6J
Department: Information Technology
Prepared By Brian Brower, IT Manager
Subject:

CONSIDERATION OF RESOLUTION NO. 23-67 AWARDING BID IT-036 FOR THE PURCHASE OF COHESITY DATA PROTECTION SYSTEM TO SAVANT SOLUTIONS, INC. AND AUTHORIZING

THE CITY MANAGER TO ENTER INTO AN AGREEMENT IN AN AMOUNT NOT TO EXCEED $137,011 FOR THE THREE-YEAR TERM
Summary:

The City Council identified the implementation of a new backup and recovery system as a high priority item in the 2023 Information Technology Strategic Plan Update. Staff has prepared, for consideration by the City Council, the purchase of the Cohesity Data Protection System (Cohesity), which will support that priority. If purchased, Cohesity will update the City’s infrastructure and protect the City’s data and technology assets in the event of cyberattack, hardware failure, human error, or natural disaster.

Cohesity is available from a variety of vendors, none of whom are based in San Clemente. Following a competitive bidding process, Savant Solutions, Inc. (with a principal place of business in Sacramento, California) was the lowest responsive and responsible bidder. Before the City Council is consideration of Resolution No. 23-67, awarding Bid IT-036 to Savant Solutions for the purchase of Cohesity in an amount not to exceed $137,011, which includes $124,511 for the equipment and software purchase, training, three years of service, maintenance, and support, as well as a contingency of $12,500 for increased data capacity as needed over the three-year term.

Background:

The City of San Clemente is reliant upon backup systems to prevent the loss of data and/or system functionality in the event of a system failure. Such failures can come in many forms, ranging from the loss of a single file due to accidental deletion, to a complete loss of one or more servers as a result of hardware/software failure, natural disaster, or cyber-attack. In all cases, prompt and reliable recovery is essential to continuity of City operations. Staff recommends replacing the current backup system with a modern system to increase reliability and security, incorporating a combination of on-premise and offsite “cloud” services to provide a layered approach to backup storage and disaster recovery.

The Cohesity Data Protection System is the best solution to meet the City’s needs.

On June 29, 2023, the City published a ‘Notice Inviting Bids’ for purchasing Cohesity. Two responsive bids were received and opened on July 10, 2023. No bids were received from local vendors. Savant Solutions, Inc. provided the lowest responsible bid, in the amount of $124,511.25, which includes the purchase of equipment, software, training, and three years of maintenance and support services.

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Meeting Date: 7/18/2023 Agenda Item: 6J
Bid Summary:

Savant Solutions, Inc. $124,511.25
VPrime Tech, Inc. $134.878.05
In addition to the base bid amount, a 10% contingency of $12,500 is recommended to increase data capacity if the need to expand the system arises during the three-year term.

By implementing Cohesity, the City will increase resiliency to cyber-attack or other system failure.

The proposed system will both simplify and expedite the recovery process, while minimizing downtime and data loss. The Cohesity solution will enhance the City’s backup and recovery posture with the following features:

Scalability - Cohesity licensing provides the flexibility to increase data capacity on a “pay as we grow” model, eliminating preliminary over-sizing of the system and reducing the total cost of ownership.

Cohesity’s node-based architecture also gives the ability to expand the storage cluster, nondisruptively, to accommodate growth while avoiding a complete system replacement.

Simplified data management - The Cohesity solution is noted for ease of use. All data protection services are managed within a single user interface.

Expedited Data Recovery - Cohesity’s instant mass restore will enable IT Staff to recover not just files, but collections of virtual machines instantly, dramatically reducing the chances of downtime for production systems.

Security - The Cohesity platform incorporates modern security controls such as Immutability, which restricts the modification of data that is backed up into the Cohesity platform; Multi-factor authentication, which requires anyone accessing a Cohesity backup to authenticate using two forms of verification; and Threat Detection, which scans backed-up data for anomalous content that may be indicative of ransomware or malware.

Data Isolation - Cohesity FortKnox provides an immutable archive copy of data in a Cohesitymanaged cloud vault, protected by a logical air-gap, and restricts accessibility through “Quorum” multi-person authentication.

Premium Support - Cohesity provides 24/7/365 technical support for software and hardware, with next business day delivery on parts and labor as a minimum.

Implementation of a new backup and recovery system was identified as a high priority item in the 2023 Information Technology Strategic Plan Update, and purchasing Cohesity supports the 2022- 2023 City Council Strategic Priorities by updating infrastructure that represents the best available technology and maintaining a best-in-class approach to technology.

Council Options:
· Adopt Resolution No. 23-67, awarding Bid IT-036 for the Cohesity Data Protection System to Savant Solutions, Inc. and authorizing the City Manager to execute an agreement for the purchase in an amount not to exceed $124,511.25, plus a 10% project contingency of $12,500, for a three-year term.

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Meeting Date: 7/18/2023 Agenda Item: 6J
· Modify and adopt Resolution No. 23-67.
· Continue the item with direction to provide additional information. · Do not award the contract or implement the proposed data protection system.

Fiscal Impact:

The total amount of the purchase and three years of ongoing maintenance and support is not to exceed $137,011. This amount is within the FY 2023-24 Adopted Budget in the Information Technology Fund account #063-241-43456-000-00000.

Environmental Review/Analysis:

Not a “project” under the California Environmental Quality Act.

Recommended Actions:

Staff Recommendation
Adopt Resolution No. 23-67, which would:

1. Award Bid IT-036 to Savant Solutions, Inc.;

2. Authorize the City Manager to execute an agreement for the purchase of the Cohesity Data Protection Solution with Savant Solutions, Inc. under substantially the same terms and conditions of State of California Contract SLP-21-70-0276D in an amount not to exceed $137,011, which includes $124,511 for the equipment and software purchase, training, three years of service, maintenance, and support, as well as a contingency of $12,500 for increased data capacity as needed over the three-year term.

3. Authorize City staff to accept the Cohesity End User License Agreement and Cohesity Software-as-a-Service (SAAS) Terms of Service.

Attachment:

1. Resolution No. 23-67.

2. State of California Contract SLP-21-70-0276D

3. Cohesity End User License Agreement

4. Cohesity SAAS Terms of Service
Notification:

Savant Solutions, Inc.

VPrime Tech, Inc.

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ATTACHMENT 1
4860-5047-5367 v1
RESOLUTION NO. 23-67

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN CLEMENTE, CALIFORNIA, AWARDING BID IT-036

FOR THE PURCHASE OF THE COHESITY DATA
PROTECTION SYSTEM TO SAVANT SOLUTIONS, INC.

AND AUTHORIZING THE CITY MANAGER TO ENTER

INTO AN AGREEMENT IN AN AMOUNT NOT TO EXCEED
$137,011 FOR THE THREE-YEAR TERM
WHEREAS, the City wishes to protect the City’s data and technology assets in the event of cyberattack, hardware failure, human error, or natural disaster and implementing the Cohesity Data Protection System (Cohesity) is the best way to do that; and WHEREAS, the City has conducted formal competitive bidding for the purchase of Cohesity ; and
WHEREAS, on July 10, 2023, the City received two bids ranging from $124,511.25 to $134.878.05 for Cohesity; and
WHEREAS, Savant Solutions, Inc. was the lowest responsive and responsible bidder with a bid of $124,511.25.

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

SECTION 1. That the above recitations are true and correct and incorporated herein.

SECTION 2. That Bid IT-036 for the purchase of the Cohesity Data Protection System is awarded to Savant Solutions, Inc.

SECTION 3. That the City Manager is authorized to execute an agreement to purchase the Cohesity Data Protection System from Savant Solutions, Inc. under terms and conditions substantially similar to State of California Contract SLP-21-70-0276D in an amount not to exceed $137,011, which includes $124,511 for the equipment and software purchase, training, three years of service, maintenance, and support, as well as a contingency of $12,500 for increased data capacity as needed over a three-year term.

SECTION 4. That City staff is authorized to accept the Cohesity End User License Agreement and Cohesity Software-as-a-Service Terms of Service as presented to City Council on July 18, 2023.

SECTION 3. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions. 4 Resolution No. 23-67 Page 2
4860-5047-5367 v1
PASSED AND ADOPTED this _____ day of July, 2023.
_______________________
Mayor of the City of
San Clemente, California
ATTEST:
__________________________
CITY CLERK of the City of
San Clemente, California
5 Resolution No. 23-67 Page 3
4860-5047-5367 v1

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. 23-67 was adopted at a regular meeting of the City Council of the City of San Clemente held on _______ day of July 2023, by the following vote:

AYES:

NOES:

ABSENT:
_______________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
Elizabeth A. Mitchell, City Attorney
6 Procurement Division
707 Third Street, 2nd Floor, MS #2-202
West Sacramento, CA 95605-2811
Procurement Division | State of California | California Government Operations Agency 707 3rd Street, 2ndFloor | West Sacramento, CA 95605 | t 916.375-4400 State of California

SOFTWARE LICENSING PROGRAM (SLP)
Contractor:

Contract Number:

SLP Contract Term:

Contract Base:

Savant Solutions, Inc.

SLP-21-70-0276D
01/28/2021 through 12/12/2024
Cohesity Offer Number Cohesity-SLP-2020
This contract is available for use by State of California departments and any city, county, special district, educational agency, local government body or corporation empowered to expend public funds. While the state makes this contract available, each local agency should make its own determination whether the SLP is consistent with their procurement policies and regulations.

The SLP Contractor is required to provide all SLP contract terms and conditions with the list of products, services and prices.

Terms and conditions listed below are hereby incorporated by reference and made a part of this SLP Agreement as if attached herein and shall apply to the purchase of goods or services made under this Participating Agreement. Contractor non-compliance with the requirements of this contract may result in contract termination.

By signing below, Contractor agrees to the General Provisions dated September 5, 2014, SaaS Cloud Computing Services Special Provisions dated March 15, 2018 and all other provisions included herein.
1) General Provisions – Information Technology (GSPD-401IT), effective 9/5/2014 2) Cloud Computing Services Special Provisions (Software as a Service) effective 3/15/2018
3) Cloud Computing – Software as a Service (SaaS) General Provisions effective 6/07/2019
For State of CA:

Patrick Mullen
Manager
Multiple Award Programs Section
Procurement Division
Department of General Services
Date
For Contractor:

Signature
Printed Title
Printed Name
Company Name
Date
Original Signature on File Original Signature on File
ATTACHMENT 2
7 software licensing program

SOFTWARE LICENSING PROGRAM (SLP)
SAVANT SOLUTIONS, INC.

SLP-21-70-0276D
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CONTRACTOR PROVIDES COPY OF

THE CONTRACT AND SUPPLEMENTS
The SLP Contractors are required to
provide the entire contract that consists of
the following:
• SLP Cover sheet with signatures from
the DGS Procurement Division Deputy
Director or designee and Contractor.
• Ordering instructions.
• Std. 204 Payee Data Record.
• SLP Contract terms and conditions
(General provisions).
• Software License Agreement pricing.
• Supplements, if applicable

CONTRACTOR QUARTERLY REPORTS
Contractors are required to submit a
detailed report quarterly to the DGS
Procurement Division, Software
Licensing Program. A separate report is
required for each contract, as differentiated
by alpha suffix (if applicable). Contractors
with resellers are responsible for reporting
reseller ordering activity. Any report that
does not follow the required format or that
excludes information will be deemed
incomplete and returned to the contractor.

All SLP contractors, including certified
Small Businesses and Disabled Veteran
Business Enterprises, will be required to
pay DGS-PD a 1.25% incentive fee for all
orders placed by local government
agencies via a SLP contract. This policy
however, does not affect orders placed by
State government offices. State agencies
will continue to be billed the applicable
administrative use fee by the DGS-PD.

The SLP Quarterly Business Activity
Report form separates sales to State and
local government agencies.

SLP Quarterly Business Activity Reports
are due in the SLP Unit within two weeks
after the end of each quarter as shown
below:

Quarter 1 Jan 1 to Mar 31 Due Apr 15
Quarter 2 Apr 1 to Jun 30 Due Jul 15
Quarter 3 Jul 1 to Sep 30 Due Oct 15
Quarter 4 Oct 1 to Dec 31 Due Jan 15
Each contractor is required to remit to the
DGS-PD an incentive fee equal to 1.25%
of the total of all local government agency
orders (excluding sales tax and freight)
placed against their SLP contract(s) for the
applicable quarter.

The check covering this fee shall be made
payable to the Department of General
Services, Software Licensing Program, and
be attached to the supporting SLP
Quarterly Report.

Mail report and check to:

Department of General Services
Procurement Division, SLP Unit
Quarterly Report Processing
PO Box 989052, MS 2-202
Attn: Software Licensing Program
West Sacramento, CA 95798-9052
SLP Quarterly Reports which include a
check made payable to the DGS-SLP Unit
must be mailed via hard-copy, and cannot
be accepted via facsimile or e-mail.

New contracts for contractors with
existing contracts, and extensions or
renewals of existing contracts, will be
approved ONLY if the contractor has
submitted to the SLP Unit all quarterly
reports, due. Each quarterly report is
required within two weeks of the end of
March, June, September, and December
of each calendar year. A report is
required even when there is no activity.
8 SOFTWARE LICENSING PROGRAM (SLP)
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The report must include the agency name,
purchase order number, purchase order
date, state agency billing code, pre-tax
total order cost, agency contact name,
address and phone number, and total
dollars for the quarter. Tax must NOT be
included in the quarterly report, even if the
agency includes tax on the purchase order.

A sample quarterly report indicating
required format and information is attached
for your reference (Attachment A).

CONTRACTOR INVOICES
Unless otherwise stipulated, the contractor
must send their invoices to the department
address set forth in the purchase order.

Invoices shall be submitted in triplicate and
shall include the following:
• Contract number
• Agency purchase order number
• State Agency Bill Code
• Line item number
• Unit price
• Extended line item price
• Invoice total
State sales tax and/or use tax shall be
itemized separately and added to each
invoice as applicable. The company name
on the SLP contract, purchase order and
invoice must match or the State
Controller’s Office will not approve
payment.

CONTRACTOR OWNERSHIP

INFORMATION
Savant Solutions, Inc. certified small
business enterprise. Their Office of Small
Business and DVBE Services (OSDS)
certification #2002783 expires on
10/31/2021.

If this certification has expired, the current
expiration date for this company’s
certification should be verified at:

CaleProcure (https://caleprocure.ca.gov/
pages/index.aspx) or by contacting the
Office of Small Business and DVBE
Services at (916) 375-4940. Note that
some companies have been assigned a
new certification number, so use the
company name and/or certification number
when checking status on-line.

AGENCY NON-COMPLIANCE
Agency non-compliance with the
requirements of this contract may result in
the loss of delegated purchasing authority
to use the SLP.

PLEASE REQUEST A COPY OF ALL

CONTRACT TERMS AND CONDITIONS

FROM THE CONTRACTOR, IF NOT
PROVIDED INITIALLY.

AVAILABLE PRODUCTS AND/OR

SERVICES
This contract provides for the purchase
and warranty of software, software
maintenance, technical support, and
software as a service.

Only products from the manufacturer listed
below are available within the scope of this
contract:
• Cohesity

UNAVAILABLE PRODUCTS AND/OR

SERVICES
The following products and/or services are
not available under this contract:
• STANDALONE HARDWARE
• CONSULTING
• TRAINING
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• INSTALLATION SERVICES

SOFTWARE MAINTENANCE,

SUBSCRIPTION AND SAAS RENEWALS
Software Maintenance, Subscription and
SaaS renewals shall be fixed at the
agencies prior applicable rates (or lower),
with a 0% uplift (no up-lift) and no
additional increases, fees or charges
added, for the duration of this SLP
contract.

SERVICE CREDITS
Service credits are acceptable only if they
meet the following requirements:
• Service credits must never expire even
when this contract term ends.
• Unused service credits can be used for
other services such as training,
installation, implementation. Example: If
$1,000 is purchased in training credits,
the department may use the remainder
of unused credits for other services such
as installation, and implementation.

FIRST-YEAR MAINTENANCE
First –year maintenance will be calculated
at a maximum of 20% of the publisher’s
SLP price.

