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HomeMy WebLinkAbout2020-10-29; Letter to the Palomar Airport Road Widening Project Contractor on the City's Respectful Workplace Policy and Allegations of Unfair Treatment; Gomez, PazTo the members of the: CITY COUNCIL Date10~bicA ✓ cc ✓ CM_~_ACM~'DCM(3) V Oct. 29, 2020 Council Memorandum To: From: Honorable Mayor Hall and Members ofthe City Council Paz Gomez, Deputy City Manager, Pub ~~prks Via: Geoff Patnoe, Assistant City Manager (Q-iY {cityof Carlsbad Memo ID #2020244 Re: Letter to the Palomar Airport Road Widening Project Contractor on the City's Respectful Workplace Policy a.nd Allegations of Unfair Treatment This memorandum provides information on a letter to the Contractor on the Palomar Airport Road Widening Project (Project), Contract No. 6043 and 6044, PWS19-745TRAN (Contract) regarding the city's Respectful Workplace Policy and allegations of unfair treatment. Background On July 23, 2019, the City Council adopted Resolution No. 2019-128 and awarded a contract to Just Construction, Inc. (Contractor) for construction of the Project. On Dec. 17, 2019, the city issued a Notice to ~roceed to the Contractor, and the Project is approximately 55% complete. The Contractor's schedule shows estimated completion in December 2020. Discussion On Oct. 14, 2020, during a regularly scheduled weekly Project' progress meeting, a member of the Contractor's project management team accused a city staff member of harboring ill will, having a personal agenda against him and claimed the city staff member based decisions on emotion. City staff members who were at the meeting submitted emails to the Human Resources Department documenting their concerns on what occurred at the meeting. On Oct. 15, 2020, the Contractor emailed city staff asserting unfair treatment by the city in its management of the Contract. The Contractor made these accusations against the city because their request to work outside of the Contract work hours had been denied. The Contractor noted that one of its subcontractors had been afforded an opportunity to work outside of the Contract work hours but alleged that their request was denied due to race/ethnicity. On Oct. 27, 2020, the city sent a letter to the Contractor addressing the city's Respectful Workplace Policy and the Contractor's allegations of unfair treatment (Attachment A). Next Steps The city is committed to maintaining a respectful workplace environment for all employees. The City's Respectful Workplace Policy applies to individuals or organizations with whom the city contracts. The Contractor has been advised that it shall adhere to the City's Respectful Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-2780t I I · I I Council Memo -Letter to the Palomar Airport Road Widening Project Contractor Oct. 29, 2020 Page 2 Workplace Policy and that city staff members have been instructed to terminate future meetings should the Contractor's interactions become inappropriate. The city will continue to engage the Contractor in a professional and productive manner to ensure the safe, efficient and timely completion of the Project. In an effort to separate contractual issues from non-contractual matters, the city has offered the services of the Human Resources Department should the Contractor wish to file a claim of unfair treatment. Contractual issues will continue to be addressed in accordance with the terms of the Contract by the Construction Management and Inspection Department. Attachment: A. City of Carlsbad letter of Oct. 27, 2020, Subject: Respectful Workplace; Allegations of Unfair Treatment cc: Scott Chadwick, City Manager Celia Brewer, City Attorney Cindie McMahon, Assistant City Attorney Laura Rocha, Deputy City Manager, Administrative Services Judy van Kalinowski, Human Resources Director Darrin Schwabe, Human Resources Manager Babaq Taj, Engineering Manager Oct. 27, 2020 Mr. Hector Romero Just Construction, Inc. 3103 Market St. San Diego, CA 92102 ( City of Carlsbad Attachment A Re: Palomar Airport Road Widening Project, Contract No. 6043 & 6044, PWS19-745TRAN Respectful Workplace; Allegations of Unfair Treatment Dear Mr. Romero: This letter is provided in response to recent statements made by Just Construction, Inc. {JCI) which do not adhere to the City of Carlsbad's {City) Respectful Workplace Policy nor the professional conduct that is expected of a general engineering contractor in the performance of a public works contract. This letter addresses the City's concerns about maintaining a respectful workplace as well as claims made by JCI that the City acted in a discriminatory manner through its actions and determinations in the management of the Palomar Airport Road Widening Project {Project), Contract No. 6043 & 6044, PWS19-745TRAN {Contract). Respectful Workplace The City is committed to maintaining a respectful workplace environment that is free from discrimination and harassment. The City's Respectful Workplace Policy, made applicable to you by Section 7-13 of the Contract, is attached for your reference {Attachment A). Following the Project's progress meeting held on Oct. 14, 2020, the City received several complaints from those in attendance of inappropriate and unprofessional behavior by JCI directed towards a member of the City's project management team. Specifically, it was reported that while discussing contractual matters, including the City's response to a change order request submitted by JCI, JCI asserted that a member of the City's project management team was rendering decisions with a personal agenda and ill will towards JCI. Of equal concern, several witnesses described the tone, tactic and language used by JCI throughout the meeting as being aggressive and hostile. Whether or not it was intended, it is important that you know that JCl's conduct during the meeting came across as aggressive, demeaning and hostile to several members of the City's project management and engineering team. It is critically important for the success of the Project and for the protection of all participants that each and every member of the team is afforded an opportunity to conduct their work in a respectful, non-hostile environment. Accusations of personal agendas, claims that employees are acting with ill will and disparaging assertions that decisions are being made based on emotion are antithetical to a productive and respectful work environment. Should this type of Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-2780 t I CMl@carlsbadca.gov Mr. Hector Romero, Just Construction, Inc. Oct. 27, 2020 Page 2 behavior occur in a future meeting, we have given our employees the authority to discontinue the meeting. This does not mean that JCI is precluded from disagreeing with the City on matters of contractual concern. Disputed contractual matters shall follow the process provided within Section 3-5 of the contract. If JCI wishes to file a claim of improper, discriminatory treatment, it may do so by contacting Mr. Darrin Schwabe, Human Resources Manager with the City's · · Human Resources Department (Darrin.Schwabe@carlsbadca.gov; (760) 271-5548), so