HomeMy WebLinkAbout2009-08-11; City Council; 19931; Amending the CMC regarding 3.28.085 and 3.28.130CITY OF CARLSBAD - AGENDA BILL
AB# 19,931
MTG. 08/11/09
DEPT. CA
Amending Carlsbad Municipal Code by
Adding and Amending Sections
.28.085 and 3.28.130 Regarding
Design Build Contracts and Prevailing
Wages
Request for Finding by City Council for
Sewer Main Services
DEPT. HEAD
CITY ATTY. *(3K
CITY MGR. , ^
U^
RECOMMENDED ACTION:
Introduce Ordinance CS- CS-046 amending the Carlsbad Municipal Code by adding section
3.28.085 regarding Design Build Contracts.
Introduce Ordinance CS- CS-047 amending the Carlsbad Municipal Code by amending
section 3.28.130 regarding Prevailing Wages.
Adopt Resolution No. 2009-210 finding that in accordance with Carlsbad Municipal Code
Section 3.28.130 that it is not in the best interest of the City of Carlsbad to require prevailing
wages for the sewer main cleaning contract.
ITEM EXPLANATION:
Design Build
All California cities must follow the requirements of the Public Contract Code regarding the
awarding of Public Works Contracts. Public Contract Code Section 1100.7 allows Charter Cities
to follow alternative procedures as long as the procedures are specifically exempted from the
provisions of the code by the Charter or an ordinance.
In the last year the State passed Public Contract Code Section 20175.2, which authorized cities
to enter into Design Build contracts for building construction projects. The scope of the projects
is somewhat limited in that they must be in excess of $1,000,000 and street and highway projects
are excluded. All projects would require a labor compliance program which would in turn require
the city to pay prevailing wage and to hire a third party to oversee compliance. This ordinance
removes these restrictions and simplifies the State process.
An article in the May 2009 edition of Western City Magazine published by the California League
of Cities reported the following advantages and disadvantages of design build contracts:
DEPARTMENT CONTACT: Ron Ball (760) 434-2891
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
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• Speeds delivery. Design-build offers the potential for faster project delivery. With this
method, construction can begin before the project's final plans and specifications are
complete. This reduces lead times, accelerates the project schedule and reduces
overall project costs.
• Speeds delivery. Design-build offers the potential for faster project delivery. With this
method, construction can begin before the project's final plans and specifications are
complete. This reduces lead times, accelerates the project schedule and reduces
overall project costs.
• Eliminates redundancies and cost. Design-build eliminates design effort redundancies,
which typically exist between the designer and contractor. Because the contractor is
involved in the design process from inception, he or she can provide helpful insights on
construction materials and methods that can make the design more efficient and less
expensive.
• Simplifies communication. The lead agency needs to deal with only a single point of
responsibility: the design-build entity. Because that entity assumes the major
administrative functions of overseeing the project, the city or agency can assign fewer
staff to manage the contract and the relationship with the contractor.
• Reduces risk. Design-build reduces the project risk for the owner by shifting the liability
and risk for cost containment and project completion to the design-build entity. Because
the lead agency is not the guarantor of the completeness and accuracy of the design
professional's work, the owner can also avoid conflicts and disputes between the
contractor and design professional.
On the other hand, design-build can also have some disadvantages, including:
• Loss of control. The city or public agency gives up some control when it enters into a
design-build contract, because the project will not yet be defined in detail. When using
design-build, the owner transfers many responsibilities to the design-build entity, which
means there are potentially fewer checks and balances than in the traditional design-
bid-build system.
• Potential cost increases. There may be increased administrative costs caused by the
development and use of agreements that are unfamiliar to city staff.
Prevailing Wages
General law California cities must follow the requirements of California Labor Code Section 1770
et.seq., requiring the payment of prevailing wages on public works projects. Charter Cities,
however, have not historically been bound by state law prevailing wage requirements when the
project is strictly a municipal affair.
The proposed amendment to Carlsbad Municipal Code (CMC) 3.28.130 streamlines the
procurement process as it relates to prevailing wages. The definition of a public works project in
the Labor Code is broad enough to include maintenance work. The current ordinance added an
extra step requiring certain maintenance projects to go to the City Council for a finding that it is in
the best interests of the City to not pay prevailing wages. The amendment states that public
works projects undertaken by or on behalf of the City, and which are within the realm of the City's
municipal affairs, shall not be subject to prevailing wage law. This revision eliminates the need
for a case by case ruling on each project before it goes to bid to determine if prevailing wages
shall be paid. It also clarifies that projects done under reimbursement agreements on behalf of
the City will not have the requirement of prevailing wage when the City would not be required to
pay prevailing wage.
