HomeMy WebLinkAbout07-06-2004 - Ordinance No. 2334
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Ordinance - Adding Redding Municipal Code Chapter 4.23, Debarment of Contractors
(B-050)
It is the recommendation of the City of Attorney that Ordinance No. 2334 be adopted, an ordinance
ofthe City Council of the City of Redding adding Chapter 4.23 (Debarment of Contractors) to Title
4 (Revenue and Finance) of the Redding Municipal Code.
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7/6/2004
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ORDINANCE NO. 2334
AN ORDINANCE OF THE CITY OF REDDING ADDING
CHAPTER 4.23 (DEBARMENT OF CONTRACTORS) TO
TITLE 4 (REVENUE AND FINANCE) OF THE REDDING
MUNICIPAL CODE.
The City Council of the City of Redding does ordain as follows:
Section 1. Chapter 4.23 (Debarment of Con tractors) is added to Title 4 (Revenue and
Finance) of the Redding Municipal Code, to read asfollows:
Chapter 4.23
DEBARMENT OF CONTRACTORS
4.23.010
Application.
This chapter shall apply to all contracts awarded by or entered into by the City of Redding,
including, without limitation, purchases, contracts or leases for supplies, materials or equipment; contracts
for professional and nonprofessional services; contracts for public works or construction projects; and
contracts with insurance or surety companies issuing insurance policies or bonds for city public works or
construction projects, city-sponsored events or privately-sponsored events at city facilities. The provisions
of this chapter are intended to determine in advance of submittal ofbids or proposals on ci ty contracts
whether a person has the necessary qualifications, fitness, capacity, integrity and trustworthiness to perform
city contracts. Nothing in this chapter shall limit the city's ability to determine prior to or at the time of
contract award whether a bid or proposal is responsive to the city's solicitation for bids or proposals and
whether the person submitting the bid or proposal has the requisite qualifications, fitness, capacity,
trustworthiness and integrity needed to perform the contract.
4.23.020
Definitions.
For the purpose of this chapter, the following definitions shall apply:
A. Affiliates: Persons are "affiliates" if:
(1) One person directly or indirectly controls or has the power to control or influence
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the decision making of the other;
(2) A third person controls or has the power to control or influence the decision
making of both; or
(3) The person( s) has the same or overlapping management, ownership or one or
more of the same principals as the other person.
(4) The person is a controlling stockholder.
(5) The person has the same or similar management of the debarred corporate or
other legal entity.
(6) The person is the assignee, successor, subsidiary of, or parent company, of
another person.
Indicia of control include, but are not limited to: interlocking management or ownership,
identity of interests among family members, shared facilities and equipment or common use
of employees.
B. City Manager: The phrase "city manager" means the city manager of the City of Redding
or his or her designee.
C. Contract: The term "contract" shall include, but not be limited to, city contracts, leases,
licenses, agreements, purchase orders or lease-purchase agreements for the acquisition of:
(1) Supplies, materials or equipment;
(2) Professional or nonprofessional services;
(3) Public works or construction projects;
(4) Insurance policies or bonds provided in connection with a public works or
construction project, a city-sponsored activity or event or a privately-sponsored
activity or event at a city-owned, operated or controlled facility; and
(5) Other goods and services.
D. Controlling Stockholder. The term "controlling stockholder" means a stockholder who:
(1) owns more than 25 percent of the voting stock of a corporation; or
(2) notwithstanding the number of shares that the stockholder owns, has the power to
direct or control the direction of the management or policies of a corporation.
E. Debarment: The term "debarment" means the action taken pursuant to this chapter or by
another local, state or federal agency, to debar, suspend, prohibit, disqualify orrender a
person ineligible to bid upon, solicit, be awarded or perform public c~ontracts or any
portion thereof.
F. Hearing Board: The phrase "Hearing Board" means the three-member Board that shall
preside over any appellate hearings conducted pursuant to this chapter. The Hearing
Board shall consist of the city's Director of Development Services or his or her designee
and two Members at Large appointed by the City Council. The city's Director of
Development Services or his or her designee shall be the presiding member of the Hearing
Board.
