HomeMy WebLinkAbout2025-05-13; City Council; 05; Continuing the Declaration of Existence of an Emergency Condition in the Kelly Drive Channel and Continuation of Authorization for Performance of Repair Work Without FormCA Review CKM
Meeting Date: May 13, 2025
To: Mayor and City Council
From: Geoff Patnoe, City Manager
Staff Contact: Hossein Ajideh, Engineering Manager
hossein.ajideh@carlsbadca.gov, 442-339-2756
Subject: Continuing the Declaration of Existence of an Emergency Condition in the
Kelly Drive Channel and Continuation of Authorization for Performance of
Repair Work Without Formal Bidding
District: 1
Recommended Action
Adopt a resolution continuing the declaration of the existence of an emergency condition in
the Kelly Drive Channel and continuing to authorize the City Manager to have the repair work
performed without formal bidding.
Executive Summary
A portion of the concrete sidewall of the Kelly Drive Channel, a drainage channel west of the
intersection of El Camino Real and Kelly Drive, was found to have failed and slipped into the
channel in September 2024. Staff hired a contractor under an emergency repair contract to
restore the failed portion of the embankment, but subsequent inspections revealed unseen and
unexpected failures that posed a clear and imminent danger, with the risk of further erosion
and undermining of the channel, that required additional immediate repair work.
On April 29, 2025, the City Council declared the existence of an emergency condition in the
Kelly Drive Channel and authorized the City Manager to have the emergency repair performed
as swiftly as possible using emergency construction procurement procedures rather than the
formal bidding process. (Resolution No. 2025-094.)
Staff are currently reviewing and evaluating proposals from contractors to perform the
emergency repair work. Staff are also coordinating the revised project scope with the
appropriate environmental permitting agencies.
Staff are requesting that the City Council continue the declaration of the existence of an
emergency condition in the Kelly Drive Channel and continue to authorize the City Manager to
have the emergency repairs performed using emergency construction procurement
procedures, in accordance with Carlsbad Municipal Code Section 3.28.110(A).
A four-fifths vote is required under Carlsbad Municipal Code Section 3.28.120 and California
Public Contract Code Section 22050.
May 13, 2025 Item #5 Page 1 of 9
Explanation & Analysis
Background
• The Kelly Drive Channel was constructed in the 1960s. (Exhibit 2 shows the channel’s
location.) It required localized emergency repairs in 2010, 2018 and 2019 at separate
locations.
• Part of the concrete embankment was found to have fallen into the channel last
September. This failure exposed the underlying material and increased the risk of
erosion and undermining.
• The City Manager approved a contract with N.M.N. Construction, Inc. on Feb. 24, 2025,
to perform the emergency repair for an amount not to exceed $97,000. This work was
authorized by an emergency permit issued by the U.S. Army Corps of Engineers and in
coordination with other regulatory agencies.
• The contractor began the repair work on March 25, 2025. Draining the area exposed
additional failures that had not been anticipated, including a 13-foot deep hole in the
channel’s earthen bottom, beneath the failed concrete side section. These unseen and
unexpected failures posed a clear and imminent danger, requiring additional immediate
repair work to prevent further erosion damage, including filling the hole, stabilizing the
channel and making structural repairs. This required the project to be expanded beyond
the work described in the contract.
• Staff consulted with a geotechnical engineering firm to obtain an appropriate repair
plan for the expanded project, which is expected to cost approximately $350,000.
Emergency declaration
Public projects that cost more than $220,000 require formal bidding procedures under the
California Uniform Public Construction Cost Accounting Act. However, those procedures can
take up to six months and the failure in the channel required more immediate action to prevent
or mitigate the loss or impairment of life, health, property or essential public services.
Carlsbad Municipal Code Section 3.28.110(A) implements California Public Contract Code
Section 22035, which provides for an exemption from formal bidding procedures for emergency
construction procurements. To use the emergency exemption, Municipal Code Section 3.28.120
and Public Contract Code Section 22050 require the City Council to determine the existence of
an emergency condition by a four-fifths vote. The City Manager may then immediately proceed
with the repair work without following the formal bidding procedures.
The City Council determined the failure in the channel was an emergency condition on April 29,
2025. (Resolution No. 2025-094. The staff report that recommended that determination is
provided as Exhibit 3.)
