Chapter 2.57 — DEBARMENT

A. The City intends to accept bids or responses to requests for proposals or qualifications from, award contracts to, execute contracts with, consent to subcontracts, or do business in any way only with responsible contractors. "Responsibility" is a qualitative term embracing the attributes of integrity and trustworthiness, as well as the quality, fitness and capacity to perform City contracts. The City finds that the consideration of bids or responses from contractors who lack any of these attributes compromises the integrity of the contracting process and is contrary to state contracting law.

B. The provisions of this chapter are intended to determine, in advance of submittal of bids or
proposals on City contracts, whether a contractor is responsible or should be debarred as
irresponsible. Debarment is a discretionary action designed to protect the City by ensuring
only responsible contractors are able to participate in the full and open competition for
contractual relationships with the City. Despite the serious consequences these proceedings
may have on a contractor, debarment under this chapter is not meant as a punishment.
These procedures are a necessary and appropriate means to enable the City to deal with
irresponsible contractors, and to administer its duties with efficiency.

C. 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 contractor submitting the bid or proposal is responsible.
(Ord. 1283 § 1, October 3, 2016)

The following definitions apply for the purposes of this chapter:

"City contract" means any written agreement between the City and a contractor, as defined
below. It includes, but is not limited to, a public works contract.

"Contractor" means a person, partnership, corporation, or other entity who has contracted with,
or is seeking to contract with, the City to provide goods to, or perform services for or on behalf
of, the City. A contractor includes a contractor, subcontractor, vendor, or any of their respective
officers, directors, owners, co-owners, shareholders, partners, managers, employees, or other
individuals or entities associated with the contractor, subcontractor, or vendor who participated
in, knew of, or should reasonably have known of conduct that results in a debarment.

"Debarment" means the administrative determination declaring a contractor to be irresponsible
and disqualified from:

1. Bidding on a City contract;

2. Submitting responses to City's request for proposals or qualifications;

3. Being awarded a City contract;

4. Executing a City contract;

5. Participating in a City contract as a subcontractor, material supplier, or employee of a prime
contractor or another subcontractor;

6. Directly or indirectly submitting offers for, or executing City contracts, or subcontracts
with the City; or

7. Conducting business with the City as an employee, agent, or representative of another
contractor.

"Hearing Officer(s)" means the individual or panel of individuals selected to conduct an
administrative hearing, take evidence, and make a debarment determination for the City. The
Hearing Officer shall be selected in accordance with the procedures set forth in Section 8.02.130,
subsections A, B, D and E, of this Code.

"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.
(Ord. 1283 § 1, October 3, 2016)

A. The Hearing Officer, or the City Council on appeal, may debar and prohibit any contractor from bidding upon, soliciting, or being awarded any City contract or from being a subcontractor, supplier, insurer or surety at any tier upon such contract, for an appropriate period of time, in accordance with the procedures established by this chapter.

B. Except as provided by this chapter, during the time period that a debarment is in effect for
a contractor, 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 that contractor.

Debarment may be imposed on a contractor by the Hearing Officer, or City Council on appeal, in accordance with the procedures established in this chapter for any act that impairs the integrity, trustworthiness, quality, fitness or capacity of the contractor to perform City contracts. The following is a nonexclusive list of grounds which may result in debarment:

A. Commission by such contractor of any act of:

1. Fraud, bribery, collusion or conspiracy;

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, or the failure to take action, which indicates a lack of business
integrity or honesty, and could directly affect the reliability and credibility of performance
of the contractor on future contracts with the City.

C. Submission of a bid, proposal, insurance policy, bond, guarantee or other document that is known, or should be known, by such contractor to be false, misleading or nonmeritorious
or to contain false information.

D. Submission of any false, misleading or nonmeritorious claim, demand or lawsuit against
any private party or public agency, including the City.

E. Pending litigation between the contractor 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 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, or during the
performance of, a public contract.

H. Knowingly doing business with a disqualified or debarred third party in performance of
any public contract awarded after disqualification or debarment of said party. Knowledge
under this section can be actual or constructive. It is the responsibility of any contractor
who wishes to contract with the City to be aware of those contractors who are currently
disqualified or debarred from performing City contracts.

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 contractor or such contractor's 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(s) of any law or regulation governing the handling, transfer, storage or disposal of hazardous materials or hazardous wastes.

M. One or more violation(s) of any law or regulation governing the handling, transfer, storage
or disposal of solid waste generated during the performance of a public contract.

N. A violation of any law or regulation governing conflicts of interest.

O. Evidence that the contractor lacks financial responsibility, such as unpaid debts, unfulfilled
insurance or bond obligations or other evidence of financial instability or irresponsibility.