G. Person: The term "person" means any person, individual, group~ association, firm,
corporation, partnership, joint venture company, sole proprietorship or other entity.
H. Predecessor-in- Interest: The phrase "predecessor-in-interest" means a person whose
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4.23.030
4.23.040
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rights, property or assets and/or debts or obligations are acquired or assumed by another
person.
Principal: The term "principal" means any officer, director, owner, partner, joint venturer,
shareholder, responsible managing officer, responsible managing employee or person with
primary management or supervisory responsibilities, including any person who has a
substantial influence or substantive control over performance of a contract.
Public Contract: The phrase "public contract" means any contract, lease, license,
agreement, purchase order or lease-purchase agreement that is awarded or entered into
by any federal, state or local agency, including the city, or any insurance policy or bond
provided in connection with a government public works or construction project,
government-sponsored activity or event or privately-sponsored activity or event at a
government-owned, operated or controlled facility.
Successor-in-Interest: The term "successor-in-interest" means a person who acquires the
rights, property or assets and/or assumes the debts or obligations of another person.
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K.
Debarment: Effect.
Notwithstanding any other provision of this code:
A. The city manager, or the Hearing Board on appeal, may debar or prohibit any person, or
any principal, affiliate or successor-in-interest thereof, from bidding upon, soliciting, or
being awarded any contract with the city or from being a subcontractor, supplier, insurer
or surety at any tier upon such contract, in accordance with the procedures established by
this chapter.
B. During the time period that a debarment pursuant to this chapter is in effect for any person,
the city shall not accept bids or proposals from, contract with or allow performance of all
or any portion of a city contract including, but not limited to, subcontracts, supply
contracts, insurance or surety agreements, by any person who has been debarred in
accordance with this chapter.
Notice.
Whenever notice is required to be given under this chapter, it shall be deemed effective on the day
such notice is either personally delivered or deposited in the United States Mail, first class postage prepaid
and addressed to the last known address of the person to be notified.
4.23.050
Grounds for debarment.
Debarment may be imposed on a person by the city manager, or the Hearing Board on appeal, in
accordance with the procedures established by this chapter on one or more of the following grounds:
A. Commission by such person of any act of:
(1) Fraud, bribery, collusion or conspiracy;
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(2) Bid rigging, price fixing or any other act in violation of any local, state or federal
law in connection with the bidding upon, solicitation, award or performance of any
public contract; or
(3) Embezzlement, theft, forgery, falsification or fabrication of records, moral turpitude
or perjury.
B. Commission of any act indicating a lack of integrity or honesty.
C. Submission of a bid, proposal, insurance policy, bond, guarantee or other document that
is known, or should be known, by such person to be false, misleading or nonmeritorious
or to contain false information.
D. Submission of any false, misleading ornonmeritorious claim, demand or lawsuit against any
private party or public agency, including the city.
E. Pending litigation between the person and the city, which could impact the ability of the
parties to work cooperatively with each other.
F. Breach ofthe terms of a public contract by a willful or material failure to perform in
accordance with the terms thereof.
G. Violation of a local, state or federal law or regulation applicable to a public contract.
H. Knowingly doing business with a disqualified or debarred third person in performance of
any public contract awarded after disqualification or debarment of said third person.
I. Substandard performance on any public contract, including, without limitation:
(1) a material breach thereof;
(2) a failure to complete work required thereunder in a timely manner or within the
contract price when such failure is attributable to the negligent or wrongful actions
or inactions of such person or such persons subcontractors or suppliers;
(3) substandard quality of work; or
(4) any negligent or wrongful failure to cooperate with the contracting agency during
performance ofthe public contract.
J. One or more violation during the performance of any public contract of any labor or safety
statutes, regulations or standards including, without limitation, applicable local, state or
federal statutes, regulations or standards governing prevailing wage, occupational safety
and health, nondiscrimination requirements or other local, state or federal laws.
K. Failure to have or maintain in good standing all necessary licenses, permits or other
approvals required to transact business within the State of California.
L. One or more violation of any law or regulation governing the handling, transfer, storage or
disposal of hazardous materials or hazardous wastes.
