Carlsbad Municipal Code Ch. 3.32 Claims and Demands

Demands, before payment, shall be processed in accordance with the following procedure:

A. Demands other than payroll demands shall, before payment, be duly certified:

1. By the department head for whom the work was performed;

2. By the Finance Director that such demands conform to the budgetary allowances set forth by the City Council.

B. Payroll demands shall, before payment, be duly certified as follows: The department heads shall certify or approve departmental attendance or payroll records for employees in their departments. The Finance Director shall certify attendance or payroll records for other officers and employees.

C. After demands have been certified in accordance with the foregoing, the Finance Director shall prepare warrants upon funds of the city as authorized by the City Council in appropriate budgetary and salary resolutions. For other than payroll warrants, the Finance Director shall indicate on each warrant the fund from which such warrant demands are to be paid and the purpose for which such warrant is issued. The Finance Director shall then transmit the prepared warrants to the City Treasurer and the Mayor for signature. The signature of the Mayor and the treasurer may be affixed by a stamped facsimile of their signature by an authorized representative.

(Ord. 1215 § 2, 1979; Ord. 1294 § 1, 1987)

Warrants and payroll checks on checks drawn in payment of demands or payroll obligations certified or approved by the Finance Director as conforming to the city's budget as adopted or amended by council shall be presented to the City Council in the form of an audited comprehensive annual financial report.

(Ord. 1215 § 2, 1979; Ord. 1294 § 2, 1986)

A. Any contractor, subcontractor or consultant who commits any of the following acts may be liable to the city for three times the amount of damages which the city sustains because of the act of that contractor, subcontractor or consultant. A contractor, subcontractor or consultant who commits any of the following acts shall also be liable to the city for the costs, including attorney's fees, of a civil action brought to recover any of those penalties or damages, and may be liable to the city for a civil penalty of up to $10,000.00 for each false claim:

1. Knowingly presents or causes to be presented to an officer or employee of the city a false claim or request for payment or approval;

2. Knowingly makes, uses or causes to be made or used a false record or statement to get a false claim paid or approved by the city;

3. Conspires to defraud the city by getting a false claim allowed or paid by the city;

4. Knowingly makes, uses or causes to be made or used a false record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the city;

5. Is a beneficiary of an inadvertent submission of a false claim to the city, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the city within a reasonable time after discovery of the false claim.

B. This section does not apply to any controversy involving an amount of less than $500.00 in value. For purposes of this subsection, "controversy" means any one or more false claims submitted by the same contractor, subcontractor or consultant in violation of this section.

C. Every contract performed at the expense of the city, or the costs of which are paid for out of monies deposited in the treasury of said city, whether directly awarded or indirectly by or under subcontract, subpartnership, day labor, station work, piece work, or any other arrangement whatsoever, shall contain a clause reciting the provisions of subsection A of this section.

D. Liability under this section shall be joint and severable for any act committed by two or more persons.

E. For purposes of this section, the terms "contractor" and "subcontractor" shall have the same definitions as found in Section 4113 of the Public Contract Code. The term "consultant" shall be broadly defined to include any person or entity that provides services to the city.

F. For purposes of this section, "claim" includes any request or demand for money, property or services made to any employee, officer or agent of the city, or to any contractor, subcontractor, grantee or other recipient, whether under contract or not, if any portion of the money, property or services requested or demanded issued from, or was provided by, the city.

G. For purposes of this section, "knowingly" means that a contractor, subcontractor or consultant, with respect to information, does any of the following:

1. Has actual knowledge of the information;

2. Acts in deliberate ignorance of the truth or falsity of the information;

3. Acts in reckless disregard of the truth or falsity of the information. Proof of specific intent is not required and reliance on the claim by the city is also not required.

(Ord. NS-313 § 1, 1995; Ord. NS-681 § 1, 2003)

A. Any contractor, subcontractor or consultant who fails to comply with the terms of its contract with the city or the provisions of this chapter may be declared an irresponsible bidder, after a hearing in accordance with Section 3.32.028. Upon a determination of irresponsibility, the contractor, subcontractor or consultant (or any other entity with substantially the same officers, directors, owners or principals) shall not be permitted to submit bids, contract, subcontract, or conduct business on any public work or improvement for the city for the period of the debarment. The contract of any such person or entity may, at the option of the City Manager, be canceled and in the event of such cancellation, no recovery shall be had thereon by the contractor, subcontractor or consultant.

