HomeMy WebLinkAbout2003-12-02; City Council; 17385; Update Provisions for Disbarment17,385 AB#
MTG. 12-2-03
DEPT. CLK
RECOMMENDED ACTION:
Adopt Ordinance No. NS-681 amending Title 3, Chapter 3.32 of the Carlsbad Municipal
Code by the addition and revision of various sections to include and update provisions for
temporary debarment, permanent debarment, procedures for disqualification, and notice.
ITEM EXPLANATION:
Ordinance No. NS-681 was introduced and first read at the City Council meeting held on
November 18, 2003. The second reading allows the City Council to adopt the ordinance,
which would then become effective in thirty days. The City Clerk will have the ordinance
published within fifteen days, if adopted.
FISCAL IMPACT:
See Agenda Bill No. 17,376 on file with the City Clerk.
EXHl BITS:
1. Ordinance No. NS-681.
DEPARTMENT CONTACT: Janice Breitenfeld (760) 434-2927, jbrei@ci.carlsbad.ca.us
ADOPTION OF ORDINANCE NO. NS-681 DEPT.HD. *&
AMENDING THE MUNICIPAL CODE TO
INCLUDE AND UPDATE PROVISIONS FOR
DISBARMENT, PROCEDURES FOR
DISQUALIFICATION AND NOTICE.
CITY ATTY.
CITY MGR
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ORDINANCE NO. NS-681
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA AMENDING TITLE 3, CHAPTER
3.32 OF THE CARLSBAD MUNICIPAL CODE BY THE
ADDITION AND REVISION OF VARIOUS SECTIONS TO
INCLUDE AND UPDATE PROVISIONS FOR TEMPORARY
DEBARMENT, PERMANENT DEBARMENT, PROCEDURES
FOR DISQUALIFICATION, AND NOTICE
The City Council of the City of Carlsbad, California does ordain as follows:
SECTION 1 : That Title 3, Chapter 3.32.025(a) of the Carlsbad Municipal
Code to read as follows:
"3.32.025 Submitting false claims-Monetary penalties.
Any contractor, subcontractor or consultant who commits any of the
following acts may be liable to the city for three times the amount of damages which the
city sustains because of the act of that contractor, subcontractor or consultant. A
contractor, subcontractor or consultant who commits any of the following acts shall also
be liable to the city for the costs, including attorney's fees, of a civil action brought to
recover any of those penalties or damages, and may be liable to the city for a civil penalty
of up to ten thousand dollars for each false claim:
(a)
(1)
(2)
(3)
(4)
Knowingly presents or causes to be presented to an officer
Knowingly makes, uses or causes to be made or used a
Conspires to defraud the city by getting a false claim
Knowingly makes, uses or causes to be made or used a
or employee of the city a false claim or request for payment or approval;
false record or statement to get a false claim paid or approved by the city;
allowed or paid by the city;
false record or statement to conceal, avoid or decrease an obligation to pay or transmit
money or property to the city;
to the city, subsequently discovers the falsity of the claim, and fails to disclose the false
claim to the city within a reasonable time after discovery of the false claim.
of less than five hundred dollars in value. For purposes of this subsection, "controversy"
means any one or more false claims submitted by the same contractor, subcontractor or
consultant in violation of this section.
Every contract performed at the expense of the city, or the costs of
which are paid for out of monies deposited in the treasury of said city, whether directly
awarded or indirectly by or under subcontract, subpartnership, day labor, station work,
piece work, or any other arrangement whatsoever, shall contain a clause reciting the
provisions of subsection (a) of this section.
committed by two or more persons.
(5) Is a beneficiary of an inadvertent submission of a false claim
(b) This section does not apply to any controversy involving an amount
(c)
(d) Liability under this section shall be joint and severable for any act
Ordinance No. NS-68 1
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(e) For purposes of this section, the terms "contractor" and
"subcontractor" shall have the same definitions as found in Section 41 13 of the Public
Contract Code. The term "consultant" shall be broadly defined to include any person or
entity that provides services to the city.
demand for money, property or services made to any employee, officer or agent of the
city, or to any contractor, subcontractor, grantee or other recipient, whether under contract
or not, if any portion of the money, property or services requested or demanded issued
from, or was provided by, the city.