M. One or more violation of any law orregulation governing the handling, transfer, storage or
disposal of solid waste generated during the performance of such public contract.
N. A violation of any law or regulation governing conflicts of interest.
O. Evidence that the person lacks financial responsibility, such as unpaid debts, unfulfilled
insurance or bond obligations or other evidence of financial instability or irresponsibility.
P. Any other ground that the city manager, or the Hearing Board on appeal, determines
would impair the ability of the person to perform a public contract or any part thereof.
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4.23.060
Existence of groundls.
A. Existence of grounds for debarment as described in Section 4.23.050 ofthis chapter may be
determined to exist by the city manager, or by the Hearing Board on appeal, by a preponderance
of the evidence if, not more than ten years prior to the date that a written notice of proposed
debarment is provided to such person pursuant to section 4.23.090 of this chapter:
1. Such person has been convicted of a criminal charge for any act or omission described in
section 4.23.050 of this chapter, whether entered by a verdict or a plea including a plea
of no contest;
2. A final civil judgment has been entered against such person for any act or omission
described in section 4.23.050 of this chapter; or
3. Such person has committed one or more acts or omissions described in section 4.23 .050
of this chapter, based on a preponderance of evidence in the record of facts and
information presented to the city manager, or the Hearing Board on appeal.
B. An act or omission described in section 4.23.050 of this chapter may be imputed to a person who
is the subject of a proposed debarment when such act or omission is committed for or on behalf
of such person, and such person had actual or constructive knowledge of such act or omission.
C. In determining whether to debar a person and the duration of any debarment, the city manager, or
the Hearing Board on appeal, may consider, in addition to any other relevant factors, one or more
of the following:
1. The degree to which the person cooperated with local, state or federal authorities in any
investigation and/or any administrative or judicial proceeding forming the basis for
debarment;
2. The degree to which the person provided restitution for any damages or injury occasioned
by the person's acts or omissions;
3. Whether the person had in place adequate and effective standards of conduct and internal
control systems at the time of such acts or omissions;
4. Whether the person provided timely notice of such acts or omissions to the appropriate
government agency or agencies;
5. Whether the person :fully investigated the circumstances surrounding such acts or omissions
and promptly provided the city with the result of the investigation;
6. Whether the person took appropriate remedial or disciplinary action against the individuals
responsible for such acts or omissions;
7. Whether the person implemented or agreed to implement remedial measures to prevent a
recurrence of such acts or omissions including, without limitation, new or revised internal
control procedures and other measures recommended, identified or prescribed by any
government agency; and
8. Whether the person had adequate time to eliminate or mitigate the circumstances or factors
leading to or causing such acts or omissions.
4.23.070
Scope of debarment.
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A. Debarment of a person under this chapter constitutes debarment of that pers~m from submitting
bids or proposals to the city for the purpose of entering into or in any manner participating in any
city contract, or any part thereof, and shall apply to all individuals, divisions, subsidiaries, affiliates
and parent corporations ofthat person unless the decision to debar is limited by its terms to one
or more specificall y identified individuals, divisions, subsidiaries, affiliates, parents or other
organizational elements.
B. The debarment of a person shall apply to any existing affiliate of the person where the affiliate is
specifically named and given notice of the proposed debarment and an opportunity to respond. The
debarment shall also apply to any successor-in-interest or any affiliate ofthe debarred person
formed during or after the debarment proceedings.
C. Debarment of any person shall apply to any business entity, whether or not such business entitywas
in existence at the time of such debarment, for which the debarred person acts as a principal during
the debarment period.
4.23.080
Period of debarment.
The debarment period shall be commensurate with the severity of the person's acts or omissions,
as determined by the city manager, or the Hearing Board on appeal.
4.23.090
Debarment procedures.
A. Prior to debarring any person under this chapter, the city manager shall mail or deliver by personal
service a written notice of the proposed debarment to the person proposed to be debarred,
hereinafter referred to as "respondent." Such notice shall contain the following:
1. Notice that a debarment is being considered;
2. The grounds for the proposed debarment, in terms sufficient to put the respondent on
notice of the conduct or action(s) upon which it is based;
3. The intended period ofthe debarment;
4. A summary of the debarment procedures set forth is this chapter; and
5. The name and address to which the respondent may submit a written request for a hearing
on the proposed debarment.