Sewer Maintenance Finding
As mentioned above, the current version of CMC 3.28.130 requires a finding by the awarding
authority that it is in the best interests of the City to not pay prevailing wages for each public
works project as defined in the Labor Code. This sewer maintenance project is time sensitive
because of the need to comply with the State Waste Discharge Requirement.
In FY 07-08 Wastewater budget submittal, a sewer cleaning truck, commonly referred to as a
Vactor and two Utility Worker positions were approved by Council. This equipment and staffing
was approved on the basis that the Wastewater Division would need a total of three sewer
cleaning crews to clean the entire sewer system consisting of 12" and smaller pipelines annually.
The Wastewater Department and the Finance Department are currently evaluating the cost
benefits of using City services versus outside services to perform these services to ensure the
Carlsbad rate payers are receiving the most cost effective services possible. Until this evaluation
is completed, staff is soliciting bids for sewer cleaning services of approximately 86 miles of
sewer mains, 12" and smaller, for a period of one year with the option to renew for three
additional one year periods.
Staff is recommending that Council make a finding that it is not in the best interest of the City of
Carlsbad to require the payment of prevailing wage for the work associated with the cleaning the
gravity sewer collection system as removing that requirement could result in measurable cost
savings to the City of Carlsbad.
FISCAL IMPACT:
Adoption of the Design Build ordinance would allow the City to proceed with Design Build
contracts. There may be potential cost savings depending on the project as discussed above.
Adoption of the Prevailing Wage ordinance change may result in lower project costs due to lower
labor rates.
The sewer maintenance contract will be funded from the Wastewater Operating budget. No
funding from State or Federal agencies or programs is included.
ENVIRONMENTAL IMPACT:
This action does not constitute a project as defined under CEQA (California Environmental
Quality Act) pursuant to Public Resources Code Section 21065 in that the proposed ordinance
would not cause any direct physical change in the environment.
EXHIBITS:
1. Ordinance No. CS- cs-046 adding Section 3.28.085 to the Carlsbad Municipal Code,
regulating Design Build Contracting.
2. Ordinance No. CS- CS-047 amending Section 3.28.130 of the Carlsbad Municipal
Code, regulating Design Build Contracting and Prevailing Wages.
3. Strikeout Prevailing Wage Ordinance.
4. Resolution No. 2009-210 finding that in accordance with Carlsbad Municipal Code
Section 3.28.130 that it is not in the best interest of the City of Carlsbad to require
prevailing wages for the cleaning of portions of the City of Carlsbad's gravity sewer
collection system.
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2 THE CITY OF CARLSBAD, CALIFORNIA,
3 ADDING SECTION 3.28.085 TO THE
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election voted to change the powers and duties of the City by adopting a City
7 Charter; and
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WHEREAS, with the certification of the Charter the City Council has
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plenary authority to legislate matters of local concern notwithstanding general laws to10
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EXHIBIT 1
ORDINANCE NO. CS- CS-046
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF CARLSBAD,
ADDING SECTION 3.28.0?
CARLSBAD MUNICIPAL CODE
WHEREAS, the voters of the City of Carlsbad at the June 3, 2008
the contrary; and
WHEREAS, the state legislature has enacted Public Contract Code
section 20175.2 regarding the method a City can enter into Design Build Contracts;
14 .and
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WHEREAS, the City Council of the City of Carlsbad has determined that
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it is in the best interests of the City of Carlsbad to adopt an alternative to the
procedure in Public Contract Code section 20175.2.
follows:
NOW, THEREFORE, the City Council of the City of Carlsbad ordains as
SECTION 1: That section 3.28.085 is added to the Carlsbad
22 Municipal Code:
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3.28.085 Design-Build Contracts
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Section 100 of the Charter of the City of Carlsbad provides
25 that the city council shall have full power and authority to
adopt laws with respect to municipal affairs. Section 404
26 provides that the city council shall have the power to
27 establish procedures and regulations for contracts for the
construction of public improvements. As an alternative to the
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EXHIBIT 1
bidding process set forth in this Chapter and the California
Public Contract Code, and when recommended by the City
2 Manager in writing, there is hereby established a design build
procurement and contracting approach.
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4 A. Purpose and Intent
The purpose of this section is to provide definitions and
5 guidelines for the award, use, and evaluation of design-build
contracts.
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B. Definitions
For the purposes of this section, the following definitions
8 aPP'y:
g
"Design-Build" means a public works contract procurement
10 method in which both the design and construction of a project
are procured from a single entity.