that he may review pertinent information and conduct an investigation as necessary. There will be contractual items upon which the City and JCI may not agree. In such circumstances, JCI is directed to follow Section 3-5 of the contract to resolve contractual matters and to contact Mr. Schwabe for non-contractual matters. However, under no circumstance shall JCI engage with City staff, verbally or through written correspondence, in an accusatory, demeaning or aggressive manner. City staff have been directed to end any future meetings if the dialog becomes personal, disrespectful or hostile. Unfair Treatment: Discrimination On Oct. 15, 2020, JCI transmitted an email with subject PAR -Concrete Availability Concerns Response (Attachment B) asserting discriminatory treatment by the City through its actions. Specifically, in response to the City's rejection of a request by JCI that it be allowed to perform work during daytime hours (i.e., a variance to the contract), JCI questioned the City's motivations for denying its request by highlighting its status as a Hispanic-owned enterprise as compared to JCl's subcontractor, Lekas Electric, Inc. (Lekas), whom JCI claims is a Caucasian- owned enterprise and was previously afforded an opportunity to work during the day. The City takes any and all concerns of unfair treatment seriously. If JCI wishes to file a claim of discrimination, after reading the City's explanation for its denial of JCl's daytime work request (see "Contract Authority and Determinations: Work Hours" below), it may do so by contacting Mr. Darrin Schwabe, Human Resources Manager with the City's Human Resources Department (Darrin.Schwabe@carlsbadca.gov; (760) 271-5548). Contract Authority and Determinations: Work Hours On Oct. 15, 2020, in response to the City's denial of a request by JCI to work outside of the contract-stipulated work hours, JCI transmitted an email (Attachment B) with the following statement: "It is amazing how LEKOS which is a Caucasian owned firm was allowed to pour concrete during the day on September 8, 2020 and September 23, 2020 under the same contract, same exact circumstances, at the same precise location. JCI is being denied the same Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-2780 t I CMl@carlsbadca.gov Mr. Hector Romero, JustConstruction, Inc. Oct. 27, 2020 Page 3 request, as you are well aware that JCI is a small minority (Hispanic) owned business, we beg to question why is JCI being denied this request?" The following is provided in response to JCl's inquiry: 1. Although race and ethnicity are cited within JCl's email as a motivating factor for the City's denial of JCl's request, in fact, the City has never considered the race, ethnicity, color, creed, national origin, gender, religion, age, disability or sexual orientation of any project participant or project stakeholder in managing and making determinations regarding this contract. As the head of the Construction Management and Inspection (CM&I) Department, I help inform many of the critical and important decisions on the projects that our department manages. This includes JCl's request of Oct. 14, 2020 submitted by Ms. Leonor Romero for a request to work outside of the contract-stipulated work hours. I assure you that the City's management of this Contract and our decisions when considering such requests is no different than any other project -it is based on our assessment and interpretation of the Contract and the merit of the individual requests. At no point has City staff ever considered JCl's race or ethnicity status in responding to technical or contractual requests or any other matters. 2. JCl's statement that the proposed scope of work to be performed during daytime hours was of the "same exact circumstance" and "at the same precise location" is inaccurate. The proposed work and the operation required to support that work is/was different than the work that had been previously authori_zed by the City and performed by JCI. Section 7-10 PUBLIC CONVENIENCE AND SAFETY prohibits the Contractor's operations from causing unnecessary inconvenience. While this requirement applies to the Contactor, the City's management team shares in the responsibility for ensuring that public safety and protection of the right-of-way are not compromised as a result of the Contractor's work. The importance of this obligation takes on increased significance if /when the work deviates from the Contract. It was the City's determination that the proposed scope of work had a risk of impacting public safety/ convenience, impacting the public right-of-way, nearby businesses (commercial establishments) and their patrons. This risk informed the City's determination that the proposed work should be performed as required by the Contract, between the hours of 8 p.m. and 5 a.m. Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Carlsba d, CA 92008 I 760-602-2780 t I CM l@carlsbadca.gov Mr. Hector Romero, Just Construction, Inc. Oct. 27, 2020 Page 4 3. The Contract work hours for the Project were established prior to the bid date, memorialized within the executed Contract and have not changed since. Section 6-7.2 of the Contract states that, unless otherwise approved in writing, the hours of work shall be between the hours of 8 p.m. and 5 a.m. From time to time, when it is determined to be in the City's best interest (i.e., the timely, safe, and efficient furtherance of the Project}, and when weighed against potential impacts to the City's residents, visitors, business owners, business patrons, etc., the City may consider a variance to the Contract-stipulated work hours. The City has previously authorized JCI to perform limited-scope work activities during the daytime on select occasions. All prior authorizations have been granted under the terms of the Contract. Importantly, prior authorizations do not alter or change the Contract requirements. The City's denial of JCl's request for a variance causes no harm to JCI as the Contract work hours have not changed and thus the work has always been required to be performed at night. 4. In citing the City's rejection of JCl's daytime .work request and prior daytime work authorizations performed by JCl's subcontractor Lekas, JCI alleges discrimination against JCI and/or favoritism towards its subcontractor due to their respective status (race, ethnicity}. Lekas is JCl's subcontractor. Lekas is a. Project participant (only} because JCI entered into an agreement with Lekas to support its completion of the Project. The City does not have a Contract with Lekas nor does it share any interest with Lekas. Section 2- 3.3 of the Contract states, in full: "Subcontractors shall be considered employees of the Contractor, and the Contractor shall be responsible for their work." If Lekas performed work during the daytime, it is only because the City authori.zed JCI to perform daytime work and JCI, in tum, had Lekas perform the work for JCI. If JCI perceives daytime work to be a benefit, then JCI may consider having received the benefit ofperforming work (through its subcontractor) during the day. For the record, the City does not view day work vs. night work as beneficial or consequential. Rather; the City's assessment of requests for deviations in the Contract work hours are based upon the benefit to the Project while considering the requirements of the Contract, public safety, convenience and potential impacts to the right-of-way and private property. 