B. Any one of the following acts or omissions may constitute grounds for temporary debarment of three to five years:

1. The contractor, subcontractor or consultant unsatisfactorily performed a contract;

2. The contractor, subcontractor or consultant unjustifiably failed to honor or observe contractual obligations or legal requirements pertaining to the contract;

3. The contractor, subcontractor or consultant used substandard materials or has failed to furnish or install materials in accordance with the contract requirements, even if the discovery of the defect is subsequent to acceptance of the project and expiration of the warranty thereof, if such defect amounts to intentionally deficient or grossly negligent performance of the contract under which the defect occurred;

4. The contractor, subcontractor or consultant willfully failed to cooperate in the investigation or hearing of the proposed debarment;

5. The contractor, subcontractor or consultant performs, or fails to perform, the contract in such a way that significant environmental damage results, or a violation of environmental laws or permits is committed; or

6. The contractor substitutes a subcontractor in violation of Section 4100 et seq., of the Public Contract Code (Subletting and Subcontracting Fair Practices Act).

C. Any of the following may constitute grounds for permanent debarment of the contractor, subcontractor or consultant:

1. Any violation of Section 3.32.025(A);

2. A final conviction under any state or federal statute or municipal ordinance, including a plea of nolo contendere, or final unappealable civil judgment of any one or more of the grounds listed below:

a. Embezzlement, theft, fraudulent schemes and artifices, fraudulent schemes and practices, bid rigging, perjury, forgery, bribery, falsification or destruction of records, receiving stolen property or any offense demonstrating a lack of business integrity, business honesty or responsibility on the part of the contractor, subcontractor or consultant's responsibility;

b. A criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such a contract;

c. Violations of the California Government Code, Section 84300 or 84301 (sections of the California Political Reform Act requiring disclosure of the true campaign donor) or Section 1.13.025 of the Carlsbad Municipal Code, relating to any city election, or any amendments to the code;

d. Fraud or criminal offense in connection with obtaining a public contract;

e. Conviction under federal or state antitrust statutes involving public contracts;

3. Any two or more of the acts or omissions specified in Section 3.32.026(B).

D. In addition to all other remedies permitted by law, the City Council may, upon the recommendation of the City Manager and upon advice of the City Attorney, by resolution, declare a bidder or contractor ineligible to bid on city procurement and public works contracts based upon any debarment of the contractor, subcontractor or consultant by another governmental agency, for the debarment period designated by the other agency.

(Ord. NS-313 § 2, 1995; Ord. NS-342 §§ 1, 2, 1996; Ord. NS-681 § 2, 2003)

The covenant of good faith and fair dealing is contained in every city contract, and contractors, subcontractors and consultants shall at all times deal in good faith with the city and shall submit claims, requests for equitable adjustments, requests for change orders, requests for contract modifications or requests of any kind seeking increased compensation on a city contract only upon a good faith, honest evaluation of the underlying circumstances and a good faith, honest calculation of the amount sought. Violation of this section subjects the contractor, subcontractor or consultant to the penalties set forth in this chapter, including disqualification. The act of knowingly submitting a false, untrue or misleading claim, request for equitable adjustment, request for contract modification, request for change order or request of any kind seeking increased compensation is sufficient of itself to subject the contractor, subcontractor or consultant to the penalties stated in this chapter, regardless of the city's reliance on, or response to, the submission.

(Ord. NS-313 § 3, 1995)

A. When an action is brought pursuant to Section 3.32.025, 3.32.026 or 3.32.027 of this chapter, the contractor, subcontractor or consultant shall be given notice of the charges and of all evidence supporting such charges. The contractor, subcontractor or consultant or its attorney shall be entitled to offer rebuttal evidence and any other evidence in support of its position.

B. The city shall schedule a hearing, as soon as practicable upon delivery of the notice to the contractor, where all evidence supporting grounds for debarment shall be presented. The hearing shall be conducted before an unbiased arbitrator with expertise in the area related to the contract. Any such hearing shall be conducted pursuant to the applicable sections of the American Arbitration Association's Construction Industry Arbitration Rules, or other applicable arbitration rules. The arbitrator shall follow and comply with all applicable California case, statutory, and regulatory law in arriving at a decision. The City Attorney may, in his or her discretion, appoint outside counsel to prosecute the charges.