B. Within thirty (30) days after personal service or mailing of the notice oftheproposed debarment,
the respondent or the respondent's representative may submit a written request for a hearing on
the proposed debarment and/or any written opposition to the proposed debarment. Such written
request and/or written opposition shall specify the name and address ofthe person to which all
subsequent notices and communications should be mailed.
C. Ifthe respondent requests a hearing in accordance with subsection B ofthis section, the city
manager shall, within thirty (30) days after receipt of such request, schedule an informal hearing at
which the respondent or the respondent's representative shall have a reasonable opportunity to
provide information and argument, including the presentation and questioning of witnesses, to the
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city manager. The hearing officer shall mail the respondent written notice ofthe time, date, and
location of such hearing, which shall be held no sooner than ten (10) days from the date of such
notice of hearing.
D. The formal rules of evidence shall not apply during the hearing. The city manager may consider all
relevant evidence, including the affidavits or declarations of witnesses; limit the scope of discovery;
shorten the time to produce records or witnesses; exclude witnesses from the hearing when not
testifying; exclude disorderly or disruptive persons from the hearing; and make other orders
necessary to ensure the fair and orderly conduct of the hearing. The hearing shall be open to the
public.
E. The proceedings at the hearing may be tape-recorded if ordered by the city manager or requested
by the respondent. A stenographer shall also transcribe the proceedings if ordered by the city
manager or requested by the respondent, with the costs thereofto be borne by the person making
the order orrequest. A copy of the tape recording or transcript of the proceedings shall be made
available to the respondent upon request and upon payment of the cost of preparation thereof.
F. The city manager' s debarment decision shall be rendered within thirty (30) days after expiration
of the thirty (30) day period specified in subsection B of this section, or within thirty (30) days after
a hearing is held, whichever is later. If the city manager decides it is in the best interest of the city
to impose debarment, such decision shall be in writing, shall contain findings of fact, and shall
specify the grounds for debarment based on the record of facts and information presented to the
city manager.
G. A copy ofthe city manager' s written decision shall be mailed to the respondent no later than five
(5) days after the written decision is made. If the city manager decides to impose debarment, the
decision shall specify the peJiod of debarment. Except in cases where the hearing officer's written
decision ordering disqualification is appealed in accordance with section 4.23.100 of this chapter,
the period of debarment shall begin on the date the written decision is mailed to the respondent.
In cases where the city manager' s decision is appealed in accordance with section 4.23.100 of this
chapter, the period of debarment shall begin on the date that the Hearing Board makes a decision
to uphold or modify the city manager's debarment decision, in accordance with section 4.23.100
of this chapter.
H. If the respondent fails to submit either a written request for a hearing or written opposition to the
proposed debarment within the thirty (30) day period specified in subsection B of this section, or
if respondent fails to appear at the hearing, the decision of the city manager shall be final, and shall
not be subject to appeal pursuant to Section 4.23.100 of this chapter.
4.23.100
Appeal to the Hearing Board.
A. The respondent or respondent's representative may appeal any decision made by the city manager
regarding a debarment or the period or scope of debarment imposed, by delivery to the city clerk
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ofa written notice of appeal no later than fifteen (15) days after the date that notice of the city
manager's decision is mailed to the respondent. The written notice of appeal shall include a copy
of the city manager's debarment decision.
B. Any appeal of a decision ofthe city manager regarding a debarment or the period or scope of
debarment imposed shall be heard by the Hearing Board.
C. If a valid notice of appeal is timely filed, the city clerk shall establish the date of the hearing before
the hearing examiner, and shall mail the respondent written notice of the hearing which specifies the
location, time, and date of the hearing, which shall be held no sooner than ten (1 0) days from the
date of such notice of hearing. Upon the timely receipt of a valid appeal, the city manager's
decision shall be vacated, pending a final decision by the Hearing Board.