5. Finally, JCI submitted its request to work during the day because, as stated in Ms. Romero's email of Oct. 14, 2020, JCI would not be able to secure concrete until "the last week of October for night delivery." The scheduling constraints for securing concrete for Public Works Branch Construction Management & Inspection Department 1635 Fa raday Avenue I Carlsbad, CA 92008 I 760-602-2780 t I CMl@carlsbadca.gov Mr. Hector Romero, Just Construction, Inc. Oct. 27, 2020 Page 5 night work is a known factor within the industry and had been a topic of discussion during several progress meetings. The City did not find justification for introducing additional risk and potential impacts to public safety, the right-of-way, adjacent businesses and their patrons as a result of the Contractor's inability to properly schedule its work. ' Ultimately, a few hours after JCI transmitted its Oct. 15, 2020 email claiming discrimination due to the City's rejection of its request to work during the day, JCI notified the City that JCI was able to secure concrete for the evening of Monday, Oct. 19, 2020. The City is thankful that the Contractor was able to mitigate the potential delay on short order. The ease with which the Contractor was able to resolve the matter supports the City's assessment of the situation -that a relatively minor scheduling issue on the Contractor's end did not provide justification for deviating from the Contract work hours and introducing risk to the project. Contract Authority and Determinations: Signal Pole, Storage In a letter dated Oct. 15, 2020 with subject City Change Order NO. 06 I Response to City's Letter Dated October 13, 2020 (Attachment C), JCI asserted the following: "As everyone involved in the contract is aware the contract requirements have been broken in many aspects to date, LEKOS has been allowed to work during the day, Lekas have allowed to use the city's property to store materials and equipment, etc. while JCI has not been given the opportunity for the same privileges." This statement by JCI is inaccurate in the following ways: A. The Contract has not been broken. The City continues to operate within the terms of the Contract. B. The City has provided JCI with authorization to perform work during the day. JCI, in turn, has directed its subcontractor, Lekas, to perform this work for them. C. Early in the Project, JCI requested payment for materials procured under the Contract. The City does not allow for payment of materials that have not been installed unless the materials have been received and are in the City's possession or unless the materi'als are stored in an offsite, secure location that is licensed, bonded and insured. JCI was unable, or did not wish, to secure a licensed, bonded and insured facility. In the spirit of partnership, the City accommodated JCI by allowing it to store Project materials at a City facility so that JCI could receive payment for these high-cost items. All discussions and agreements regarding this item were made between the City, JCI and JCl's subcontractor, Lekas. Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Ca rlsbad, CA 92008 I 760-602-2780 t I CMl@carlsbadca.gov Mr. Hector Romero, Just Construction, Inc. Oct. 27, 2020 Page 6 Conclusion It is my determination, based on my professional experience and a review of the Project file, that the City's actions under this Contract have been appropriate and consistent with the requirements and spirit of the Contract. Should JCI choose to pursue a claim of discrimination against the City, you are advised to contact Mr. Schwabe of the Human Resources Department {Darrin.Schwabe@carlsbadca.gov; {760) 271-5548) to file a claim. Any future Contract disputes shall follow the appeals process under Section 3-5 of the Contract. Sincerely, Engineering Manager Construction Management & Inspection Department Attachments: A. City's Respectful Workplace Policy B. Mr. Hector Romero of JCI email of Oct. 15, 2020, 11:45 a.m. C. JCI letter of Oct. 15, 2020, Subject: City Change Order NO. 6 I Response to City's Letter Dated October 13, 2020 cc: Paz Gomez, Deputy City Manager, Public Works Robby Contreras, Assistant City Attorney Darrin Schwabe, Human Resources Manager Valerie Airey, Municipal Projects Manager Public Works Branch Construction Management & Inspection Department 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-2780 t I CMl@carlsbadca.gov City of Carlsbad -Respectful Workplace Policy /if\COVID-19 Information \~/ Page 1 of l Attachment A Latest health orders. prevention information. case data and assistance information. {city of Carlsbad Ca l i forn i a Respectf ul Wo,_r kp lace Po li cy The City of Carlsbad values a diverse workforce and is committed to providing equal employment opportunity to all applicants and employees regardless of race, sex, religious creed, color, national origin or ancestry, physical or mental disability, medical condition, marital ·status, veteran's status, age or sexual orientation. This commitment applies to all personnel actions, including but not limited to compensation, benefits, terms and conditions of employment, opportunities for promotion, training and development, transfer, and other privileges of employment. The city also values respectfulness, collaboration, and teamwork in the workplace and prohibits any form of discrimination and harassment that would otherwise conflict with these values. Any applicant, official or contractor found in violation of this policy will be subject to appropriate sanctions. Any employee or officer found in violation of this policy will be subject to disciplinary action up to and including termination. It is further the policy of the City of Carlsbad to comply with the letter and spirit of applicable local, state and federal laws concerning equal employment opportunity. For questions about the city's policy, please call 760-602-2440. https://www.carlsbadca.gov/services/depts/hr/respect.asp 10/20/2020 ADMINISTRATIVE ORDER NO 45 (REVISED) This order supercedes Administrative Orders 45 and 56 TO: FROM: ALL DEPARTMENTS CITY MANAGER RESPECTFUL WORKPLACE & NON-DISCRIMINATION POLICY PURPOSE In harmony with the City's mission to provide top-quality service that enhances the quality of life for all who live, work, and play in Carlsbad, the City is committed to maintaining a workplace that respects all individuals and is fr_ee from discrimination and harassment in any form. This policy outlines: I) the behaviors, practices and activities that are expected in the workplace, 2) the responsibilities of employees, managers/supervisors and the Human Resources Department, and 3) the actions that wilJ be taken to ensure this policy is affirmed. POLICY: • The City values a diverse workforce and is committed to providing equal employment opportunity