P. Debarment by any other governmental agency.

Q. Any other ground that the Hearing Officer, or City Council on appeal, determines would
impair the ability of the contractor to responsibly perform a public contract or any part
thereof.
(Ord. 1283 § 1, October 3, 2016)

A. Existence of grounds for debarment as described in Section 2.57.040 may be determined to exist by the Hearing Officer, or by the City Council on appeal, if any of the following is shown by a preponderance of the evidence:

1. Such contractor has been convicted of a criminal charge for any act or omission
described in Section 2.57.040, whether entered by a verdict or a plea including a plea
of no contest;

2. A final civil judgment has been entered against such contractor for any act or
omission described in Section 2.57.040; or

3. Such contractor has committed one or more acts or omissions described in Section
2.57.040, based on a preponderance of evidence in the record before the Hearing
Officer, or the City Council on appeal.

B. An act or omission described in Section 2.57.040 may be imputed to a contractor who is
the subject of a proposed debarment when such act or omission is committed for or on
behalf of such contractor.
(Ord. 1283 § 1, October 3, 2016)

A. The debarment period may be temporary or permanent, and shall be commensurate with the severity of the contractor's acts or omissions, as determined by the Hearing Officer or, on appeal, the City Council. The Hearing Officer, or City Council on appeal, may also consider the existence or non-existence of mitigating factors set forth in subsection B of this section. The initial period of a temporary debarment shall be no less than one year, but shall not exceed 10 years.

B. The following mitigating factors may be considered in determining the length of the
debarment period:

1. The degree to which the contractor cooperated with local, state or federal authorities
in any investigation and/or any administrative or judicial proceeding forming the
basis for debarment;

2. Whether the contractor has paid, or has agreed to pay, restitution for any damages
incurred by the City or another party as a result of the ground(s) for debarment;

3. Whether the contractor took appropriate disciplinary action against the individual(s)
responsible for the ground(s) for debarment;

4. Whether the contractor had in place adequate and effective standards of conduct and
internal control systems at the time of such acts or omissions;

5. Whether the contractor provided timely notice of such acts or omissions to the appropriate government agency or agencies; and

6. Whether the contractor implemented or agreed to implement remedial measures to
address the ground(s) for debarment or 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.
(Ord. 1283 § 1, October 3, 2016)

A. Prior to debarring any contractor under this chapter, the City Manager or designee shall mail or deliver by personal service a written notice of proposed debarment to the contractor proposed to be debarred, hereinafter referred to as "respondent." Such notice shall contain:

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 of the debarment consequences; and

5. Notice that a hearing on the proposed debarment may be requested and the deadline
for submitting a written request for such a hearing.

B. Within 15 days after service of the notice of 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
Hearing Officer shall, within 15 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 Hearing Officer. 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 10 days from the date the notice of hearing is served.

D. The hearing shall be as informal as is compatible with the requirements of justice. The
formal rules of evidence shall not apply. The Hearing Officer may consider all relevant
evidence, including affidavits or declarations of witnesses; limit the scope of discovery;
and shorten the time to produce records or witnesses. The hearing shall be open to the
general public, but the Hearing Officer may 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.

E. The proceedings at the hearing shall be audio-recorded. A stenographer shall also
transcribe the proceedings if ordered by the Hearing Officer or requested by the respondent,
with the costs thereof to be borne by the person making the order or request. A copy of any
audio 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 Hearing Officer's debarment decision shall be rendered within 30 days after the hearing
is completed. The Hearing Officer may extend the time to render a decision for good cause
and shall notify respondent of the length of such extension. The Hearing Officer's decision
shall be in writing, shall contain findings of fact, and shall specify the grounds for
debarment based on the evidence before the Hearing Officer.

G. A copy of the Hearing Officer's written decision shall be served on respondent and the City
Clerk no later than five days after the written decision is made. If the Hearing Officer
decides to impose debarment, the decision shall specify the period of debarment. Except in
cases where the Hearing Officer's written decision ordering disbarment is appealed in
accordance with Section 2.57.080, the period of debarment shall begin on the date the
written decision is mailed to the respondent. In cases where the Hearing Officer's decision
is appealed in accordance with Section 2.57.080, the period of debarment shall begin on
the date that the City Council makes a decision to uphold or modify the Hearing Officer's
debarment decision, in accordance with Section 2.57.080.
(Ord. 1283 § 1, October 3, 2016)

A. The City Manager or the respondent may appeal the final determination of the Hearing Officer regarding debarment or the period of debarment imposed, by respondent delivering a notice of appeal to the City Clerk, or the City Manager serving a notice of appeal on the respondent, not later than 15 days after notice of the Hearing Officer's final determination was served on the appealing party. The written notice of appeal must include a copy of the Hearing Officer's final determination.

B. An appeal of the Hearing Officer's final decision regarding debarment shall be heard by the
City Council.

C. If a notice of appeal is timely filed, a hearing shall be set before the City Council, and a
written notice of the hearing specifying the location, time and date of the hearing, which
shall be held no sooner than 10 days from the date of such notice of hearing, shall be mailed
to respondent.