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"Design-Build Entity" means a natural person, partnership,
12 joint venture, corporation, business association or other legal
13 entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as
14 needed.
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"Design-Build Entity Member" includes any person who
16 provides licensed contracting, architectural, or engineering
services.
C. Design-Build Procurement
For purposes of this section only, prior to procuring a Design-
19 Build public works contract, the city shall prepare a request for
proposal setting forth the scope of the project that may include,
20 but is not limited to, the size, type, and desired design
character of the buildings and site, and performance21 specifications. The performance specifications shall describe
the quality of materials, equipment, and workmanship,
preliminary plans or building layouts and other information
23 deemed necessary to adequately describe the city's needs. The
performance specifications shall be prepared by a design
24 professional who is duly licensed and registered in California.
25 D. Competitive Prequalification and Selection Process
26 The city may establish a competitive prequalification and
selection process for Design-Build Entities that specifies the
27 prequalification criteria, as well as recommends the manner in
which the winning entity will be selected.
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EXHIBIT 1
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2 E. Prequalification Criteria
Prequalification may be limited to consideration of all or any of
3 the following criteria supplied by a Design-Build Entity:
1. Possession of all required licenses, registration, and
4 credentials in good standing that are required to design
and construct the project.
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6 2. Submission of documentation establishing that the
Design-Build Entity members have completed, or
7 demonstrated the capability to complete, projects of
similar size, scope, building type, or complexity, and that
8 proposed key personnel have sufficient experience and
training to competently manage and complete the
design and construction of the project.
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^ 3. If the design-build entity is a partnership, limited
partnership, joint venture or other association, a listing
12 of all of the partners, general partners, or association
members known at the time of bid submission who
13 will participate in the design-build contract.
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4. Submission of a proposed project management plan
establishing that the Design-Build Entity has the
16 experience, competence, and capacity needed to
effectively complete the project.
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18 5. Submission of evidence establishing that the Design-
Build Entity has the capacity to obtain all required
19 payment and performance bonding, liability insurance,
and errors and omissions insurance, as well as a
financial statement assuring the city that the Design-
21 Build Entity has the capacity to complete the project.
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6. Information concerning the bankruptcy or receivership
23 of any member of the Design-Build Entity, including
information concerning any work completed by a surety.
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25 7. Information concerning any debarment, disqualification,
or removal of the Design-Build Entity from a federal,26 state, or local government public works project. Any
instance in which the Design-Build Entity or any
member submitted a bid on a public works project and
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EXHIBIT 1
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were found to be non-responsive, or were found by the
awarding body not to be a responsible member.
8. Provision of a declaration providing detail for the past five
years concerning all of the following:
a. Civil or criminal violations of the Occupational
Safety and Health Act against any member of the
Design-Build Entity.
b. Civil or criminal violations of the Contractors'
State License Law against any member of the
Design-Build Entity.
c. Any conviction of any member of the Design-Build
Entity of submitting a false or fraudulent claim to a
public agency.
d. Civil or criminal violations of federal or state law
governing the payment of wages, benefits, or
personal income tax withholding, or of Federal
Insurance Contributions Act (PICA) withholding
requirements, state disability insurance
withholding, or unemployment insurance payment
requirements against any member of the Design-
Build Entity. For purposes of this sub-paragraph
only, violations by a Design-Build Entity Member,
as an employer shall be deemed applicable, unless
it is shown that the Design-Build Entity Member, in
his or her capacity as an employer, had knowledge
of a subcontractor's violations or failed to comply
with the conditions set forth in Section 1775(b) of
the State Labor Code.
e. Civil or criminal violations of federal or state law
against any Design-Build Entity Member governing
equal opportunity employment, contracting or
subcontracting.
f. Information concerning all settled adverse claims,
disputes, or lawsuits between the owner of a
public works project and any member of the
Design-Build Entity in which the claim, settlement,
or judgment exceeds fifty thousand dollars
($50,000).
9. The information required pursuant to this subdivision
shall be verified under oath by the entity and its
members in the manner in which civil pleadings in civil
actions are verified. Information that is not a public
record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) shall
not be open to public inspection.
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EXHIBIT 1
1 F. Selection Method
2 The awarding authority shall select one of the following methods
as the process to be used for the selection of the winning
3 entity:
4 1. A Design-Build competition based on performance,
specifications, and criteria set forth by the awarding
5 authority in the request for proposals.
6 a. Criteria used in this form of evaluation of proposals may
include, but not be limited to, items such as proposed
design approach, initial and/or life-cycle costs, project
8 features, financing, quality, capacity, schedule, and
operational and functional performance of the facility.