to all applicants and employees regardless of race, sex, religious creed, color, national origin or ancestry, physic!).l or mental disability, medical condition, marital status, veteran's status, age or sexual orientation. This commitment applies to all personnel actions, including but not limited to compensation, benefits, terms and conditions of employment, opportunities for promotion, training and development, transfer, and other privileges of employment. • The City also values respectfulness, collaboration, and teamwork in the workplace and prohibits any form ofdiscrimination and harassment that would otherwise conflict with these values. Any applicant, official or contractor found in violation of this policy will be subject to appropriate sanctions. Any employee or officer found in violation of this policy will be subject to disciplinary action up to and including termination. • To ensure that the City's respectful workplace is preserved, a timely complaint procedure to report violations of this policy is available to all individuals. Human Resources is responsible for administering this complaint procedure, including authorizing and/or conducting an investigation and, in consultation with the affected department, recommending disciplinary action commensurate with the severity of the offense and other appropriate remedial action. 1 RESPONSIBILITIES . All City Employees: • Mode] behavior that respects aJ1 individuals in the workplace and that complies with the principles and spirit of this policy. • Report any act that he/she belteves in good faith constitutes harassment or discrimination, as defined here, to management or to the Human Resources Department. • Maintain confidentiality in any investigation that the City conducts by not disclosing the substance of any investigatory interview, except as directed by the Department Head or Human Resources. • Cooperate fully with the City's investigatiop into alleged violations of this policy by respc;mding fully and truthfully to all questions posed during the investigation. Management and Supervisory Employees (including Officers and Officials): • Be knowledgeable about this policy and model behavior that respects all individuals in the workplace and complies with the principles and spirit of this policy, • Inform and communicate this policy to your employees, answer any questions and provide guidance to employees regarding appropriate behavior in the workplace. • Be proactive in monitoring yolir work environment and take immediate appropriate action to stop potential violations, such as removing inappropriate pictures and correcting inappropriate language. . · · • Take complaints of discrimination and harassment seriously by immediately dealing with the situation, listening to the complaint, assuring the victim of protection against reprisals or retaliation, and immediately reporting the complaint to your Department Head and Human Resources for further action. • Implement appropriate discipline and remedial action after the investigation. Human. Resources Department: • Ensure that all employment decisions and practices comply with this Administrative Order. • Communicate the policy of respectful workplace, non-discrimination and equal opportunity employment through internal and external postings on official bulletin boards, in employee orientations, in training, and through other employment documents. • Provide guidance and training to managers and supervisors regarding their responsibilities as outlined in this Administrative Order. • Administer the complaint procedure, including authorizing and/or conducting investigations and in consultation with departments, recommending disciplinary action commensurate with the severity of the offense and other remedial action. 2 DEFINITIONS: Below are definitions of words or phrases that will help you to understand thi°s policy. Many of these definitions occur in the law and are spelled out in detail to ensure that specific behaviors that have legal consequences are clearly understood. Respectful Workplace means a work environment in which all individuals treat one another in a courteous, honorable and esteemed manner. Behaviors that'promote the core competencies of effective teamwork, collaboration, leadership and quality customer service will be the standards by which all employees will be evaluated. Protected Classifications identified in the law include: 1) ~ individual's sex, race, religious creed, color, national origin or ancestry, physical or mental disability, medical condition, marital status, veteran's status, age or sexual orientation (heterosexual, homosexual or bisexual); 2) an individual who is perceived to have a protected classification; and 3) an individual who associates with a person who has or is perceived to have a protected classification. · Discrimination: The result of an action(s) that negatively and unfairly impacts an individual or group of individuals based on their protected classification. · Harassment: is a form of discrimination. Depending on the circumstances, a single act of harassment or a series of acts, as defined below, can VIolate this Adriiinistrative Order. Verbal Harassment includes epithets, jokes, comments, or slurs that identify a person on the basis of his/her protected class1fication, intimate or other nicknames, comments on appearance--including dress or physical features-or stories that tend to disparage those within a protected classification. Visual Forms. of Harassment include gestures, posters, notices, bulletins, cartoons, pictures or drawings that tend to disparage those within a protected classification. Physical Harassment includes assault, impeding or blocking movement, physically interfering with normal work or movement, pinching, grabbing, patting, propositioning, leering, making expres~ or implied job threats or promises in return for submission of physical acts, mimicking, stalking or taunting. Sexual Harassment includes unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature directed at an . employee which is presented as a condition of an employment benefit, unreasonably interferes with an individual's work performance or creates a hostile, intimidating or offensive work environment. 3 Guidelines for Identifying Harassment: 1. Behavior is unwelcome and which ts taken because of a recipient's protected classification. 2. The behavior is measured from the totality of circumstances, including the nature and severity of the conduct, frequency of the offensive behavior, interference with work performance, effect on the complaining employee and the context in which the conduct occurred. 3. An objective standard is applied; e.g., would a ')"easonable person of comparable circumstances and status" find the behavior hostile or abusive? 4. Harassment can occur even if a recipient appears to voluntarily "consent" to the conduct at issue (for fear of being insubordinate or retaliated against or to avoid being ostracized) or even if the intent of the behavior is not meant to be offensive. 