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Home My WebLink About _ 9.14(a)--Offer Design Immunity Ordinance for First Reading by Title Only CITY OF REDDING REPORT TO THE CITY COUNCIL Recommendation Authorize and approve the following: (1) Offer Ordinance amending Redding Municipal Code Title 2 (Administration and Personnel), Chapter 2.28 (City Engineer), by adding Section 2.28.060 (Approval of Plans, Specifications and Designs) for first reading by title only and waive the full reading; (2) Authorize the City Attorney to prepare a summary ordinance and the City Clerk to publish the same in accordance with law; and (3) Find that adoption of the proposed ordinance is not a “project” within the meaning of the California Environmental Quality Act. Fiscal Impact There is no appreciable fiscal impact to adoption of the proposed ordinance. Alternative Action The City Council could decide to not offer the ordinance for first reading and provide other direction to the City Attorney. Failure to adopt the ordinance would not significantly impact the ability of the City of Redding (City) to defend claims and lawsuits related to allegations of defective design of public improvements. However, adoption of the ordinance will codify existing authority exercised by the City Engineer and more readily facilitate the City Attorney’s ability to defend lawsuits based on the affirmative defense of design immunity. MEETING DATE: September 19, 2023 ITEM NO. 9.14(a) FROM: ***APPROVED BY*** bdewalt@cityofredding.org btippin@cityofredding.org SUBJECT: 9.14(a)--Consider Design Immunity Ordinance relative to the City Engineer's existing authority. Barry DeWalt, City Attorney Report to Redding City Council September 13, 2023 Re: 9.14(a)--Offer Design Immunity Ordinance for First Reading by Title Only Page 2 Background/Analysis The City regularly receives claims and lawsuits which allege dangerous conditions of public property. For those claims and lawsuits which allege that harm was due to a faulty or defective design of a public improvement, the California Legislature has codified an im munity known as “Design Immunity.” The Design Immunity defense is codified at Government Code section 830.6. It provides, in pertinent part, as follows: Neither a public entity nor a public employee is liable … for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval. (emphasis mine) The best way to demonstrate that some other employee may exercise the discretion to approve a plan, specification or design, is to have a clear delegation of authority by the Council to that public officer. Further, the most certain means of demonstrating that delegation is by ordinance. The proposed ordinance makes a clear delegation to the City Engineer for the approval of plans, specifications and designs. It further establishes that there are many means by which the City Engineer may exercise that delegated authority. The construction of a public improvement is a dynamic activity. Conditions in the field during the course of construction often require changes in the plans, specifications or design. The proposed ordinance is intentionally drafted for the purpose of permitting the City Engineer to exercise the authority to approve changes in plans, specification or design in a multitude of ways. It permits the exercise of discretion by the City Engineer both in the office and in the field. It further eliminates any argument that the exercise of authority to approve certain plans, specifications or designs could only be exercised by some formal act (i.e., stamping, signature). An ordinance is the most effective means of establishing a delegation of authority from the Council to the City Engineer to approve plans, specifications and designs. Adoption of the ordinance will improve the City Attorney’s ability to advance the “design immunity” defense and should serve to discourage litigation. Environmental Review Adoption of the proposed ordinance is not a project within the meaning of the California Environmental Quality Act because its adoption will cause no significant impact on the physical environment. Council Priority/City Manager Goals This agenda item is a routine operational item. Attachments ^Clean Ordinance 1 DRAFT NEW ORDINANCE ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF REDDING AMENDING TITLE 2 (ADMINISTRATION AND PERSONNEL), CHAPTER 2.28 (CITY ENGINEER) BY ADDING SECTION 2.28.060 (APPROVAL OF PLANS, SPECIFICATIONS AND DESIGNS) RELATING TO CODIFYING EXISTING AUTHORITY IN THE CITY ENGINEER TO EXERCISE DISCRETION IN THE APPROVAL OF PLANS, SPECIFICATIONS AND DESIGN OF ALL PUBLIC IMPROVMENTS THE CITY COUNCIL OF THE CITY OF REDDING DOES ORDAIN AS FOLLOWS: Section 1. Purpose. It is the purpose of this ordinance to codify existing authority in the City Engineer to exercise all discretion in the approval of plans, specifications and design of all public improvements. It is intended that this ordinance will conclusively establish the affirmative defense of design immunity, as set forth in Government Code section 830.6. Section 2. Title 2 (Administration and Personnel), Chapter 2.28 (City Engineer), Section 2.28.060 is amended to read as follows: 2.28.060 – Approval of Plans, Specifications and Designs. A. In accordance with Government Code section 830.6, as it may be amended from time to time, the City Council hereby delegates authority to the City Engineer, or designee, to approve plans, specifications, and designs and all amendments and addenda thereto. This authority includes, but is not limited to, the adoption of field changes through the change order process, and/or approval of as-built plans for all public works contracts and improvements, however, established. B. The City Engineer is not required to affix a signature, stamp or other indication of approval in order to exercise the discretion vested herein. The adoption of any plan, specification or design, as set forth in Subdivision (A), whether individually tailored to a specific improvement or as a standard form to be applied generally, shall itself evidence the City Engineer’s exercise of discretion. Section 2. Severability. If any section, subsection, sentence, clause or phrase of these ordinances is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of the ordinances. The City Council of the City of Redding hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause and phrase thereof irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional. Section 3. The passage of this ordinance is not a “project” according to the definition in the California Environmental Quality Act, and therefore is not subject to the provisions requiring environmental review. 2 Section 4. This ordinance shall take effect thirty (30) days after the date of its adoption, and the City Clerk shall certify to the adoption thereof and cause publication according to law. I HEREBY CERTIFY that the foregoing ordinance was introduced and read by the City Council of the City of Redding at a regular meeting on the 19th day of September, 2023, and was duly adopted at a regular meeting on the ____ day of October, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: __________________________________ MICHAEL DACQUISTO, Mayor ATTEST: FORM APPROVED: ______________________________ __________________________________ SHARLENE TIPTON, City Clerk BARRY E. DeWALT, City Attorney DATE ATTESTED: October ____, 2023