(9) subcontractor or consultant, with respect to information, does any of the following:
(f) For purposes of this section, "claim" includes any request or
For purposes of this section, "knowingly" means that a contractor,
(1)
(2)
(3)
Has actual knowledge of the information;
Acts in deliberate ignorance of the truth or falsity of the
information;
Acts in reckless disregard of the truth or falsity of the
information. Proof of specific intent is not required and reliance on the claim by the city is
also not required. (Ord. NS-313 5 1, 1995) "
SECTION 2: That Title 3, Chapter 3.32.026 of the Carlsbad Municipal Code is
amended to read as follows:
"3.32.026 Disqualification of irresponsible contractors-Effect of disqualification.
Any contractor, subcontractor, or consultant who fails to comply
with the terms of its contract with the city, or the provisions of this Chapter may be
declared an irresponsible bidder, after a hearing in accordance with Section 3.32.028.
Upon a determination of irresponsibility, the contractor, subcontractor or consultant (or
any other entity with substantially the same officers, directors, owners or principals) shall
not be permitted to submit bids, contract, subcontract, or conduct business, on any public
work or improvement for the city for the period of the debarment. The contract of any such
person or entity may, at the option of the city manager, be canceled and in the event of
such cancellation, no recovery shall be had thereon by the contractor, subcontractor or
consultant.
Any one of the following acts or omissions may constitute grounds
for temporary debarment of three ta five years:
(1 ) The contractor, subcontractor or consultant unsatisfactorily
performed a contract; or
(2) The contractor, subcontractor or consultant unjustifiably
failed to honor or observe contractual obligations or legal requirements pertaining to the
contract; or
(3) The contractor, subcontractor or consultant used
substandard materials or has failed to furnish or install materials in accordance with the
contract requirements, even if the discovery of the defect is subsequent to acceptance of
the project and expiration of the warranty thereof, if such defect amounts to intentionally
deficient or grossly negligent performance of the contract under which the defect
occurred; or
The contractor, subcontractor or consultant willfully failed to
cooperate in the investigation or hearing of the proposed debarment; or
(a)
(b)
(4)
Ordinance No. NS-681
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(5) The contractor, subcontractor or consultant performs, or fails
to perform the contract in such a way that significant environmental damage results, or a
‘violation of environmental laws or permits is committed.
The contractor substitutes a subcontractor in violation of
Section 4100 et. seq. of the Public Contract Code (Subletting and Subcontracting Fair
Practices Act).
. (c) Any of the following may constitute grounds for permanent
debarment of the contractor, subcontractor or consultant:
(6)
(1) (2) A final conviction under any state or federal statute or
municipal ordinance, including a plea of nolo contendere, or final unappealable civil
judgment of any one or more of the grounds listed below:
a. Embezzlement, theft, fraudulent schemes and
artifices, fraudulent schemes and practices, bid rigging, perjury, forgery, bribery,
falsification or destruction of records, receiving stolen property or any offense
demonstrating a lack of business integrity, business honesty or responsibility on the part
of the contractor, subcontractor or consultant’s responsibility; or
b. A criminal offense arising out of obtaining or
attempting to obtain a public or private contract or subcontract, or in the performance of
such a contract; or
C. Violations of the California Government Code,
Section 84300 or 84301 (sections of the California Political Reform Act requiring
disclosure of the true campaign donor) or Section 1.13.025 of the Carlsbad Municipal
Code, relating to any city election, or any amendments to the code; or
d. Fraud or criminal offense in connection with
obtaining a public contract; or
e. Conviction under federal or state antitrust statutes
involving public contracts.