ISSUE PURCHASE ORDER TO
Agency purchase orders must be mailed to
the following address, or fax to (916) 999-
1266:

Savant Solutions, Inc.
1007 7th Street, 5th Floor
Sacramento, CA 95814
Attn: Caleb Kwong
Agencies with questions regarding
products and/or services may contact the
contractor as follows:

Phone: (916) 836-8182
E-mail: [email protected]

SHIPPING INSTRUCTIONS
F.O.B. (Free On Board) Destination

DELIVERY
30 days after receipt of order, or as
negotiated between agency and Contractor
and included in the purchase order.

AGENCY RESPONSIBILITY
Agencies must contact contractors to
obtain copies of the contracts and compare
them for a best value purchasing decision.

Each agency is responsible for its own
contracting program and purchasing
decisions, including use of the SLP
program and associated outcomes.

This responsibility includes, but is not
necessarily limited to, ensuring the
necessity of the services, securing
appropriate funding, complying with laws
and policies, preparing the purchase order
in a manner that safeguards the State’s
interests, obtaining required approvals, and
documenting compliance with Government
Code 19130.b (3) for outsourcing services.

It is the responsibility of each agency to
consult as applicable with their legal staff
and contracting offices for advice
depending upon the scope or complexity of
the purchase order.

If you do not have legal services available
to you within your agency, the DGS Office
of Legal Services is available to provide
services on a contractual basis.
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ORDER REQUIREMENTS AND

MAXIMUM ORDER LIMIT
• Unless otherwise determined by an
individual ordering agency purchasing
authority, no SLP order may be
executed by a State agency that
exceeds that agency’s purchasing
authority threshold. State agencies with
approved purchasing authority, along
with their dollar thresholds can be
obtained at the List of State
Departments with Approved Purchasing
Authority.
• Agencies must adhere to the detailed
requirements in the State Contracting
Manual (SCM) when using SLP
contracts. The requirements for the
following bullets are in the SCM, Volume
3, (for IT): If soliciting offers from a
certified DVBE, include the Disabled
Veteran Business Enterprise
Declarations form (Std. 843) in the
Request for Offer. This declaration
must be completed and returned by the
DVBE prime contractor and/or any
DVBE subcontractors. (See the SCM
Volume 3, Chapter 3)
• This is not a bid transaction, so the
small business preference, DVBE
participation goals, protest language,
intents to award, evaluation criteria,
advertising, etc., are not applicable.
• If less than 3 offers are received, State
agencies must document their file with
the reasons why the other suppliers
solicited did not respond with an offer.
• Assess the offers received using best
value methodology, with cost as one of
the criteria.
• Issue a Purchase Order to the selected
contractor.
• For SLP transactions under $10,000,
only one offer is required if the State
agency can establish and document that
the price is fair and reasonable. The fair
and reasonable method can only be
used for non-customizable purchases.

Local governments set their own order
limits, and are not bound by the order limits
on the cover page of this contract.

SPLITTING ORDERS
Splitting orders to avoid any monetary
limitations is prohibited.

Do not circumvent normal procurement
methods by splitting purchases into a
series of delegated purchase orders (SAM
3572).

Splitting a project into small projects to
avoid either fiscal or procedural controls is
prohibited (SAM 4819.34).

MINIMUM ORDER LIMITATION
There is no minimum dollar value limitation
on orders placed under this contract.

ORDERING PROCEDURES

1. Order Form
State departments shall use a
Contract/Delegation Purchase Order
(Std. 65) for purchases and services.

Local governments shall, in lieu of the
State's Purchase Order (Std. 65), use
their own purchase order document.

Electronic copies of the State Standard
Forms can be found at the Office of
State Publishing web site:
http://www.dgs.ca.gov/osp (select
Standard Forms). The site provides
information on the various forms and
use with the Adobe Acrobat Reader.

Beyond the Reader capabilities, Adobe
Acrobat advanced features may be
utilized if you have Adobe Business
11 SOFTWARE LICENSING PROGRAM (SLP)
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Tools or Adobe Acrobat 4.0 installed on
your computer. Direct link to the
Standard Form 65:
(http://www.osp.dgs.ca.gov/pdf/std065.p
df)

2. Purchase Orders
All Ordering Agency purchase order
documents executed under this SLP
must contain the applicable SLP
contract number as show on page 1.

1. State Departments:

Std. 65 Purchase Documents –
State departments not transacting
in FI$Cal must use the Purchasing
Authority Purchase Order (Std. 65)
for purchase execution. An
electronic version of the Std. 65 is
available at the DGS-PD website
at http://www.dgs.ca.gov/
pd/Forms.aspx (select Standard
STD Forms).

FI$Cal Purchase Documents –
State departments transacting in
FI$Cal will follow the FI$Cal
procurement and contracting
procedures.

2. Local Governmental Departments:

Local governmental agencies may
use their own purchase document
for purchase execution.

The agency is required to complete and
distribute the order form. For services,
the agency shall modify the information
contained on the order to include the
service period (start and end date), and
the monthly cost (or other intermittent
cost), and any other information
pertinent to the services being provided.

The cost for each line item should be
included in the order, not just system
totals.

The contractor must immediately reject
orders that are not accurate.

Discrepancies are to be negotiated and
incorporated into the order prior to the
products and services being delivered.

3. Service and Delivery after Contract
Expiration
Purchase orders must be issued before
the SLP contract end term expires.

Also, purchase order amendments
cannot be issued to add product and
software maintenance if the SLP
contract end term has expired.

CONTRACT PRICES
Contract prices for products and/or
services are maximums. The ordering
department is encouraged to negotiate
lower prices.

PRODUCT AND PRICING CHANGES

AND/OR UPDATES ARE NOT

AUTHORIZED UNTIL REVIEWED AND

APPROVED BY DGS PROCUREMENT

DIVISION SOFTWARE LICENSING
PROGRAM.

Said documents are to be sent to the
Department of General Services (DGS)
Procurement Division, Soffware Licensing
Program, 707 Third Street, 2nd Floor, West
Sacramento, CA 95605-2811, Attention
SLP Unit.

CONTRACT EXTENSIONS
The initial term of this SLP contract is 2
years and may be extended for an
additional 2-years, however an amendment
must be issued prior to contract end date.
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NOTE: Extensions are optional and are
at the discretion of the state.

SMALL BUSINESS MUST BE

CONSIDERED
Prior to placing orders under the SLP, state
departments shall, whenever practicable,
first consider offers from small businesses
that have established SLP contracts [GC
Section 14846(b)]. NOTE: The
Department of General Services auditors
will request substantiation of compliance
with this requirement when department
files are reviewed.

SMALL BUSINESS/DVBE – TRACKING
State departments are able to claim
subcontracting dollars towards their small
business or DVBE goals whenever the
Contractor subcontracts a commercially
useful function to a certified small business
or DVBE. The Contractor will provide the
ordering department with the name of the
small business or DVBE used and the
dollar amount the ordering department can
apply towards its small business or DVBE
goal.

SMALL BUSINESS/DVBE -

SUBCONTRACTING

1. The amount an ordering department
can claim towards achieving its small
business or DVBE goals is the dollar
amount of the subcontract award made
by the Contractor to each small
business or DVBE.

2. The Contractor will provide an ordering
department with the following
information at the time the order is
quoted:
a. The Contractor will state that, as the
prime Contractor, it shall be
responsible for the overall execution
of the fulfillment of the order.
b. The Contractor will indicate to the
ordering department how the order
meets the small business or DVBE
goal, as follows:
• List the name of each company
that is certified by the Office of
Small Business and DVBE
Certification that it intends to
subcontract a commercially
useful function to; and
• Include the small business or
DVBE certification number of
each company listed, and attach
a copy of each certification; and
• Indicate the dollar amount of
each subcontract with a small
business or DVBE that may be
claimed by the ordering
department towards the small
business or DVBE goal; and
• Indicate what commercially
useful function the small
business or DVBE subcontractor
will be providing towards
fulfillment of the order.

3. The ordering department’s purchase
order must be addressed to the prime
Contractor, and the purchase order
must reference the information provided
by the prime Contractor as outlined
above.

PRODUCTIVE USE REQUIREMENTS
The customer in-use requirement applies
to all procurements of information
technology equipment and software, per
the SCM, Volume 3, Chapter 2, Section

2.B6.2 and SCM, Volume FI$Cal, Chapter
2, Section 2.E3.2.
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Each equipment or software component
must be in current operation for a paying
customer and the paying customer must be
external to the contractor’s organization
(not owned by the contractor and not
owning the contractor).

To substantiate compliance with the
Productive Use Requirements, the SLP
contractor must provide upon request the
name and address of a customer
installation and the name and telephone
number of a contact person.

The elapsed time such equipment or
software must have been in operation is
based upon the importance of the
equipment or software for system
operation and its cost. The following
designates product categories and the
required period of time for equipment or
software operation prior to approval of the
replacement item on SLP.

Category 1 - Critical Software: Critical
software is software that is required to
control the overall operation of a computer
system or peripheral equipment. Included
in this category are operating systems,
data base management systems, language
interpreters, assemblers and compilers,
communications software, and other
essential system software.

Cost Installation
Final Bid
Submission
More than
$100,000 8 months 6 months
$10,000 up to
$100,000 4 months 3 months
Less than
$10,000 1 month 1 month
Category 2 - All Information Technology
Equipment and Non-Critical Software:

Information technology equipment is
defined in State Administrative Manual
(SAM) § 4819.2.

Cost Installation
Final Bid
Submission
More than
$100,000 6 months 4 months
$10,000 up
to $100,000 4 months 3 months
Less than
$10,000 1 month 1 month

STATE AND LOCAL GOVERNMENTS

CAN USE THE SLP
State and local government use of the SLP
contracts is optional. A local government
is any city, county, special district or other
local governmental body or corporation,
including UC, K-12 schools and community
colleges,
that is empowered to expend public funds.

While the state makes this contract
available, each local government agency
should make its own
determination whether the SLP is
consistent with their procurement policies
and regulations.

APPLICABLE CODES, POLICIES AND

GUIDELINES
All California codes, policies and guidelines
are applicable. THE USE OF THE SLP

DOES NOT REDUCE OR RELIEVE

STATE DEPARTMENTS OF THEIR

RESPONSIBILITY TO MEET STATEWIDE

REQUIREMENTS REGARDING

CONTRACTING OR THE

PROCUREMENT OF GOODS OR
SERVICES. Most procurement and
contract codes, policies, and guidelines are
incorporated into The SLP contracts.

Notwithstanding this, there is no guarantee
that “every” possible requirement that
14 SOFTWARE LICENSING PROGRAM (SLP)
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pertains to all the different and unique state
processes has been included.

TERMINATION OF SLP CONTRACT

1. The State or Contractor may terminate
this SLP Contract at any time upon 30
days prior notice.

2. Upon termination or other expiration of
this Contract, each party will assist the
other party in orderly termination of the
Contract and the transfer of all assets,
tangible and intangible, as may
facilitate the orderly, nondisrupted
business continuation of each party.

3. This provision shall not relieve the
Contractor of the obligation to perform
under any purchase order or other
similar ordering document executed
prior to the termination becoming
effective.

STATEWIDE PROCUREMENT

REQUIREMENTS
Departments must carefully review and
adhere to the following Procurement
Requirements, such as:
• SAM Section 4819.41 and 4832
certifications for information technology
procurements and compliance with
policies.
• Services may not be paid for in
advance.
• Departments are required to file with the
Department of Fair Employment and
Housing (DFEH) a Contract Award
Report Std. 16 for each order over
$5,000 within 10 days of award,
including supplements that exceed
$5,000.
• Pursuant to Unemployment Insurance
Code Section 1088.8, state and local
government agencies must report to the
Employment Development Department
(EDD) all payments for services that
equal $600 or more to independent sole
proprietor contractors. See the
contractor's Std. Form 204, Payee Data
Record, in the SLP contract to
determine sole proprietorship. All
inquiries regarding this subject should
be forwarded to EDD: Technical
questions: 916/651-6945 or Information
and forms: 916/657-0529.
• Annual small business and disabled
veteran reports.

ETHNICITY/RACE/GENDER REPORTING

REQUIREMENT
Effective July 1, 2002, in accordance with
Public Contract Code 10116, state
departments are to capture information on
ethnicity, race, and gender of business
owners (not subcontractors) for all
awarded contracts, including CAL-Card
transactions. Each department is required
to independently report this information to
the Governor and the Legislature on an
annual basis.

Departments are responsible for
developing their own guidelines and forms
for collecting and reporting this information,
Contractor participation is voluntary.

PAYMENTS AND INVOICES

1. Payment Terms
Payment will be made in accordance
with the provisions of the California
Prompt Payment Act, Government
Code Section 927 et. seq. Unless
expressly exempted by statute, the
Act requires State agencies to pay
properly submitted, undisputed
invoices not more than 45 days after
(i) the date of acceptance of goods or
performance of services; or (ii) receipt
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of an undisputed invoice, whichever is
later.

2. Advance Payments
Advance payment is allowed for
services only under limited, narrowly
defined circumstances, e.g. between
specific departments and certain
types of non-profit organizations, or
when paying another government
agency (Government Code (GC) §
11256 – 11263 and 11019).

It is NOT acceptable to pay in
advance, except software
maintenance and license fees, which
are considered a subscription and
may be paid in advance if a provision
addressing payment in advance is
included in the purchase order.

Software warranty upgrades and
extensions may also be paid for in
advance, one time.

3. Payee Data Record (Std. 204)
State Agencies not transacting in
FI$Cal, must obtain a copy of the
Payee Data Record (Std. 204) in
order to process payments. State
Ordering Agencies forward a copy of
the Std. 204 to their accounting
office(s). Without the Std. 204,
payment may be unnecessarily
delayed. State Agencies should
contact the Contractor for copies of
the Payee Data Record

4. DGS Administrative and Incentive
Fees
Orders from State Agencies:

The Department of General Services
(DGS) will bill each State agency
directly an administrative fee for use
of SLP contracts. The administrative
fee should NOT be included in the
order total, nor remitted before an
invoice is received from DGS.

5. Credit Card
Savant Solutions, Inc. accepts the
State of California credit card (CALCard).

A Purchasing Authority Purchase
Order (Std. 65) is required even when
the ordering department chooses to
pay the contractor via the CAL-Card.

Also, the DGS administrative fee is
applicable for all SLP orders to
suppliers not California certified as a
small business.

FEDERAL DEBARMENT
When federal funds are being expended,
the department is required to obtain (retain
in file) a signed “Federal Debarment”
certification from the contractor before the
purchase order is issued. This
certification is required by the regulations
implementing Executive Order 12549,
Debarment and Suspension, 29 CFR Part
98, Section 98.510, Participants;
responsibilities. The regulations were
published as Part VII of the May 26, 1988
Federal Register (pages 19160-19211).

AMERICANS WITH DISABILITY ACT
(ADA)
(See attachment B)

DGS PROCUREMENT DIVISION

CONTACT AND PHONE NUMBER
Department of General Services
Procurement Division, SLP Unit
707 Third Street, 2nd Floor
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West Sacramento, CA 95605-2811
Phone no.: 916/375-4365
Faxination no.: 916/376-6371
17 Updated 7/2019

ATTACHMENT A

SLP QUARTERLY BUSINESS ACTIVITY REPORT
Company Name:

Software Publisher:

Contract Number:

For Questions Regarding this Report:

E-mail:

Reporting Calendar Year:

Reporting Quarter:  Q1 (January to March)
 Q2 (April to June)
 Q3 (July to September)
 Q4 (October to December)
Check Here if No New Orders for This Quarter 

STATE GOVERNMENT AGENCY PURCHASES
State Agency
Name
Purchase
Order Number
Purchase
Order Date
Agency
Billing Code
Total Dollars
Per Purchase
Order
Agency Contact Agency Address Phone
Number
Total State Agency Dollars Reported for Quarter: $

LOCAL GOVERNMENT AGENCY PURCHASES
Local Government Agency
Name
Purchase Order
Number
Purchase
Order Date
Total Dollars Per
Purchase Order
Agency
Contact Agency Address Phone Number
Total Local Government Agency Dollars for Quarter: $

1.25% Remitted to DGS (does not apply to CA certified Small Businesses): $ Total of State and Local Government Agency Dollars Reported for this Quarter: $ 18 ATTACHMENT A

SLP QUARTERLY BUSINESS ACTIVITY REPORT
Procurement Division | State of California | California Government Operations Agency 707 3rd Street, 2ndFloor | West Sacramento, CA 95605 | t 916.375-4400 Instructions for completing the SLP Quarterly Business Activity Report.