C. The parties shall attempt to agree upon an unbiased third-party arbitrator. If unable to agree, each party shall select an arbitrator. The two selected arbitrators shall agree on a third arbitrator, who will conduct the hearing. The parties shall share the costs of conducting the hearing before an arbitrator.

D. A decision of the arbitrator, making a finding of irresponsibility, is final and effective 10 calendar days after a written determination and delivery of the decision to the parties, unless within the 10-day period following delivery, the contractor, subcontractor or consultant, or the City Manager, submits a written appeal to the City Council, filed with the City Clerk for the City Council. The written appeal shall specifically state the reason(s) for the appeal and the manner in which the decision of the arbitrator is in error. Fees for filing an appeal under this section shall be established by resolution of the City Council.

E. The decision of the arbitrator shall be affirmed by the City Council unless the appellant shows by a preponderance of the evidence that the decision of the arbitrator is in error or inconsistent with state law. The appeal hearing shall be held as soon as practicable after the date of filing the appeal. Within 10 days following the conclusion of the hearing, the City Council shall render its decision on the appeal. The decision of the City Council is final.

F. All proceedings shall be as informal as is compatible with the requirements of justice. The arbitrator and/or City Council need not be bound by the common law or statutory rules of evidence and procedure, but may make inquiries in the matter through all means and in a manner best calculated to make a just factual determination.

(Ord. NS-313 § 4, 1995; Ord. NS-681 § 3, 2003)

Whenever a notice is required to be delivered under this chapter, the notice shall be delivered by any one of the following methods. Service is effective as described herein unless different provisions are specifically stated to apply:

A. Personal Delivery. Service shall be deemed effective on the date of delivery. Proof of delivery of notice may be made by the certification of any designated person over the age of 18 years by declaration under penalty of perjury. The proof shall show that the delivery was done in conformity with this section or other provisions of law applicable to the subject matter concerned.

B. Certified Mail, Postage Prepaid, Return Receipt Requested. Service shall be deemed effective on the date of mailing. If a notice is sent simultaneously by regular mail and the notice of certified mail is returned unsigned, then service by regular mail will be deemed effective on the date mailing provided the regular mail notice is not returned.

C. Publication. Service shall be deemed effective on the first date of publication.

(Ord. NS-681 § 4, 2003)

A. When not otherwise prohibited by law, the City Manager may authorize a refund in an amount up to $25,000.00 for monies that were erroneously paid to or collected by, but not actually due to the city at the time the funds were received, such as overpayments or duplicate payments.

B. A written request for refund, signed by the person paying the fee or by the department head of the requesting department shall be filed with the Finance Director setting forth the facts and reasons which justify the request.

C. The Finance Director shall investigate the request and forward the request and his or her recommendation to the City Manager or designee.

D. The City Manager or designee shall make written findings that support the authorization for refund and shall send to the City Council regular reports of refunds exceeding $10,000.00.

E. The City Manager may also authorize a refund when the request for refund is based on the withdrawal of an application for a development project requiring a fee for city services, including, but not limited to, checking of improvement plans, review of tentative tract maps, site development plans, conditional use permits, or other similar zoning permits and building permits. The city shall retain a portion of the application fee as compensation for staff time invested in the acceptance and processing functions through the time the refund was requested. The appropriate department head shall provide the Finance Director with an estimate of the number of hours spent in processing any such application or permit as the basis for the city's retention. The City Manager may then authorize the refund of any remaining balance.

F. Upon receipt of proper authorization, the Finance Director shall make the refund.

(Ord. 1215 § 2, 1979; Ord. 1284 § 1, 1985; Ord. 142 § 1, 2011)

A. No claim for damages against the city shall ever be allowed or paid unless there has been first filed with the City Clerk a claim therefor within the time periods required by subsection B of this section. All such claims for damages shall be first verified by the claimant before an officer authorized to administer oaths.

B. A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be filed not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be filed not later than one year after the accrual of the cause of action.

(Ord. 1215 § 2, 1979; Ord. 1296 § 5, 1987; Ord. NS-150 § 1, 1991)