9 However, any criteria and methods used to evaluate
proposals shall be limited to those contained in the
10 request for Design-Build proposals.
b. Any architectural firms, engineering firms, specialty
11 consultants, or individuals retained by the city to assist in
the development of criteria or preparation of the request
12 for proposals shall not be eligible to participate in the
competition with any Design-Build Entity.
c. Award shall be made to the Design-Build Entity whose
14 proposal is judged as providing best value meeting the
interests of the city and meeting the objectives of the
15 project.
16 2. A Design-Build competition based on program requirements,
performance specifications, and a preliminary design or
17 combination thereof set forth by the awarding authority in
the request for proposals. Limited drawings and
specifications detailing the requirements of the project may
19 accompany the request for proposals.
20 a. The awarding authority shall establish technical criteria
and methodology, including price, to evaluate proposals
21 and shall describe the criteria and methodology of
evaluation and selection in the request for Design-Build
22 proposals.
b. Any architectural firms, engineering firms, specialty
23 consultants, or individuals retained by the city to assist in
24 the preparation of the preliminary design or request for
proposals shall not be eligible to participate in the
25 competition with any Design-Build Entity.
c. Award shall be made to the Design-Build Entity on the
26 basis of the technical criteria and methodology, including
price, whose proposal is judged as providing best value
27 in meeting the interests of the city and meeting the
objectives of the project.
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EXHIBIT 1
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3. A Design-Build competition based on program requirements
2 and a detailed scope of work, including any preliminary
design drawings and specifications set forth by the
3 awarding authority in the request for proposals.
4 a. Any architectural firms, engineering firms, specialty
5 consultants, or individuals retained by the city to assist in
the preparation of the preliminary design or request for
6 proposals shall not be eligible to participate in the
competition with any Design-Build Entity.
7 b. Award shall be made on the basis of the lowest
responsible and reliable bid.
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G. Work Listing
9 The city recognizes that the Design-Build Entity is charged with
performing both design and construction. Because a Design-
Build contract may be awarded prior to the completion of the
11 design, it is often impracticable for the Design-Build Entity to list
all subcontractors at the time of the award.
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1. It is the intent of the city to establish a clear process for the
13 selection and award of subcontracts entered into pursuant
to this Division in a manner that retains protection for
14 subcontractors while enabling Design-Build project to be
15 administered in an efficient fashion.
16 2. All of the following requirements shall apply to
subcontractors, licensed by the state, that are employed on
17 Design-Build projects undertaken pursuant to this Section.
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a. The Design-Build Entity in each Design-Build proposal19 shall specify the construction trades or types of
subcontractors that may be named as members of the
20 Design-Build Entity at the time of award. In selecting the
21 trades that may be identified as members of the Design-
Build Entity, the Design-Build Entity shall identify the
22 trades deemed essential in the design considerations of
the project. All subcontractors that are listed at the time
23 of award shall be afforded the protection of all applicable
laws.
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•^C b. All subcontracts that were not listed by the Design-Build
26 Entity at the time of award in accordance with Section
G(2)(a) shall be performed and awarded by the Design-
27 Build Entity, in accordance with a bidding process set
forth in the request for proposals.
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1 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and
2 the city clerk shall certify the adoption of this ordinance and cause it to be published at least
3 once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its
4 adoption.
5 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on
6 the 11th day of August, 2009, and thereafter.
7 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the
8 City of Carlsbad on the day of , 2009, by the following vote to wit:
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10 AYES:
11 NOES:
12 ABSENT:
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14 APPROVED AS TO FORM AND LEGALITY
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17 RONALD R. BALL, City Attorney
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19 CLAUDE A LEWIS, Mayor
20"
21 ATTEST:
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23 LORRAINE M. WOOD, City Clerk
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(SEAL)
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1
2 THE CITY OF CARLSBAD, CALIFORNIA,
3 AMENDING SECTION 3.28.130 OF THE
4
NOW, THEREFORE, the City Council of the City of Carlsbad ordains as
follows:
That section 3.28.130 is amended to the Carlsbad Municipal Code:
3.28.130 Prevailing Wages
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Exhibit 2
ORDINANCE NO. CS-047
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF CARLSBAD, <
AMENDING SECTION 3.28.1;
CARLSBAD MUNICIPAL CODE
A. Unless specifically ordered otherwise by the City
Council, contracts for public works projects, as
defined in section 1720, et seq. of the California
Labor Code, which are undertaken by or on behalf
of the City of Carlsbad or its agencies, and which
are the City's municipal affairs, shall not be subject
to prevailing wage law (section 1770, et seq. of the
California Labor Code), except as specified in
subdivision (b) below. Any notice inviting bids for
-15 such public works projects shall include
notification of the provisions of this section,
16
B. The provisions of subdivision (a) above shall not
apply to any public works project undertaken by or
on behalf of the City (i) which is considered to be
of statewide concern as determined by the City
Attorney, (ii) which is funded in whole or in part by
state or federal loans, grants or other funding or
involvement, where payment of prevailing wages
is required in order to receive the state or federal
funding or involvement.