1. Complete the top of the form with the appropriate information for your company.

2. Agency Name - Identify the State agency or Local Government agency that issued the order.

3. Purchase Order Number - Identify the purchase order number (and amendment number if applicable) on the order form. This is not your invoice number. This is the number the State agency or Local Government agency assigns to the order.

4. Purchase Order Date - Identify the date the purchase order was issued, as shown on the order. This is not the date you received, accepted, or invoiced the order.

5. Agency Billing Code - Identify the State agency billing code. This is a five-digit number identified on the upper right hand corner of the Std. 65 purchase order form.

You must identify this number on all purchases made by State of California agencies.

Billing codes are not applicable to Local Government agencies.

6. Total Dollars Per PO - Identify the total dollars of the order excluding tax and freight.

Tax must NOT be included in the quarterly report, even if the agency includes tax on the purchase order. The total dollars per order should indicate the entire purchase order amount (less tax and freight) regardless of when you invoice order, perform services, deliver product, or receive payment.

7. Agency Contact - Identify the ordering agency’s contact person on the purchase order.

8. Agency Address - Identify the ordering agency’s address on the purchase order.

9. Phone Number - Identify the phone number for the ordering agency’s contact person.

10.Total State Sales & Total Local Sales - Separately identify the total State dollars and/or Local Government agency dollars (pre-tax) for all orders placed in quarter.

11.1.25% Remitted to DGS - Identify 1.25% of the total Local Government agency dollars reported for the quarter.

12.Grand Total - Identify the total of all State and Local Government agency dollars reported for the quarter.

Notes:
• A report is required for each SLP contract each quarter even when there are no new orders for the quarter.
• Quarterly reports are due two weeks after the end of the quarter. 19 Updated 2/06/2018 14

ATTACHMENT B

ADA NOTICE
Procurement Division (State Department of General Services)

AMERICANS WITH DISABILITIES ACT (ADA) COMPLIANCE

POLICY OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
To meet and carry out compliance with the nondiscrimination requirements of the Americans With Disabilities Act (ADA), it is the policy of the Procurement Division (within the State Department of General Services) to make every effort to ensure that its programs, activities, and services are available to all persons, including persons with disabilities.

For persons with a disability needing a reasonable accommodation to participate in the Procurement process, or for persons having questions regarding reasonable accommodations for the Procurement process, please contact the Procurement Division at (916) 375-4400 (main office); the Procurement Division TTY/TDD (telephone device for the deaf) or California Relay Service numbers which are listed below. You may also contact directly the Procurement Division contact person who is handling this procurement.

IMPORTANT: TO ENSURE THAT WE CAN MEET YOUR NEED, IT IS BEST THAT WE RECEIVE YOUR REQUEST AT LEAST 10 WORKING DAYS
BEFORE THE SCHEDULED EVENT (i.e., MEETING, CONFERENCE,
WORKSHOP, etc.) OR DEADLINE DUE-DATE FOR PROCUREMENT
DOCUMENTS.

The Procurement Division TTY telephone numbers are:

Sacramento Office: (916) 376-1891
Fullerton Office: (714) 773-2093
The California Relay Service Telephone Numbers are:

Voice: 1-800-735-2922 or 1-888-877-5379
TTY: 1-800-735-2929 or 1-888-877-5378
Speech-to-Speech: 1-800-854-7784
20 Cohesity – Confidential & Proprietary Page 1 of 10 Last Updated October 2020 COHESITY, INC.

END USER LICENSE AGREEMENT
Please contact [email protected] with any questions regarding this document.

COHESITY, INC. (TOGETHER WITH ITS AFFILIATES, “COHESITY”) AGREES TO SUPPLY AND/OR LICENSE CERTAIN OF ITS PRODUCTS TO YOUR BUSINESS OR ORGANIZATION (“CUSTOMER”) ONLY IF (A) YOU

REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER AND (B)

YOU ACCEPT AND AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS COHESITY END USER LICENSE AGREEMENT (THIS “EULA”, OR “AGREEMENT”,

INCLUDING ALL DOCUMENTS INCORPORATED HEREIN BY REFERENCE), WHICH SHALL BE DEFINITIVELY EVIDENCED BY ANY ONE OF THE FOLLOWING MEANS: YOUR CLICKING THE “ACCEPT”, “CONTINUE” OR A SIMILAR BUTTON, AS APPLICABLE; YOUR SIGNATURE ON A TANGIBLE COPY OF THIS LICENSE; YOUR INSTALLATION OR USE OF THE PRODUCTS AND/OR SOFTWARE; OR BY SUCH OTHER CONTRACT FORMATION MECHANISM AS MAY BE RECOGNIZED UNDER APPLICABLE LAW FROM TIME TO TIME. IF

YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT COPY, INSTALL OR USE THE PRODUCT(S) OR ANY ASSOCIATED SOFTWARE.
• Software-Defined Business Model: Cohesity is a software-defined data management company for enterprise and organizations. Cohesity supports customer choice with respect to on-premises hardware, EDGE, cloud and virtual environments, or any certified hybrid utilization of the foregoing. As a result, the Cohesity distributed file system (DataPlatform™) may be executed on any number of certified hardware and software configurations. Other Cohesity Software (such as DataProtect™) and third-party applications may then be run on top of, or in collaboration with, DataPlatform. Cohesity Software may be supplied with Cohesity Platforms and/or third-party supported hardware, or no hardware at all (such as virtual or cloud-only use cases). • Indirect Sales: Cohesity transacts all sales – whether for hardware, a subscription (or license) to Software, or a contract for support and maintenance or other Services – through our global network of channel distribution and resale partners. Customers will receive quotes from, and place any Orders for Cohesity Products with, a Cohesity Partner. As a result, this Agreement does not contain any terms dealing with payment, invoicing, taxation, importation, shipment/delivery and the like, as all of those terms are between the Customer and Cohesity Partner. • This Agreement covers Software, not SaaS: This Agreement covers our core Cohesity Platforms and Software offerings (DataPlatform, DataProtect, and related Software). The Customer controls all access to such Software, whether it resides on Customer’s premises, in Customer’s data center environment, or in Customer’s own public or private cloud, and Cohesity does not host Software on behalf of Customers under this Agreement. To avoid confusion, separate terms and conditions apply to use of Cohesity software-as-a-service offerings (“SaaS Offerings”), which can be agreed either by click-through/clickwrap in the Cohesity interface, or by signing an Addendum to this Agreement (and which are available at www.cohesity.com/agreements). • Incorporated Documents: The following documents are incorporated into this Agreement by reference (available at www.cohesity.com/agreements):
- Support and Maintenance Terms and Conditions
- Scope of License Terms
- Enhanced Support Services Terms & Conditions (applicable if using Enhanced Support) - End-of-Life Terms and Conditions (applicable if using Cohesity Platforms) Additional documents are available on request from [email protected], including our Data Processing Addendum and applicable information security documentation.

1. Definitions.
a) “Addendum” means an addendum or other writing duly executed by authorized representatives of the Parties referencing and intending to supplement or amend this Agreement (collectively “Addenda”); b) “Affiliate” means, with respect to a Party, any individual, company, or other entity, directly or indirectly, controlled by, or under common control with, such Party, but, for clarity, excluding those individuals, companies or entities that are controlling such Party;
c) “Analytics Data” means (i) usage data which may be used to improve Products; and/or (ii) metadata about Products which may be used to automate or perform certain Support functions, but in each case excluding data or software code backed up by (or stored on) Software in Customer’s environment; ATTACHMENT 3
21 Cohesity – Confidential & Proprietary Page 2 of 10 Last Updated October 2020 d) “Beta Products” means pre-release or early-release Products that Cohesity makes available to select customers before they are made generally available;
e) “Cohesity Partner” means a Cohesity channel distribution, alliance and/or resale partner that has the right to transact sales of Cohesity Products;
f) “Cohesity Platforms” mean hardware configurations which are both certified by Cohesity for use with Software and eligible for Support from Cohesity;
g) “Confidential Information” means all financial, business, strategic, technical and/or product information (and any other information that a reasonable person in the technology industry would understand to be confidential), in any form or medium and whether or not marked as confidential – including without limitation this Agreement and any benchmarking or comparative studies involving the Products – disclosed by a Party before or during the term of this Agreement, but excluding (a) information already known by the Recipient without obligation of confidentiality, (b) information that is or becomes publicly known other than through breach of this Agreement, (c) information received by the Recipient from a third party not known (in good faith) by the Recipient to be under an obligation of confidence to the Discloser, and (d) information independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information;
h) “Discloser” means a Party or its Affiliate that furnishes Confidential Information to the other Party or its Affiliate;
i) “Documentation” means the operating manuals, user guides and any other documentation which Cohesity generally makes available to its customers (directly or indirectly) in connection with the Products; j) “Enhanced Support” means enhanced support and/or implementation services Customer may opt to purchase as described in (and subject to) the Enhanced Support Services Terms and Conditions at www.cohesity.com/agreements (incorporated herein by reference); k) “Entitlement” means a Customer’s right pursuant to a valid Order to (i) use a Product licensed (or subscribed to) or (ii) receive Services, in each case (i & ii) for a fee and subject to any applicable use, capacity, or other limitations (and “Entitled” shall be given its meaning accordingly); l) “Eval” has its meaning given in Section 5;
m) “Hardware” means Cohesity Platforms, Third-Party Hardware and/or Virtual/Cloud Environments, as applicable;
n) “Order” means a binding order placed by Customer with a Cohesity Partner reflecting a valid Cohesity sales quotation or similar document;
o) “Party” means Cohesity or Customer, as applicable, and collectively the “Parties”; p) “Personal Data” means information disclosed hereunder which relates to an identified or identifiable natural person, i.e. one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; q) “Products” means all of Cohesity’s and its licensors’ or suppliers’ products, Services, and Software supplied by Cohesity under this Agreement, including Cohesity Platforms and Third-Party Software but excluding (i) other Hardware, and (ii) SaaS Offerings;
r) “Recipient” means the Party or its Affiliate that receives Confidential Information from the other Party or its Affiliate;
s) “Representatives” means, in respect of a Party, (i) its and its Affiliates’ employees, and (ii) its representatives and consultants whom a reasonable person in the technology industry would understand not to be Cohesity competitors;
t) “Services” means the Support and Enhanced Support Services, and any other services Cohesity is obligated to provide Customer during the term of this Agreement; u) “Software” means, collectively, all Cohesity proprietary software and Third-Party Software supplied by Cohesity under this Agreement;
v) “Support” has its meaning given in the Support Terms; w) “Support Portal” means a support portal made available to Cohesity Support customers; x) “Support Terms” has its meaning given in Section 6.6; y) “Third-Party Hardware” means hardware and/or firmware products supplied by a third party and certified for use by Cohesity;
z) “Third-Party Software” means any (i) open source computer software that is made available under licensing terms that allow licensee to copy, use, distribute, and/or create and distribute, modifications and derivative works of such computer software without charge; or (ii) software owned or licensed on a 22 COHE§ITY
Cohesity – Confidential & Proprietary Page 3 of 10 Last Updated October 2020 commercial basis by a third party, in each case to the extent supplied by Cohesity under this Agreement (e.g. contained in a Product); and
aa) “Virtual/Cloud Environments” means Cohesity-compatible virtual machines, containers or similar technologies supplied by a third party to run and operate Software, either on premises or in the private or public cloud (e.g. AWS, GCP or Azure).

2. General.

2.1 Scope of Agreement. This Agreement shall apply to all Cohesity Products. Customer’s contractual arrangements with any Cohesity Partner (e.g., any purchase orders) are not part of this Agreement, but Cohesity Products (howsoever obtained by Customer) are subject to this Agreement.

2.2 Composition of Agreement. This Agreement includes all of its accompanying text, the documents incorporated herein by reference, and any Addenda hereto, and constitutes the exclusive and entire agreement between Customer and Cohesity on its subject matter.

2.3 Order of Precedence. In the event of a conflict between or among this Agreement, the documents incorporated herein by reference, any Addendum hereto and/or an Order, the conflict will be resolved in the following order of precedence: this Agreement; documents incorporated herein by reference; any Addendum hereto; any Order.

3. Software License. Cohesity grants Customer a personal, revocable, nonsublicensable, nonexclusive right to use Software (or portions thereof) to which Customer is Entitled, in object code form only, subject to the Cohesity Scope of License Terms and End-of-Life Terms and Conditions found at www.cohesity.com/agreements (incorporated herein by reference), payment of the relevant fees, the terms of this Agreement, and all applicable use, capacity, or other limitations specified in writing. For clarity, subscription Entitlements include both a license and Support for the duration of the subscription.

4. Restrictions.
a) Software is not sold but is licensed (or made available via subscription) solely for Customer’s use strictly in accordance with this Agreement. Cohesity retains ownership of all copies and Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and media. Except as expressly set forth herein, no rights in or to any intellectual property are transferred, assigned, or licensed under this Agreement.
b) Customer acknowledges that Products may contain or be distributed with Third-Party Software, use of which shall be governed by current respective licenses for such Third-Party Software, a copy of which is accessible in the product user interface, in the Support Portal, or by emailing [email protected] (or if no license is specified, then subject to this Agreement). Cohesity warrants that it complies with all licenses applicable to Third-Party Software in Products. Additionally, the Products may include certain third-party commercial offerings resold by Cohesity pursuant to a separately-identified SKU in an Order which are subject to supplemental or substitute terms and conditions, subject to being agreed by Customer. c) Customer will not (and will not knowingly allow any third party to): (i) alter or remove any of Cohesity’s or its licensors’, partners’, or suppliers’ copyright, patent, or other proprietary rights notices or legends appearing on or in the Products; (ii) modify, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of, any Software (except to the extent that applicable law prohibits such restrictions); (iii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use (or allow others to use) any Software for the benefit of any third party (except as expressly and specifically authorized by Cohesity in writing); (iv) allow the transfer, transmission, export, or re-export of any Product (or portion thereof) in violation of any export control laws or regulations; (v) use or attempt to use portions of the Software without Entitlement; (vi) create more instances of Software (or use Software for greater capacity) than Entitled, or (vii) use Products in conjunction with any hardware, firmware, virtual/cloud environment or other configuration not certified by Cohesity. Notwithstanding the foregoing, Customer may with Cohesity’s prior written consent permit a third-party contractor of the Customer to use Products on Customer’s behalf so long as Customer procures the contractor’s compliance with terms of this Agreement. For the avoidance of doubt, Customer may not utilize, host, support or otherwise deploy Products as a service on behalf of any unaffiliated third party without the express written agreement of Cohesity.
d) All use of Third-Party Hardware is at Customer’s own risk and is Customer’s responsibility. Cohesity support contracts may not be sold, assigned or otherwise transferred without Cohesity’s written consent. 23 COHE§ITY
Cohesity – Confidential & Proprietary Page 4 of 10 Last Updated October 2020

5. Evaluation License. Cohesity may, from time to time, provide Customer with Cohesity Products pursuant to a free or discounted evaluation/testing arrangement (“Eval”). Absent a written arrangement defining the scope of an Eval, a thirty (30) day Eval period shall be assumed. Notwithstanding anything to the contrary, all Evals shall be subject to the following:
a) Eval license(s) shall be of limited duration and shall expire automatically upon completion of the Eval; b) Upon expiration or termination of an Eval, Customer shall immediately (i) return all Cohesity Platforms under Eval to Cohesity pursuant to the Return Materials Authorization (“RMA”) process, and (ii) discontinue use of (and, if possible, destroy) all copies of any Software under Eval, wherever residing; c) All Cohesity Platforms under Eval are Customer’s responsibility until safely returned to Cohesity; and d) Customer shall pay Cohesity for damage to, or loss of, Cohesity Platforms while in Customer’s possession.