Staff have since obtained an updated proposal for the expanded emergency repair work from
N.M.N. Construction as well as proposals from other contractors and are currently reviewing
and evaluating the proposals.
Staff have also coordinated with regional environmental permitting agencies, including the U.S.
Army Corps of Engineers and the San Diego Regional Water Quality Control Board, on the
project’s expanded scope.
May 13, 2025 Item #5 Page 2 of 9
Staff are requesting that the City Council continue the declaration of the existence of an
emergency condition in the Kelly Drive Channel so that the City Manager is authorized to have
the emergency repairs performed using emergency construction procurement procedures.
Fiscal Analysis
Sufficient funding is available for the work in the account for the Kelly Drive Channel Repair
Project, Capital Improvement Program Project No. 6606, as shown in the table below, so staff
are not requesting any additional appropriation.
Carlsbad Municipal Code Sections 3.28.040(C)(5) and 3.28.090(B) authorize the City Manager or
designee to approve change orders in an amount equal to the contingency set at the time of
the project is awarded, which for this project is $88,000.
Next Steps
Staff will evaluate the submitted proposals and anticipate executing a new contract within the
next two weeks.
The City Manager will terminate the initial contract with N.M.N. Construction, Inc. upon award
of the subsequent contract.
The repair is expected to start shortly after the contract is awarded and to be completed by
mid-2025.
Staff will return to the City Council on May 20, 2025, to review the emergency action and ask
the City Council to determine by a four-fifths vote whether there is a need to continue it.
Environmental Evaluation
The proposed action is statutorily exempt from environmental review under California
Environmental Quality Act Section 21080(b)(2) and (4) and CEQA Guidelines Section
15269(b)-(c), which apply to emergency repairs to publicly owned service facilities necessary to
maintain service essential to the public health, safety or welfare and other specific actions
necessary to prevent or mitigate an emergency.
Kelly Channel Drive Repair Project
Capital Improvement Program Project No. 6606
Total appropriation to date $3,641,000
Total expenditures and encumbrances to date -$755,096,547
Total available funding $2,885,904
Construction contract (estimated) -$350,000
Construction contingency (estimated) -$88,000
Construction management, inspection, material testing and support
services (estimated) -$88,000
Total estimated construction costs -$526,000
Remaining balance after total estimated construction costs $2,359,904
Additional appropriation needed $0
May 13, 2025 Item #5 Page 3 of 9
Exhibits
1.City Council resolution
2.Location map
3.April 29, 2025, staff report (on file in the Office of the City Clerk)
May 13, 2025 Item #5 Page 4 of 9
Exhibit 1 RESOLUTION NO. 2025-106
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA,
CONTINUING THE DECLARATION OF THE EXISTENCE OF AN EMERGENCY
CONDITION IN THE KELLY DRIVE CHANNEL AND CONTINUING TO AUTHORIZE
THE CITY MANAGER TO HAVE THE REPAIR WORK PERFORMED WITHOUT
FORMAL BIDDING
WHEREAS, on April 29, 2025, the City Council adopted Resolution No. 2025-094, declaring the
existence of an emergency condition in the Kelly Drive Channel and authorizing the City Manager to have
the repair work performed without formal bidding; and
WHEREAS, the Kelly Drive Channel has required multiple localized emergency repairs since 2010;
and
WHEREAS, in September 2024, another failure occurred in a different segment of the channel
where a portion of the concrete sidewall had slipped into the channel, which exposed the underlying
material and increased the risk of erosion and undermining; and
WHEREAS, staff inspected the site and subsequently initiated an emergency repair contract to
restore the failed portion of the channel embankment through an emergency permit issued by the U.S.
