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HomeMy WebLinkAbout2005-05-27; City Council; 18136; Landslide in the La Costa de Marbella Complex2 TITLE: EMERGENCY MEETING OF THE CITY COUNCIL TO DISCUSS THE LANDSLIDE IN THE AREA OF THE 4B# 18,136 IIITG. 5/27/05 DEPT. CA RECOMMENDED ACTION: Adopt Resolution No. finding that the bonding requirements of Civil Code section 3247 do not apply to the emergency contract that the City will be entering into with Zamborelli Enterprises, Inc., for the emergency repair work in the area of the La Costa de Marbella Condominium Complex. 2005-163 ITEM EXPLANATION: The roadway embankment failure below the homes at Marbella has continued to move and is further threatening La Costa Avenue. The City is preparing an emergency contract with Zamborelli Enterprises, Inc., to construct a retaining wall that will help abate the earth movement. Civil Code section 3247 requires that original contractors on Public Works projects secure a payment bond in order to protect subcontractors and materials suppliers. Public Works staff is recommending that Zamborelli Enterprises, Inc., not be required to obtain a payment bond due to the emergency nature of the contract and has set up adequate safeguards to protect subcontractors and materials suppliers. It is necessary to ratify this action. ENVIRONMENTAL REVIEW: The California Environmental Quality Act provides a statutory exemption for emergency projects pursuant to CEQA Guidelines section 15269. FISCAL IMPACT: There is no fiscal impact associated with the decision to waive the requirement for a labor and materials bond. EXHIBITS: 1. Resolution No. 2005-163 accepting a Letter of Credit as Security from a contractor for abatement work in the area of the La Costa De Marbella Condominium Complex. 2. Civil Code sections 3247-3252 3. Public Contract Code sections 22030-22045 4. Public Contract Code section 22050 DEPARTMENT CONTACT: Ronald Kemp, Esq. (760) 434-2891, rkemD@ci.carlsbad.ca.us I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E $m3l7- 1 RESOLUTION NO. 2005-1 63 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING A LETTER OF CREDIT AS SECURITY FROM A CONTRACTOR FOR ABATEMENT WORK IN THE AREA OF THE LA COSTA DE MARBELLA CONDOMINIUM COMPLEX. WHEREAS, on April 26, 2005 the City Council declared the abatement of the impending peril of earth movement and authorized the expenditure of public money to safeguard life, health, or property; and WHEREAS, at that time, damage had been caused to La Costa Avenue and various utilities in the area; and WHEREAS, La Costa Avenue is now being further threatened by the earth movement and measures are being taken to protect the road; and WHEREAS, the City is preparing an emergency contract with Zamborelli Enterprises, Inc., to construct a retaining wall to abate the earth movement; and WHEREAS, Civil Code section 3247 requires every original contractor who is awarded a contract over the amount of $25,000 by a public entity to file a payment bond with the public entity; and WHEREAS, the exact amount of the contract is unknown but will exceed $25,000; and WHEREAS, the contract with Zamborelli Enterprises, Inc., is being entered into under the emergency provisions of Public Contract Code sections 22035 and 22050; and WHEREAS, Public Contract Code section 22035 allows the public entity to proceed at once under an emergency contract to repair any public facility without adopting plans, specifications, or working details, or giving notice for bids to let contracts. The work may be done by day labor under the direction of the governing body, by contractor, or by a combination of the two; and WHEREAS, the purpose of Civil Code section 3247 is to ensure that subcontractors and material men are paid; and Ill 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Zamborelli Enterprises, Inc., will provide payroll certification, fund control and a deposit of $125,000 in a bank account set aside for the protection of subcontractors and materials suppliers, which amount is sufficient. 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 City Council of the City of Carlsbad finds that the contract with Zamborelli Enterprises, Inc., is not the type of public works contract for which Civil Code Section 3247 requires a payment bond in that: a. The contract has not been bid and is being performed on a time and materials basis. b. The contract is not for a fixed amount. c. These alternative measures are being taken to ensure that the purposes of Civil Code section 3247 will be met. Special PASSED, APPROVED AND ADOPTED at df-egde~ meeting of the Carlsbad City Council held on the 27th day of May , 2005 by the following vote, to wit: AYES: Council Members Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: Maypr LBwis CLAUDE%: L(EwIS, Mayor ' MATT HALL , LMayor Pro-Tern ATTEST Karen R. Kundtz, Mistant City Clerk (SEAL) CA Codes (civ:3247-3252) Page 1 of 2 CIVIL CODE SECTION 3247-3252 3247. (a) Every original contractor