In addition, if Cohesity provides Customer early access to Beta Products (or other early release functionality), Customer acknowledges and agrees that such access is (i) subject to this Section 5; (ii) on an ”as-is” basis (without liability to Cohesity) and without warranty or support, and (iii) may require a separate Entitlement when made generally available.

6. Warranties.

6.1 General Warranties.

Cohesity warrants to Customer that:
a) Cohesity uses commercially reasonable efforts to procure (and is responsible for) compliance of its contractors and subcontractors who perform activities hereunder with this Agreement and with applicable laws and regulations; and
b) Cohesity will not cause Customer to be in violation of any regulation administered by U.S. Department of the Treasury’s Office of Foreign Assets Control’s (“OFAC”), and neither any individual, entity, or organization holding any material ownership interest (at least 25% of voting shares) in Cohesity, nor any officer or director of Cohesity, has been determined to be an individual, entity, or organization with whom applicable law prohibits a United States company or individual from dealing (including names appearing on the OFAC Specially Designated Nationals and Blocked Persons List).

6.2 Software Warranties.

Cohesity warrants to Customer that:
a) the Software will operate, for a period of ninety (90) days from the date of availability to Customer, substantially in accordance with, and as described in, the Documentation; b) it uses commercially reasonable efforts designed to ensure that, on delivery, the Software will not contain any malware, viruses, worms, Trojan horses, ransomware, spyware, adware, scareware, disabling code, trap door devices or other malicious programs or instructions (but excluding normal agreed license restrictions such as time-limited licenses/subscriptions) intended to: (i) inhibit the use of the Software; (ii) erase, corrupt or modify any data, programs, or information, or (iii) bypass internal or external Customer security measures for the purpose of gaining unauthorized access; and c) provided it is used in compliance with this Agreement, the Software shall not obligate Customer to (i) grant a third party any rights to Customer’s intellectual property; (ii) cause any portion of the Customer’s intellectual property to become subject to any open source or similar license, or (iii) require Customer to make any of its own source code (or derivative works thereof) available to third parties for no fee.

6.3 Hardware Warranties. Cohesity warrants that Cohesity Platforms and/or each hardware component thereof will be free from material defect in workmanship (under normal use and conditions) for one (1) year from the date of purchase. This warranty does not apply to (a) expendable or consumable parts, (b) any software contained on the Products or otherwise supplied by Cohesity, (c) Products which are returned in any manner that is not in compliance with Cohesity’s then-current RMA policies, (d) any Product from which the serial number has been removed, or (e) any Product that has been damaged or rendered defective for any reason other than caused by Cohesity or a Cohesity-authorized service provider.

6.4 Services Warranties. Cohesity warrants to Customer that:
a) all Services are performed in a professional and workmanlike manner using Cohesity personnel who are familiar with the technology, processes and procedures used to deliver the Services, and b) its employees who perform any Services under this Agreement have (to the extent permitted by applicable law) at the time of hiring undergone a background check compliant with the Fair Credit Reporting Acts ("FCRA") and/or other applicable laws and regulations, including:
i. Seven-year criminal background check of relevant available records; ii. verification of identity through Social Security numbers or other such identification authentication; 24 COHE§ITY
Cohesity – Confidential & Proprietary Page 5 of 10 Last Updated October 2020 iii. verification that such person's name does not appear on the OFAC Specially Designated Nationals and Blocked Persons List, U.S. State Department’s Debarred Parties List and Bureau of Industry and Security’s Denied Persons List;
iv. verification of employment history, educational history; and v. reference checks including work-related references.

6.5 Mutual Warranties. Each Party represents and warrants that:
a) it has all requisite legal and corporate power, and has taken all corporate action necessary, to authorize, execute and deliver this Agreement;
b) (i) it is aware of, understands, and will comply with, the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act, as applicable (collectively the “Acts”); (ii) it will not take any action that might be a violation of the Acts or other applicable anti-corruption laws that prohibit the same type of conduct (including without limitation the making of corrupt payments); (iii) it has, and will have, policies in place sufficient to ensure compliance with the provisions of the Acts, as applicable; and (iv) all amounts paid to Customer by Cohesity hereunder, including without limitation any discounts or credits furnished by Cohesity (if any) shall not be paid or given to any other person, firm, corporation or other entity, except in payment for a bona fide business purpose authorized by this Agreement and incurred in connection with performance hereunder in accordance with applicable law, and c) none of its activities under this Agreement is restricted by, contrary to, in conflict with, or ineffective under any law or regulation to which such Party is subject.

6.6 Remedies for Breach of Warranty.
a) Cohesity’s sole obligation under the express warranty set forth in Sections 6.2 and 6.3 shall be, at Cohesity’s option and expense, to repair or replace the applicable component and/or Product; provided that in the event of a breach of the foregoing warranty within thirty (30) days of shipment, Cohesity will replace any non-compliant Product with a new Product within five (5) business days of notice via its then-current RMA procedure described in Cohesity’s standard Support and Maintenance Terms and Conditions (the “Support Terms”) found at www.cohesity.com/agreements (incorporated herein by reference). After the warranty period, Customer is entitled to receive only the support and maintenance services specified for the applicable support level and term that Customer is Entitled to receive in the Support Terms. Cohesity will use commercially reasonable efforts to provide the support and maintenance services for the Products as, and to the extent described in, the Support Terms.
b) Customer must contact Cohesity’s technical support center within the applicable warranty period to obtain an RMA number as set forth in the Support Terms. In order to obtain warranty services, dated proof of purchase may be required by Cohesity in its sole discretion. Products may not be returned without an RMA number.
c) Access to Cohesity’s technical support center for any and all questions, consultation, deployment assistance, or problem reports regarding the Products shall be provided only pursuant to Customers who have purchased current Support. The warranties hereunder do not provide advance replacement parts. d) If Customer believes Cohesity is in breach of the warranties in this Section 6, Customer shall notify Cohesity in writing specifying the breach, following which Cohesity shall have not less than thirty (30) days to remedy same.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS

WITHOUT ANY WARRANTY WHATSOEVER, AND COHESITY AND ITS SUPPLIERS EXPRESSLY DISCLAIM

ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED

WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. COHESITY ALSO EXPRESSLY DISCLAIMS AND MAKES NO WARRANTY REGARDING ERROR-FREE USE, NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS.

COHESITY WILL HAVE NO LIABILITY FOR THE LOSS OR CORRUPTION OF ANY DATA STORED ON ANY PRODUCT FOR ANY REASON.

7. Confidentiality; Proprietary Rights.

7.1 Ownership of Confidential Information. The Confidential Information of the Discloser is and will remain the property and asset of the Discloser. Except for the licenses expressly granted herein, nothing in this Agreement shall be deemed to constitute a license in favor of a Party to any proprietary rights of the other, including, without limitation, any patents, copyrights, trademarks or trade secrets. 25 COHE§ITY
Cohesity – Confidential & Proprietary Page 6 of 10 Last Updated October 2020

7.2 Confidentiality Obligation. Except as required by law, the Recipient shall in respect of the Discloser’s Confidential Information for the term of this Agreement and three (3) years thereafter (but for trade secrets for so long as it is a trade secret):
a) hold it in confidence using the care and discretion it uses with its own sensitive information and trade secrets (but no less than reasonable care and discretion);
b) not intentionally disclose it or information derived from it to any third party other than its Representatives with a business need to know;
c) not use it, except solely for the purpose contemplated by this Agreement; d) not export or reexport it or any product of it except in compliance with applicable laws and regulations; and e) not copy, reverse engineer, or attempt to derive its underlying composition, information, structure or ideas.

The Recipient will procure and be responsible for compliance of its Affiliates and Representatives with this Agreement.

7.3 Compelled Disclosures. The Recipient may disclose Confidential Information required by law, order or legal process, provided it uses reasonable efforts to:
a) promptly notify the Discloser of such requirement;
b) limit disclosure; and
c) obtain confidential treatment or a protective order.

7.4 Return of Confidential Information. The Recipient will immediately upon request by the Discloser at any time return or destroy Discloser’s Confidential Information, including any reproductions, summaries or extracts, provided however that the Recipient:
a) unless this Agreement has been terminated, may retain such Confidential Information as it reasonably requires in order to perform its obligations under, and otherwise comply with, this Agreement; b) may retain one (1) copy of Confidential Information to the extent required for legal or regulatory purposes; and
c) will not be required to delete electronic copies of Confidential Information stored in disaster recovery or archival storage.

The Recipient’s obligations of confidentiality survive return or destruction of Confidential Information and continue to apply to any Confidential Information retained.

7.5 Independent Product Development. This Agreement shall not (provided its terms are complied with) limit a Party's right to:
a) independently develop or acquire products or services similar to those included in any Confidential Information;
b) enter any transaction with a third party which owns or has rights to such similar products or services; or c) disclose or use general learning, skills or know-how developed by its employees if to do so would not be regarded by a person of ordinary skill in the relevant area as a disclosure or use of Confidential Information hereunder.

7.6 Unauthorized Use. The Recipient will notify the Discloser promptly upon discovery of any unauthorized use or disclosure of Confidential Information or other breach of this Agreement, and reasonably cooperate with the Discloser to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.

The Recipient acknowledges and agrees that due to the unique nature of the Discloser’s Confidential Information, there can be no adequate remedy at law for breach of its obligations hereunder, and such breach may allow the Recipient or third parties to unfairly compete with the Discloser, resulting in irreparable harm. Therefore, if the Recipient or its Representatives breach (or attempt or threaten to breach) this Agreement, the Discloser shall have the right, in addition to any other remedies, to seek equitable and injunctive relief without the requirement of posting a bond or other security.

8. Personal Data. Should a Party choose to provide the other from time to time with Personal Data (e.g., the business email address of an employee, for business, Support or other purposes hereunder), the receiving Party shall process such Personal Data only for the purpose for which it was provided and in compliance with this Agreement and laws applicable to such Party. Personal Data shall be treated as Confidential Information for so long as it remains in the receiving Party’s possession. If Customer is legally required, due to its location or other factors, to conclude a data processing agreement, Customer shall advise Cohesity of same and Cohesity shall promptly supply its form Data Processing Addendum on request.

9. Termination; Suspension.

9.1 Termination by Cohesity. In the event of a material breach of this Agreement by Customer, Cohesity may in its discretion (a) suspend or revoke any or all of Customer’s rights hereunder, and/or (b) terminate this Agreement, 26 COHE§ITY
Cohesity – Confidential & Proprietary Page 7 of 10 Last Updated October 2020 and/or (c) suspend or terminate Customer’s right to receive support and maintenance services notwithstanding the existence of a valid support contract, in each case by giving advance warning to Customer effective in seven (7) days unless Customer first cures such breach, or effective immediately if the breach is incapable of cure.

9.2 Termination by Customer. Customer may terminate this Agreement on written notice (a) in the event of a material breach of this Agreement by Cohesity which remains uncured following expiration of a thirty (30) day notice specifying the breach, or (b) at any time for convenience on sixty (60) days’ prior written notice.

9.3 Insolvency Termination. A Party may terminate this Agreement if the other Party becomes subject to appointment of a trustee or receiver for all or any part of its assets, becomes insolvent or bankrupt, or makes any assignment for the benefit of creditors.

9.4 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted to Customer hereunder shall immediately terminate and each Party shall return or destroy all Confidential Information of the other Party.

9.5 Remedies. Each Party shall be entitled to all remedies available to it at law in the event of termination of this Agreement for the other Party’s material breach. Each Party’s remedies for breach of this Agreement are cumulative not exclusive.

10. Downstream Product Users. Cohesity may, in its sole discretion, revoke the rights made available hereunder in respect of any entity using Products not obtained directly from Cohesity or via an authorized Cohesity Partner.

11. Records; Audit Rights. Customer covenants and agrees that, without any additional consideration, it will provide any information reasonably requested and perform any acts that are or may become necessary to effectuate the purposes of this Agreement and/or an Order(s), including without limitation the following: With at least fifteen (15) days’ advance notice, Customer shall provide to Cohesity (and internal and external auditors) reasonable access during normal business hours (9am – 5pm) to Customer personnel, financial records, and other pertinent information, to the extent relevant to the purposes of this Agreement and/or an Order(s). Such access shall be provided for the purpose of performing audits and inspections of Customer’s compliance with this Agreement and/or an Order(s) (including without limitation any capacity and usage limitations associated therewith) and/or to enable Cohesity to meet applicable accounting, legal, regulatory or contractual requirements. If any such audit reveals non-compliance, Customer shall promptly place such Order, pay such additional fees, and/or take such additional actions, in each case as are reasonably necessary to become compliant. If such non-compliance is, in aggregate, more than five percent (5%) in Cohesity’s favor, Customer shall promptly reimburse Cohesity for the actual cost of the audit.

12. LIMITATION OF LIABILITY. NEITHER CUSTOMER NOR COHESITY (NOR ITS SUPPLIERS OR

LICENSORS) WILL BE LIABLE WITH RESPECT TO ANY PRODUCT OR OTHER SUBJECT MATTER OF THIS

AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR

EQUITABLE THEORY, FOR ANY (A) AMOUNTS IN EXCESS OF THE AGGREGATE OF THE AMOUNTS PAID

TO COHESITY (DIRECTLY OR INDIRECTLY) BY CUSTOMER DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE OR TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS ($250,000), WHICHEVER IS GREATER; (B) INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 SHALL NOT APPLY TO:

I) ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT;
II) BODILY INJURY OR DEATH RESULTING FROM A PARTY’S NEGLIGENCE; III) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING INTENTIONAL BREACH OF ENTITLEMENTS);
IV) A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY; PROPRIETARY RIGHTS); AND V) EACH PARTY’S OBLIGATION TO INDEMNIFY UNDER SECTION 14.

13. EXCLUDED USES. THE COHESITY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR USE IN

APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO

RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE (THE “EXCLUDED USES”). IF CUSTOMER USES PRODUCTS FOR OR IN CONNECTION WITH AN EXCLUDED USE, CUSTOMER HAS THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA—BY PERIODICALLY CREATING REDUNDANT COPIES OR OTHERWISE—AND COHESITY IS NOT RESPONSIBLE FOR LOST OR 27 COHE§ITY
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CORRUPTED DATA, WORK STOPPAGE, RE-RUN TIME, INACCURATE OUTPUT, OR COMPUTER FAILURE OR MALFUNCTION ASSOCIATED WITH (OR OCCURRING DURING) ANY EXCLUDED USE.

14. Indemnities.

14.1 Intellectual Property Indemnity. Cohesity will defend, indemnify, and hold Customer, its Affiliates, suppliers and licensors, and each of their respective officers, directors, employees and Representatives, harmless against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising from any third-party action brought against Customer based upon a claim that any of the Products or Services (in the form provided by Cohesity) infringes any third-party intellectual property rights. If the Products become, or in Cohesity’s opinion are likely to become, the subject of an infringement claim, Cohesity may, at its sole option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to it in this Agreement; (b) replace or modify the affected Product so that it becomes non-infringing; or (c) accept return of the affected Products and refund to Customer prorated payments of fees for such returned Products made by Customer for such Products, reduced on a straight-line basis over three (3) years from the date of delivery of such Product by Cohesity. This indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Products by a party other than Cohesity, unless Cohesity approves such modification; (ii) the combination of the Product with products, processes, or materials not supplied by Cohesity, unless Cohesity approves such combination; (iii) any activities with respect to the Products by Customer not authorized by this Agreement or the Documentation; or (iv) any Products (or portions or components thereof) not created by Cohesity.

14.2 Indemnity for Breach of Applicable Laws. Each Party shall defend, indemnify, and hold the other Party, its Affiliates, suppliers and licensors, and each of their respective officers, directors, employees and Representatives, harmless from and against any Losses arising from any third-party action brought against the Indemnified Party (as defined below) with respect to violation of applicable laws or regulations by the other Party (each an “Indemnifying Party”).