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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
25 it to be published at least once in a newspaper of general circulation in the City of
26 Carlsbad within fifteen days after its adoption.
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1 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on
2 the 11th day of August, 2009, and thereafter.
3 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the
4 City of Carlsbad on the day of , 2009, by the following vote to wit:
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6 AYES:
7 NOES:
8 ABSENT:
9 ABSTAIN:
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11 APPROVED AS TO FORM AND LEGALITY
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RONALD R. BALL, City Attorney
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16 CLAUDE A LEWIS, Mayor
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18 ATTEST:
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20 LORRAINE M. WOOD, City Clerk
21 (SEAL)
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Exhibit 3
1
3.28.130 Prevailing Wages
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A This section is intended to supersede the provision of the Public Contract Code
3 and Labor Code requiring payment of prevailing wages, and, except as expressly set
forth in this section, the provisions of the Public Contract Code and the Labor Code4
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pertaining to prevailing wages shall have no application to Construction Contracts of the
City of Carlsbad or its agencies.
B-. Payment of prevailing wages pursuant to Labor Code Section 1770 and
complianco with the prevailing wage requirements of Labor Codo Section 1770 et seq.
shall not be required for any public works entered into by the City or any of its agencies
except when required as a condition of any Federal or State grants and on other projects
dotorminod by the City Council to be of statewide concern.
8 -4-: For each public project of less than the amount specified in Section 22032
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(b) of the California Public Contract Code, the City Manager shall determine whether or
not it is in the City's best interest to require prevailing wages for that project and that
determination shall be included in the notice inviting Bids.
For each Construction Project of more than the amount specified in Section
22032 (b) of the California Public Contract Code, the City Council shall determine
whether or not it is in the City's best interest to require prevailing wages for tho project
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and that determination shall be included in the notice inviting bids.
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A Contracts for public works projects, as defined in section 1720, et seq. of
the California Labor Code, which are undertaken by or on behalf of the City of
Carlsbad or its agencies, and which are within the realm of the City's municipal
affairs, shall not be subject to prevailing wage law (section 1770, et seq. of the
California Labor Code), except as specified in subdivision (b) below. Any notice
inviting bids for such public works projects shall include notification of the
17 provisions of this section.
18 B. The provisions of subdivision (a) above shall not apply to any public works
project undertaken by or on behalf of the City (i) which is considered to be of
statewide concern as determined by the City Attorney, (ii) which is funded in whole
or in part by state or federal loans, grants or other funding or involvement, where
payment of prevailing wages is required in order to receive the state or federal
funding or involvement.
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EXHIBIT 4
1 RESOLUTION NO. 2009-210
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, FINDING THAT IT IS NOT IN
3 THE BEST INTEREST OF THE CITY OF CARLSBAD TO
4 REQUIRE THE PAYMENT OF PREVAILING WAGES FOR
VARIOUS MAINTENANCE AND SERVICE AGREEMENTS
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WHEREAS, the City of Carlsbad requires the services of various maintenance
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and service contractors; and
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WHEREAS, measurable cost savings may be realized if contract services are let8
9 without the requirement to pay prevailing wages for gravity sewer collection system
10 cleaning; and
11 WHEREAS, staff recommends that Council make a finding that it is not in the
12 best interest of the City of Carlsbad to require the payment of prevailing wages for the
13 above mentioned contract services; and
14 WHEREAS, State and Federal funding will not be utilized for the above-
mentioned contract services; and
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
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Carlsbad, California, as follows:
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19 1. That the above recitations are true and correct.
20 2. That the measurable cost savings may be realized if contract services are
21 let without requirement to pay prevailing wages.
22 3. That a finding is made that it is not in the best interest of the City of
23 Carlsbad to require the payment of the payment of prevailing wages for this contract
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service.
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4. That State and/or Federal funding will not be utilized for these contract26
27 services.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 11th day of August, 2009, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn
NOES: None.
ABSENT: None.
LEWIS, Mayor
ATTEST:
fcJTt/UL O -. ,
LORRAINE M. WOOD, City Clerk