5.. If you are in doubt as to whether any particular conduct may violate this Administrative Order, seek guidance from your supervisor or Human Resources. Retaliation is any adverse conduct taken because an individual has reported harassment or has participated in the investigation of a discrimination or harassment complaint. Adverse conduct means taking sides because an individual has reported harassment, spreading rumors about a complainant, ostracizing an individual who reports harassment or threatening to prevent an individual from reporting harassment. · Confidentiality in the investigative process means that those interviewed are prohibited from discussing the substance of the interview, except as .otherwise directed by a supervisor, manager or Human Resources. Compiete confidentiality cannot occur because the City must disclose the substance of a complaint in order to fully investigate and take effective remedial action. The City will not disclose a completed investigation report except, as it deems necessary to support a disciplinary action, to take remedial action, to defend itself in adversarial proceedings, or to comply with the Jaw ot a court order. · COMPLAINT PROCEDURE: Any individual who feels he/she has been discriminated, harassed or retaliated against in violation of this Administrative Order should report the conduct immediately so that the complaint can be resolved quickly and fairly. The City strongly encourages any individual who feels that he/she has been discriminated or harassed in violation of this policy to let the offending person know immediately and firmly that the conduct at issue is unwelcome, offensive and inappropriate and must stop, l . If an individual who has been discriminated or harassed prefers not to confront the offending person, the individual is encouraged to immediately report the conduct to their supervisor, department head, any member of management or to Human 4 Resources. The individual shou]d provide aUdetails of the incident or incidents, including the names of individuals involved and of any witnesses. 2. Any management employee who receives a complaint or learns of a potential violation must promptly report the infonnation to his/her superiors and/or to Human Resources and, if necessary, take action to diffuse volatile circumstances. 3. Human Resources will immediately undertake or direct a prompt, discrete, thorough and objective investigation of the allegations at issue. All complaints, and· in some situations where complaints are not filed, will be investigated to the extent that the City deems appropriate. The investigation will normally include interviews with the reporting individual, the accused, and any other person who is believed to have relevant knowledge concerning the allegations. The investigator will remind all interviewees to maintain the confidentiality of the content of the interview and that retaliation against those who report alleged harassment or who participate in the complaint pr:ocedure is prohibited. 4. A report of the findings and conclusions will be submitted to the Department Head who, in consultation with appropriate management staff, will determine the final decision and appropriate course of remedial action. If disciplinary action is warranted, notification and appeal procedures will be followed in accordance with the City's disciplinary policy. 5. The outcome of an investigation will be communicated to the complainant. Details of · any disciplinary or remedial actions will not be disclosed. 6. IndividuaJs have the option to report discrimination, harassment and retaliation to the U.S. Equal Employment Opportunity (EEOC) or·to the California Department ofFair Employment and Housing (DFEH). These governmental agencies offer legal remedies and a complaint process. The addresses and phone numbers of these agencies are listed on official employment postings located on City bulletin boards. If you have any questions regarding this policy, please contact the Human Resources Department. RAYMOND R. PATCHETT City Manager 5 Babaq Taj From: Se nt: To: Cc: Subject: Attachments: Valerie, . Attachment B Hector Romero. <hector@justconstructioninc.com> Thursday, October 15, 2020 11 :45 AM Valerie Airey; 'Leonor Romero'; 'Shawn Stewart'; 'Kugan Panchadsaram'; roger@kugan.com 'Sonia Garcia'; 'Elias Gallegos'; 'Andres Romero'; Babaq Taj; Darrin Schwabe; 'P.E. Marc Uribe' PAR -Concrete Availability Concerns Response 8.3.20.pdf; 8.7.20.pdf; 8.18.20.pdf; 8.21.20.pdf; 9.2.20.pdf; 9.8.20.pdf; 9.22.20.pdf; 9.23.20.pdf; 9.28.20.pdf; 10.9.20.pdf It is amazing how LEKOS which is a Caucasian owned firm was allowed to pour concrete during the day on September 8, 2020 and September 23, 2020 under the same contract, same exact circumstances, at the same precise location. JCI is being denied the same request, as you are well aware that JCI is a small minority (Hispanic) owned business, we beg to question why is JCI being denied this request? As far as your you comment of "JCI has been aware there are advanced scheduling requirements for ordering concrete since August", as you are well aware JCI was able to pour concrete on October 7, without any problems. JCI does not have any control of the concrete suppliers availability due to the current fires causing these conditions. · Furthermore LEKOS was allowed to work during the day on the project, August 3, 2020, August 7, 2020, August 18, 2020, August 21 , 2020, September 2, 2020, September 8, 2020, September 22, 2020, September 28, 2020 and October 9, 2020 (see attached dailies from LEKOS). Valerie, as previously stated by Mr. Babaq Taj on August 25, 2020 e-mail "Hector-Thank you for your email. I always support and encourage the city's contractors to follow the contract, so I'm glad to hear that you feel the same way. 11 JCI expectations would be that the same rules and treatment would be applied to everyone regardless of their differences. Thank you, I<, CONSTRUCTION General Building and Engineering Contractor 1 Lie. No. 968910 A.B.C-8 Hector Romero 3103 Market Street San Diego, CA 92102 Phone: 619. 702. 7220 Fax: 619.702.7110 Cell: 619.548.5485 hector@justconstructioninc.com ****** CONFIDENTIALITY NOTICE: This e-mail and the transmitted documents contain private, privileged and confidential information belonging to the sender. The information therein is solely for the use of the addressee. If your receipt of this transmission has occurred as the result of an error, please immediately notify us so we can arrange for the return of the documents. In such circumstances, you are advised that you may not disclose, copy, distribute or take any other action in reliance on the information transmitted. From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Thursday, October 15, 2020 8:21 AM To: Leonor Romero <leonor@justconstructioninc.com>; 'Shawn Stewart' <SStewart@kleinfelder.com> Cc: 'Hector Romero' <hector@justconstructioninc.com>; Sonia Garcia <sonia@justconstructioninc.com>; 'Elias Gallegos' <egallegos@sioncc.com>; Andres Romero <andres@justconstructioninc.com.