14.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a Party seeks indemnity or reimbursement under this Section 14 (each an “Indemnified Party”) and as a condition of the indemnity, the Indemnified Party shall:
a) notify the Indemnifying Party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as reasonably necessary for the Indemnifying Party to evaluate the claim (to the extent in the Indemnified Party’s possession or knowledge).

Any delay in giving such notice shall preclude or limit the Indemnified Party from seeking indemnification or reimbursement hereunder only to the extent such delay (i) materially prejudices the Indemnifying Party’s ability to defend the claim or (ii) materially affects the amount of damages awarded for, or paid in settlement of, the claim;
b) allow the Indemnifying Party to assume full control of the defense of the claim, including retaining counsel of its own choosing; and
c) reasonably cooperate with the Indemnifying Party in the defense of the claim.

Notwithstanding the foregoing provisions, the Indemnifying Party shall have no obligation to indemnify or reimburse for any Losses paid by any Indemnified Party voluntarily, and without the Indemnifying Party’s prior written consent, to settle a claim. Neither Party will be responsible for any settlement it does not approve in writing. Upon the assumption by the Indemnifying Party of the defense of a claim, the Indemnifying Party will not be liable for the fees or expenses of counsel retained by any Indemnified Party.

15. Governing Law and Dispute Resolution.

15.1 If Customer is incorporated in the European Economic Area or United Kingdom (“Europe”):
a) this Agreement shall be governed by and construed in accordance with the laws of Ireland as applied to contracts made (and to be performed) in Ireland, without applying conflict of laws rules, including legally binding regulations of the European Union; and
b) any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved within a period of thirty (30) days after written notice of same has been given by one Party hereunder to the other (the “Arbitration Date”) shall be finally settled by arbitration in Dublin, Ireland, using the English language, in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex technology contract disputes, who will be chosen from the appropriate list of JAMS arbitrators.
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15.2 If Customer is incorporated anywhere other than Europe:
a) this Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California as applied to contracts made (and to be performed) in California, without applying conflict of laws rules; and
b) any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved within a period of thirty (30) days after written notice of same has been given by one Party hereunder to the other (the “Arbitration Date”) shall be finally settled by arbitration in San Jose, California, using the English language, in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex technology contract disputes, who will be chosen from the appropriate list of JAMS arbitrators.

15.3 Additional Arbitration Provisions. If the Parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the Parties the costs of arbitration (including without limitation service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing Party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each Party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The Parties consent to jurisdiction and venue in the courts of Dublin, Ireland and United States Federal Courts located in the Northern District of California.

15.4 Equitable Relief. Notwithstanding the foregoing and regardless of whether Section 15.1 or Section 15.2 applies, (a) each Party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief at any time, and (b) the language to be used in any and all proceedings arising out of or related to this Agreement shall be English.

16. Miscellaneous.
a) Amendment. Only the terms expressly stated on an Order, Addendum or other writing that refers explicitly to this Agreement and is signed by duly authorized representatives of the Parties may modify or supplement the terms hereof. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY COHESITY. b) Data Collection. Unless Customer configures the Product settings to prevent it, the Products may collect and transmit Cohesity Analytics Data to Cohesity which Cohesity may use for purposes of providing Services and/or improving Products. Cohesity Analytics Data (i) which identifies Customer shall at all times be maintained as confidential, and (ii) may not be resold, commercialized or used for any purpose other than as expressly provided under this Agreement. Further information is available from Cohesity by emailing [email protected].
c) No Waiver. Cohesity’s performance is expressly conditioned on Customer’s assent to this Agreement. A waiver of any default hereunder, or of any provision of this Agreement, shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed.
d) Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
e) Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, internet failure, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such Party.
f) Survival. All terms of this Agreement which must survive in order to fulfil their essential purpose shall survive termination or expiration of this Agreement. For avoidance of doubt, no rights granted Customer hereunder shall survive termination.
g) Notices. Except as otherwise expressly set forth in this Agreement, all notices required under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such 29 COHE§ITY
Cohesity – Confidential & Proprietary Page 10 of 10 Last Updated October 2020 as Federal Express, or registered mail (return receipt requested), and shall be deemed given upon personal delivery or confirmation of receipt. Notices may be sent to the Parties at their primary business address(es) or such address as either Party may designate for itself in writing. h) Compliance with Laws – Generally. Each Party shall obey all applicable laws and regulations in its use of Products and its performance under this Agreement.
i) Compliance with Laws – Export/Import. Customer acknowledges that the Products may contain technical data or elements, the export or re-export of which may be restricted to certain destinations and end users as a result of license restrictions, laws, rules and regulations. Customer agrees not to engage in (and not to cause) export or re-export of Product(s) or any part thereof without first satisfying all legal requirements, including without limitation all necessary United States and foreign government import/export licenses, approvals or registrations. Upon request, Cohesity shall make available its documentation related to obtained export licenses and/or license exceptions. The Products may not be distributed, or otherwise exported or re-exported (i) into, or to a national or resident of, any country to which the U.S. has embargoed goods or trade restrictions; or (ii) to anyone on the OFAC Specially Designated Nationals and Blocked Persons List or the U.S. Commerce Department's Denied Persons, Denied Entities, and Unverified List.

Customer shall indemnify Cohesity from and against any liabilities, costs, fines, penalties, and other expenses (including reasonable attorneys’ fees) incurred by Cohesity as a result of Customer's breach of the foregoing obligations.
j) Assignment. Customer may not delegate, assign or transfer this Agreement or any of Customer’s rights or duties hereunder without Cohesity’s express prior written consent, and any attempt to do so shall be null and void. Cohesity may freely assign this Agreement, and its rights and/or obligations hereunder, in whole or part.
k) Independent Contractors. Each Party hereto is an independent contractor and nothing contained herein shall be construed as creating any agency, employment, partnership, principal-agent or other form of joint enterprise relationship between the Parties. Neither Party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has authority to do so. The Parties’ relationship is non-exclusive.
l) Construction. The headings of sections of this Agreement are solely for convenience and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” 30 COHE§ITY
Cohesity – Confidential & Proprietary Page 1 of 8 Last Updated May 2023 COHESITY, INC.

SAAS TERMS OF SERVICE
COHESITY, INC. (TOGETHER WITH ITS AFFILIATES, “COHESITY”) SUPPLIES A MODERN DATA

MANAGEMENT PLATFORM WITH COHESITY-MANAGED (SAAS) AND CUSTOMER-MANAGED (SOFTWARE) DEPLOYMENT OPTIONS AND FEATURES. THESE TERMS APPLY ONLY TO COHESITY SAAS.

COHESITY AGREES TO SUPPLY ACCESS TO SPECIFIED COHESITY SAAS SERVICES TO YOUR BUSINESS OR ORGANIZATION (“CUSTOMER,” “YOU” OR “YOUR”) ONLY IF (A) YOU REPRESENT AND WARRANT THAT

YOU HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER AND (B) YOU ACCEPT AND AGREE ON

BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THESE COHESITY SAAS TERMS OF SERVICE (THE “TERMS,” INCLUDING ALL DOCUMENTS INCORPORATED HEREIN BY REFERENCE). THE FOREGOING SHALL BE DEFINITIVELY EVIDENCED BY ANY ONE OF THE FOLLOWING MEANS: YOUR CLICKING THE “ACCEPT,” “CONTINUE” OR A SIMILAR BUTTON, AS APPLICABLE; YOUR SIGNATURE ON A TANGIBLE COPY OF THIS AGREEMENT; YOUR USE (OR CONTINUED USE) OF THE

SERVICES OR BY SUCH OTHER CONTRACT FORMATION MECHANISM AS MAY BE RECOGNIZED UNDER APPLICABLE LAW. IF YOU DO NOT AGREE TO THIS AGREEMENT, CEASE ALL ACCESS AND/OR USE OF THE SERVICE(S).

1. SERVICE AND RESTRICTIONS
a) Service Scope and Access. Subject to the Terms, including the Scope of SaaS Offerings at www.cohesity.com/agreements incorporated herein, Customer may access and use the Services to which Customer is Entitled for Customer’s internal business purposes only. To the extent use of a Service requires Customer to install Cohesity software, Cohesity grants Customer a limited, non-transferable, nonsublicensable, non-exclusive license during the Subscription Period to use the object code form of such software internally in connection with Customer’s use of the Service, subject to the Terms (and any license agreement contained therein, if applicable and accepted by Customer). For clarity, subscription Entitlements include both a license and Support for the duration of the subscription. Services may be supplied using third-party infrastructure such as Amazon Web Services (“AWS”) or Microsoft Azure Cloud Services.
b) Service Levels. The Services will be provided in accordance with the applicable Service Level Agreement located at www.cohesity.com/agreements (if applicable). c) Restrictions. Customer will not (and will not knowingly allow any third party to): (i) modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, source code, or algorithms of the Services or any software used to provide or make the Services available (except to the extent that applicable law prohibits such restrictions); (ii) remove or otherwise alter any copyright, patent, or other proprietary rights notices or labels from the Services or any portion thereof; (iii) access or use the Services to develop, promote, distribute, sell or support any product or service competitive with any Services; (iv) disclose any details about benchmarking results or technical specifications of any Services; or (v) make representations, warranties, or guarantees to any person or entity with respect to any Services that purport to be by or on behalf of Cohesity or its suppliers. Customer may permit its Representative to use the Services on Customer’s behalf so long as such use is for Customer’s sole benefit and Customer is responsible for the Representative’s compliance with the Terms. For avoidance of doubt, Customer may not utilize, host, support or otherwise deploy the Services as a service on behalf of any unaffiliated third party without the express written agreement of Cohesity. d) Overages. Customer is permitted a thirty (30) day grace period for excess Usage or unforeseen events leading to non-compliance with its Entitlements. Subsequently, Customer is expected to make an additional purchase or expansion to Entitlements to address any prior or continued excess capacity Usage. e) Ownership. Cohesity retains all rights, title, and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, and any and all software, products, works or other intellectual property created, used, provided or made available by Cohesity under or in connection with the Terms. Customer grants Cohesity a perpetual and irrevocable right to use, in any way and for any purpose without restriction or compensation to Customer, suggestions, enhancement requests, ideas, corrections, or other feedback provided by Customer (or its Users) relating to Cohesity products or services.

ATTACHMENT 4
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2. CUSTOMER CONTENT & RESPONSIBILITIES
a) Customer Content. Customer Content shall not be deemed part of any Services by virtue of being located on or processed through the Services. As between the Parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Content and any modifications made thereto in the course of the operation of the Service. Cohesity is hereby expressly granted a non-exclusive, worldwide, royalty-free right to access and process the Customer Content strictly to the extent necessary to provide the Services or as may be required by law. For clarity (and without limitation), Customer Content is Customer’s Confidential Information. b) General Responsibilities. Customer is responsible for:
i. ensuring Customer Content and its use of Services complies with the Terms and applicable law, including that Customer agrees not to store or process protected health information using the Services without first entering into a business associate agreement/addendum to these Terms with Cohesity;
ii. any claims that Customer Content infringes, misappropriates, or violates any third party’s rights, including handling notices claiming Customer Content violates such rights; iii. security and confidentiality of its account information (including usernames, passwords, and access information) and will notify Cohesity immediately if any such information is lost, stolen, or compromised; and
iv. configuring and using the Services and other systems, tools and technology properly to conform to applicable requirements specified in Documentation and maintain appropriate security and protection of Customer Content.
c) Service Analytics Data. Customer understands and consents to Cohesity’s collection, use, processing, storage and deletion of Service Analytics Data to provide, automate, or improve Services or support functions (or develop recommendations relating thereto). d) Offers and Binding Orders. If Customer accepts an offer via a third-party marketplace or similar (e.g., by clicking "create contract" or similar in AWS Marketplace) or otherwise places a binding Order for Services, Customer agrees to also meet its obligations thereunder (including timely payment of any amounts and associated taxes and fees due).
e) Acts of Representatives. Each Party will be responsible for its Affiliates and Representatives to the extent they act under or in relation to the Terms.

3. EVALUATION LICENSE. Cohesity may, from time to time, provide Customer with Cohesity products and services pursuant to a free or discounted evaluation/testing arrangement or proof-of-concept (“Eval”). Evals may include Beta and/or pre-release features or products. Absent a written arrangement defining the scope of an Eval, the Eval shall be subject to the Evaluation Terms & Conditions at www.cohesity.com/agreements and last for a maximum of thirty (30) days (unless otherwise authorized by Cohesity in writing).

4. TERM AND TERMINATION
a) Term. The term of this agreement shall commence on the earlier of the date Customer accepts it or first uses Services (the “Effective Date”) and will remain in effect until terminated by a Party in accordance with its terms (the “Term”). If there is no Entitlement in effect, either Party may terminate the Terms upon written notice to the other Party.
b) Decrease or Suspension of Service. Cohesity may decrease or suspend Customer’s access to or use of Services if (i) Customer has become insolvent, ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any proceeding in any jurisdiction related thereto; (ii) Cohesity reasonably in good faith believes Customer’s use of the Service poses an immediate security risk to the Services or any third party, or (iii) as required by law or a governmental authority. c) Termination by Cohesity. Cohesity may terminate the Terms on seven (7) days written notice if Customer fails to cure 4(b)(i) or 4(b)(ii) within a reasonable period as determined by Cohesity in its discretion. Cohesity may also terminate the Terms on written notice in the event of a material breach of the Terms by Customer which remains uncured following expiration of a thirty (30) day notice specifying the breach, or effective immediately if the breach is incapable of cure.
d) Termination by Customer. Customer may terminate the Terms on written notice (a) in the event of a material breach of the Terms by Cohesity which remains uncured following expiration of a thirty (30) day notice specifying the breach, or (b) at any time for convenience on sixty (60) days’ prior written notice. e) Effects of Termination. All terms of the Terms which must survive in order to fulfill their essential purpose shall survive termination or expiration of the Terms. For clarity, upon termination of the Terms all rights and 32 COHE§ITY
Cohesity – Confidential & Proprietary Page 3 of 8 Last Updated May 2023 Entitlements granted Customer hereunder to use or access Services terminate immediately, Customer will make no further use of the Services, and each Party shall upon request return or destroy all Confidential Information of the other Party.
f) Customer Content After Termination. Access to Entitled Services ceases on the last day of the applicable Subscription Period, provided however that Customer may continue to access the Services for thirty (30) days thereafter solely to the extent necessary to retrieve Customer Content (“Retrieval Period”).

During Evals, the Retrieval Period shall be no greater than seven (7) days and Customers are advised to use test data. UPON EXPIRATION OF THE RETRIEVAL PERIOD, COHESITY RESERVES THE RIGHT

TO DELETE CUSTOMER CONTENT AND SEEK COMPENSATION FOR USAGE BY CUSTOMER DURING THE RETRIEVAL PERIOD.

5. CONFIDENTIALITY
a) Ownership of Confidential Information. The Confidential Information of the Discloser is and will remain the property and asset of the Discloser. Except for the licenses expressly granted herein, nothing in the Terms shall be deemed to constitute a license in favor of a Party to any proprietary rights of the other, including, without limitation, any patents, copyrights, trademarks or trade secrets. b) Confidentiality Obligation. Except as required by law, the Recipient shall in respect of the Discloser’s Confidential Information for the Term and three (3) years thereafter (but for trade secrets for so long as it is a trade secret):
i. hold it in confidence using reasonable care and discretion; ii. not intentionally disclose it or information derived from it to any third party other than its Representatives with a business need to know;
iii. not use it, except solely for the purposes contemplated by the Terms; iv. not export or reexport it or any product of it except in compliance with applicable laws and regulations; and
v. not copy, reverse engineer, or attempt to derive its underlying composition, information, structure or ideas.
c) Compelled Disclosures. The Recipient may disclose Confidential Information required by law, order or legal process, provided it uses reasonable efforts to:
i. promptly notify the Discloser of such requirement;
ii. limit disclosure; and
iii. obtain confidential treatment or a protective order. d) Return of Confidential Information. The Recipient will upon request by the Discloser at any time return or destroy Discloser’s Confidential Information, including any reproductions, summaries or extracts, provided however that the Recipient:
i. unless the Terms has been terminated, may retain such Confidential Information as it reasonably requires in order to perform its obligations under, and otherwise comply with, the Terms; ii. may retain one (1) copy of Confidential Information to the extent required for legal or regulatory purposes; and
iii. will not be required to delete electronic copies of Confidential Information stored in disaster recovery or archival storage.