D. The hearing before the Hearing Board shall be a de novo hearing. Evidence or testimony not
previously presented to the city manager shall not be permitted at the hearing unless the Hearing
Board determines, in its sole discretion, that the interests of justice require the consideration of such
new evidence or testimony. The Hearing Board shall have no power to declare the provisions of
this chapter unenforceable or unconstitutional, and the Hearing Board's decision shall be based on
the criteria specified herein.
E. The proceedings at the hearing shall be reported by a tape recorder. Either party may provide a
certified stenographer to maintain a record of the proceedings at the party's own expense. A
member of the Hearing Board shall administer the oath or affirmation. Government Code section
11513, subsections (a), (b), and (c), as presently written or hereafter amended, shall apply to
hearings under this section, except that relevant hearsay evidence may be sufficient in itselfto
support a finding ifit is the sort of evidence on which responsible persons are accustomed to rely
in the conduct of serious affairs.
F. At the hearing, the city manager shall bear the burden of showing, by a preponderance of evidence
in the record of facts and information presented to the city manager and the Hearing Board, that
there exist grounds for debarment in accordance with the provisions of this chapter. The Hearing
Board may take official notice, either before or after the close of the hearing, of any fact which may
be judicially noticed by the courts of the State of Cali fomi a or which may appear in any ofthe
officials records of the city or any of its departments.
G. The Hearing Board shall render a written decision no later than thirty (30) days after the close of
hearing. The Hearing Board may uphold, reverse, or modify the city manager's debarment
decision by simple majority. The Hearing Board's decision shall be in writing and shall specify the
reasons therefor. A copy ofthe Hearing Board's decision shall be mailed to the respondent no
later than five (5) days after the decision is made.
H. The decision ofthe Hearing Board shall be final. Judicial review of any decision made by the
Hearing Board pursuantto this section shall be governed by section 1094.5 ofthe Code of Civil
Procedure.
4.23.110
Review of decision.
A. The city manager or the Hearing Board, as the case may be, may reverse a decision to debar a
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person, or may reduce the scope or time period of debarment for any reason which obviates the
need for the debarment or which indicates a shorter debarment period will adequately protect the
public interest. Such reasons include, but are not limited to, the following:
1. Newly-discovered material evidence not previously available to the parties.
2. Reversal of the conviction, civil judgment, or administrative penalty or sanction upon the
debarment was based.
3. Bona fide change in ownership or management;
4. Elimination of other grounds for which the debarment was imposed.
B. The respondent shall have no right of review by the city manager or Hearing Board. Such review
shall be at the city manager's or Hearing Board's sole discretion.
C. A request for review shall be submitted by the respondent or the respondent's representative in
writing and shall be accompanied by competence evidence in support thereof. The debarred
person shall provide any additional documentation requested by the city manager or Hearing Board
in order to review such request. Upon receipt ofthe request, the city manager or the Hearing
Board, as the case may be, shall respond in writing within thirty (30) days as to whether the
decision will be reviewed. The city manager's or hearing officer's denial of such request shall be
non-appealable and not subject to judicial review.
D. Ifthe city manager or Hearing Board agrees to review the decision, a written decision shall be
rendered within thirty (30) days thereafter. The decision shall be final and shall be mailed to the
respondent or respondent's representative
E. A debarred person may not submit such a request until a minimum oftwelve (12) months have
elapsed after the initial period of debarment begins, and no more than one such request may be
submitted during each successive twelve (12) month period thereafter.
4.23.120
Requirement to submit information.
The city may require any person submitting a bid or proposal on a city contract to submit the
following as part of such bid or proposal:
A. A statement under penalty of peIjury, that neither such person, including any principal, affiliate or
predecessor-in-interest of such person, nor any subcontractor, supplier or surety engaged or to be
engaged by the person:
1. Is currently debarred or disqualified or has been debarred or disqualified at any time during
the preceding ten years, from submitting a bid or proposal on a contract by any federal,
state or local agency.
2. Has, at any time during the preceding ten years, been convicted of any offense, been
subject to a civil judgment or been subject to a penalty or sanction by any federal, state or
local agency for any act or omission described in section 4.23.050 of this chapter.
B. Any other information or documentation deemed necessary to determine the person's eligibility to
submit a bid or proposal on a city contract.