>; Babaq Taj <Babaq.Taj@carlsbadca.gov> Subject: RE: PAR -Concrete Availability Leonor, The concrete pour is not approved for day time hours. Please proceed per the contract work hours of 8pm-5am. JCI has . been aware there are advanced scheduling requirements for ordering concrete since August. JCI has not provided a schedule updated since June 2020. It is the contractor's responsibility to plan and coordinate its work so as not to impact production. Thank you, · Cit:yof Carlsbad Valerie Airey, MPA, LEED AP, QSP Municipal Projects Manager Public Works City of Carlsbad 1635 Faraday Ave. Carlsbad, CA 92008 www.carlsbadca.gov 760-450-4101 mobile From: Leonor Romero (mailto:leonor@justconstructioninc.com] Sent: Wednesday, October 14, 2020 3:11 PM To: Valerie Airey <Valerie.Airey@carlsbadca.gov>; 'Shawn Stewart' <SStewart@kleinfelder.com > Cc: 'Hector Romero' <hector@justconstructioninc.com>; Sonia Garcia <sonia@justconstructioninc.com>; 'Elias Gallegos' <egallegos@sioncc.com>; Andres Romero <andres@justconstructioninc.com>; Babaq Taj <Babaq.Taj@carlsbadca.gov> Subject: PAR -Concrete Availability 2 Valerie, As per our conversation during today's meeting, JCI is sending you the following information for your review and approval. As you well know and Shawn has confirmed that Robertson's will not have concrete available until the last week of October. We called several concrete companies and found that most of them have the same problem (shortage of concrete due to the Fires up North). I have found that Hanson's does have concrete available during day hours vs night hours for which they also do not have concrete available until the last week of October for night delivery. Hsanson's availability of concrete during the day is as early as this Friday 10/16/2020. I have spoken to Rosa in dispatch and ask if she could send this in writing, for which she responded that she could not. But that anyone is welcomed to call and find out this information. As mentioned above her name is Rosa and her number is 1-858-715-5600 and press number 1. During our meeting Hector explained how this will not impact the traffic nor will JCI be closing the traffic lanes to perform this concrete pour in Phase 2. With this said JCI is respectfully requesting to see if we can perform this scope of work during the day. Your prompt attention to this matter is greatly appreciated, so that we can prepare any additional documentation that is needed (i.e. submittals, etc.) Thank you. Leonor .t!CIN - Leonor Romero 3103 Market Street San Diego , CA 92102 (619)702-7220 -Office (619)702-7110 -Fax (619)288-2262 -Cell leonor@justconstructioninc.com . CAUTION: Do not open attachments or click on links unless 3 nize the sender and know the content i Attachment C October 15, 2020 Ms. Valerie Airey, MPA, LEED AP Municipal Projects Manager -Public Works City of Carlsbad 1635 Faraday Ave. Carlsbad, CA 92008 Valerie.Airey@carlsbadca.gov JUST CONSTRUCTION, INC. GENERAL BUILDING & ENGINEERING CONTRACTORS CONTRACTOR'S LICENSE NO.: 968910 www.justconstructioninc.com 31 03 Market Street San Diego, CA 92102 Ph: (619) 702-7220 Fax: (619) 702-7110 SENT VIA E-MAIL In Response to This Letter Please Refer to this No. 11 Reference: PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Subject: City Change Order NO. 06 / Response to City's Letter Dated October 13, 2020 Ms. Airey, Regarding your response to JCI's letter dated October 5, 2020, JCI responds as follow: On your I st paragraph you state "JCI lacks documentation to substantiate its claim of a 101 working day delay." As it relates to the 101 working days delay they are from the notice to proceed of December 17, 2019 to May 10, 2020 (minus the 42 days accounted for in CO No.I), they can be easily accounted for, that is the reason JCI is accepting payment for undisputed amounts of Change Order No. 6 under protest and duress. There has been plenty of notifications to the City, including JCl's Letter No. 03 Dated March 2, 2020 -JCI's Letter No. 04 Dated March 19, 2020 and JCI's Letter No.IO Dated October 5, 2020. As previously brought to Mr. Babaq attention it appears that the City's treatment towards JCI js very different in many aspects from other Public Works Contracts previously performed by JCI, even in comparison with the City of Carlsbad own contract perfonned by JCI on July 22, 2016, NORTHWEST QUADRANT STORM DRAIN PROGRAM (MONROE), BID NO. PWS 16-l 16TRAN , PROJECT NO. 6608. JCI has previously questioned the city's treatment and motives towards JCI, as a matter of fact JCI had a telephone meeting which was conducted on June 22, 2020 with Mr. Babaq Taj and Mr. Darrin Schwabe (Human Resource Manager), Leonor, Sonia and myself, in which various questions surfaced to no avail. JCI was told that everything was fine, and we needed to continue with the performance of the contract. ' As the response to your statement of: "JC! did not mobilize. In the five weeks.following its notification to JC! to proceed with the work on March 16, 2020, the city provided JCI no less than eight written requests for JC! to mobilize and to complete the contract scope of work. Despite free and clear access to the contract scope of work and many requests by the dty for JCI mobilize to the site, JC! did not mobilize until May 11, 2020. " Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Letter. No. 11 On February 24, 2020, JCI received the following e-mail from the city and informed all of its employees that the project was delayed until May 11, 2020, JCI employees proceeded to find employment elsewhere committing to JCI that they would return on May 11, 2020. From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Monday, February 24, 2020 2:40 PM To: Hector Romero <hector@justconstructioninc.com>; 'Shawn Stewart' <SStewart@kleinfelder.com> Cc: 'Leonor (Just Construction)' <leonor@justconstructioninc.com>; andres@justconstructioninc.com Subject: RE: Your telephone phone call today Hello Hector, Yes, the new mobilization date would be May 11, 2020. This was not requested by the Mayor as you stated, but is the request of the city. Thank you, From: Hector Romero <hector@justconstructioninc.com> Sent: Monday, February 24, 2020 1:24 PM To: 'Valerie Airey' <Valerie.Airey@carlsbadca.gov>; 'Shawn Stewart' <SStewart@kleinfelder.com> Cc: 'Leonor (Just Construction)' <leonor@justconstructioninc.com>; ,'andres@justconstructioninc.com' <andres@justconstructioninc.com>; Subject: Your telephone phone call today Good afternoon Valer[e, I just want to confirm our telephone conversation of today at 12:28 PM , February 24, 2020 the main reason being is the fact that Leonor placed the order earlier today to procure the long lead time Precast Porous Concrete Materials and based on the mentioned delay in the commencement of the project will cause additional storage cost for these materials as well as other costs. You have asked me to consider the commencement date of the PAR Project to be changed to May 11, 2020 as requested by the Mayor due to the flower field festival event. As you are aware we are all geared up to mobilize next week on Tuesday March 3, 2020 per our current schedule. JCI doesn't have any problems, in the spirit of partnering with the City of Carlsbad, to make the project commencement date on May 11 , 