The Recipient’s obligations of confidentiality survive return or destruction of Confidential Information and continue to apply to any Confidential Information retained. e) Independent Product Development. The Terms shall not (provided they are complied with) limit a Party's right to:
i. independently develop or acquire products or services similar to those included in any Confidential Information;
ii. enter any transaction with a third party which owns or has rights to such similar products or services; or
iii. disclose or use general learning, skills or know-how developed by its employees if to do so would not be regarded by a person of ordinary skill in the relevant area as a disclosure or use of Confidential Information hereunder.
f) Unauthorized Use. The Recipient will notify the Discloser promptly upon discovery of any confirmed unauthorized use or disclosure of Confidential Information or other material breach of the Terms, and reasonably cooperate with the Discloser to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. The Recipient acknowledges and agrees that due to the unique nature of the Discloser’s Confidential Information, there can be no adequate remedy at law for breach of its 33 COHE§ITY
Cohesity – Confidential & Proprietary Page 4 of 8 Last Updated May 2023 obligations hereunder, and such breach may allow the Recipient or third parties to unfairly compete with the Discloser, resulting in irreparable harm. Therefore, if the Recipient or its Representatives breach (or attempt or threaten to breach) the Terms, the Discloser shall have the right, in addition to any other remedies, to seek equitable and injunctive relief without the requirement of posting a bond or other security.

6. INDEMNIFICATION
a) Indemnification by Customer. Customer will defend, indemnify, and hold Cohesity, its affiliates, suppliers and licensors, and each of their respective officers, directors, employees and representatives, harmless from and against any third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising from any third-party action brought against Customer based upon a claim with respect to breach of the Terms or violation of applicable law by Customer or its Users in its use of the Services.
b) Indemnification by Cohesity. Cohesity will defend, indemnify, and hold Customer, its Affiliates, suppliers and licensors, and each of their respective officers, directors, employees and Representatives, harmless against any Losses arising from any third-party action brought against Customer based upon a claim (a) with respect to Cohesity’s violation of applicable law in its provision of the Services to its customers generally; or (b) that any of the Services (properly utilized by such persons in the form provided by Cohesity) infringes any third-party intellectual property rights. If any portion of the Services become, or in Cohesity’s opinion are likely to become, the subject of an infringement claim, Cohesity may, at its sole option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to it in the Terms; (b) replace or modify the affected Service or portion thereof so that it becomes non-infringing; or (c) take any other action reasonably deemed advisable by Cohesity related to such infringement claim. In the event none of these remedies is available and/or practical, Cohesity may, in its sole discretion, terminate the right to use the Service and return to Customer the fees paid with respect to the infringing Service, reduced on a prorated basis for each month the Service is used by Customer. This indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Services by a party other than Cohesity, unless Cohesity approves such modification; (ii) the combination of the Services with products, processes, services or materials not supplied by Cohesity, unless Cohesity approves such combination; (iii) any activities with respect to the Services by Customer not authorized by the Terms or the Documentation; or (iv) any Services (or portions or components thereof) not created by Cohesity. c) Notice of Claim and Indemnity Procedure. In the event of a claim for which a Party seeks indemnity or reimbursement under this Section 6 (each an “Indemnified Party”) from the other Party (each an “Indemnifying Party”) and as a condition of the indemnity, the Indemnified Party shall:
i. notify the Indemnifying Party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as reasonably necessary for the Indemnifying Party to evaluate the claim (to the extent in the Indemnified Party’s possession or knowledge). Any delay in giving such notice shall preclude or limit the Indemnified Party from seeking indemnification or reimbursement hereunder only to the extent such delay (i) materially prejudices the Indemnifying Party’s ability to defend the claim or (ii) materially affects the amount of damages awarded for, or paid in settlement of, the claim; ii. allow the Indemnifying Party to assume full control of the defense of the claim, including retaining counsel of its own choosing; and
iii. reasonably cooperate with the Indemnifying Party in the defense of the claim.

7. WARRANTY AND SUPPORT
a) Cohesity is responsible for compliance of its contractors and subcontractors who perform activities hereunder with the Terms and with applicable laws and regulations. Cohesity warrants that: (i) each Service will operate in substantial conformity with applicable Documentation and (ii) its personnel will perform in a professional and workmanlike manner consistent with industry standards. 34 COHE§ITY
Cohesity – Confidential & Proprietary Page 5 of 8 Last Updated May 2023 b) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SERVICES AND ANY SOFTWARE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. COHESITY HEREBY DISCLAIMS

ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF

MERCHANTABILITY, TITLE, SECURITY, ACCURACY, QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COHESITY ALSO EXPRESSLY DISCLAIMS AND MAKES NO

WARRANTY REGARDING ERROR-FREE USE, NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS, AND – EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN A SERVICE LEVEL (OR SIMILAR) AGREEMENT BETWEEN THE PARTIES – COHESITY DOES NOT WARRANT ANY PARTICULAR PERFORMANCE OR RESULTS RELATING TO SERVICES. THE SERVICES ARE NOT DESIGNED OR

INTENDED FOR USE IN APPLICATIONS IN WHICH FAILURE OF SUCH SERVICES COULD

REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE.
c) Cohesity advises all Customers to have a comprehensive data management plan which includes – at minimum – data protection and disaster recovery strategies for critical data, i.e. multiple copies and a diversified protection strategy.
d) In addition to any applicable service level agreement, support and maintenance services to which Customer is Entitled with respect to Services shall be provided in accordance with Cohesity’s standard Support and Maintenance Terms found at www.cohesity.com/agreements.

8. LIMITATION OF LIABILITY

NEITHER CUSTOMER NOR COHESITY (NOR ITS SUPPLIERS OR LICENSORS) WILL BE LIABLE WITH

RESPECT TO ANY SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,

NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY (A) AMOUNTS IN

EXCESS OF THE AGGREGATE OF THE AMOUNTS PAID TO COHESITY FOR THE APPLICABLE SERVICE (DIRECTLY OR INDIRECTLY) BY CUSTOMER DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE OR TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS ($250,000), WHICHEVER IS GREATER; (B) ANY LOST OR INACCURATE DATA, LOST PROFITS, BUSINESS

INTERRUPTION OR DELAY, REPLACEMENT SERVICES OR OTHER PUNITIVE, INDIRECT, SPECIAL,

EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE FOREGOING LIMITATIONS APPLY TO ALL

CLAIMS UNDER OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND REGARDLESS OF THEORY

OF LIABILITY, AND EVEN IF THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES

IN ADVANCE OR IF A LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 SHALL NOT APPLY TO:
i) ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT;
ii) BODILY INJURY OR DEATH RESULTING FROM A PARTY’S NEGLIGENCE; iii) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING INTENTIONAL BREACH OF ENTITLEMENTS);
iv) A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) BUT EXCLUDING OBLIGATION/CLAIMS RELATING TO CUSTOMER CONTENT OR PERSONAL DATA; AND
v) EACH PARTY’S OBLIGATION TO INDEMNIFY UNDER SECTION 6 (INDEMNIFICATION).

9. DATA PROCESSING. The Parties shall comply with the Data Processing Addendum (incorporated herein by reference) available at www.cohesity.com/agreements.

10. COMPLIANCE WITH LAW
a) General. Each Party shall obey all applicable laws and regulations in its use of Services and its performance under the Terms.
b) Anti-Bribery. Each Party represents and warrants that (i) it is aware of, understands, and will comply with, the provisions of the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, as applicable (collectively the “Acts”); (ii) it will not take any action that might be a violation of the Acts or other applicable anticorruption laws that prohibit the same type of conduct (including without limitation the making of corrupt payments); (iii) it has, and will have, policies in place sufficient to ensure compliance with the provisions of the Acts, as applicable; and (iv) all amounts paid to Customer by Cohesity hereunder, including without limitation any discounts or credits furnished by Cohesity (if any) shall not be paid or given to any other 35 COHE§ITY
Cohesity – Confidential & Proprietary Page 6 of 8 Last Updated May 2023 person, firm, corporation or other entity, except in payment for a bona fide business purpose authorized by the Terms and incurred in connection with performance hereunder in accordance with applicable law. 11 GOVERNING LAW AND DISPUTE RESOLUTION.
a) If Customer is incorporated in the European Economic Area or United Kingdom (“Europe”):
i. the Terms shall be governed by and construed in accordance with the laws of Ireland as applied to contracts made (and to be performed) in Ireland, without applying conflict of laws rules, including legally binding regulations of the European Union, and the Parties consent to jurisdiction and venue in the courts of Dublin, Ireland; and
ii. any dispute arising from or relating to the subject matter of the Terms that cannot be resolved within a period of thirty (30) days after written notice of same has been given by one Party hereunder to the other (the “Arbitration Date”) shall be finally settled by arbitration in Dublin, Ireland, using the English language, in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by an arbitrator with substantial experience in resolving complex technology contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. b) If Customer is incorporated anywhere other than Europe:
i. the Terms shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California as applied to contracts made (and to be performed) in California, without applying conflict of laws rules, and the Parties consent to jurisdiction and venue in the United States Federal Courts located in the Northern District of California; and ii. any dispute arising from or relating to the subject matter of the Terms that cannot be resolved within a period of thirty (30) days after written notice of same has been given by one Party hereunder to the other (the “Arbitration Date”) shall be finally settled by arbitration in San Jose, California, using the English language, in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by an arbitrator with substantial experience in resolving complex technology contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. c) Additional Arbitration Provisions. If the Parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the Parties the costs of arbitration (including without limitation service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing Party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each Party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.
d) Equitable Relief. Notwithstanding the foregoing and regardless of whether Section 11(a) or Section 11(b) applies, (a) each Party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief at any time, and (b) the language to be used in any and all proceedings arising out of or related to the Terms shall be English.

12. MISCELLANEOUS
a) Amendment. Only the terms expressly stated on an Order, Addendum or other writing that refers explicitly to the Terms and is signed by duly authorized representatives of the Parties may modify or supplement the terms hereof. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY COHESITY.

Notwithstanding the foregoing, Cohesity may apply modified terms to the Services, provided such modification(s) shall not become effective for Customer until renewal of the then-current subscription (unless otherwise specified).
b) No Waiver. Cohesity’s performance is expressly conditioned on Customer’s assent to the Terms. A waiver of any default hereunder, or of any provision of the Terms, shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed.
36 COHE§ITY
Cohesity – Confidential & Proprietary Page 7 of 8 Last Updated May 2023 c) Severability. In the event any provision of the Terms is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
d) Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, internet failure, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such Party.
e) Survival. All terms of the Terms which must survive in order to fulfill their essential purpose shall survive termination or expiration of the Terms. For avoidance of doubt, no rights granted Customer hereunder shall survive termination.
f) Notices. Except as otherwise expressly set forth in the Terms, all notices required under the Terms shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested), and shall be deemed given upon personal delivery or confirmation of receipt. Notices may be sent to the Parties at their primary business address(es) or such address as either Party may designate for itself in writing. g) Assignment. Customer may not delegate, assign or transfer the Terms or any of Customer’s rights or duties hereunder without Cohesity’s express prior written consent, and any attempt to do so shall be null and void. Cohesity may freely assign the Terms, and its rights and/or obligations hereunder, in whole or part.
h) Independent Contractors. Each Party hereto is an independent contractor and nothing contained herein shall be construed as creating any agency, employment, partnership, principal-agent or other form of joint enterprise relationship between the Parties. Neither Party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has authority to do so. The Parties’ relationship is nonexclusive. i) Entire Agreement. The Terms (including all of its accompanying text, the documents hyperlinked to or otherwise incorporated herein by reference, and any addendum hereto) shall constitute the complete and exclusive statement of the terms of agreement between Cohesity and Customer, and cancels and supersedes all previous written and oral agreements and communications relating to its subject matter.

Only the terms expressly stated on an Order, Addendum or other writing that, in each case, refers explicitly to the Terms and is signed by duly authorized representatives of both Parties may modify or supplement the terms hereof. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY COHESITY. j) Scope of Agreement and Precedence. The Terms shall apply only to the Services. Customer’s contractual arrangements with any Cohesity Partner (e.g., any purchase orders) are not part of the Terms, but the Services (howsoever obtained by Customer) are subject to the Terms. In the event of a conflict between or among the Terms, the documents incorporated herein by reference, and any Addendum hereto, the conflict will be resolved in the following order of precedence: the Terms; documents incorporated herein by reference; any Addendum; any Order.
k) Construction. The headings of sections of the Terms are solely for convenience and are not to be used to interpret, construe, define, or describe the scope of any aspect of the Terms. As used in the Terms, the word “including” means “including but not limited to.”

13. DEFINITIONS
a) “Addendum” means an addendum or other writing duly executed by authorized representatives of the Parties referencing and intending to supplement or amend the Terms (collectively “Addenda”); b) “Affiliate” means, with respect to a Party, any individual, company, or other entity, directly or indirectly, controlled by, or under common control with, such Party, but, for clarity, excluding those individuals, companies or entities that are controlling such Party;
c) “Cohesity Partner” means a Cohesity channel distribution, alliance and/or resale partner that has the right to transact sales of the Services, including via a marketplace or similar (e.g. AWS Marketplace); d) “Cohesity SaaS” means all Cohesity proprietary software-as-a-service offerings supplied by Cohesity under the Terms;
e) “Confidential Information” means all financial, business, strategic, technical and/or product information (and any other information that a reasonable person in the technology industry would understand to be confidential), in any form or medium and whether or not marked as confidential – including without limitation 37 COHE§ITY
Cohesity – Confidential & Proprietary Page 8 of 8 Last Updated May 2023 the Terms and any benchmarking or comparative studies involving the Services – disclosed by a Party before or during the Term, but excluding (i) information already known by the Recipient without obligation of confidentiality, (ii) information that is or becomes publicly known other than through breach of the Terms, (iii) information received by the Recipient from a third party not known (in good faith) by the Recipient to be under an obligation of confidence to the Discloser, and (iv) information independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; f) “Customer Content” means Customer’s content and application data received by the Data Plane for management and storage;
g) “Data Plane” means data storage and associated services supplied by Cohesity through Cohesity SaaS; h) “Discloser” means a Party or its Affiliate that furnishes Confidential Information to the other Party or its Affiliate;
i) “Documentation” means the operating manuals, user guides and any other documentation which Cohesity generally makes available to its customers (directly or indirectly) in connection with the Services; j) “Entitlement” means a Customer’s right pursuant to a valid Order to use Service(s), for the Subscription Period in (and subject to any applicable use, capacity, or other limitations specified in) such Order (and “Entitled” shall be given its meaning accordingly);
k) “Order” means an order which is either (i) placed by Customer with a Cohesity Partner, or (ii) validly processed through a Cohesity Partner interface (e.g. AWS Marketplace) or other process, in each case to the extent reflecting a valid Cohesity sales quotation or similar document; l) “Party” means Cohesity or Customer, as applicable, and collectively the “Parties”; m) “Personal Data” means information disclosed by Customer hereunder which relates to an identified or identifiable natural person, i.e. one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
n) “Recipient” means the Party or its Affiliate that receives Confidential Information from the other Party or its Affiliate;
o) “Representatives” means, in respect of a Party, its and its Affiliates’ employees, representatives, and consultants;
p) “Services” means those elements of Cohesity SaaS and related services to which Customer becomes Entitled under the Terms;
q) “Service Analytics Data” means data (including usage data and metadata) about the operation, support, and/or Customer’s use of, Services (but excluding Customer Content); r) “Subscription Period” means the period of time Customer is Entitled to use specified Services under an Order;
s) “Usage” means Customer’s highest point of capacity consumption of an Entitled Service during a specified period of measure (or if not so separately specified in an Entitlement, the Subscription Period); and t) “Users” means individual Representatives that Customer authorizes to operate the Services on behalf of Customer.