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4.23.130
Doing business with a disqualified person.
A. In performance of any city contract, no person having actual or constructive knowledge shall utilize
the services of any person who is currently debarred pursuant to this chapter. No person having
actual or constructive knowledge shall use or list, in any bid or proposal for a city contract, any
subcontractor, supplier, insurer or surety who is currently debarred pursuant to this chapter.
Violation of this section may result in rejection of the bid or proposal, nonpayment by the city for
work performed by such person, annulment of award or termination of an award of contract,
issuance of a stop work order, debarment, or any other remedy provided by law.
B. A person who uses or lists a debarred subcontractor, supplier, insurer or surety without having
actual or constructive knowledge of such debarment shall be allowed to substitute the debarred
subcontractor, supplier, insurer or surety in accordance with State law or, ifnot applicable, the
provisions of the contract governing contract changes.
4.23.140
Existing contracts.
A. The city shall not renew or extend the term of any existing contract( s) with any person who is
debarred in accordance with this chapter, or who utilizes the services of any supplier,
subcontractor, insurer or surety who is debarred in accordance with this chapter, unless the city
manager determines that such renewal or extensions is in the best interest of the city.
B. Notwithstanding the debarment of any person, the city may, at its sole option, elect to continue a
contract in existence at the time the person is debarred, unless the city manager determines that
termination of such contract is in the best interest of the city.
4.23.150
List of disqualified persons.
A. The city manager shall maintain a list of all persons who are currently debarred by the city pursuant
to this chapter and the effective dates of such debarment. Such list shall not include a person
debarred or disqualified by another local agency or the state or federal government unless the
person has been debarred by the city under this chapter. Such list shall be filed with the city clerk,
who shall make the list available for public inspection and copying during regular business hours
and in accordance with the California Public Records Act.
B. Such list shall be deemed to be constructive notice as to the persons who have been debarred from
submitting bids or proposals on city contracts or who are ineligible to participate in such contracts.
Section 2: The passage of this ordinance is not a "project" according to the definition
in the California Environmental Quality Act (Cal. Pub. Res. Code ~ 21000 et seq.), and is not
subject to the provisions requiring environmental review.
Section 3:
If any portion of this ordinance or the application thereof to any person
or
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circumstance shall be invalid or unenforceable to any extent, the remainder of this ordinance
shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
Section 4. This ordinance shall take effect 30 days after the date of its adoption, and
the City Clerk shall certify to the adoption thereof and cause its publication according to law.
I HEREBY CERTIFY that this ordinance was introduced and read at a regular meeting ofthe
City Council on the 15th day of June, 2004; and was read and adopted at a regular meeting of the City
Council on the 6th day of July, 2004, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
Cibula, Kight, Mathena, Steagall, and Pohlmeyer
None
None
None
Isl Michael J. Pohlmever
MICHAEL J. POIllLMEYER, Mayor
Attest:
Form Approved:
L YNETTEM. FREDIANI, Interim City Attorney
Isl Connie Strohmaver
CONNIE STROHMAYER, City Clerk
By: Isl Barry E. De Walt
BARRYE.DEWALT, Assistant City Attorney
C:\Documents and Settings\GrimmIMy Documents\COUNCIL\ORDlNANC\2334.wpd
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SUMMARY OF
CITY OF REDDING
ORDINANCE NO. 2334
The following is a summary Report of the City of Redding' s Ordinance No. 2334, an ordinance
of the City Council of the City of Redding amending the Redding Municipal Code by adding Chapter 4.23
(Debarment of Contractors) to Title 4 (Revenue and Finance) of the Redding Municipal Code.
Background:
The City of Redding ("City") presently does not have any procedure or ordinance that allows itto
debar contractors from bidding or submitting proposals on City contracts. Consequently, a contractor who
has breached prior contracts with the City, has violated laws or regulations, has submitted false information,
or is in pending litigation with the City would not be precluded from bidding on future contracts with the
City. In the event such a contractor was the low bidder, the City would be legally obligated to award the
contract to that contractor, notwithstanding its breaches of prior contracts or violations, so long as the bid
was responsive and the contractor is responsible. In order to protect the public's interest against such
contractors, the proposed ordinance would provide a procedure to allow the City to debar offending
contractors.