D. The hearing before the City Council shall be a de novo hearing. On appeal, the City Council
may consider any issue or evidence relevant to the debarment decision, in addition to the
specific grounds for the appeal.
(Ord. 1283 § 1, October 3, 2016)

A. At the City Council hearing on appeal, no new evidence may be presented. If respondent wishes to submit written argument supporting the appeal, then respondent shall do so by submitting said written argument to the City Clerk seven calendar days before the scheduled hearing. Person submitting the argument shall also serve it on all persons subject to the debarment and on the Hearing Officer.

B. The failure to submit a written argument does not preclude a person from presenting an oral argument at the appeal hearing. (Ord. 1283 § 1, October 3, 2016)

Whenever notice is required to be given under this chapter, the notice shall be served by any of the following methods:

A. Personal delivery, service shall be deemed effective on the date of delivery; or

B. Registered or certified mail, return receipt requested, simultaneously with regular mail. If
notice sent by registered or certified mail under this subsection is returned unsigned, then
delivery shall be deemed effective pursuant to regular mail, provided the notice that was
sent regular mail is not also returned unclaimed. Service shall be deemed effective on the
date of mailing.
(Ord. 1283 § 1, October 3, 2016)

A. Failure of respondent or respondent's representative to submit a request for hearing or written opposition to the notice of proposed debarment within the time frame specified in subsection B of Section 2.57.070, or failure to appear at any hearing, shall be deemed an admission of the allegations stated in the notice of proposed debarment. Upon such failure, the City Manager, or Hearing Officer if one has been appointed, may adopt the debarment proposed in the notice of proposed debarment without further proceedings. A debarment adopted pursuant to this subsection shall be final and not subject to appeal.

B. Failure of respondent or respondent's representatives to appear for any hearing under
Section 2.57.070, for which notice has been served, shall be deemed an admission of the
allegations in the notice of proposed debarment.

C. If respondent or respondent's representative fail to submit a valid and timely notice of
appeal from a decision of the Hearing Officer, the decision of the Hearing Officer shall be
final and not subject to appeal.

D. If respondent or respondent's representative fail to appear at a hearing before the City
Council under Section 2.57.080, for which notice has been served, the decision of the
Hearing Officer shall become final and the period of debarment shall begin immediately.
(Ord. 1283 § 1, October 3, 2016)

A. The City shall not renew or extend the term of any existing contract(s) with any contractor 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, in his or her sole discretion, determines that such renewal or extensions is in the best interest of the City.

B. Notwithstanding the debarment of any contractor, the City may, at its sole option, elect to
continue a contract in existence at the time a contractor is debarred, unless the City
Manager determines that termination of such contract is in the best interest of the City.
(Ord. 1283 § 1, October 3, 2016)

The City Manager may extend the period of temporary debarment by up to three years, by issuing a notice of debarment extension, if necessary to protect the public interest due to the continued lack of mitigating factors set forth in subsection B of Section 2.57.060. Prior to issuing a notice of debarment extension, the City Manager shall afford the debarred contractor notice and an opportunity to be heard on the continued lack of mitigating factors. The City Manager may preside over a hearing on a proposed extension or may designate one or more individuals to act as hearing officers. The City Manager's decision to extend the debarment period following a hearing, if requested, shall be final. (Ord. 1283 § 1, October 3, 2016)

A. At any time after one year from a final decision on debarment, the City Manager or, if the City Council issued the final debarment decision, the City Council may shorten the debarment period 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 that was not previously available to the parties;

2. Reversal of the conviction, civil judgment, or administrative penalty or sanction upon
which the debarment was based;

3. Bona fide changes in ownership or management;

4. Elimination of other grounds for which debarment was imposed.

B. Respondent may not submit a request under this section until a minimum of one year has
elapsed since the final decision on debarment was served on the respondent. No more than
one request for review under this section may be submitted during each successive one-year
period. The request shall be submitted by respondent or respondent's representative in
writing to the City Clerk and shall be accompanied by any and all evidence in support
thereof. The debarred contractor shall also provide any additional documentation requested
in order to review such request.

C. Any such review under this section shall be at the sole discretion of the City Manager or, if
the City Council issued the final debarment decision, at the discretion of the City Council.
The respondent does not have a right to review of debarment by either the City Manager or
the City Council. The decision to shorten or maintain a debarment period shall not be
appealable.
(Ord. 1283 § 1, October 3, 2016)

A. The City shall maintain a list of all contractors who are currently debarred by the City pursuant to this chapter and the effective dates of such debarment. Such list shall not include a contractor debarred or disqualified by another local agency or the state or federal government unless the contractor has been given notice and an opportunity for a hearing under this chapter. Such list shall be 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 that the contractors listed have been
debarred from submitting bids or proposals on City contracts and are ineligible to
participate in such contracts or proposals.
(Ord. 1283 § 1, October 3, 2016)