Version History
● 1.0 (October 23, 2020 – April 26, 2021)
● 2.0 (April 27, 2021 – September 26, 2021)
● 3.0 (September 27, 2021 – November 28, 2022)
● 4.0 (November 29, 2022 – May 7, 2023)
● 5.0 (May 8 – Present)
38 COHE§ITY

AGENDA REPORT

CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 7/18/2023 Agenda Item: 6K
Department: Community Development
Prepared By Kyle Webber, Associate Planner
Subject:

CONSIDERATION OF A RESOLUTION APPROVING THE STRATEGIC IMPLEMENTATION PROGRAM FOR FISCAL YEAR 2023-2024
Fiscal Impact:

None. The Strategic Implementation Program does not commit specific financial resources towards projects. Funding for implementation measures of the General Plan typically occurs through the City’s Capital Improvement Program or annual budget process.

Summary:

The City’s General Plan Strategic Implementation Program (SIP) is updated each fiscal year. The SIP lists and prioritizes distinct projects and ongoing programs approved by City Council that align with specific General Plan goals and policies to help achieve San Clemente’s vision. Every year, each department or division updates the list by modifying the status of projects, marking projects as complete, or adding new projects for both Planning Commission and City Council review. The updated SIP reflects the priorities in the Fiscal Year 2023-2024 Budget. The updated SIP guides the City in determining future budget planning through the prioritization of projects. Approving this agenda item will update the General Plan Strategic Implementation Program (SIP) for Fiscal Year 2023-2024.

Background:

On February 4, 2014, the City Council adopted the Centennial General Plan, the City’s comprehensive long-term policy document comprised of goals and policies for achieving San Clemente’s vision. Since General Plan adoption, the City made progress on the General Plan Strategic Implementation Program (SIP) that lists and prioritizes projects and ongoing programs to implement General Plan goals and policies, known as “Implementation Measures” (IMs). Housing IMs are listed and evaluated separately in the Housing Action Plan. The SIP describes and ties implementation measures to elements and policies, and identifies the status, priority, and lead department for each action item. The City updates the SIP each year to:
• Ensure the General Plan responds to changing needs and conditions, and to commit resources to the community’s long
‐
term vision;
• Evaluate progress towards goals by reviewing the status of IMs underway or completed; • Determine IMs to implement in the next fiscal year;
• Identify the department or entities to lead and/or help carry out IMs.

Discussion:

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Meeting Date: 7/18/2023 Agenda Item: 6K
Priority and Status of Implementation Measures:

The SIP includes IMs that are both one-time projects and reoccurring activities (on-going). Four categories are used to rank the priority of IMs:
1) “High priority” are projects required by law, needed for public health or safety, or a Council mandate to be initiated and completed, where applicable, within a 3-year timeframe. 2) “Medium priority” are important, non-urgent projects, which are to be initiated and completed, where applicable, within a 5-year timeframe.
3) “Low priority” are non-urgent projects essential to a department’s overall mission, and require several years of planning and design, and should be initiated and completed, where applicable, in a 5+ year timeframe.
4) “On-going” are regular, recurring activities with no specified end.

Table 1 below summarizes the status count of the current SIP for Fiscal Year 2022-2023 (FY23) compared to the proposed SIP for Fiscal Year 2023-2024 (FY24). Refer to Attachment 1 Exhibit A for the proposed SIP that provides a description and status of each “One-time” IM still to be completed. IMs labeled as “on-going” are continual efforts included in current operating or Capital Improvement Program budgets, and are listed separately in Attachment 1 Exhibit B. Costs related to IMs not previously approved by Council will either be presented as a future Decision Package item or incorporated into the budget delineated with relevant costs. Attachment 4 provides a list of IMs completed since 2014 including the nine (9) IMs completed within FY23.

Table 1 - Implementation Measure Status Summary
(Current and Proposed IMs)
IMs Fiscal Year 2023 IMs Fiscal Year 2024
IM Priority Total IMs
(FY23)
Completed Total IMs
(FY24)
New IMs Started Not
Started
High 10 2 7 0 7 0
Medium 26 5 21 0 4 17
Low 28 2 26 0 6 20
On-going* 159 N/A 158 0 N/A N/A
Total 223 9 212 0 17 37
*On-going are recurring and, therefore, not counted in completed, started, or not started.

Note on Table 1: four (4) “On-going” IMs were combined into two (2) “On-going” IMs; one (1) “HighPriority” IM was changed to an “On-going” IM.

FY23 Progress and FY24 Priorities:

Table 2 below summarizes progress made towards FY23’s major actions to implement the General Plan as well as each department’s priorities for the upcoming FY24.

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Meeting Date: 7/18/2023 Agenda Item: 6K
Table 2 - Implementation Progress and Priorities
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Department
Beaches,
Parks, and
Recreation
City
Manager
FY23 Progress
• Environmental review (CEQA) •
initiated for Richard T. Steed
Memorial Park Master Plan
Update.
• Design for planned pickle ball
court complex at Richard T.

Steed Memorial Park initiated.
• The Public Works division was
successful in renewing the
PAWS waiver in April of 2021 and
will begin the process again in fall
of 2023.
• The City conducted a Healthcare
Roundtable in April of 2022,
bringing in executives from
several Southern California
hospital systems, to discuss
facilities in San Clemente and the
trajectory of the healthcare
industry.
• The City hosted a workshop on
Community Choice Energy in
July of 2022.
• The City conducted a listening
session in November of 2022
regarding the plans for potential
HOV expansion along the 1-5
freeway through San Clemente.
• The City coordinated several
trainings with the Small Business
Development Center, including a
Priorities for FY24
Continue implementation of
recommendations from sitespecific park master plan
updates.

Not provided .

Meeting Date: 7/18/2023 Agenda Item: 6K
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Department
City
Manager
(continued)
Community
Development
FY23 Progress
grant program "Main Street
Digital" in the fall of 2022.
• The City hired a consultant (New
City America) to investigate a BID
in downtown. The results showed
that property owners were not
currently supportive of initiating a
BID.
• The City was awarded several
grants in 2022, including funding
for sand replenishment from the
federal government and funding
from the state for a Nature Based
Coastal Resiliency Study and
associated pilot project(s).
• Began recruitment for a new
Chief of Police Services and a
new City Manager.

Priorities for FY24
• Adopted 2022 California Building • Complete Housing
Codes. Rezoning Program which
• Updated all City's Specific Plans
for General Plan , Zoning Code,
and state and federal law
consistency.
• Adopted SB9 ordinance and fee
schedule consistent with state
law.
identifies potential sites that
can be planned and zoned
for residential and mixed use
development. Work includes
conducting public outreach
in the first half of 2023 and
drafting the objective design
standards mid-year with the
goal of City Council adoption
in the fall of 2023.
• Adopted Accessory Dwelling Unit
ordinance consistent with state •
law.

Update the Emergency
Shelter Ordinance along
with OCCOG consultant per
Housing Element Action
Program.
• Implemented new permit tracking
software system (Central
Square).
• Adopted 6th Cycle 2021-2029
Housing Element approved by
HCD.
• Begin lnclusionary Housing
Program feasibility study
required by HCD with target
date of 2025.

Meeting Date: 7/18/2023 Agenda Item: 6K
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Department
Community
Development
(continued)
FY23 Progress Priorities for FY24
• Adopted updates to the General •
Plan Safety Element.

Continue implementation of
Local Coastal Program
certification which includes
• Completed State annual
reporting for General Plan and
Housing element Annual
Progress Report (APR).
• Maintained Development Story
Map providing information on
current planning projects to the
public.
• Local data exchange for 2019-
2050 Orange County Growth
finalizing Coastal
Implementation Plan,
improving Categorical
Exclusion Order procedures
and reporting, and
necessary Coastal Land
Use Plan amendments for
consistency.
• Finalize Zoning Permit
Streamlining ordinance.

Forecast Projections in • Begin work on
conjunction with SCAG. comprehensive Batch
Zoning Code Update.
• Provided annual Water Efficient
Landscape Ordinance city-wide •
data to DWR.

Explore CLG grant
opportunities to update
Historic Resources
Evaluation forms for City's
Historic Sites.
• Begin work on updating
Master Landscape Plan
design guidelines.
• Continue maintenance on
Geographic Information
Systems (GIS) internal data
and public facing web apps.
• Continue annual reporting
efforts for General Plan
Annual Progress Report,
HCD Annual Progress
Report, DWR local Water
Efficient Landscape data,
QPR Annual Report, CIP
General Plan consistency
evaluation, and adopting
Housing/Condo Vacancy
rate.

Meeting Date: 7/18/2023 Agenda Item: 6K
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Department FY23 Progress
Public Safety • Pursued and obtained over
$14,000 in grants and funding for
training for the lifeguards and
Junior Lifeguard programs.
• Continued to monitor and provide
sand measurement data for
beach erosion, and worked with
Public Works on Marine Safety
relocation feasibility study.
• Ocean lifeguards rescued over
1,800 swimmers in distress.
• Proactively warned over 26,000
visitors of beach or ocean
dangerous and performed over
1,000 medical aids.

Public Works • Completed Council Chambers
construction at City Hall.
• Completed Marine Safety
Building relocation study.
• Completed pavement
rehabilitation of 30 miles of City
streets.
• Completed Steed Park ballfield
light project.

Priorities for FY24
• Continue to pursue grant
funding, monitor beach
sand levels, and maintain
ocean safety programs.
• Continue to expand ocean
safety lectures to
elementary school and civic
groups.
• Work with Public Works on
Marine Safety relocation
feasibility study and
lifeguard tower
replacement
recommendations.
• Start Phase 1 of U.S. Army
Corps of Engineers Beach
Sand Replenishment
Program.
• Complete installation of
Flock Camera License
Plate Readers.
• Complete pedestrian bridge
maintenance at Montalvo
Canyon and Riviera.
• Started sidewalk rehabilitation of •
Avenida Cabrillo, providing
additional sidewalk access in the
downtown.

Complete pavement
rehabilitation of 27 miles of
City streets and alleys.
• Complete Steed Park
Pickle Ball design studies.
• Complete Corto Lane
Beach Access
Rehabilitation design.
• Complete Police Parking
and Emergency Generator
design and improvements.

Meeting Date: 7/18/2023 Agenda Item: 6K
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Department
Utilities
FY23 Pro~ress
• Improving utility infrastructure:

Replacement and rehabilitation
design continues on various
reservoirs, pump stations and
within the water, wastewater and
storm drain systems. Completed
projects include: Ferric Tank,
Ave. Pico Recycled Water Line
Relocation, WRP Sluice Gate
Replacements, La Pata Lift
Station Wet Well Rehabilitation,
sewer and storm drain system
linings, WRP Electrical System
Rehabilitation, WRP Security
Gate, Installed Storm Drain Catch
Basin Trash Capture Devices,
Calle Vista Torito Storm Drain
Repair and El Camino Real
Storm Drain Upgrade.
• Continued evaluating Water
Reclamation Plant efficiency
opportunities to improve
operation and reduce chemical
and power use. Process is
ongoing. One major improvement
is to create flow equalization to
improve blower optimization and
lower power and chemical costs.

The project is being developed
with design anticipated in FY
2024.
• Worked with customers to meet
waste recycling and diversion
requirements. Response: CR&R
and City staff increased outreach
to residential , multi family,
commercial and industrial
customers.
• Final design Phase II Recycled
Water Expansion is completed for
an expansion at Camino de Los
Mares and Camino Vera Cruz. In
Priorities for FY24
• Improve utility
infrastructure .
• Continue evaluating Water
Reclamation Plan
efficiency.
• Continue to meet waste
recycling and diversion
requirements.

Meeting Date: 7/18/2023 Agenda Item: 6K
Proposed Changes to the Strategic Implementation Program:

Staff recommends changes to the SIP based on a review of resources, staff capacity, prior Council direction, community needs and interest, opportunities for efficiencies, and other criteria. The manager or lead position for each division or department makes the recommended changes to their own IMs. Refer to Attachment 2 and 3 for recommended changes to the IMs provided in tracked changes format. Below is a summary of notable proposed changes:
· Completed IM Economic Development Element policy (ED-2.02, 2.04), by coordinating training and grant program with the Small Business Development Center to support local small businesses with improving their online presence. Staff has also participated in meetings with the San Clemente Chamber of Commerce to host a job fair in association with Orange County Workforce Development and explore expanding workforce services and programs locally. · Completed IM Governance Element policy (G-2.04), by pursuing grants for sidewalk improvements, housing/homeless services, parking management, historic preservation, and sand replenishment. The City applied for the 2023 Clean Mobility Options grant and anticipates applying for OCTA’s next call for applications for Measure V funding to further support the SC Rides and Trolley programs.
· Completed IM Land Use Element (LU-1b), updating Specific Plans for City areas outside and within the Coastal Zone to be consistent with the Centennial General Plan and Coastal Land Use Plan.
· Completed IM Land Use Element policy (LU-8.01, 8.02) by updating the Rancho San Clemente and Talega Specific Plan Business and Industrial Park automotive use regulations to streamline the relocation of automotive uses away from the El Camino Real area.

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Department FY23 Progress Priorities for FY24
Utilities addition, a Recycled Water
(continued) Master Plan Update is being
conducted by AKM Consulting
Engineers to evaluate additional
future expansion.

Meeting Date: 7/18/2023 Agenda Item: 6K
Council Options:
· Adopt Resolution No. 23-68.
· Modify and Adopt Resolution No. 23-68.
· Continue the item and direct staff to provide additional information. · Deny Resolution No. 23-68
Environmental Review/Analysis:

Environmental Review/Compliance
At its meeting on April 19, 2023, the Planning Commission completed an environmental assessment for the SIP update in accordance with the California Environmental Quality Act (CEQA) and determined, through the adoption of Resolution No. PC 23-005, that the SIP update does not require further environmental analysis because the SIP update: 1) is not a “project” within the meaning of the term in State CEQA Guidelines Section 15378, and 2) is exempt under Section 15061(b)(3), the general rule exemption. The SIP is limited to an organizational and administrative government activity to list, prioritize, and to direct resources through the budget process to meet City goals. SIP projects are separately processed and evaluated according to CEQA.

Recommended Actions:

Planning Commission Recommends that the City Council:

Adopt Resolution No. 23-68 entitled: “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, APPROVING THE GENERAL PLAN STRATEGIC IMPLEMENTATION PROGRAM FOR FISCAL YEAR 2023-2024.”
Attachment:

1. Draft Resolution No. 23-68
· Exhibit A - FY24 SIP “One-time” (to be completed) Implementation Measures; in order by General Plan Element policy area and priority level (High-Medium-Low) · Exhibit B - FY24 SIP “On-going” (continual) Implementation Measures; in order by General Plan Element policy area and division/department)

2. Proposed Changes to FY24 SIP “One-time” (to be completed) Implementation Measures in tracked changes

3. Proposed Changes to FY24 SIP “On-going” (continual) Implementation Measures in tracked changes

4. Completed Implementation Measures (2014-2023); in order by year completed

5. Resolution No. PC 23-005

6. April 19, 2023 Planning Commission meeting minutes, excerpted Notification:

None.