2020, however please be aware that unfortunately additional cost will be incurred do to your request. Please confirm that you do in fact want the May 11 , 2020 to be the PAR Project New Commencement Date in order for JCI to take action. Regards, What is not mentioned in your letter is the fact that JCI provided over twelve responses struggling to find a way to resolve the problem caused by the City's delayed mobilization direction given to JCI. JCT believes that the request from the city for JCI to mobilize earlier than the previously agreed date of May 11, 20020, was due to the fact the State of California mandated that all public gatherings were canceled due to the Corona Virus Epidemic, thus this causing the city to cancel the Flower Festival, therefore the city wanted JCI to "Please let me know if JCI is able to perform this work sooner than May 11, while maintaining all contract requirements." As everyone involved in the contract is aware the contract requirements have been broken in many aspects to date, LEKOS has been allowed to work during the day, Lekas have allowed to use the city's prope1ty to store materials and equipment, etc. while JCI has not been given the oppo1tunity for the same privileges. From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Tuesday, March 17, 2020 10:44 AM To: Hector Romero <hector@justconstructioninc.com> Cc: 'Leonor (Just Construction)' <leonor@justconstructioninc.com>; Shawn Stewart <SStewart@kleinfelder.com> Subject: PAR Widening-Start of Work Importance: High Hector, Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 In our meeting on March 9, 2020, among the many items discussed you requested that the city find a way to allow JCI to start work as soon as possible, instead of waiting until May 11, 2020 to mobilize. The city has since decided that mobilization and work on the Palomar Airport Widening project can begin immediately. Per our conversation yesterday, please advise the soonest date JCI will be able to mobilize and start work. Thank you JCI promptly responded with the e-mail below by stating: From: Hector Romero <hector@justconstructioninc.com> Sent: Thursday, March 19, 2020 11:56 AM To: 'Valerie Airey' <Valerie.Airey@carlsbadca.gov> Cc: 'Leonor (Just Construction)' <leonor@justconstructioninc.com>; 'Shawn Stewart' <SStewart@kleinfelder.com>; 'Babaq Taj' <Babaq.Taj@carlsbadca.gov>; 'Sonia Subject: PAR Widening -Start of Work Good morning Valerie, We are in receipt of your two e-mails below. There seems to be a misunderstanding by the City of Carlsbad, as to JC/ requesting to return to work as soon as possible. JC/'s purpose of the meeting was to discuss the impact created by the change from the March 3, 2020 mobilization to May 11, 2020 mobilization. As the city of Carlsbad is aware, JC/ was staged and ready to mobilize on March 3, 2020. As a result ofthe City of Carlsbad changing the mobilization date to May 11, 2020, JC/ has demobilized its equipment and personnel in the anticipation of remobilization on May 11, 2020. Valerie, as a follow up to our recent telephone conversations, I have informed you that only two out of the ten workers originally staffed for this proiect are currently available. JC/ will be staff and ready on May 11, 2020, as previously requested by the City of Carlsbad. Just is entitled to its delay costs from 12/17 /19 through 5/10/20, which is 101 working days, Jess 42 working days (based on CO 1) is 59 working days On March 25, 2020, the City of Carlsbad further clarified the contract duration and mobilization date of May 11, 2020 by stating: Mr. Romero, As requested in Just Constriction, Inc. 's (JC/) letter dated March 19, 2020, below is clarification on the project working days accounting. City of Carlsbad issued the project Notice to Proceed for Dec. 17, 2019, PWS19-745TRAN contract has a 70-working day duration. With the Notice to Proceed of Dec. 17, 2019 and 70-working days, the contract completion date is March 27, 2020 .. Contract Change Order No. 1 awarded 42 working days to the contract duration at no cost to the City of Carlsbad. With the 70 contract working days, plus the 42 working days awarded in Contract Change Order No. 1 (112 total working days}, the revised completion date is May 27, 2020. The City of Carlsbad revised the mobilization date from March 3, 2020 to May 11, 2020. There are 49 working days between March 3, 2020 to May 11, 2020. The potential impact duration is approximately from March 3, 2020 to May 10, 2020, or 49 work days. On March 30, 2020, JCI received the e-mail below stating: From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Monday, March 30, 2020 11:28 AM To: Hector Romero <hector@justconstructioninc.com> Cc: 'Leonor (Just Construction)' <leonor@justconstructioninc.com>; Shawn Ste·wart <SStewart@kleinfelder .. com> Subject: Palomar Airport Widening Project Status Hello Hector, I hope-you are well. I just wanted to follow up to see if you were able to mobilize sooner than May 11, 2020. As previously stated, the city is wanting to start this project and have JCI mobilize as soon as possible. In "following the guidance provided by the state and County of San Diego, the City of Carlsbad will continue to support construction activities. Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Letter. No. 11 On March 30, 2020, JCI responded with the e-mail below stating: From: Hector Romero <hector@justconstructioninc.com> ·sent: Monday, March 30, 2020 1:15 PM To: 'Valerie Airey' <Valerie.Airey@carlsbadca.gov>; 'Shawn Stewart' <SStewart@kleinfelder.com>; 'Babaq Taj' <Babaq.Taj@carlsbadca.gov> Cc: 'Leonor (Just Construction}' <leonor@justconstructioninc.com>; 'sonia@justconstructioninc.com' <sonia@justconstructioninc.com>; Subject: Project Status Response and Offer Good morning Valerie, In response to your email below, JCI has been keeping up with getting what is needed to get the project going, JCI has the following to offer: We have 4 workers available now plus myself, JCI proposes to perform the work on the center island as shown on the Demolition and Improvement Plans pasted below. We suggest to accomplish this work while the Government requested the business in the vicinity to be closed. JCI would like to perform this work during the day and respectfully request that the time taken to perform this work not be counted against our contract days, since JCI is scheduled to fully mobilize on May 11 , 2020. In addition COVID 19 social distancing regulation will be observed during the performance of the work thus this adding to our request for the time not to be accounted for. Please let me know what you think, we can discuss l1ow JCI and the City of Carlsbad can continue to mitigate the financial impact to the project. From: Hector Romero <hector@justconstructioninc.com> _Sent: Monday, March 30, 2020 1:15 PM To: 'Valerie Airey' <Valerie.Airey@carlsbadca.gov>; 'Shawn Stewart' <SStewart@kleinfelder.com>; 'Babaq Taj' <Babaq.Taj@carlsbadca.gov> Cc: 'Leonor (Just Construction}' <leonor@justconstructioninc.com>; 'sonia@justconstructioninc.com' <sonia@justconstructioninc.com>; Subject: Project Status Response and Offer Good