Army Corps of Engineers and in consultation with other regulatory agencies; and
WHEREAS, on Feb. 24, 2025, the City Manager approved a contract to perform the emergency
repair with N.M.N. Construction, Inc. in an amount not to exceed $97,000, which is below the threshold
for formal bidding; and
WHEREAS, on March 25, 2025, the contractor initiated the repair work with dewatering activities,
exposing further unseen and unexpected failures within the channel bed, including a 13-foot deep void at
the base of the earthen bottom of the failed concrete side section; and
WHEREAS, these unseen and unexpected failures pose a clear and imminent danger, requiring
additional, immediate repair work, including void backfill, channel stabilization and structural
remediation, to ensure long-term structural stability and prevent further failures; and
WHEREAS, the estimated cost of the expanded repair work exceeds the formal bidding threshold
and the formal bidding process takes approximately four to six months; and
WHEREAS, the expanded repair work requires prompter action than formal bidding permits to
prevent or mitigate the loss or impairment of life, health, property or essential public services; and
WHEREAS, in the case of an emergency, the Carlsbad Municipal Code, or CMC, Sections 3.28.110(A)
and 3.28.120 and Public Contract Code Sections 22035 and 22050 allow the City Council by a four-fifths
May 13, 2025 Item #5 Page 5 of 9
vote to authorize repair or replacement of a public facility, take any directly related and immediate action
required by the emergency, and procure the necessary equipment, services and supplies for these
purposes without following formal bidding procedures; and
WHEREAS, staff request that the City Council review the emergency action and continue to declare
the existence of an emergency condition in the Kelly Creek Channel and continue to authorize the City
Manager to have the needed repair work performed using emergency procurement procedures; and
WHEREAS, the expanded emergency repair is estimated to cost approximately $350,000, not
including contingency and other construction support costs; and
WHEREAS, sufficient funding is available in the account for the Kelly Drive Channel Repair Project,
Capital Improvement Program, or CIP, Project No. 6606; and
WHEREAS, CMC Sections 3.28.040(C)(5) and 3.28.090(B) authorize the City Manager or designee
to approve change orders in an amount equal to the contingency set at the time of project award, which
for this project is estimated to be $88,000; and
WHEREAS, following the declaration of an emergency condition, staff obtained an updated
proposal from N.M.N. Construction, Inc. and proposals from other contractors detailing the expanded
project scope and associated fees; and
WHEREAS, staff also engaged with the appropriate environmental permitting agencies, including
the U.S. Army Corps of Engineers and the San Diego Regional Water Quality Control Board, to coordinate
review and compliance with the revised project scope.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the proposed action is statutorily exempt from environmental review under CEQA
Section 21080(b)(2) and (4) and CEQA Guidelines Section 15269(b)-(c), which apply to
emergency repairs to publicly owned service facilities necessary to maintain service
essential to the public health, safety or welfare and other specific actions necessary to
prevent or mitigate an emergency.
3.That the City Council continues to declare the existence of an emergency condition in the
Kelly Drive Channel.
4.That the City Manager is authorized to have the required emergency repairs performed,
take any directly related and immediate action required by the emergency condition, and
May 13, 2025 Item #5 Page 6 of 9
procure the necessary equipment, services, and supplies for these purposes, without
following formal bidding procedures.
5.That the City Manager or designee is authorized to approve construction change orders for
up to $88,000 for the project.
6.That the City Manager or designee is authorized to sign all other documents necessary for
regulatory compliance, to extend funding opportunities, or to otherwise implement and
finalize the emergency repair work, all of which are subject to review and approval as to
form by the City Attorney’s Office.
7.That the City Manager is directed to return to the City Council at the next regularly
scheduled City Council meeting for a determination by a four-fifths vote whether the
emergency condition continues to exist.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 13th day of May, 2025, by the following vote, to wit:
AYES: Blackburn, Bhat-Patel, Acosta, Burkholder, Shin.
NAYS: None.
ABSTAIN: None.
ABSENT: None.
______________________________________
KEITH BLACKBURN, Mayor
______________________________________
SHERRY FREISINGER, City Clerk
May 13, 2025 Item #5 Page 7 of 9
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PROJECT NAME EXHIBIT2KELLY DRIVE CHANNELEMERGENCY REPAIR
4866 KELLY DR
LOCATION MAP
CARLSBAD
VISTAOCEANSIDE
ENCINITAS
SAN MARCOS
Vicinity Map
SITE³NOT TO SCALE
³NOT TO SCALE
PLOT DATE: 4/21/2025 PATH: T:\David_Edwards\LocationMap\KellyChannel\KellyChannel.mxdAuthor: Andy Chang
PROJECT SITE
Exhibit 2
May 13, 2025 Item #5 Page 8 of 9
Exhibit 3
April 29, 2025, staff report
(on file in the Office of the City Clerk)
May 13, 2025 Item #5 Page 9 of 9