SUMMARY
The proposed ordinance would add Chapter 4.23 (Debarment of Contractors ), sections 4.23.01 0
- 4.23.150, to Title 4 (Revenue and Finance) of the Redding Municipal Code.
The proposed ordinance applies to all contracts awarded by or entered into by the City of Redding
and permits the City Manager, or the Hearing Board on appeal, to debar or prohibit any person or any
principal, affiliate or successor-in-interest thereof, from bidding upon, soliciting, or being awarded any
contract with the City or from being a subcontractor, supplier, supplier, insurer or surety at any tier upon
such contract in accordance with the procedures established by the ordinance. The Hearing Board shall
consist of the Director of Development Services or his/her designee and two members at large appointed
by the City Council. During the time period that a debarment is in effect, the City shall not accept bids or
proposals from, contract with or allow performance of all or any portion of a City contract by any person
who has been debarred in accordance with the provisions of the proposed ordinance.
Grounds for debarment set forth in section 4.23050 include, but are not limited to: fraud, bribery,
collusion, conspiracy, bid rigging, price fixing, embezzlement, forgery, theft, falsification or fabrication of
records, moral turpitude, petjury, lack of integrity or honesty, submission of false or misleading information,
pending litigation with the City, breach ofthe terms of a public contract, violation oflaws or regulations
applicable to a public contract, knowingly doing business with a disqualified or debarred third person in
performance of any public contract awarded after disqualification or debarment of said third person,
substandard performance on any public contract, violation of labor or safety statutes during the
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performance of any public contract, failure to maintain necessary licenses or permits in good standing,
violations oflaws or regulations regarding hazardous materials or wastes, violations oflaws or regulations
regarding solid waste, violations oflaws orregulations governing conflicts of interests, lack of financial
responsibility, and any other ground that the City Manager, or the Hearing Board on appeal, determines
would impair the ability of the person to perform a public contract.
Existence of grounds for debarment (section 4.23.060) may be determined to exist if, within ten
years, such person has been convicted of a criminal charge for any act or omission described above, a final
civil judgment has been entered against such person for any such act or omission, or such person has
committed one or more acts described above based on a preponderance of evidence presented to the City
Manager or the Hearing Board on appeal.
Section 4.23.080 states thatthedebarmentperiod shall be commensurate with the severity of the
person's acts or omissions, as determined by the City Manager, or the Hearing Board on appeal. Section
4.23.090 sets forth the debarment procedures and states that, prior to debarring any person, the City
Manager shall give notice of the proposed debarment to the person proposed to be debam:d. Within thirty
days after personal service or mailing of the notice of the proposed debarment, the respondent may submit
a written request for a hearing on the proposed debarment and! or any written opposi tion to the proposed
debarment. Within thirty days after receipt of such request, the City Manager shall schedule an informal
hearing at which the respondent shall have a reasonable opportunity to provide information and argument,
including the presentation and questioning of witnesses, to the City Manager. The formal rules of evidence
shall not apply during the hearing, and the hearing shall be open to the public. The City Manager's
debarment decision shall be rendered within thirty days after a hearing is held, or within thirty days after
expiration of the 30-day period in which to request a hearing if no hearing is requested. If the City
Manager decides it is in the best interest of the City to impose debarment, such decision shall be in writing,
contain findings of fact, and specify the grounds for debarment. The City Manager's decision shall be
mailed to the respondent no later than five days after the written decision is made. If the respondent fails
to submit either a written request for a hearing or written opposition to the proposed debarment within the
30-dayperiod to do so, the decision of the City Manager shall be final and not subject to appeal. In all
other instances, the respondent may appeal any decision by the City Manager regarding a debarment or
scope of debarment imposed with fifteen days after the date that notice ofthe City Manager's decision is
mailed to the respondent.
The appeal is governed by section 4.23.100. Any appeal ofa decision of the City Manager
regarding a debarment or the period or scope of debarment imposed shall be heard by the Hearing Board.