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ATTACHMENT 1
RESOLUTION NO. 23-68

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, APPROVING THE

GENERAL PLAN STRATEGIC IMPLEMENTATION
PROGRAM FOR FISCAL YEAR 2023-2024
WHEREAS, the State of California requires cities to have an adopted General Plan to provide guidance on land use decisions; and
WHEREAS, on February 4, 2014, the City Council approved the Centennial General Plan, dated February 2014, and certified Final Environmental Impact Report (FEIR), State Clearinghouse (SCH) No. 2013041021, mitigation monitoring and reporting program, and statement of overriding considerations;
WHEREAS, the City of San Clemente Centennial General Plan (“General Plan”) is the City’s comprehensive long-term policy document comprised of goals and policies for achieving San Clemente’s vision. The plan guides land use and physical development of the geographic area of the incorporated City limits; and WHEREAS, the General Plan contains the seven State-required elements and six additional elements, as follows: 1) Land Use; 2) Urban Design; 3) Historic Preservation; 4) Economic Development; 5) Mobility and Complete Streets; 6) Housing, 7) Beaches, Parks and Recreation; 8) Natural Resources; 9) Coastal; 10) Safety; 11) Public Services, Facilities and Utilities; 12) Growth Management; and 13) Governance; and
WHEREAS, each General Plan element has goals and policies that are intended to achieve specific objectives. The City’s General Plan Strategic Implementation Program (SIP), updated each fiscal year with the budget, lists and prioritizes specific projects and ongoing programs or “Implementation Measures” that align with goals and policies in General Plan Elements, excluding Housing. For the Housing Element, implementation measures are included in a Housing Action Plan certified by the California Department of Housing and Community Development (HCD) with the Housing Element; and
WHEREAS, the City has prepared a SIP for Fiscal Year 2023-2024 (FY2023-24 SIP) to achieve the goals and policies of the General Plan; and WHEREAS, on April 19, 2023, the Planning Commission held a duly noticed public hearing on the Project, completing an environmental assessment on the FY2023-24 SIP according to the California Environmental Quality Act (CEQA), and adopted PC Resolution No. 23-005, finding that the FY2023-24 SIP does not meet the definition of a “project” pursuant to CEQA Guidelines Section 15378 and therefore does not require further environmental analysis.
10 Resolution No. 23-68 Page 2
WHEREAS, on April 19, 2023 the Planning Commission held a hearing on the Project, considered information presented by staff, and received input from other interested parties, and recommended the City Council approve the FY2023-24 SIP; and WHEREAS, on July 18, 2023, the City Council of the City of San Clemente held a duly notice public hearing on the FY2023-24 SIP, considered written and oral comments, and facts and evidence presented by City staff, and other interested parties.

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

Section 1. Incorporation of Recitals.

The City Council hereby finds that all of the facts in the Recitals are true and correct and are incorporated and adopted as findings of the City Council as fully set forth in this resolution.

Section 2. General Plan Consistency Findings
The FY2023-24 SIP is consistent with the Centennial General Plan, in that:

A. The SIP is a set of implementation measures to ensure the goals and policies of the Centennial General Plan are carried out over a long period of time through the implementation of day-to-day activities and short-term actions; B. The SIP will help evaluate policies, procedures, and projects to ensure that they are working towards the goals and policies set forth in the Centennial General Plan;
C. The SIP will help identify projects to be included in the annual budget, based on yearly evaluation of priorities, to ensure appropriate funding, resources, and time are given to implement the various implementation measures; and D. The SIP will help make the Centennial General Plan a ”living document” that is able to evolve over time and respond to the changing needs of the community over time.

Section 3. Approval of FY2023-24 Strategic Implementation Program Based on the entire record, including all written and oral evidence presented to the City Council, and the findings made and evidence discussed in the staff report and this Resolution, the City Council approves the FY2023-24 SIP set forth in Exhibit A and Exhibit B, which are incorporated herein fully by reference.

Section 4. Certification.
11 Resolution No. 23-68 Page 3
The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

ATTEST:
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California

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. 23-68 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
Elizabeth A. Mitchell, City Attorney
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Page 1 of 19 ends

EXHIBIT A(ATTACHMENT 1)
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Page 2 of 19 ends

EXHIBIT A(ATTACHMENT 1)
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Page 3 of 19 ends

EXHIBIT A(ATTACHMENT 1)
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WZ/KZ/dz
ZĞǀŝĞǁƚŚĞƐƚĂŶĚĂƌĚƐĞƐƚĂďůŝƐŚĞĚďǇƚŚĞ/ŶƚĞƌŶĂƚŝŽŶĂů^ŽĐŝĞƚǇŽĨƌďŽƌŝĐƵůƚƵƌĞĂŶĚĂĚŽƉƚĂĐŝƚǇǁŝĚĞŵĂŝŶƚĞŶĂŶĐĞƉůĂŶĨŽƌƐƚƌĞĞƚƚƌĞĞƐĂŶĚŝƚǇͲŽǁĞĚƚƌĞĞƐ͕ŝŶĐůƵĚŝŶŐƚƌŝŵŵŝŶŐĂŶĚƉƌƵŶŝŶŐƉƌŽĐĞĚƵƌĞƐ͕ǁŚŝĐŚĐƵůƚŝǀĂƚĞƐƚŚĞĨƵůůƉŽƚĞŶƚŝĂůŽĨƐƚƌĞĞƚƚƌĞĞƐĂƐƉƌŽǀŝĚĞƌƐŽĨƐŚĂĚĞĂŶĚĚĞƐŝŐŶĂƚŽƌƐŽĨŬĞǇĚĞƐŝŐŶĐŽƌƌŝĚŽƌƐ͘ŽŶƐŝĚĞƌƌĞĨĞƌĞŶĐŝŶŐƚŚĞƉůĂŶŝŶƚŚĞdƌĞĞKƌĚŝŶĂŶĐĞĂŶĚŝŶƚŽĐŝƚǇƉŽůŝĐŝĞƐĨŽƌŵĂŝŶƚĞŶĂŶĐĞŽĨĐŝƚǇͲŽǁŶĞĚƚƌĞĞƐ͘ WƵďůŝĐtŽƌŬƐ ^ƚĂƌƚĞĚ ůĂƌŝĨŝĐĂƚŝŽŶ KŶͲ'ŽŝŶŐͲ
ŽŵƉůĞƚĞĚƉůĂŶƐĂŶĚƐƉĞĐŝĨŝĐĂƚŝŽŶƐŝŶĐŽƌƉŽƌĂƚĞĚŝŶƚŚĞďŝĚĚŽĐƵŵĞŶƚƐŝŶ&zϮϬϮϭ͘tŽƌŬŝŶŐŽŶƚƌĞĞƉŽůŝĐǇ͘
,
^͕WZ<^EZ
Z
d/KE;WZͿ
WZͲϲ͘Ϭϭ ϯϬ D
/hD
WZ/KZ/dz
ŵĞŶĚƚŚĞŽŶŝŶŐKƌĚŝŶĂŶĐĞƚŽĞƐƚĂďůŝƐŚƐƚĂŶĚĂƌĚƐƚŚĂƚĂůůŽǁĨŽƌĨĂƌŵĞƌƐŵĂƌŬĞƚƐ͕ĨŽŽĚĐŽŽƉĞƌĂƚŝǀĞƐ͕ĐŽŵŵƵŶŝƚǇŐĂƌĚĞŶƐ͕ĂŶĚƐŝŵŝůĂƌƚĞŵƉŽƌĂƌǇĂŐƌŝĐƵůƚƵƌĂůƌĞƚĂŝůƵƐĞƐŝŶĐŽŵŵĞƌĐŝĂůĂƌĞĂƐ͖ĂŶĚĂůůŽǁƐŵĂůů͕ŶĞŝŐŚďŽƌŚŽŽĚͲƐĞƌǀŝŶŐŵĂƌŬĞƚƐǁŝƚŚŝŶĞĂƐǇǁĂůŬŝŶŐĂŶĚďŝŬŝŶŐĚŝƐƚĂŶĐĞĨƌŽŵŵŽƐƚƌĞƐŝĚĞŶƚŝĂůĂƌĞĂƐ͘ ŽŵŵƵŶŝƚǇĞǀĞůŽƉŵĞŶƚ
EŽƚƐƚĂƌƚĞĚ
tŽƌŬƚŽĨŽůůŽǁƵƉĚĂƚĞƐƚŽƚŚĞ>W͕ďĂƐĞĚŽŶƌĞƐŽƵƌĐĞƐ͘EŽƚƐƚĂƌƚĞĚĚƵĞƚŽůŽǁƉƌĞĐĞĚĞŶĐĞŽǀĞƌƉƌŝŽƌŝƚǇƉƌŽũĞĐƚƐ͘

Page 4 of 19 ends

EXHIBIT A(ATTACHMENT 1)
16 >
D
Ed
'
E
Z>
W>E
WK>/z
/Dη WZ/KZ/dz
>
s
>
/DW>
D
Edd/KED
^hZ

^Z/Wd/KE >

Wd͘ ^ddh^ Z
^KE&KZ,E'
^ ^ddh^KE^dZ/Ed^

,
^͕WZ<^EZ
Z
d/KE;WZͿ
WZͲϲ͘ϭϮ͕WZͲϲ͘ϭϯ
ϰϱ D
/hD
WZ/KZ/dz

ƐƚĂďůŝƐŚĂŽŵŵƵŶŝƚǇ>ŝǀŝŶŐ'ĂƌĚĞŶƐƉƌŽŐƌĂŵ͕ŝĚĞŶƚŝĨǇǀŝĂďůĞĐŽŵŵƵŶŝƚǇŐĂƌĚĞŶƐŝƚĞƐĂŶĚĐŽŶƐŝĚĞƌƚŚĞĨĞĂƐŝďŝůŝƚǇŽĨƉůĂŶƚŝŶŐĨƌƵŝƚƚƌĞĞƐŝŶƉĂƌŬƐĂŶĚŽŶŝƚǇͲŽǁŶĞĚƉƌŽƉĞƌƚǇĂŶĚƉĂƌŬǁĂǇƐ͘ ŽŵŵƵŶŝƚǇĞǀĞůŽƉŵĞŶƚ
EŽƚƐƚĂƌƚĞĚ
EŽƚƐƚĂƌƚĞĚĚƵĞƚŽůŽǁƉƌĞĐĞĚĞŶĐĞŽǀĞƌƉƌŝŽƌŝƚǇƉƌŽũĞĐƚƐ͕ĂŶĚƐƚĂĨĨƌĞƐŽƵƌĐĞůŝŵŝƚĂƚŝŽŶƐ͘ K^d>;Ϳͬ^&
dz;^Ϳ
^Ͳϳ͘Ϭϭ͕^Ͳϳ͘ϬϮ
ϭϯ D
/hD
WZ/KZ/dz
WƌĞƉĂƌĞĂĨĞĂƐŝďŝůŝƚǇƐƚƵĚǇƚŽĚĞƚĞƌŵŝŶĞƚŚĞďĞƐƚůŽĐĂƚŝŽŶĨŽƌĂŶĞǁůŝĨĞŐƵĂƌĚŚĞĂĚƋƵĂƌƚĞƌƐ͘ŽŶƐŝĚĞƌĨƵƚƵƌĞƐĞĂůĞǀĞůƌŝƐĞ͕ůŽĐĂůĂŶĚůŽŶŐͲƚĞƌŵƐĂŶĚĞƌŽƐŝŽŶƌĂƚĞƐĂŶĚƚƌĞŶĚƐ͕ĂƐǁĞůůĂƐĂƉƉůŝĐĂďůĞŽĂƐƚĂůĐƚƉŽůŝĐŝĞƐ͘ WƵďůŝĐtŽƌŬƐ ^ƚĂƌƚĞĚ KŶͲŐŽŝŶŐ͗

ĨĨŽƌƚƐƚĂƌƚĞĚĂŶĚĞǆƉĞĐƚĞĚƚŽďĞĐŽŵƉůĞƚĞŝŶ&zϮϬϮϰ͘

Page 5 of 19 ends

EXHIBIT A(ATTACHMENT 1)
17 >
D
Ed
'
E
Z>
W>E
WK>/z
/Dη WZ/KZ/dz
>
s
>
/DW>
D
Edd/KED
^hZ

^Z/Wd/KE >

Wd͘ ^ddh^ Z
^KE&KZ,E'
^ ^ddh^KE^dZ/Ed^

KEKD/
s
>KWD
Ed;
Ϳ

Ͳϭ͘Ϭϭ ϰ D
/hD
WZ/KZ/dz
ĚŽƉƚĂŶĚŝŵƉůĞŵĞŶƚĂŶ
ĐŽŶŽŵŝĐĞǀĞůŽƉŵĞŶƚ^ƚƌĂƚĞŐǇƚŚĂƚĐŽŶƐŝĚĞƌƐĂƵƐŝŶĞƐƐZĞƚĞŶƚŝŽŶĂŶĚ ǆƉĂŶƐŝŽŶ;Z
ͿƉƌŽŐƌĂŵ͕ŝŶĐůƵĚĞƐĂďƌĂŶĚŝŶŐĂŶĚƉƵďůŝĐƌĞůĂƚŝŽŶƐƉƌŽŐƌĂŵ͕ĂŶĚǁŽƌŬŝŶŐǁŝƚŚƚŚĞůŽĐĂůĂƌƚƐĐŽŵŵƵŶŝƚǇ͘dŚĞ^ƚƌĂƚĞŐǇƐŚĂůůĞŵƉŚĂƐŝǌĞƚŚĞŵŝĚͲĂŶĚůŽŶŐͲƚĞƌŵĚĞǀĞůŽƉŵĞŶƚŽĨƚŚĞůŽĐĂůĞĐŽŶŽŵǇƌĂƚŚĞƌƚŚĂŶĨŽĐƵƐŝŶŐŽŶŝŶĚŝǀŝĚƵĂůƉƌŽũĞĐƚƐ͘/ƚǁŝůůŝŶĐŽƌƉŽƌĂƚĞƚŚĞůŽŶŐͲƚĞƌŵŐŽĂůƐŽĨƚŚĞ'ĞŶĞƌĂůWůĂŶ͕ďƵƚŵĂǇĂůƐŽŝŶĐůƵĚĞĂĚĚŝƚŝŽŶĂůŐŽĂůƐǁŝƚŚƐŚŽƌƚĞƌƚŝŵĞŚŽƌŝǌŽŶƐ͘dŚĞ ĐŽŶŽŵŝĐĞǀĞůŽƉŵĞŶƚ^ƚƌĂƚĞŐǇƐŚĂůůĞƐƚĂďůŝƐŚŵĞĂƐƵƌĂďůĞŽďũĞĐƚŝǀĞƐĂŶĚĂƉĞƌĨŽƌŵĂŶĐĞĞǀĂůƵĂƚŝŽŶŵĞĐŚĂŶŝƐŵ͘ ŝƚǇDĂŶĂŐĞƌ EŽƚ
ƐƚĂƌƚĞĚ
^ƚĂĨĨŚĂƐŶŽƚŝŶŝƚŝĂƚĞĚǁŽƌŬŽŶĚĞǀĞůŽƉŝŶŐĂŶ
ĐŽŶŽŵŝĐĞǀĞůŽƉŵĞŶƚ^ƚƌĂƚĞŐǇĚŽĐƵŵĞŶƚ͘
,/^dKZ/WZ
^
Zsd/KE;,WͿ
ϱď D
/hD
WZ/KZ/dz
^ƵƌǀĞǇƉŽƚĞŶƚŝĂůŚŝƐƚŽƌŝĐƌĞƐŽƵƌĐĞƐƚŚĂƚĂƌĞŶŽƚĐƵƌƌĞŶƚůǇůŝƐƚĞĚŝŶƚŚĞŝƚǇ͛ƐůŝƐƚŽĨĚĞƐŝŐŶĂƚĞĚ>ĂŶĚŵĂƌŬƐĂŶĚ,ŝƐƚŽƌŝĐZĞƐŽƵƌĐĞƐ͕ƐƵĐŚĂƐƉŽƐƚͲǁĂƌ͕ŵŝĚͲĐĞŶƚƵƌǇŵŽĚĞƌŶ͕ĞƚĐ͘ ŽŵŵƵŶŝƚǇĞǀĞůŽƉŵĞŶƚ
EŽƚƐƚĂƌƚĞĚ
^ƚĂĨĨŝƐƉƵƌƐƵŝŶŐ>'ŐƌĂŶƚƚŽĨƵŶĚƚŚŝƐĞĨĨŽƌƚŝŶ&zϮϯͲϮϰ͘

Page 6 of 19 ends

San Clemente City CouncilJuly 18, 2023

San Clemente City Council
July 18, 2023