to whom is awarded a contract by a public entity, except as provided in subdivision (d) of Section 7103 of the Public Contract Code, involving an expenditure in excess of twenty-five thousand dollars ($25,000) for any public work shall, before entering upon the performance of the work, file a payment bond with and approved by the officer or public entity by whom the contract was awarded. A public entity shall state in its call for bids for any such contract that a payment bond is required in the case of such an expenditure. (b) A payment bond filed and approved in accordance with this section shall be sufficient to enter upon the performance of work under a duly authorized contract which supplements the contract for which such payment bond was filed, if the requirement of a new bond is waived by the public entity. (c) For purposes of this section, providers of architectural, engineering, and land surveying services pursuant to a contract with a public entity for any public work shall not be deemed an original contractor and shall not be required to post or file the payment bond required in subdivisions (a) and (b). This subdivision shall apply to all contracts entered into subsequent to January 1, 1971. 1979-80 Regular Session of the Legislature by Chapter 293 of the Statutes of 1980, does not constitute a change in, but is declaratory of, existing law. The amendment to this section made during the 1980 portion of the 3248. In order to be approved, the payment bond shall satisfy all of the following requirements: (a) The bond shall be in a sum not less than one hundred percent of the total amount payable by the terms of the contract. (b) The bond shall provide that if the original contractor or a subcontractor fails to pay (1) any of the persons named in Section 3181, (2) amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or (3) for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the sureties will pay for the same, and also, in case suit is brought upon the bond, a reasonable attorney's fee, to be fixed by the court. The original contractor may require of the subcontractors a bond to indemnify the original contractor for any loss sustained by the original contractor because of any default by the subcontractors under this section. the persons named in Section 3181 so as to give a right of action to those persons or their assigns in any suit brought upon the bond. lieu of a bond. (c) The bond shall, by its terms, inure to the benefit of any of (d) The bond shall be in the form of a bond and not a deposit in 3249. Suit against the surety or sureties on the payment bond may http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&~oup=O3OOl-04000&file=32 ... 5/26/2005 4 CA Codes (civ:3247-3252) Page 2 of 2 be brought by any claimant, or his assigns, at any time after the claimant has furnished the last of the labor or materials, or both, but must be commenced before the expiration of six months after the period in which stop notices may be filed as provided in Section 3184. 3250. The filing of a stop notice is not a condition precedent to the maintenance of an action against the surety or sureties on the payment bond. An action on the payment bond may be maintained separately from and without the filing of an action against the public entity by whom the contract was awarded or any officer thereof. In any action, the court shall award to the prevailing party a reasonable attorney's fee, to be taxed as costs. 3251. Unless a payment bond is filed and approved as provided in this chapter, no claim in favor of the original contractor arising under the contract shall be audited, allowed or paid by the public entity awarding the contract or any officer thereof. Claimants shall receive payment of their respective claims in the manner provided by Chapter 4 (commencing with Section 3179) upon complying with the provisions thereof. This section shall become operative on the 181st day after it becomes effective. 3252. (a) With regard to a contract entered into on or after January 1, 1995, in order to enforce a claim upon any payment bond given in connection with a public work, a claimant shall give the 20-day public works preliminary bond notice as provided in Section 3098. (b) If the 20-day public work preliminary bond notice was not given as provided in Section 3098, a claimant may enforce a claim by giving written notice to the surety and the bond principal as provided in Section 3227 within 15 days after recordation of a notice of completion. If no notice of completion has been recorded, the time for giving written notice to the surety and the bond principal is extended to 75 days after completion of the work of improvement. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=O3OOl-04000&file=32 ... 