morning Valerie, In response to your email below, JCI has been keeping up with getting what is needed to get the project going, JCI has the following to offer: We have 4 workers available now plus myself, JCI proposes to perform the work on the ceIiter island as shown on the Demolition and Improvement Plans pasted below. We suggest to accomplish this work while the Government requested the business in the vicinity to be closed. JCI would like to perform this work during the day and respectfully request that the time taken to perform this work not be counted against our contract days, since JCI is scheduled to fully mobilize on May 11 , 2020. In addition COVID 19 social distancing regulation will be observed during the performance of the work thus this adding to our request for the time not to be accounted for. Please _let me know what you think, we can discuss how JCI and the City of Carlsbad can continue to mitigate the financial impact to the project. On March 30, 2020, JCI received the e-mail below stating: From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Monday, March 30, 2020 2:36 PM To: Hector Romero <hector@justconstructioninc.com>; 'Shawn Stewart' <SStewart@kleinfelder.com>; Babaq Taj <Babaq.Taj@carlsbadca.gov> Cc: 'Leonor (Just Construction}' <leonor@justconstructioninc.com>; sonia@justconstructioninc.com; andres@justconstructioninc.com; 'Elias Gallegos' Subject: RE: Project Status Response and Offer Hello Hector, Thank you for your response. We are unable to modify the contract requirements as you have described. Please let me know if JCI is able to perform this work sooner than May 11, while maintaining all contract requirements. Thank you, On March 30, 2020, JCI responded with the e-mail below stating:·, From: Hector Romero <hector@justconstructioninc.com> Sent: Monday, March 30, 2020 3:07 PM To: Valerie Airey <Valerie.Airey@carlsbadca.gov> Cc: Shawn Stewart <SStewart@kleinfelder.com>; Babaq Taj <Babaq.Taj@carlsbadca.gov>; Leonor (Just Construction} <leonor@justconstructioninc.com>; Subject: Re: Project Status Response and Offer Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Letter. No. 11 Valerie, Thank you for your response below, JCI can mobilize at no additional cost and perform the work as described below. Is there anything that the City of Carlsbad is willing to do (or negotiate) to allow JCI to perform any work at the site prior to May 11, under the circumstances? Please let me know ... On March 30, 2020, JCI received the e-mail below stating: On Mar 30, 2020, at 3:37 PM, Valerie Airey <Valerie.Airey@carlsbadca.gov> wrote: Hello Hector, There is nothing to negotiate, Just Construction has free and clear access to start this job immediately. The contract requirements will remain in place. On March 30, 2020, JCI responded with the e-mail below stating: From: Hector Romero [mailto:hector@iustconstructioninc.com1 Sent: Monday, March 30, 2020 4:45 PM To: Valerie Airey <Valerie.Airey@carlsbadca.gov> Cc: Shawn Stewart <SStewart@kleinfelder.com>; Babaq Taj <Babaq.Taj@carlsbadca.gov>; Leonor (Just Construction) <leonor@justconstructioninc.com>; Subject: Re: Project Status Response and Offer Valerie, I am sorry about the misunderstanding and my lack of words as it relates to the word I used "negotiate" I meant anything that can be done on "your" side to help JCI mobilize prior to May· 11, 2020. I understand, it appears that there is nothing that the City of Carlsbad can do to make this happen prior to _May 11. JCI will continue to target the mobilization date of May 11, 2020 as previously directed by the City of Carlsbad. On April 13, 2020, JCI received the e-mail below stating: From: Valerie Airey <Valerie.Airey@carlsbadca.gov> Sent: Monday, April 13, 2020 8:34AM To: Hector Romero <hector@justconstructionihc.com> Cc: 'Leonor Romero' <leonor@justconstructioninc.com>; Shawn Stewart <SStewart@kleinfelder.com> Subject: PAR Widening Status Hello Hector, I wanted to follow up to see if your position has changed and are able to mobilize sooner than May 11, 2020. The city is wanting to have JCI mobilize as soon as possible. Please let me know if you are able to start. On April 13, 2020, JCI responded with the e-mail below stating: From: Hector Romero <hector@justconstructioninc.com> Sent: Monday, April 13, 2020 1:54 PM To: 'Valerie Airey' <Valerie.Airey@carlsbadca.gov> Cc: 'Leonor Romero' <leonor@justconstructioninc.com>; 'Shawn Stewart' <SStewart@kleinfelder.com>; 'Elias Gallegos' <egallegos@sioncc.com>; Subject: PAR Widening Status Good afternoon Valerie, I have been trying hard to get the workers back and the majority still committed to their present employers until May 7, 2020. Valerie please conside~ my previous request, I understand that you want to abide by the contract documents and I agree. However contract Section 6-7.2 states "Contractor shall obtain the written approval of the Engineer if the Contractor desires daytime work or work ... " (pasted below) Valerie, there are many health and safety issues taking place with the ongoing COVID 19 events, which working at night will make it more vulnerable to be exposed to the Corona Virus, in addition many of the construction material suppliers are closing their stores early and some are completely Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Letter. No. 11 closed, it is becoming a challenge to proceed with proper work production as if everything was normal, our contract give us a lead way to work during the day should you desire. As previously requested, I would like to use the three workers and myself currently available to at least commence with the work at the • .location pasted below. Please let me know what you think. I understand if you don't want to proceed under this conditions and wait until May 11, 2020. As it relates to your misleading comments of "JC] has not submitted proper notification or documentation of potential impacts and delays. Additionally, JC] has not submitted a monthly construction schedule update since June 2020. " JCI has indeed submitted schedule updates with realistic events taking place on the project, the updates have been rejected by the city without any factual reason, the city took from September 2019 to October 2020 (over one year) to address and correct all the discrepancies with the new water services installation which had to be performed prior to any other work being performed. JCI moved on to perform out of sequence depleting all its labor and equipment budget due to lack of efficiency. JCI performed Phase I within the time allotted in the contract as a matter of fact it completed approximately 5 days ahead of schedule, while phase 2 is taking since June 8, 2020 to date to be performed due to no fault of JCI. On July 7, 2020 the city decided to break its own contract by directing JCI to perform work on Phase 3 prior of the completion of Phase 2, JCI laydown was located at the area of work of Pl1ase 3 thus this creating more pain and suffering to JCI. Sincerely, Hector RomeroNice President HR/msu Cc: File Just Construction, Inc. I PAR Widening; Bid No. PWS19-745TRAN; Contract No. 6043 & 6044 Letter. No. 11