Upon the timely receipt of a valid appeal, the City Manager's decision shall be vacated, pending a final
decision by the Hearing Board. The hearing before the Hearing Board shall be a de novo hearing.
Evidence or testimony not previously presented to the City Manager shall not be permitted at the hearing
unless the Hearing Board determines, in its sole discretion, that the interests of justice so require. At the
hearing, the City Manager shall bear the burden of showing, by a preponderance ofthe evidence, that
there exist grounds for debarment. The Hearing Board shall render a written decision no later than thirty
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days after the close of hearing. The Hearing Board's decision shall be in writing and mailed to the
respondent no later than five days after the decision is made. The decision of the Hearing Board is final.
Judicial review of any decision made by the Hearing Board shall be governed by section 1094.5 ofthe
Code of Civil Procedure.
The procedure forreview of any decision is set forth in section 4.23.110. The Ci ty Manager, or
the Hearing Board, may reverse a decision to debar a person, or reduce the scope or time period of
debarment, for any reason which obviates the need for the debarment or which indicates a shorter
debarment period will adequately protect the public interest. The respondent shall have no right of review
by the City Manager or Hearing Board. Such review shall be at the City Manager's or Hearing Board's
sole discretion.
Under section 4.23 .120, the City may require any person submitting a bid or proposal on a City
contract to submit, as part os such bid or proposal: (1) a statement under penalty of perjury that such
person or hislher agents is currently debarred or disqualified or had been debarred or disqualified at any
time during the preceding ten years, from submitting a bid or proposal on a contract by any federal, state
or local agency; (2) a statement under penalty of perjury that such person or hislher agents has, at any time
during the preceding ten years, been convicted of any offense, been subject to a civil judgment or a penalty
or sanction by any federal, state or local agency for any act or omission described herein; and/or (3) any
other information or documentation deemed necessary to determine the person's eligibility to submit a bid
or proposal on a City contract.
Section 4.23 .130 governs doing business with a disqualified person. In performance of any City
contract, no person having actual or constructive knowledge shall utilize the services of any person who
is currently debarred by the City, or use or list any subcontractor, supplier, insurer, or surety who is
currently debarred. A person who uses or lists a debarred subcontractor, supplier, insurer or surety
without actual or constructive knowledge shall be allowed to substitute the debarred subcontractor,
supplier, insurer or surety in accordance with State law.
Section 4.23.140 provides that the City shall not renew or extend the term of any existing
contract( s) with any person who is debarred by the City, or who utilizes the services of any supplier,
subcontractor, insurer or surety who is debarred by the City, unless the City Manager determines that such
renewal or extensions is in the best interest of the City. Notwithstanding the debarment of any person, the
City may, at its sole option, elect to continue a contract in existence at the time the person is debarred,
unless the City Manager determines that termination of such contract is in the best interest of the city.
Pursuant to section 4.23 .150, the City Manager shall maintain a list of all persons who are currently
debarred by the City and the effective dates of such debarment. Such list shall not include a person
debarred or disqualified by another local agency or the state or federal government unless the person has
been debarred by the City. Such list shall be filed with the City Clerk, who shall make the list available for
public inspection and copying during regular business hours and in accordance with the California Public
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Records Act. Such list shall be deemed to be constructive notice as to the persons who have been
debarred from submitting bids or proposals on City contracts or who are ineligible to participate in such
contracts.
Ordinance No. 2334 was introduced and read at aregularmeetingofthe City Council on June 15,
2004, and was duly read and adopted at a regular meeting of the City Council on the 6th day ofJuly, 2004,
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
Cibula, Kight, Mathena, Stegall and Pohlmeyer
None
None
None
A complete copy of Ordinance No. 2334 is on file and available forreview in the Office ofthe City
Clerk.
ATTEST:
Isl Michael J. Pohlmeyer
MICHAEL J. POHLMEYER, Mayor
FORM APPROVED:
LYNETTE M. FREDIANI,
Interim City Attorney
Isl Connie Strohmayer
CONNIE STROHMA YER, Cit)r Clerk
By Isl Barry E. DeWalt
BARRY E. DEW AL T, Assistant City Attorney
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