5/26/2005 5 CA Codes (pcc:22030-22045) Page 1 of 4 PUBLIC CONTRACT CODE SECTION 22030-22045 22030. This article applies only to a public agency whose governing board has by resolution elected to become subject to the uniform construction cost accounting procedures set forth in Article 2 (commencing with Section 22010) and which has notified the Controller of that election. In the event of a conflict with any other provision of law relative to bidding procedures, this article shall apply to any public agency which has adopted a resolution and so notified the Controller. 22031. Nothing in this article shall prohibit a board of supervisors or a county road commissioner from utilizing, as an alternative to the procedures set forth in this article, the procedures set forth in Article 25 (commencing with Section 20390) of Chapter 1. 22032. (a) Public projects of twenty-five thousand dollars ($25,000) or less may be performed by the employees of a public agency by force account, by negotiated contract, or by purchase order. less may be let to contract by informal procedures as set forth in this article. (c) Public projects of more than one hundred thousand dollars ($100,000) shall, except as otherwise provided in this article, be let to contract by formal bidding procedure. (b) Public projects of one hundred thousand dollars ($100,000) or 22033. It shall be unlawful to split or separate into smaller work orders or projects any project for the purpose of evading the provisions of this article requiring work to be done by contract after competitive bidding. 22034. Each public agency that elects to become subject to the uniform construction accounting procedures set forth in Article 2 (commencing with Section 22010) shall enact an informal bidding ordinance to govern the selection of contractors to perform public projects pursuant to subdivision (b) of Section 22032. The ordinance shall include all of the following: contractors, identified according to categories of work. Minimum criteria for development and maintenance of the contractors list shall be determined by the commission. or all construction trade journals specified in Section 22036, or both all contractors on the list for the category of work being bid and all construction trade journals specified in Section 22036, shall be mailed a notice inviting informal bids unless the product or (a) The public agency shall maintain a list of qualified (b) All contractors on the list for the category of work being bid http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pcc&group=2200 1 -23000&file=2., . 5/26/2005 b CA Codes (pcc:22030-22045) Page 2 of 4 service is proprietary. journals pursuant to subdivision (b) shall be completed not less than 10 calendar days before bids are due. in general terms and how to obtain more detailed information about the project, and state the time and place for the submission of bids. (c) All mailing of notices to contractors and construction trade (d) The notice inviting informal bids shall describe the project (e) The governing body of the public agency may delegate the authority to award informal contracts to the public works director, general manager, purchasing agent, or other appropriate person. dollars ($lOO,OOO), the governing body of the public agency may, by adoption of a resolution by a four-fifths vote, award the contract, at one hundred ten thousand dollars ($110,000) or less, to the lowest responsible bidder, if it determines the cost estimate of the public agency was reasonable. (f) If all bids received are in excess of one hundred thousand 22035. (a) In cases of emergency when repair or replacements are necessary, the governing body may proceed at once to replace or repair any public facility without adopting plans, specifications, strain sheets, or working details, or giving notice for bids to let contracts. The work may be done by day labor under the direction of the governing body, by contractor, or by a combination of the two. will not be given, the public agency shall comply with Chapter 2.5 (commencing with Section 22050). (b) In case of an emergency, if notice for bids to let contracts 22035.5. In counties that are under court order to relieve justice facility overcrowding, the procedures and restrictions specified in Section 20134 shall apply to all contracts issued under this chapter. 22036. The commission shall determine, on a county-by-county basis, the appropriate construction trade journals which shall receive mailed notice of all informal and formal construction contracts being bid for work within the specified county. 22037. Notice inviting formal bids shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency; or, if there is no newspaper printed and published within the jurisdiction of the public agency, in a newspaper of general circulation which is circulated within the jurisdiction of the public agency, or, if there is no newspaper which is circulated within the jurisdiction of the public agency, publication shall be by posting the notice in at least three places within the jurisdiction of the public agency as have been designated by ordinance or regulation of the public agency as places for the posting of its notices. The notice inviting formal bids shall also be mailed to all construction trade journals specified in Section 22036. The notice shall be mailed at least 30 calendar days before the date of opening the bids. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pcc&~oup=2200 1 -23000&file=2.. . 5/26/2005 7 CA Codes (pcc:22030-22045) Page 3 of 4 In addition to notice required by this section, the public agency may give such other notice as it deems proper. 22038. (a) In its discretion, the public agency may reject any bids presented, if the agency, prior to rejecting all bids and declaring that the project can be more economically performed by employees of the agency, furnishes a written notice to an apparent low bidder. The notice shall inform the bidder of the agency's intention to reject the bid and shall be mailed at least two business days prior to the hearing at which the agency intends to reject the bid. If after the first invitation of bids all bids are rejected, after reevaluating its cost estimates of the project, the public agency shall have the option of either of the following: described by this article. governing body declaring that the project can be performed more economically by the employees of the public agency, may have the project done by force account without further complying with this article. (b) If a contract is awarded, it shall be awarded to the lowest responsible bidder. If two or more bids are the same and the lowest, the public agency may accept the one it chooses. procedure, the project may be performed by the employees of the public agency by force account, or negotiated contract without further complying with this article. (1) Abandoning the project or readvertising for bids in the manner (2) By passage of a resolution by a four-fifths vote of its (c) If no bids are received through the formal or informal 22039. The governing body of the public agency shall adopt plans, specifications, and working details for all public projects exceeding the amount specified in subdivision (c) of Section 22032. 22040. Any person may examine the plans, specifications, or working details, or all of these, adopted by the public agency for any pro j ect . 22041. This article does not apply to the construction of any public building used for facilities of juvenile forestry camps or juvenile homes, ranches, or camps established under Article 15 (commencing with Section 880) of Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code, if a major portion of the construction work is to be performed by wards of the juvenile court assigned to those camps, ranches, or homes. 22042. The commission shall review the accounting procedures of any participating public agency where an interested party presents evidence that the work undertaken by the public agency falls within any of the following categories: (a) Is to be performed by a public agency after rejection of all bids, claiming work can be done less expensively by the public agency. (b) Exceeded the force account limits. http://www.leginfo.ca.gov/cgi-bin/displaycode?section~cc&~oup=22OOl-23000&file=2 ... 5/26/2005 '6 CA Codes (pcc:22030-22045) Page 4 of 4 (c) Has been improperly classified as maintenance 22043. In those circumstances as set forth in subdivision (a) of Section 22042, a request for commission review shall be in writing, sent by certified or registered mail received by the commission postmarked not later than five business days from the date the public agency has rejected all bids. In those circumstances set forth in subdivision (b) or (c) of Section 22042, a request for commission review shall be by letter received by the commission not later than five days from the date an interested party formally complains to the public agency. The commission review shall commence immediately and conclude within 30 days from the receipt of the request for commission review. During the review of a project that falls within subdivision (a) of Section 22042, the agency shall not proceed on the project until a final decision is received by the commission. 22044. The commission shall prepare written findings. Should the commission find that the provisions of this chapter or of the uniform cost accounting procedures provided for in this chapter were not complied with by the public agency, the following steps shall be implemented by that agency: (a) On those projects set forth in subdivision (a) of Section 22042, the public agency has the option of either (1) abandoning the project, or (2) awarding the project to the lowest responsible bidder. (b) On those projects set forth in subdivision (b) or (c) of Section 22042, the public agency shall present the commission's findings to its governing body and that governing body shall conduct a public hearing with regard to the commission's findings within 30 days of receipt of the findings. 