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
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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
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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
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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.
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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 ($100,000) or
22033. It shall be unlawful to split or separate into smaller work
orders or projects any project for the purpose of evading the
provisions of this article requiring work to be done by contract
after competitive bidding.
22034. Each public agency that elects to become subject to the
uniform construction accounting procedures set forth in Article 2
(commencing with Section 22010) shall enact an informal bidding
ordinance to govern the selection of contractors to perform public
projects pursuant to subdivision (b) of Section 22032. The ordinance
shall include all of the following:
contractors, identified according to categories of work. Minimum
criteria for development and maintenance of the contractors list
shall be determined by the commission.
or all construction trade journals specified in Section 22036, or
both all contractors on the list for the category of work being bid
and all construction trade journals specified in Section 22036, shall
be mailed a notice inviting informal bids unless the product or
(a) The public agency shall maintain a list of qualified
(b) All contractors on the list for the category of work being bid
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service is proprietary.
journals pursuant to subdivision (b) shall be completed not less than
10 calendar days before bids are due.
in general terms and how to obtain more detailed information about
the project, and state the time and place for the submission of bids.
(c) All mailing of notices to contractors and construction trade
(d) The notice inviting informal bids shall describe the project
(e) The governing body of the public agency may delegate the
authority to award informal contracts to the public works director,
general manager, purchasing agent, or other appropriate person.
dollars ($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.
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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.
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(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
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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
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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
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