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HomeMy WebLinkAboutOrdinance - 2334 - Amend Title 4.0 .1 -, . . 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 Contractors) 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 ofthis chapter are intended to determine in advance of submittal ofbids or proposals on city contracts whether a person has the necessary qualifications, fitness, capacity, integrity and trustworthiness to perform ci ty 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 oftrus 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 ~ ~ ~ ~ . . 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 or render a person ineligible to bid upon, solicit, be awarded or perform public contracts 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 2 4.23.030 4.23.040 . . 1. 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. J. 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; 3 . / . (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 pelJury. B. Commission of any act indicating a lack of integrity or honesty. C. Submission of a bid, proposal, insurance policy, bond, guarantee or other docwnent 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 of the 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. 1. 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 of the 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. 4 . . 4.23.060 Existence of grounds. A. Existence of grounds for debarment as described in Section 4.23.050 of this 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 ofthis 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. 5 . . A. Debarment of a person under this chapter constitutes debarment of that person 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 of that person unless the decision to debar is limited by its terms to one or more specifically 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 entity was 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 of the debarment; 4. A summary ofthe 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 ofthe notice of the proposed 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 of the person to which all subsequent notices and communications should be mailed. C. If the respondent requests a hearing in accordance with subsection B of this section, the city manager shall, within thirty (30) days after receipt of such request, schedule an infOlmal he.:11ing 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 6 . . city manager. The hearing officer shall mail the respondent written notice of the 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 orrequested by the respondent. A stenographer shall also transcribe the proceedings if ordered by the city manager orrequested by the respondent, with the costs thereof to be borne by the person making the order orrequest. A copy of the tape recording or transcript ofthe 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 of the 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 period of debannent. 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 4.23.1 00 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 debannent decision, in accordance with section 4.23.1 00 of this chapter. H. Ifthe 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 7 . . of a 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 of the 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 (I 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 off acts 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 ofthe State of Cali fomi a or which may appear in any of the officials records of the city or any of its departments. G. The Hearing Board shall render a written decision no later than thirty (3 0) 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 of the Hearing Board's decision shall be mailed to the respondent no later than five (5) days after the decision is made. H. The decision of the Hearing Board shall be final. Judicial review of any decision made by the Hearing Board pursuant to this section shall be governed by section 1094.5 of the 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 8 . . 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 of the 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. If the 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 of twelve (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. 9 . . 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, if not 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 10 .. I. . . 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 -- Attest: Form Approved: L YNETTEM. FREDIANI, Interim City Attorney "',,', '.. , " J' \ "_I . 1 )}~ ',\. _ . / . C>(~:~W~.' J, CONNlt 8T;.aOHMAYER, ~jiy t . . ~ ... lJy:~A~/ BARRyE.DEW ALl', Assistant City Attorney - " ., ,i'''- ... ... ,- , I ~', ,.' \ . ~ / ,/,,' , C:\Documents and SettingslGrinunIJ'<I!y Documents\COUNCIL\ORDINANC\2334.wpd 11