22045. (a) No later than January 1, 1985, the commission shall recommend, for adoption by the Controller, written procedures implementing the accounting procedures review provided for in this article. recommendation, review and evaluate the recommended procedures and either formally adopt or reject the recommended procedures within 90 days of submission of the commission. (b) The Controller shall, upon receipt of the commission's 4 http://www.leginfo.ca.gov/cgi-bin/displaycode?section~cc&group=22OOl-23OOO&~le=2... 5/26/2005 CA Codes (pcc:22050) Page 1 of2 Eyer 1417 PUBLIC CONTRACT CODE SECTION 22050 22050. (a) (1) In the case of an emergency, a public agency, pursuant to a four-fifths vote of its governing body, may repair or replace a public facility, take any directly related and immediate action required by that emergency, and procure the necessary equipment, services, and supplies for those purposes, without giving notice for bids to let contracts. (l), it shall make a finding, based on substantial evidence set forth in the minutes of its meeting, that the emergency will not permit a delay resulting from a competitive solicitation for bids, and that the action is necessary to respond to the emergency. by resolution or ordinance, to the appropriate county administrative officer, city manager, chief engineer, or other nonelected agency officer, the authority to order any action pursuant to paragraph (1) of subdivision (a) . (2) If the public agency has no county administrative officer, city manager, chief engineer, or other nonelected agency officer, the governing body, by a four-fifths vote, may delegate to an elected officer the authority to order any action specified in paragraph (1) of subdivision (a). or (2) orders any action specified in paragraph (1) of subdivision (a), that person shall report to the governing body, at its next meeting required pursuant to this section, the reasons justifying why the emergency will not permit a delay resulting from a competitive solicitation for bids and why the action is necessary to respond to the emergency. (c) (1) If the governing body orders any action specified in subdivision (a), the governing body shall review the emergency action at its next regularly scheduled meeting and, except as specified below, at every regularly scheduled meeting thereafter until the action is terminated, to determine, by a four-fifths vote, that there is a need to continue the action. If the governing body meets weekly, it may review the emergency action in accordance with this paragraph every 14 days. (b) orders any action specified in paragraph (1) of subdivision (a), the governing body shall initially review the emergency action not later than seven days after the action, or at its next regularly scheduled meeting if that meeting will occur not later than 14 days after the action, and at least at every regularly scheduled meeting thereafter until the action is terminated, to determine, by a four-fifths vote, that there is a need to continue the action, unless a person with authority delegated pursuant to subdivision (b) has terminated that action prior to the governing body reviewing the emergency action and making a determination pursuant to this subdivision. If the governing body meets weekly, it may, after the initial review, review the emergency action in accordance with this paragraph every 14 days. (3) When the governing body reviews the emergency action pursuant to paragraph (1) or (21, it shall terminate the action at the earliest possible date that conditions warrant so that the remainder (2) Before a governing body takes any action pursuant to paragraph (b) (1) The governing body, by a four-fifths vote, may delegate, (3) If a person with authority delegated pursuant to paragraph (1) (2) If a person with authority delegated pursuant to subdivision I3 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pcc&group=2200 1 -23 000&file=2.. . 5/26/2005 CA Codes (pcc:22050) Page 2 of 2 of the emergency action may be completed by giving notice for bids to let contracts. as defined in Section 22002. subdivision (a), (b), or (c) by a two-thirds vote. to Sections 20133, 20134, 20168, 20193, 20205.1, 20213, 20223, 20233, 20253, 20273, 20283, 20293, 20303, 20313, 20331, 20567, 20586, 20604, 20635, 20645, 20685, 20736, 20751.1, 20806, 20812, 20914, 20918, 20926, 20931, 20941, 20961, 20991, 21020.2, 21024, 21031, 21043, 21061, 21072, 21081, 21091, 21101, 21111, 21121, 21131, 21141, 21151, 21161, 21171, 21181, 21191, 21196, 21203, 21212, 21221, 21231, 21241, 21251, 21261, 21271, 21290, 21311, 21321, 21331, 21341, 21351, 21361, 21371, 21381, 21391, 21401, 21411, 21421, 21431, 21441, 21451, 21461, 21472, 21482, 21491, 21501, 21511, 21521, 21531, 21541, 21552, 21567, 21572, 21581, 21591, 21601, 21618, 21624, 21631, 21641, and 22035. (d) As used in this section, ttpublic agencytt has the same meaning (e) A three-member governing body may take actions pursuant to (f) This section applies only to emergency action taken pursuant h~://www.leginfo.ca.gov/cgi-bin/displaycode?section=pcc&group=2200 1 -23000&file=2.. . 5/26/2005