(3) Any two or more of the acts or omissions specified in Section 3.32.026( b)
In addition to all other remedies permitted by law, the city council
may, upon the recommendation of the city manager and upon advice of the city attorney,
by resolution, declare a bidder or contractor ineligible to bid on city procurement and
public works contracts based upon any debarment of the contractor, subcontractor or
consultant by another governmental agency, for the debarment period designated by the
other agency.,’
Any violation of Section 3.32.025(a),
(d)
SECTION 3: That Title 3, Chapter 3.32.028 of the Carlsbad Municipal Code is
amended to read as follows:
“3.32.028 Procedures for disqualification of irresponsible contractors
(a) When an action is brought pursuant to Section 3.32.025, 3.32.026
or 3.32.027 of this chapter, the contractor, subcontractor or consultant shall be given
notice of the charges and of all evidence supporting such charges. The contractor,
subcontractor or consultant or its attorney shall be entitled to offer rebuttal evidence and
any other evidence in support of its position.
Ordinance No. NS-681
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(b) The city shall schedule a hearing, as soon as practicable upon
delivery of the notice to the contractor, where all evidence supporting grounds for
debarment shall be presented. The hearing shall be conducted before an unbiased
arbitrator with expertise in the area related to the contract. Any such hearing shall be
conducted pursuant to the applicable sections of the American Arbitration Association’s
Construction Industry Arbitration Rules, or other applicable arbitration rules. The arbitrator
shall follow and comply with all applicable California case, statutory, and regulatory law in
arriving at a decision. The city attorney may, in its discretion, appoint outside counsel to
prosecute the charges.
The parties shall attempt to agree upon an unbiased third-party
arbitrator. If unable to agree, each party shall select an arbitrator. The two selected
arbitrators shall agree on a third arbitrator, who will conduct the hearing. The parties shall
share the costs of conducting the hearing before an arbitrator.
A decision of the arbitrator, making a finding of irresponsibility, is
final and effective ten calendar days after a written determination and delivery of the
decision to the parties, unless within the ten-day period following delivery, the contractor,
subcontractor or consultant, or the city manager, submits a written appeal to the city
council, filed with the city clerk for the city council. The written appeal shall specifically
state the reason(s) for the appeal and the manner in which the decision of the arbitrator is
in error. Fees for filing an appeal under this section shall be established by resolution of
the city council.
The decision of the arbitrator shall be affirmed by the city council
unless the appellant shows by a preponderance of the evidence that the decision of the
arbitrator is in error or inconsistent with state law. The appeal hearing shall be held as
soon as practicable after the date of filing the appeal. Within ten days following the
conclusion of the hearing, the city council shall render its decision On the appeal. The
decision of the city council is final. All proceedings shall be as informal as is compatible with the
requirements of justice. The arbitrator and/or city council need not be bound by the
common law or statutory rules of evidence and procedure, but may make inquiries in the
matter through all means and in a manner best calculated to make a just factual
determination . ”
(c)
(d)
(e)
(f)
SECTION 4: That Title 3, Chapter 3.32 of the Carlsbad Municipal is amended by
the addition of section 3.32.029 to read as follows:
“3.32.029 Notice
Whenever a notice is required to be delivered under Chapter 3.32, the
notice shall be delivered by any one of the following methods. Service is effective as
described herein unless different provisions are specifically stated to apply:
Personal delivery: service shall be deemed effective on the date of
delivery. Proof of delivery of notice may be made by the certification of any designated
person over the age of eighteen years by declaration under penalty of perjury. The proof
shall show that the delivery was done in conformity with this section or other provisions of
law applicable to the subject matter concerned.
Certified mail , postage prepaid, return receipt requested: service
shall be deemed effective on the date of mailing. If a notice is sent simultaneously by
regular mail and the notice of certified mail is returned unsigned, then service by regular
mail will be deemed effective on the date mailing provided the regular mail notice is not
returned.
(a)
(b)
Ordinance No. NS-681
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(c) Publication: Service shall be deemed effective on the first date of
publication."
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption; and the city clerk shall certify the adoption of this ordinance and cause it to be
published at least once in a newspaper of general circulation in the City of Carlsbad within
fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad
City Council on the 18th day of November , 2003, and thereafter
Ordinance No. NS-68 1
Page 5 of 6
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Carlsbad on the 2nd day of December , 2003, by the following vote,
to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall and Packard
APPROVED AS TO FORM AND LEGALITY
n
RONALD R. BALL, City Attorney
f +/o 3
ATTEST: ,
1
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Y . WOOD, City Clerk
Ordinance No. NS-68 1
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